Workers' Compensation Regulator v Bradley

[2020] QIRC 215

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Workers' Compensation Regulator v Bradley [2020] QIRC 215

PARTIES:

Workers' Compensation Regulator
(Applicant)

v

Bradley, Holly Jayne
(Respondent)

CASE NO:

WC/2020/19

PROCEEDING:

Application to dismiss

DELIVERED ON:

23 November 2020

HEARING DATE: 

23 November 2020

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDER:

1.     The application is granted;

2.     Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011, I dismiss the proceedings in matter WC/2020/19; and

3.     I make no order as to costs.

CATCHWORDS:

INDUSTRIAL LAW – WORKERS' COMPENSATION – APPLICATION TO DISMISS – where the respondent failed to comply with directions in a workers' compensation appeal – where the respondent has not taken any steps to progress appeal – where the respondent has failed to attend hearings – whether discretion to dismiss proceeding is enlivened.

LEGISLATION:

CASES:

Industrial Relations (Tribunals) Rules 2011 (Qld), r 45

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 131

House v The King (1936) 55 CLR 499

APPEARANCES:

Ms C-L Godfrey for the Applicant.

No appearance for the Respondent.

Reasons for Decision (ex tempore)

1. The Workers' Compensation Regulator has made an application to this Commission seeking an order that the appeal filed by Holly Jayne Bradley, being matter WC/2020/19, be dismissed pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) (the IR Rules). 

2. Leave was given for the Regulator to amend the application and supporting affidavit by correcting a number of typographical errors, in particular, by deleting reference to matter number WC/2020/119 where it appeared and inserting in lieu thereof matter number WC/2020/19.    

Background

1. Holly Jayne Bradley (the Appellant) made an application for compensation on 13 December 2019 alleging that she had sustained an injury on 29 August 2018, the nature and mechanics of which was stated to be bullying, harassment, victimisation and sexual harassment. 

2. At the relevant time of the injury, the Appellant was employed as a hotel manager by South Burnett Hotels Proprietary Limited at the Carrollee Hotel, Kingaroy.

3. WorkCover Queensland considered Ms Bradley’s application, and by reasons of decision dated 9 January 2020, rejected her application. The rejection by WorkCover was based on the view that Ms Bradley had not satisfied the prescribed timeframe in accordance with s 131 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act).

1. On 10 January 2020, an application for review was lodged with the Regulator. 

2. By decision dated 2 March 2020, the Regulator confirmed the decision of WorkCover to reject Ms Bradley’s application for compensation in accordance with s 131 of the Act, and it is against that decision that Ms Bradley appealed to this Commission.

The Application

1. The Regulator, as stated before, relies on rule 45(3) of the IR Rules. Rule 45(1) and (3) relevantly provide:

   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.

   …

   (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).

1. Ms Bradley lodged her appeal with the Industrial Registry on 18 March 2020. 

2. In a detailed affidavit filed with the application by Cheryl-Lea Godfrey, which was affirmed at Brisbane on 2 November 2020, the basis upon which the application is made is set out in some particular detail, none of which I find necessary to rehearse for the purposes of these reasons, other than to say that between the filing of the application and now, steps have been taken to inform Ms Bradley of these proceedings.

3. In particular, I was advised in the course of these proceedings that an email was forwarded on Monday, 2 November 2020, at 3.04 pm, to Ms Bradley in which, by way of service, the application and supporting affidavit of Ms Godfrey was provided to her. 

4. As it was on the occasion of the mention in October where there was no attendance, again at this hearing there is no attendance by the Appellant.   

5. It is important to note, as far as the history is concerned, that on 7 May 2020, Ms Godfrey received from Ms Bradley an email which indicated she did not have time to complete the directions order that had been formally issued by McLennan IC earlier in the proceedings, on the basis of lacking emotional capacity to relive the events through a list of stressors.  She also indicated that she did not have the emotional capacity to complete any paperwork. 

6. The email was also forwarded not only to the Regulator but to the Industrial Registry and McLennan IC’s chambers, as the Commissioner had undertaken the s 552A[1] conference. 

   [1] Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 552A.

7. On 8 May 2020, McLennan IC’s Associate forwarded an email to Ms Bradley which set out, in short, that unless McLennan IC hears from her by 2.00 pm on Monday, 11 May, that she will accept Ms Bradley’s correspondence and telephone communication as a notice of discontinuance. 

8. On 12 May 2020, Ms Godfrey received an email from McLennan IC’s Associate advising that the Commissioner had accepted Ms Bradley’s previous communications as a discontinuance and that she therefore would vacate any further listings. 

9. As I indicated earlier, when this matter was called over on 14 October 2020, Ms Bradley failed to attend that Call Over. 

10. The discretion conferred under rule 45 of the IR Rules must be exercised judicially.[2]  The discretion to dismiss a proceeding has, in my view, been enlivened. 

    [2] House v The King (1936) 55 CLR 499, 504-505.

11. Having regard to the history of this matter and, in particular, the advice that Ms Bradley had indicated that she did not wish to continue with the proceedings, as evidenced in the communications both to the chambers of McLennan IC and also to the Regulator, and her failure to attend both a mention on 14 October 2020 and this hearing, the Respondent (in this application) has demonstrated, in my mind, an unwillingness to proceed with the appeal.

12. As such, appropriate grounds have been formed to exercise a discretion to dismiss the proceeding.  Accordingly, I dismiss the proceedings in matter WC/2020/19 pursuant to rule 45(3) of the IR Rules.

Orders

1. I make the following orders:

   1.The application is granted;

   2.Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011, I dismiss the proceedings in matter WC/2020/19; and

   3.I make no order as to costs.