Workers' Compensation Regulator v Gellatly - [2016] QIRC 8

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Workers' Compensation Regulator v Gellatly [2016] QIRC 008
PARTIES:	Workers' Compensation Regulator (Applicant) v Gellatly, Luke Christopher (Respondent)
CASE NO:	B/2015/50
PROCEEDING:	Application for appeal WC/2015/106 to be struck out
DELIVERED ON:	10 December 2015
HEARING DATES:	10 December 2015
MEMBER:	Deputy President O'Connor
ORDERS:	1. Application granted. *2. WC/2015/106 is dismissed, pursuant to s 331 of the Industrial Relations Act* 1999 and r 45 of the Industrial Relations (Tribunals) Rules 2011. 3. No order as to costs.**
CATCHWORDS:	INDUSTRIAL LAW - DECISIONS GENERALLY - APPLICATION TO DISMISS - Where the respondent failed to comply with directions in an appeal - Where the history of the appeal indicated the respondent was aware of the requirement to withdraw if the respondent had no intention of continuing the appeal - Where the respondent knew, or ought to have known, this application had been set down for hearing - Where the respondent failed to attend hearing of this application - Where, in the circumstances, the applicant applied for an order for the appeal to be "struck out" or dismissed, without costs - Whether the discretion to dismiss should be exercised.
CASES:	Industrial Relations Act 1999, s 331(b) Industrial Relations (Tribunals) Rules 2011, r 45 Workers' Compensation and Rehabilitation Act 2003, ss 32, 552A O’Sullivan v Farrer (1989) [1]* 168 CLR 210* Burke v Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) < v The King (1936) 55 CLR 499 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell [2001] QCA 176
APPEARANCES:	Mr G. G. Clark, for the Workers' Compensation Regulator, the Applicant.

Decision from the Bench

This is an application by the Workers' Compensation Regulator ("the Regulator") for an order pursuant to s 331(b) of the Industrial Relations Act 1999 ("the IR Act") that the appeal filed by Mr Luke Gellatly (WC/2015/106) be struck out because further proceedings are not in the public interest; or alternatively, an order pursuant to r 45(3)(a) of the Industrial Relations (Tribunals) Rules 2011 dismissing the appeal.

Relevant history

Mr Gellatly lodged an appeal (WC/2015/106) against a decision of the Regulator's Review Unit confirming the decision by Local Government Workcare ("the insurer") to reject his application for compensation for a psychological injury which he alleged was sustained in the course of his employment whilst employed by the Whitsunday Regional Council.

The affidavit of Gavin Geoffrey Clark sworn on 2 December 2015 outlines the relevant history of the application for compensation as follows:

(a)On 7 October 2014 Mr Gellatly lodged an application for compensation with the insurer in respect of a psychological injury.
(b)On 21 October 2014 the insurer decided not to accept Mr Gellatly's application for compensation on the basis that he did not sustain an injury in accordance with s 32 of the Workers Compensation and Rehabilitation Act 2003 ("the Act").
(c)On 14 January 2015 Mr Gellatly lodged an application for review in respect of the rejection of his claim.
(d)On 27 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Workers' Compensation Regulator v Gellatly

Details

AGLC: Workers' Compensation Regulator v Gellatly [2016] QIRC 8
Case: [2016] QIRC 8
Decision Date: 10 December 2015

CaseChat Overview and Summary

The Workers' Compensation Regulator filed an application in the Queensland Civil and Administrative Tribunal against Mr Gellatly, seeking the dismissal of an appeal he had lodged. The primary issue before the tribunal was whether the appeal should be struck out or dismissed, without costs, due to the respondent's failure to comply with several directions issued in the course of the appeal process. The respondent had not withdrawn the appeal when required to do so, despite being aware of this necessity, and had failed to attend the hearing of the application for dismissal.

In determining the appropriate course of action, the tribunal considered the respondent's history in the proceedings, which demonstrated a clear understanding of the need to withdraw if he had no intention of continuing with the appeal. The tribunal also noted the respondent's awareness of the scheduled hearing for the application, which he failed to attend. The tribunal concluded that the discretion to dismiss the appeal should be exercised, given the respondent's persistent non-compliance with procedural requirements and his failure to attend the hearing.

The tribunal granted the application, dismissing the appeal pursuant to section 331 of the Industrial Relations Act 1999 and rule 45 of the Industrial Relations (Tribunals) Rules 2011. The tribunal made no order as to costs. This decision underscores the importance of adhering to procedural requirements and attending scheduled hearings in industrial law matters, particularly in the context of appeals.

Orders

Orders of the court

1. Application granted.

2. WC/2015/106 is dismissed, pursuant to s 331 of the Industrial Relations Act 1999 and r 45 of the Industrial Relations (Tribunals) Rules 2011.

3. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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