Workers' Compensation Regulator v Joseph Kelly

[2019] QIRC 4

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Workers' Compensation Regulator v Joseph Kelly

[2019] QIRC 004

PARTIES:

Workers' Compensation Regulator

(Applicant)

v

Kelly, Joseph
(Respondent)

CASE NO:

WC/2017/28

PROCEEDING:

Application to dismiss appeal pursuant to r 45(3)

DELIVERED ON:

HEARING DATES:

14 January 2019

5 July 2017, 21 September 2017

HEARD AT:

Brisbane

MEMBER:

Black IC

ORDER:

Appeal dismissed pursuant to r 45 of the Industrial Relations (Tribunals) Rules 2011.

CATCHWORDS:

WORKERS' COMPENSATION – APPLICATION

TO DISMISS – non-compliance with directions – undertakings not fulfilled - failure to expeditiously prosecute appeal.

LEGISLATION:

CASES:

Industrial Relations Act 2016 s 451, s 452, s 541 Industrial Relations (Tribunals) Rules 2011 r 45 Workers' Compensation and Rehabilitation Act 2003 s 32

Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd

(1990) FCR 388

APPEARANCES:

Mr J Kelly, self represented.

Mr P Rashleigh for the Workers Compensation Regulator, directly instructed.

Decision

History of Appeal

1. By notice of appeal dated 24 February 2017, Mr Joseph Kelly (the appellant) appealed a decision of the Workers' Compensation Regulator dated 25 January 2017 rejecting his application for compensation in relation to a psychological injury.

1. Directions facilitating the expeditious conduct of the appeal were issued by the Industrial Registrar on 24 February 2017. The directions included the scheduling of a conference on 6 April 2017.

1. The conference was not productive and the file was returned to the Registry for the setting of dates for trial. On 10 May 2017, trial dates were set for 3 July 2017 to 7 July 2017.

1. On 14 June 2017, the appellant filed his statement of facts and contentions and also provided the names of witnesses intended to be called to give evidence in the trial. On 16 June 2017 the appellant provided outlines of evidence and added to his witness list.

1. In the week before the trial the regulator became aware that the appellant had not taken steps to either arrange or to confirm the attendance at trial of one or more of his medical witnesses. Following an email exchange between the regulator and the appellant on 28 June 2017, the appellant decided to seek an adjournment of the hearing scheduled to commence the following Monday.

1. As a consequence, the trial was adjourned but a mention was scheduled for 5 July 2017 to enable the parties to address the future course of the matter. In explaining his circumstances at this mention, the appellant said inter alia that he would make a decision on the future conduct of his appeal in approximately a month's time. He also said that he was "trying to release some funds at the moment. As soon as that happens, I'll be fine to run with it".

1. Various other exchanges took place during this hearing about the appellant's capacity to fund his appeal and his own capacity to prosecute his appeal in the event that he could not fund a lawyer. In respect to the issue of funding, the transcript discloses the following discussion (T1-8):

MR RASHLEIGH: … Look, from Q-COMP’s…