Workers' Compensation Regulator v Madden
[2017] QIRC 63
•15 June 2017
UEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Workers' Compensation Regulator v Madden [2017] QIRC 063 |
PARTIES: | Workers' Compensation Regulator v Madden, Fiona |
CASE NO: | WC/2016/235 |
PROCEEDING: | Application to Dismiss |
DELIVERED ON: | 15 June 2017 |
HEARING DATES: | 9 March 2017 (Mention/Directions Hearing) |
HEARD AT: | Brisbane |
MEMBER: | Deputy President Swan |
| ORDERS | [1] The Application to Dismiss is granted. [2] The substantive Appeal filed by the Respondent on 9 December 2016 is Dismissed. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPLICATION TO DISMISS - Application made under Industrial Relations Act 2016 and Industrial Relations (Tribunals) Rules 2011 by Workers' Compensation Regulator to dismiss substantive Appeal - Unrepresented Appellant - Attempts made by Commission to advise Respondent of the process to be adopted in Appeal - process failed to be adopted by Respondent on each occasion - Inability to accept that the Appeal is a hearing de novo - Date of injury remained uncertain - Inability to conduct an appropriate hearing where Respondent continually rejected the fact that evidence in-chief was required - No prospect of Appeal proceeding - Application to dismiss granted. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 O'Sullivan v Farrer (1989) 168 CLR 210 |
| APPEARANCES: | Dr M. Spry of Counsel, directly instructed by Ms M. Mees of the Workers' Compensation Regulator, the Applicant. |
Decision
The substantial Appeal has been made by Ms Fiona Madden against a decision of the Workers' Compensation Regulator to reject her Application for Workers' Compensation on 24 March 2016.
The Hearing of the substantive Appeal has thus far been unable to proceed as a consequence of difficulties encountered by Ms Madden in the prosecution of her claim. The matter has been listed on four occasions but on each occasion the matter has not proceeded beyond preliminary commentary.
On 16 May 2015, the Workers' Compensation Regulator (the Regulator) made an Application pursuant to s 541(b) of the Industrial Relations Act 2016 (the Act) seeking to dismiss the cause (i.e. the substantive Appeal filed by Ms Madden) because further proceedings were not necessary or desirable in the public interest, or alternatively that an Order pursuant to rule 45(3) of the Industrial Relations (Tribunals) Rules 2011 (the Rules), be granted for the failure on Ms Madden's part to comply with Directions Orders of the Commission.
For the purpose of clarification, Ms Madden is the "Respondent" to this Application to Dismiss, filed by the Regulator and accordingly, paragraphs within this Decision refer to Ms Madden as the "Respondent".
The Regulator has relied upon the following material facts to support its Application to Dismiss:
"2. On or about 24 March 2016, Ms Madden, the Respondent, lodged an application for compensation with WorkCover Queensland (the Insurer) in respect of a psychological injury which she alleged was sustained in the course of her employment with Origin Energy.
3. On 27 April 2016 the Insurer decided not to accept the Respondent's [Ms Madden's] application for compensation as she did not sustain an injury in accordance with s32 of the Workers Compensation and Rehabilitation Act 2003 (the Act).
4. On 15 September 2016 the Respondent [Ms Madden] lodged an application for review in respect of the rejection of her claim.
5. On 8 November 2016 the Review Officer confirmed the decision of the Insurer to reject the claim in accordance with section 32(5) of the Act.
6. On 9 December 2016 the Respondent [Ms Madden] filed a Notice of Appeal against the Regulator's decision.
7.On 20 December 2016 the Applicant [the Regulator] sent an email to the Respondent [Ms Madden] advising details of the Applicant [the Regulator] and the offer of assistance. The Respondent's [Ms Madden's] response of the same date contained scandalous assertions in relation to the Appellant. Attached to this Application is a true copy of the email exchange between the Applicant [Regulator] and Respondent [Ms Madden] dated 20 December 2016 and marked Exhibit 'MM1'.
The content of that email, inter alia, is as follows;
'This is absolutely disgusting for you to offer me any assistance when it is your staff along with Origin Energy who have created this position for me and have mentally screwed me up beyond repair. I can't even hold a phone conversation with anyone.
Your staff tampered with the evidence to completely screw my life up so how is it possible you now offer me assistance after destroying my health and wellbeing in this manner.'
8. On 12 January 2017 the Respondent [Ms Madden] wrote to Commissioner Black's Associate, Sean and requested that her matter be heard in a 'proper court under a proper setting' and that it be heard now. Attached to this Application is a true copy of the email sent by the Respondent [Ms Madden] dated 12 January 2017 and marked Exhibit 'MM2'.
That attachment contains content to the effect of:
'This matter needs a hearing and now. In light of the above please escalate this matter to help put a stop to these events. The matter will reach Media and all these communications will be seen by all to support the evidence of hacking and corruption. How much further is this going to go?'
9. On 2 February 2017 a section 552A conference was held before Commissioner Black.
10. A further Directions Order was issued on 2 February 2017.
11. In response to receiving the Directions Order, the Respondent [Ms Madden] sent an email dated 7 February 2017 to Commissioner Black's Associate querying why the matter was not being heard through the courts. A true copy of the email is attached and marked Exhibit 'MM3'.
The email stated:
"Can you please advise why this matter is only being heard by a member of the QIRC and not through the courts? I have not had a fair hearing to date and will continue that way whilst the matter is handled by internal members. How can I have this matter heard through the courts without member involvement? I am willing to commit offences just to be heard through a fair court system if this is my only option?".
12. A notice of Listing was issued by Deputy President Swan in response to correspondence received from the Respondent [Ms Madden] dated 26 February 2017 and 2 March 2017. The Respondent [Ms Madden] was requesting that her matter be heard in Mackay as she had attended Brisbane for all matters to date and was unable to afford travel to attend Brisbane. [Exhibit MM4]
13. A Mention and Directions Hearing took place on 9 March 2017.
14. On 10 March 2017 a further Directions Order was issued by Deputy President Swan.
15. The Respondent [Ms Madden] was to provide her Statement of Facts and Contentions by 24 March 2017.
16. On 21 March 2017 the Respondent [Ms Madden] wrote to Deputy President Swan advising that she was unable to comply with the Directions and that she was not able to gain legal assistance and that she was the victim of criminal events. The Respondent [Ms Madden] was advised that she was not required to comply with the Direction due date of 24 March 2017. [Exhibit MM5]
17. On 3 April 2017 a further mention was held at which Deputy President Swan agreed to small extension of time for the Respondent [Ms Madden] to comply with in submitting her Statement of Facts and Contentions. No other alterations were made to the remaining directions orders in respect of filing and serving any outlines of evidence or list of witnesses. The Respondent [Ms Madden] was advised what was required of her to ensure the hearing would not be jeopardized. [Exhibit MM6]
18. The Respondent [Ms Madden] did not file her Statement of Facts and Contentions until Thursday 6 April 2017 despite what had been agreed upon during the mention of 3 April 2017. [Exhibit MM7]
19. The Respondent [Ms Madden] did not, in accordance with Further Directions, file and serve any outlines of evidence or list of witnesses.
20. On 8 May 2017, the hearing of the Respondent's appeal commenced. The Respondent [Ms Madden] was not ready to proceed. The Respondent asked the Commission what her options were in terms of postponing the hearing. [Exhibit MM8]
21. Ultimately it became clear that the Respondent [Ms Madden] sought to use the proceedings to test what she considered to be criminal matters. She submitted:
'This is a waste of time. These actual [indistinct] offences have been occurring against me I mean, seriously, they're not just allegations, they're actual facts…'
22. The Respondent [Ms Madden] made it clear that she did not want to submit fresh evidence and that she wanted the Commission to review everything that she had submitted to date.
23. The Respondent [Ms Madden] submitted, forcefully, that these were criminal matters. She claimed it was 'attempted murder'.
24. The Respondent [Ms Madden] abruptly left the hearing.
25. It is the Respondent's belief that she is the victim of alleged criminal activities undertaken by her previous employer. The Respondent [Ms Madden] wants these alleged criminal activities to stop. The Queensland Industrial Relations Commission is not the appropriate forum for the Respondent's complaints to be dealt with.
26. In the circumstances, the Applicant [the Regulator] requests the Commission to dismiss the Respondent's [Ms Madden's] appeal pursuant to section 541 of the Industrial Relations Act 2016 as it is not in the public interest to continue to deal with the appeal or alternatively pursuant to Rule 45 of the Industrial Relations (Tribunals) Rules 2011 given the Respondent's failure to comply with the Commission's directions."
The above submissions made by the Regulator, in my view, accurately identify the progression of this matter.
It should be stated that Ms Madden has been afforded continual assistance from the Bench for the purpose of ensuring that she understood what was required of her on each occasion.
Notwithstanding that assistance and information, Ms Madden has been unable to reconsider her view that the issues of the type identified above (i.e. criminal matters) are not matters to be brought before the Commission.
I have found that Ms Madden has not accepted the role of the Commission and its limitations in terms of her primary concerns.
In response to this Application to Dismiss, Ms Madden continued to concentrate a significant part of her claim on what she explained were missing pages from her original material which had been sent to a particular employee of the Regulator. Ms Madden believed that this was the result of continued hacking of her computer etc. That documentation was again sent to the Commission on 12 June 2017 and 14 June 2017. Ms Madden was advised that her initial response to this Application, made by her on 24 May 2017, did not respond in any real sense to the Application to Dismiss made by the Regulator. That was made clear by the Commission at the hearing of 24 May 2017. Notwithstanding that, Ms Madden has now sent the exact material to the Commission and to the Regulator on two further occasions.
Attached to Ms Madden's documentation throughout this whole process were over 200 references to various instances of alleged "hacking activities; unlawful modification of her documents; unlawful IT settings" for example. These were identified by Ms Madden as a "Summary of missing scanned evidenced under 703-page final review submission document".
Further email correspondence by Ms Madden received 10 June 2017, confirms that she is unprepared to adhere to the advice given to her by the Commission setting out the process to be adopted by her if she wished her Appeal to proceed. That correspondence from Ms Madden states inter alia that:
"Please I'm begging for you to review the facts already presented and withheld under the review process in order to make the right decision."
Notwithstanding the number of occasions when a Mention of the matter resulted in an agreed plan for Ms Madden to deal with her Appeal, it is clear that those plans were never implemented or followed by Ms Madden. Repeatedly, Ms Madden has not accepted the nature of her Appeal (i.e. that of a hearing de novo), notwithstanding that the Commission has gone to considerable lengths on a number of occasions to explain the process. Ms Madden will not accept that she has to give Evidence-in-Chief in pursuit of her claim advising that she has already done that with the Review Unit of the Regulator and is not prepared to undertake that process again.
In my view, it is not in the public interest to continue to hear this matter. Ms Madden's Appeal has not progressed in any shape or form at any time since it was filed in the Commission.
Section 541 of the Act, states:
"541 Decisions generally
The Court or commission may, in an industrial cause do any of the following -
(a)Make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted by any specific relief claimed by the parties to the cause;
(b)Dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
(i)The cause is trivial; or
(ii)Further proceedings by the court or commission are not necessary or desirable in the public interest;
(c)order a party to the cause to pay another party the expenses, including witness expenses, it considers appropriate."
Rule 45 of the Rules states:
"45 Failure to attend or to comply with directions order
(1) This rule applies it -
(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.
(2) This rule also applies if -
(a)A party to a proceeding receives notice of a directions order made by the court, commission or registrar; and
(b) The party fails to comply with the order.
(3) The court, commission or registrar may -
(a) Dismiss the proceedings; 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; of
(d) Make orders under paragraphs (b) and (c)."
In O'Sullivan v Farrer[1], the expression "in the public interest" was described as follows:
"The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'insofar as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view."
[1] O'Sullivan v Farrer (1989) 168 CLR 210
Also in GlaxoSmithKline Australia Pty Ltd v Makin[2], a decision of the Full Bench of Fair Work Australia considering what constitutes the "public interest" stated as follows:
"Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades. It has not been considered useful or appropriate to define the concept in other than the most general terms, and we do not intend so. The expression 'in the public interest', when used in a statue, classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the objects of the legislature in question."
[2] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343
Pursuant to s 541(b)(ii) of the Act, I have found that further proceedings by the Commission are not necessary or desirable in the public interests for the aforementioned reasons. While that is sufficient to finalise the matter, r 45(3)(a) of the Rules also appropriately applies to dismiss the proceedings.
I grant the Application to Dismiss made by the Regulator on 16 May 2017.
Order accordingly.
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