Wren v Workers' Compensation Regulator

Case [2024] ICQ 4

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Wren v Workers' Compensation Regulator [2024] ICQ 4

PARTIES:

JONATHAN JAMES MCMILLAN WREN
(Applicant)

v

WORKERS' COMPENSATION REGULATOR

(Respondent)

FILE NO:

C/2013/48

PROCEEDING:

General Application

DELIVERED ON:

6 March 2024

HEARING DATE:

On the papers

DATES OF WRITTEN
SUBMISSIONS:

Applicant's submissions filed on 14 November 2022 and Applicant's further submissions filed on 27 November 2023

Respondent's submissions filed on 29 November 2022 and Respondent's further submissions filed on 20 December 2023

MEMBER:

Merrell DP

ORDER:

The Applicant's application filed on 10 October 2022 is dismissed.

CATCHWORDS:

INDUSTRIAL LAW –  QUEENSLAND – APPEALS – FINALITY OF DECISIONS – where, in 2013, the Applicant, pursuant to the Workers' Compensation and Rehabilitation Act 2003, commenced proceedings in the Queensland Industrial Relations Commission appealing a review decision of the Respondent confirming the rejection of the Applicant's claim for workers' compensation – where the Queensland Industrial Relations Commission dismissed the appeal – where, in 2013, the Applicant appealed the decision of the Queensland Industrial Relations Commission to the Industrial Court of Queensland – where in 2014, the Applicant filed a notice of discontinuance prior to the hearing of the appeal before the Industrial Court of Queensland – where the Industrial Court of Queensland allowed the discontinuance – where in 2022, the Applicant applied to the Industrial Court of Queensland for his appeal to 'be recommenced' – whether the Industrial Court of Queensland, pursuant to the Workers' Compensation and Rehabilitation Act 2003, has power to allow the Applicant to reinstate his discontinued application to appeal – whether the Industrial Court of Queensland, pursuant to the Industrial Relations Act 2016, has power to allow the Applicant to reinstate his discontinued application to appeal – assuming, without deciding, that the Industrial Court of Queensland does have power to allow the Applicant to reinstate his discontinued application to appeal, there is no basis to allow the Applicant to reinstate his appeal – Applicant's application dismissed

COURTS AND JUDGES – JUDGES – POWERS AND DUTIES IN RESPECT OF UNREPRESENTED LITIGANTS – appropriate assistance a court is to provide to a litigant-in-person – Applicant a litigant-in-person – where the Applicant's appeal was mentioned before the Industrial Court of Queensland – appropriate assistance provided to the Applicant by the Industrial Court of Queensland

LEGISLATION:

Federal Court of Australia Act 1976, s 23 and s 28

Federal Court Rules 2011, r 1.32, r 36.73 and r 39.05

Industrial Relations Act 1999, s 280 and s 334

Industrial Relations Act 2016, s 484, s 485, s 544, s 1023, s 1024 and sch 5

Industrial Relations (Tribunals) Rules 2011, r 68

Workers' Compensation and Rehabilitation Act 2003, s 32, s 561, s 562 and s 563

CASES:

Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529

Chen v Monash University [2016] FCAFC 66; (2016) 244 FCR 424

DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226

Flightdeck Geelong Pty Ltd v All Options Pty…

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Details
AGLC
Wren v Workers' Compensation Regulator [2024] ICQ 4
Case
[2024] ICQ 4
Decision Date

CaseChat Overview and Summary

The case of Wren v Workers' Compensation Regulator involves an applicant seeking to reinstate his discontinued appeal against a decision of the Workers' Compensation Regulator. The appeal was initially dismissed by the Queensland Industrial Relations Commission and subsequently by the Industrial Court of Queensland, which allowed the discontinuance of the appeal in 2014. The applicant later sought to recommence his appeal in 2022, arguing that the Industrial Court of Queensland had the power to reinstate his discontinued appeal under the Workers' Compensation and Rehabilitation Act 2003 and the Industrial Relations Act 2016. The primary legal issue before the court was whether the Industrial Court of Queensland had the authority to allow the applicant to reinstate his discontinued appeal.

The court found that, even assuming the Industrial Court of Queensland had the power to reinstate the appeal, there was no basis to do so in this case. The court reasoned that the relevant statutes did not confer an express or implied power to reopen a discontinued appeal. The court relied on previous decisions, such as Turay v Workers' Compensation Regulator, which held that the court lacked the power to reopen an appeal that had been heard, determined, and dismissed. The court also noted that the Industrial Relations Act 2016 specifically limits the powers of the Industrial Court on appeal to confirming, varying, or setting aside the decision, with no provision for reopening a discontinued appeal. Furthermore, section 561(4) of the Workers' Compensation and Rehabilitation Act 2003 explicitly states that the court's decision is final.

In conclusion, the court dismissed the applicant's application to reinstate his discontinued appeal, finding that there was no legal basis to do so under the applicable statutes. The court's decision underscores the limited powers of the Industrial Court of Queensland in relation to discontinued appeals and reinforces the finality of its decisions.

The final orders of the court were that the applicant's application filed on 10 October 2022 is dismissed.

Orders

Orders of the court

The Applicant's application filed on 10 October 2022 is dismissed.

Background

Background to the litigation

Consequently, the Applicant's present application must be dismissed.Background Part of the background to this matter is conveniently summarised in the Respondent's principal submissions, namely:[4]4. The applicant initiated an appeal to the Queensland Industrial Relations Commission against a decision by the respondent confirming a decision by WorkCover rejecting his application for compensation.5. By decision published on 12 November 2013, the applicant's appeal was dismissed.6. On 3 December 2013, the applicant filed an application to appeal in the industrial court pursuant to s.561 of the Workers' Compensation and Rehabilitation Act 2003 ("WCR Act").7. The application to appeal was mentioned before Vice President Linnane on 8 January 2014. During that mention, a hearing date for the appeal to be heard before President Martin was set down for 2:15 PM on 26 February 2014. 8. Directions were also issued for submissions by the parties in accordance with the usual practice of the Court.9. After those directions were made, the applicant raised issues about wanting to adduce additional evidence. The applicant was told that he would have to make an application and that there was currently no such application before the court. 10. Further discussions than ensued between the Vice President and the applicant about the difficulties that he would confront in attempting to adduce fresh evidence and proving perjury.11. On 8 January 2014 the applicant signed a request to discontinue, form 27, which he sent by email to the registry on 8 January 2014. The applicant sent the signed request without the respondent signifying consent.[4] Citations omitted. On 9 January 2014, r 68 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') provided:68 Discontinuance of applications other than under Act, s 74(1) This rule applies to an application before the court, commission or registrar, other than an application for reinstatement under section 74(1) of the Act.Note– For applications under section 74(1) of the Act, see rule 153.(2) The applicant may ask to be allowed to discontinue the proceeding by filing a written request in the approved form. (3) When filing the request, the applicant must serve a copy of the request on each of the other parties to the application.(4) A party may object to the discontinuance by notice to the registrar within 14 days after being served with the request to discontinue.(5) If no party objects within the 14 days, the court, commission or registrar may allow the proceeding to be discontinued.(6) If a proceeding is allowed to be discontinued, the court, commission or registrar must note the file to that effect.(7) If a party objects to the discontinuance under subrule (4), the court, commission or registrar may allow or disallow the request for discontinuance on the terms the court, commission or registrar considers appropriate. I have viewed the file for the Applicant's Court appeal (Matter No. C/2013/48). Additionally, at the mention on 3 November 2023, I gave the parties the opportunity to view the file for the Applicant's Court appeal.

Evidence

Evidence Before The Court

The whole[5] of the material part of the transcript of 8 January 2014 reveals the following:[5] T 1-3, l 41 to T 1-8, l 18.APPELLANT: Sorry, sorry, sorry, your Honour. Yes, can I add additional evidence, I guess what - - - When the Applicant commenced his Court appeal in 2013:·s 561(1) of the WCR Act provided that a party aggrieved by a relevant decision of the Commission may appeal to the Court; and·s 561(2) of the WCR Act provided that the 1999 IR Act applied to the appeal. In my view, that reference to the 1999 IR Act in s 561(2) of the WCR Act effectively picked up the powers and procedures bestowed on this Court under the 1999 IR Act.[8] [8] See Turay v Workers' Compensation Regulator (No 2) [2023] ICQ 019, [48] ('Turay') (Davis J, President) which citied Workers' Compensation Regulator v Glass [2020] QCA 133; (2020) 4 QR 693, [13]-[15] (Sofronoff P) in respect of the present reference to the Industrial Relations Act 2016 in s 561(2) of the Workers' Compensation and Rehabilitation Act 2003. Section 561(2) of the WCR Act presently refers to the 2016 IR Act. In his principal written submissions, the Applicant submitted that the Court could re-open his appeal pursuant to s 280 of the 1999 IR Act[9] or pursuant to s 484 and s 485 of the 2016 IR Act.[10][9] This section of the Industrial Relations Act 1999 concerned the power of the Commission to re-open proceedings and not that of the Court.[10] These sections of the Industrial Relations Act 2016 concern the power of the Commission to re-open proceedings and not that of the Court. The Applicant, in making his principal submissions that Vice President Linnane made it clear that additional evidence would not be allowed and that the appeal was then terminated based upon error of the Court, did not refer to all of the transcript of the mention of 8 January 2014 re-produced above in these reasons. Further, the Applicant did not refer to the fact that he requested that his appeal be discontinued by formally filing such a request on 8 January 2014.The Respondent's principal submissions In summary, the Respondent submitted that:·the 1999 IR Act, upon the enactment of the 2016 IR Act, was repealed, but that the effect of the transitional provisions in the 2016 IR Act was that the 1999 IR Act still applied to the Applicant's present application, despite the discontinuance of his Court appeal in 2014; ·the Court has no express power under the WCR Act to re-enliven the Applicant's discontinued appeal and such a power is not a necessary incident to the Court's power to hear appeals under s 562 of the WCR Act; ·the Court had no express power under the 1999 IR Act, and has no express power under the 2016 IR Act, to re-enliven the Applicant's discontinued appeal;·the matters referred to in paragraphs 4 A to G and 5 A to E of the Applicant's principal submissions are either irrelevant, wrong, unintelligible or without foundation; and·as to paragraph 5 F of the Applicant's principal submissions:- the mention before Vice President Linnane was a procedural mention setting out a timetable for the hearing of the Applicant's Court appeal;- as observed by her Honour, there was no application before the Court to allow additional evidence to be adduced in the Applicant's Court appeal;- the Applicant was frankly told about the problems he confronted about trying to lead new evidence; and - no decision was made capable of producing any appeal rights for the Applicant.Does the Court have power to allow the Applicant to reinstate his discontinued appeal?

Decision

Reasons for decision

In his further submissions, about whether, in light of the decision in Chen, s 334 of the 1999 IR Act or s 544 of the 2016 IR Act conferred power on the Court to allow him to reinstate his discontinued appeal, the Applicant relevantly submitted:·because of s 1023 and s 1024 of the 2016 IR Act, the 1999 IR Act applied to his present application; and·s 334(1)(a)(i) of the 1999 IR Act,[24] provides that in the exercise of its jurisdiction, the Court may make decisions it considers necessary for doing complete justice in proceedings before it and, due to its similarities with s 23 of the FCA Act, and in light of the decision in Chen, the Court should be able to reinstate a discontinued appeal '… in the interests of justice.'[24] Section 334 of the Industrial Relations Act 1999 relevantly provided:334 Extent of decisions and their execution(1) In the exercise of its jurisdiction, the court or commission may– (a) make the decisions it considers necessary for–(i) doing complete justice in proceedings before it; and(ii) the execution of the decision; and(b) enforce its own decisions; and(c) direct the issue of a writ or process; and(d) impose and enforce a penalty, allowed or prescribed by this or another Act, in the same way a Supreme Court judgment is enforced. The Respondent submitted that:·on the authority of Turay v Workers' Compensation Regulator (No 2) ('Turay'),[25] the Court has no power to recommence the Applicant's discontinued Court appeal; ·s 334 of the 1999 IR Act and s 544 of the 2016 IR Act – to the extent they allow the Court, in the exercise of its jurisdiction, to make the decisions it considers necessary in the interests of justice in proceedings before it – are analogous to r 1.32 of the FC Rules; and ·in Chen[26] the Federal Court determined that r 1.32 of the FC Rules did not supply jurisdiction to allow the Court to set aside a notice of discontinuance.[25] Turay (n 8), [62].[26] Chen (n 3), [50]. In Turay, the President determined that the Court has no express or implied power, under the 2016 IR Act and under the WCR Act, to re-open an appeal made to it, which had been heard, determined and dismissed. In this regard, his Honour stated:[27][61] This Court does not have express power to reopen the appeal and there is nothing to suggest that it has an implied power. All the indications are to the contrary.[62] In particular:1. there is no express power to reopen;2. there is a limited power to correct error;3. while not bestowing an express power upon the Court to reopen an appeal to it, the legislature bestowed such a power on the QIRC, and by inference indicated a legislative intent that the Court has no such power;4. the powers of the Industrial Court on appeal are specifically limited to confirming the decision, varying the decision or setting aside the decision and substituting another decision;5. section 561(4) of the WCR Act specifically provides that this Court’s decision is final.[27] Citations omitted. I will not express a concluded view about whether s 544(1)(a)(i) of the IR Act confers power on the Court to allow an appellant to reinstate a discontinued appeal.[28] This is for two reasons. [28] In Kelsey v Logan City Council & Ors (No 4) [2023] ICQ 23, at [42]-[43], because of its location in ch 11, pt 5, div, 5 of the Industrial Relations Act 2016, I stated that it was open to conclude that s 544 relevantly concerns the making of decisions about the execution of a decision of the Court made in the exercise of its jurisdiction.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.