Davies v Stellas [2017] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Davies v Stellas and Anor [2017] QIRC 95 PARTIES: Glenn Davies (Applicant) v Spiro Stellas (First Respondent) and Workers' Compensation Regulator (Second Respondent) CASE NO: WC/2016/88 PROCEEDING: Application to set aside an Attendance Notice to Give Evidence DELIVERED ON: 18 October 2017 HEARING DATE: 17 October 2017 HEARD AT: Brisbane MEMBER: Vice President Linnane ORDER: The Attendance Notice to Give Evidence issued on 18 September 2017 directed to Dr Glenn Davies be set aside in its entirety. CATCHWORDS: WORKERS' COMPENSATION – Application to set aside an Attendance Notice to Give Evidence – where the medical witness issued with the Attendance Notice was a member of a Medical Assessment Tribunal – Attendance Notice to Give Evidence set aside. CASES: Workers' Compensation and Rehabilitation Act 2003 Industrial Relations (Tribunals) Rules 2011, r 61 Uniform Civil Procedure Rules 1999 APPEARANCES: Ms J. Hamilton of Crown Law for the Applicant. Mr S. Stellas representing himself as the First Respondent. -- 1 of 3 -- 2 Mr M. Cutting, an Appeals Officer with the Workers' Compensation Regulator for the Second Respondent. Ex Tempore Decision [1] Following the hearing of this application on 17 October 2017, the Vice President issued an ex tempore decision. The following is that decision. [2] Dr Glenn Davies was served with an Attendance Notice to Give Evidence in WC/2016/88 i.e. an appeal by Mr Spiro Stellas against a decision of the Workers' Compensation Regulator to confirm a decision of WorkCover Queensland to "calculate his rate of weekly compensation at $0 between 21 April 2015 and 10 January 2016, and $870.93 from 11 January 2016 in accordance with ss 162 and 163 of the Workers' Compensation and Rehabilitation Act 2003" (Act). Dr Davies' Application seeks to have that Attendance Notice to Give Evidence set aside. [3] It is apparent from the material filed in relation to this application that the only involvement of Dr Davies with Mr Stellas arose as a result of Dr Davies being a member of an Orthopaedic Assessment Tribunal established to make determinations under s 501(2)(b) and s 501(3) of the Act. Section 501(2)(b) of the Act provides as follows: "(b) whether an incapacity for work resulting from the injury – (i) is total or partial; and (ii) is permanent or temporary;" Section 501(3) of the Act provides as follows: "(3) For section 130, the tribunal must decide – (a) the degree of permanent impairment that could result from the injury; and (b) the DPI for the injury." [3] The determination of the Orthopaedic Assessment Tribunal under s 501(2)(b) and s 501(3) was conducted on 8 June 2017. Dr Davies has retained no medical notes concerning Mr Stellas. Mr Stellas has never been a patient of Dr Davies and Mr Stellas has never been examined by Dr Davies. [4] At the hearing today Mr Stellas was unable to advise me of any relevant evidence that Dr Davies could give at the hearing of WC/2016/88 that would assist in the determination of matters in issue in WC/2016/88 i.e. whether the calculation of the rate of weekly compensation that Mr Stellas should receive during the relevant periods was correct or otherwise. -- 2 of 3 -- 3 [5] I therefore set aside the Attendance Notice to Give Evidence dated 18 September 2016 directed to Dr Davies. [6] In this application the Applicant also seeks an order that Mr Stellas pay Dr Davies' costs of any appearance in this application. When asked to outline the costs that Dr Davies was seeking, the representative of the Crown was unable to give any indication of such costs. An adjournment of three days was sought in order for the Crown to provide me with such information. [7] I am not prepared to grant an adjournment in the circumstances. I acknowledge that Mr Stellas was warned by me at a Mention of WC/2016/88 on 24 August 2017 that he could only call Dr Davies to give evidence in certain circumstances i.e. if he had consulted Dr Davies (apart from in his capacity as a member of a Medical Assessment Tribunal) and Dr Davies had provided Mr Stellas with a medical report regarding that consultation. During the course of this hearing it became apparent that Mr Stellas had not had a consultation with Dr Davies and nor had Dr Davies provided Mr Stellas with a medical report. [8] As the representative of Crown Law did not have access to the relevant Scale of Costs under the Uniform Civil Procedure Rules 1999 at the hearing today I was not prepared to conduct a further hearing in this matter to enable the Crown to address me on the quantum of costs. [9] The amount of costs that could have been awarded under the relevant Scale of Costs did not warrant putting Dr Davies, Mr Stellas or the Workers' Compensation Regulator to the additional costs of a further attendance at the Commission. Thus I make no order as to costs. -- 3 of 3 --