Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 25

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Barnes v Q-Comp & Hatch Pty Ltd [2017] QIRC 025 PARTIES: Anthony Joseph Barnes (appellant) v Q-Comp (first respondent) Hatch Pty Ltd (second respondent) CASE NO: WC/2013/269 PROCEEDING: Show cause DELIVERED ON: 15 March 2017 HEARING DATE: 27 October 2016 MEMBER: Deputy President D L O'Connor ORDERS : 1. The appellant's application is dismissed. 2. The proceedings are struck out. 3. Pursuant to r 45 of the Industrial Relations i(Tribunals) Rules 2011 the proceedings are idismissed. CATCHWORDS: WORKERS' COMPENSATION – APPEAL – PROCEDURE – SHOW CAUSE – where the appellant has not complied with a directions order – where the appellant has not taken action in his matter for more than 12 months – where the appellant requires leave to proceed – where no formal application for leave to proceed has been made by the appellant – where the appellant was required to show cause under rule 231 of the Industrial Relations (Tribunals) Rules 2011 – whether sufficient cause has been shown to prevent the appellant’s appeal from being struck out – appeal struck out WORKERS' COMPENSATION – APPEAL – where a consent order allowing the employer to appear was made – whether the employer is allowed to appear CASES: Industrial Relations (Tribunals) Rules 2011, r 3, r 4, -- 1 of 15 -- 2 r 5, r 45, r 226, r 230, r 231 Uniform Civil Procedure Rules 1999 Workers' Compensation and Rehabilitation Act 2003, s 554A Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536 Australian Education Union v Lawler (2008) 169 FCR 327 Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007 Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) – Decision Christopher William Savage v Q-Comp [2013] QIRComm 44 Dempsey v Dorber [1990] 1 Qd R 418 Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010 Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992 Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388 Pantorno v The Queen (1989) 166 CLR 466 Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005)180 QGIG 1209 Quinlan v Rothwell [2002] 1 QdR 647 R v Moore (1976) 11 ALR 449 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 Voyka v Jacko [2006] QSC 099 William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 APPEARANCES: A J Barnes the appellant in person S P Gray counsel instructed by and for the first respondent L Copley counsel instructed by Milner Lawyers for the second respondent Reasons for Decision [1] This appeal arises from a decision of the Workers' Compensation Regulator ('the first respondent') to reject a claim by Anthony Joseph Barnes ('the appellant') alleging that he sustained a psychological injury arising from his employment with Hatch Pty Ltd ('the second respondent'). WorkCover's decision to reject the appellant's application was affirmed by the first respondent on 29 June 2013. The appellant lodged a notice of appeal in the Industrial Registry on 23 August 2013. -- 2 of 15 -- 3 [2] On 9 September 2013 the second respondent sought leave to appear and be heard. Both the appellant and the first respondent consented to the second respondent's application. A consent order was issued by the Commission on 26 September 2013. [3] The capacity of the Commission to grant an employer the right to appear and be heard was brought into question in the matter of Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator).1 [4] In Brisbane City Council v Gillow, Martin P concluded that the Commission does not have power to grant an employer leave to appear on appeals under Chapter 13 Part 3 of the Workers’ Compensation and Rehabilitation Act 2003 ('the WCR Act'). 2 [5] Notwithstanding the decision in Gillow, it was the contention of the second respondent that it had a right to be heard as a consequence of the consent order issued by the Commission on 26 September 2013. [6] However, as was observed by the High Court in Pantorno v The Queen, parties who agree a proposition of law cannot bind a court.3 Moreover, parties cannot by consent confer jurisdiction on a tribunal if none exists.4 [7] The hearing before me was conducted on the basis the appellant has made an application under r 230 of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'). That is not the case. [8] The appellant made no application for leave to proceed in the approved form (or otherwise), as required by r 230. Rather, it is clear from the file that these proceedings are consequent upon the Industrial Registry commencing a 'show cause' process under r 231. [9] Notwithstanding the absence of a formal application from the appellant, the matter proceeded on the basis that this was an application for leave to proceed and a show cause as to why the appellant's appeal should not be struck out under r 231. [10] As far as it is necessary to regularise the omission of the appellant referred to above, I do so under r 226. History of the Appeal [11] Counsel for the first respondent set out a brief chronology of this appeal's litigation history. The chronology was not challenged during the hearing and for convenience I repeat it below:  The appeal… proceeded in accordance with the usual steps of an appeal of this nature; including a directions order made by [Vice President] Linnane on 27 September 2013 that: o there be a s552A conference on 1 October 2013; 1 Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 7. 2 Ibid [57]. 3 Pantorno v The Queen (1989) 166 CLR 466, [11]. 4 R v Moore (1976) 11 ALR 449; Australian Education Union v Lawler (2008) 169 FCR 327, [185]. -- 3 of 15 -- 4 o Mr Barnes file in the Registry and serve on the Regulator and Hatch his statement of stressors by 4.00pm on 9 October 2013; and o the matter be heard on 17 to 25 March 2014.  In accordance with those directions, the 552A conference occurred on 1 October 2013.  Mr Barnes filed an Application for Judicial Review of the Regulator's decision in the Supreme Court on 4 October 2013.  The appeal did not proceed in accordance with the directions because, following a request by Mr Barnes, an order was made on 24 October 2013 vacating the hearing dates. A direction was also made that further hearing dates not be allocated until such time as Mr Barnes filed a medical report from his treating psychiatrist confirming his capacity to provide instructions and give evidence during the course of a continuous day of hearing.  On 30 October 2013, Mr Barnes expressed his intention to proceed with the appeal and said that he would obtain the required certificate from his treating practitioner at his next appointment.  It is therefore obvious that by at least 30 October 2013, Mr Barnes well knew that he had the appropriate capacity to proceed with this appeal.  Contrary to that expressed intention, on 16 January 2014, Mr Barnes e-mailed the Commission advising that he wanted to adjourn this appeal until the Supreme Court had made a decision in relation to his judicial review application.  On 17 June 2014, Mr Barnes filed a Notice of Discontinuance in respect of that review, but he then took no steps to prosecute this appeal.  Because Mr Barnes had not taken any step in the appeal for a period in excess of 12 months, on 4 December 2014, the Regulator requested that Mr Barnes' appeal be lapsed.  Apparently prompted by that request, Mr Barnes then e-mailed a report from his treating psychiatrist, Dr Perry Short, on 5 January 2015, advising that he was psychiatrically stable to undertake proceedings in respect of the appeal.  As that report did not comply with the Commission's request, Mr Barnes then provided a further report from Dr Short, dated 30 January 2015, expressing an opinion that Mr Barnes has capacity to provide instructions and to give evidence during the course of a seven day hearing.  There is no reason to assume, having regard to Mr Barnes' conduct in 2013 that that capacity also existed in 2013. -- 4 of 15 -- 5  Steps were then taken to allocate hearing dates, including obtaining availability for Counsel for the Regulator and for Hatch. Further, by Directions Order made on 12 March 2015, Mr Barnes was ordered to file and serve a List of Stressors by 4:00pm on 10 April 2015.  By e-mail dated 9 April 2015, Mr Barnes requested an extension of time to file and serve his Statement of Stressors because he had concurrent proceedings in the Federal Circuit Court of Australia, seeking remedy for the same conduct which was the subject of this appeal.  On 10 April 2015, an Amended Directions order was made directing Mr Barnes to file his List of Stressors by 4:00pm on 24 April 2015.  Mr Barnes did not comply with that direction and on 29 April 2015, the Commission then issued a further Directions order to Mr Barnes, directing him to file and serve his Statement of Stressors by 1 May 2015.  Mr Barnes again did not comply with that Directions order and he e-mailed the Commission on 4 May 2015 advising that he was "fully engaged in preparation for the Federal Court claim" and had been unable to file and serve his Statement of Stressor by that due date. Mr Barnes requested a further extension until 22 May 2015.  Despite all those directions and requests for extension of time, Mr Barnes still has not filed his Statement of Stressors.  By decision delivered on 18 December 2015, Mr Barnes' Federal [Circuit] Court claim was dismissed. [12] On 25 July 2016 the Industrial Registry sent correspondence to the appellant advising him that he had taken no action in relation to the file since 10 April 2015. However, a careful reading of the file suggests that no action has been taken in relation to the appeal since 4 May 2015. Irrespective, it is clear that no action was taken by the appellant for at least one year since the last action was taken in the application. [13] The correspondence of 25 July 2016 drew the appellant's attention to r 231 and further provided him with 21 days in which to show cause in writing as to why his appeal should not be struck out under r 231. [14] By email dated 15 August 2015, the appellant replied to the Industrial Registry advising that his "fluctuating health", lack of capacity to attend to the matter personally, and his financial position meant that he could not afford to appoint legal representation to attend to the matter. Moreover, he had experienced a period of homelessness and "difficulty in obtaining regular psychiatric support services to help stabilize" his health. [15] The matter was set down for mention before the Commission on 30 September 2016. At that mention it was decided that a number of issues would need to be addressed at a hearing later in October. -- 5 of 15 -- 6 [16] On 19 October 2016 the appellant was directed to provide submissions to support an application for leave to proceed and to explain, amongst other things, the reason for the delay in the proceedings. The matter was set down for hearing on 27 October 2016. Legislative and Procedural Context [17] The workings of the Commission are under-pinned by the Rules. Rule 5 informs us that the Rules apply to proceedings before this Commission. For certainty, "proceedings" for the purposes of the Rules include a proceeding started by way of a notice of appeal under an appeal act, i.e. the WCR Act.5 [18] Relevant to this matter are Rules 45, 226, 230, and 231. It is not necessary to set these rules out in full. Rule 45 will apply in this instance as the appellant has received a notice of a directions order made by the Commission and he has failed to comply with them. One of the consequences of failing to comply with a directions order is that the Commission may dismiss the proceeding. [19] Rule 226 outlines the effect of a failure to comply with the Rules. A failure to comply with the Rules is an irregularity that is not, at its highest, fatal to a proceeding. Rule 226(2) sets out the manner in which the Commission may remedy such irregularities. In this matter there are a number of irregularities which I will detail as they arise. [20] Rule 230 outlines the procedure for when a proceeding lapses; this will occur when an application starting a proceeding has been filed, and no action for that application, or in this instance 'appeal', has been taken for one year. A matter will lapse automatically and without notice. The consequence of such a delay and the lapse is that a party to the matter may only take further action with an order of the Commission. [21] Rule 231 applies in the same circumstances as r 230, but it allows the Registrar to initiate a show cause process which may result in the matter being struck out by the Commission. The show cause process in the current proceedings was commenced by the Industrial Registry on 25 July 2016 when a letter was sent to the appellant giving him 21 days in which to respond or have his matter struck out. In particular, the Industrial Registry's letter directed the appellant to r 231. [22] Rule 231(4) is in the following terms: "(4) The applicant's response to the notice to show cause must state the following– (a) the steps taken in the proceeding; (b) an explanation for the circumstances of the delay; (c) the steps (including a timetable) proposed to be taken to progress the proceeding; (d) any prejudice suffered or likely to be suffered by another party to the proceeding if the application is not struck out; 5 Industrial Relations (Tribunals) Rules 2011 rr 3 – 5; sch 2 (definition of 'appeal Act' para (g)). -- 6 of 15 -- 7 (e) the merits of the proceeding; (f) why the court, commission or registrar should not strike out the application despite the delay." [23] The appellant's response, which I have outlined in paragraph [14], briefly addressed sub paragraph (b) of r 231 but otherwise failed, in my view, to adequately address the other matters contained in r 231(4). [24] Rule 231(6)(a) allows the Commission at a hearing of the show cause matter to strike out the application. How the rules apply [25] In the decision of Hall P in Quaedvlieg v Boral Resources (Qld) Pty Ltd6 his Honour, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell7 as follows: There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules.8 [26] Those sentiments are very applicable to this matter. Rule 45 [27] The further directions order issued by the Vice President on 12 March 2015 required the appellant to file and serve a Statement of Stressors by 4:00pm on 10 April 2015. The deadline for filing and serving was extended twice at the request of the appellant until a date in late May 2015. However, despite the granting of the extensions the appellant did not ultimately comply with the directions orders. Given the appellant’s failure to comply with the orders it is within the Commission’s power to dismiss the appeal. I am unable to understand how the appellant could instruct his solicitors for his proceedings before the Federal Circuit Court and the Federal Court and yet be unable to file a Statement of Stressors which is, in effect, a list of events which would not ordinarily be onerous to compile. [28] The Commission would be acting within its power if it dismissed the appeal for failure to comply with the directions order, rule 45 clearly allows for this. Rules 230 and 231 should also be considered as they apply in this matter. 6 Quaedvlieg v Boral Resources (Qld) Pty Ltd (2005)180 QGIG 1209. 7 Quinlan v Rothwell [2002] 1 QdR 647. 8 Quinlan v Rothwell [2002] 1 QdR 647, 658. -- 7 of 15 -- 8 Rule 230 and 231 [29] It was submitted by the regulator that when considering whether an application for leave to proceed the appropriate test is the one relied upon by Commissioner Black in Christopher William Savage v Q-Comp.9 Commissioner Black had regard to a decision of the Queensland Court of Appeal, Tyler v Custom Credit Corp Ltd & Ors.10 The Court of Appeal identified a number of factors to consider when considering an application for leave to proceed under r 389 of the Uniform Civil Procedure Rules 1999 ('the UCPR'). [30] Whilst Tyler v Custom Credit Corp Ltd & Ors provides a useful overview of the factors which may be taken in an application for leave to proceed, r 389 of the UCPR is in different terms to r 230. Rule 230 (3) sets out the factors which an applicant must address when seeking an order for leave to proceed. For the purposes of both r 230 and r 231 the factors to which I should have regard and to which the appellant should have responded are extracted in paragraph [22] above. I shall, for the purposes of both r 230 and r 231 address each of the factors in turn. [31] Additionally, there is the common law rule that in an application for leave to proceed, the applicant for leave must "show that there is good reason for excepting the particular proceedings from the general prohibition" in a case in which three years have elapsed from the time when the last proceeding was taken.11 Steps taken in the proceeding [32] To date, the sole step taken in progressing this matter since the filing of the notice of appeal on 23 August 2013, is the section 552A conference. That conference before Thompson IC occurred on 1 October 2013. Since that date there have been no substantive movements towards the resolution of this appeal. Explanation for the circumstances of the delay [33] The appellant cites his mental health, his financial position, his lack of legal representation before the Commission, and his proceedings before the Federal Circuit Court as reasons for the delay. [34] The appellant has not sworn any affidavit in support of his application. [35] No explanation has been given by the appellant for his failure to provide any factual material grounding his claim. In particular, the appellant offered no medical evidence to support his assertion that his health had impacted on his ability to comply with the directions orders. The Commission file contains at least two medical certificates12 which assert his capacity to represent himself at a hearing. 9 Christopher William Savage v Q-Comp [2013] QIRComm 44. 10 Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178. 11 William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, 496; Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536; Dempsey v Dorber [1990] 1 Qd R 418, 420; Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992, 4. 12 Certificates dated: 1 September 2016 (Dr Anandaram Jothibabu), and 30 January 2015 (Dr Perry Short). -- 8 of 15 -- 9 [36] No direct evidence was offered regarding his financial position. [37] Counsel for the Regulator referred the Commission to a decision of Jones J in Voyka v Jacko13 a case which involved an application to have the proceedings struck out for the want of prosecution pursuant to r 280 of the UCPR and in the second application the plaintiff sought leave to proceed pursuant to r 389. In relation to the role that impecuniosity Jones J observed: There is no direct evidence as to whether the plaintiff is impecunious and whether his financial state has contributed to his inability to progress the claim. The only affidavit filed on his behalf identifies that the claim against him by the Australian Tax Office was for the sum of $5,000,000. There is also reference to a summary judgment having been obtained but the amount of that judgment is not identified. There is reference also to the fact that the plaintiff has "had to substantially cease operating a metal fabrication business". There is a further reference to the fact that the plaintiff’s involvement in the Administrative Appeals Tribunal has taken up his "time and resources".14 [38] The appellant, in this matter, points to his involvement in other court proceedings to explain the delay; Jones J's decision was also relevant to that part of the appellant's explanation: "Whilst it may be the case that other proceedings have competed, and continue to compete, with these proceedings for the plaintiff’s financial resources, the scale of those proceedings and the sums of money involved do indicate that the plaintiff ought at least to have had the capacity to formulate the claim and to provide particulars of it in the subject proceedings. The failure to do so over a period of five years cannot, in my view, be explained by lack of resources to undertake, at least, this step in the action."15 [39] It was submitted by the Regulator that the observations of Jones J in Voyka v Jacko have equal application to the current matter before the Commission. I agree. [40] In order to fully understand what litigation was undertaken by the appellant, it is necessary to give a brief overview of the appellant's litigation as a background to the commencement of the proceedings in both the Commission and the then Federal Circuit Court into context. [41] The appellant was terminated by the second defendant on 20 August 2012. On 5 October 2012 the appellant filed with Fair Work Australia ('FWA') an application under s 365 of the Fair Work Act 2009 claiming that his employment had been terminated because he had made a number of complaints against fellow employees. [42] On 21 October 2013 the appellant filed an application in the Supreme Court of Queensland against QComp and WorkCover seeking an order for review of decisions made by them with respect to alleged breaches of the Workers' Compensation and Rehabilitation Act 2003. A second application for statutory review was filed on 16 December 2013. 13 Voyka v Jacko [2006] QSC 099. 14 Ibid [18]. 15 Ibid [19]. -- 9 of 15 -- 10 [43] A conciliation conference in FWA proved unsuccessful and on 23 October 2012 the appellant commenced proceedings in the then Federal Magistrates Court. [44] The Commission was told that the proceedings in Federal Circuit Court sought relief under Chapter 3-1 of the Fair Work Act 2009 and traversed many of the areas which would be the subject of a hearing before the Commission.16 [45] On 16 January 2014, the appellant wrote to the Commission in the following terms: "I wish to notify the Vice President, that I would like to adjourn the current proceedings in the matter WC/2013/269. As of 16 December 2013, I have sought and commenced a Judicial Review of QCOMP's decision into my WorkCover Claim in the Supreme Court. This review relates to serious breeches of natural justice or procedural fairness on the behalf of QCOMP during the course of the review process. As such, I would like to respectfully request that the current matter before the QIRC be adjourned until such time as the Supreme Court has made a determination into the fairness and thoroughness of this review process. If possible could you please advise, by what form or process you would like me to formalize this request." [46] On 28 January 2014 the applicant discontinued one of the applications for a statutory review. The second application for a statutory review was discontinued on 17 June 2014. [47] The appellant claimed that the Federal Circuit Court proceedings had impeded his ability to progress this matter does not ring true. Vasta J delivered his reasons for decision on 18 December 2015 dismissing the appellant's case. Interestingly, even after the delivery of that judgment no steps were taken by the appellant in these proceedings. [48] In the affidavit of Elizabeth Anne Milner sworn on 24 October 2016 she deposes that the proceedings in the then Federal Magistrates Court and the Federal Circuit Court before Vasta J continued on 14,15 and 16 July and on 22 September, 30 November and 1,2 and 3 December 2015. Ms Milner deposes that there were numerous interlocutory and directions hearings before three different judges and a registrar of the Court. 25 orders were made with respect to the conduct of the proceedings. The second respondent's affidavit of documents contained more than 1100 documents. The appellant filed three affidavits of evidence and an additional affidavit as to his health. The exhibits to the affidavits exceeded 700 pages. [49] The appellant was capable of instructing his solicitors to conduct his proceedings before the Federal Circuit Court. The decision of Vasta J was appealed and the appellant appeared on his own behalf in the appeal before the Federal Court in 16 Affidavit of Elizabeth Anne Milner sworn on 24 October 2016. -- 10 of 15 -- 11 August 2016. Despite all of this, the appellant was apparently incapable of complying with the directions orders to submit a list of stressors. [50] This is not simply case of delay. It was a failure to comply with the directions of the Commission. [51] I cannot accept that the factors advanced by the appellant individually or in combination are such as to prevent the appellant from complying with orders of the Commission and filing, at least, his Statement of Stressors. Steps (including a timetable) proposed to be taken to progress the proceeding [52] The appellant did not address this point, but given the above answer, the balance of the usual processes would need to be completed and then the hearing would need to be held. Prejudice suffered or likely to be suffered by another party to the proceeding if the application is not struck out [53] The appellant submits that the "QIRC proceedings and the Federal Court proceedings have or will traverse substantially the same material, it cannot be reasonably said that QCOMP or Hatch Associates have suffered any substantial prejudice." [54] In the parallel matter heard by the Federal Circuit Court the first respondent was not a party to the proceedings nor in the appeal to the Federal Court. Given that the first respondent has not been involved in what was, effectively, the first 'airing' of this matter I can only come to the conclusion that it would suffer prejudice if the proceeding before this Commission was to continue. [55] In the affidavit of Gavin Geoffrey Clark sworn on 26 October 2016 it was deposed that having regard to the similar nature of the Federal Circuit proceedings and in light of the fact that the second respondent had been given leave to appear and be heard, a decision was taken by the regulator allow the second respondent to lead evidence from the lay witnesses. That decision was taken because the regulator was aware that the legal representatives of the second respondent were involved in extensive conferencing with witnesses in the Federal Circuit proceedings. The regulator has not accordingly had an active involvement in the preparation of this appeal. [56] It has been more than three years since the appeal was filed and more than four years since the application for compensation was lodged with WorkCover. If leave to proceed was granted there would still be further delay and, not insignificant delay with the necessity to convene another 552A conference, the first being of little value. Further procedural steps are yet to be undertaken which will again delay the hearing of this matter all of which only goes to exacerbate the potential prejudice to the first defendant. [57] The delay in these proceedings have not been as a result of any act or omission on behalf of either the first or second defendants. The delay falls fairly at the feet of the appellant. -- 11 of 15 -- 12 Merits of the proceeding [58] In applications such as this it is not always easy to determine prospects of success. [59] As discussed elsewhere, this is both a show cause matter and an application for leave to proceed. Accordingly, a consideration of the prospects of success is a relevant matter in determining whether or not a discretion ought to be exercised in favour of the appellant. [60] In Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt),17 Chief Industrial Commissioner Hall (as his Honour then was) in dealing with an application under s 295(2)(b) of the Industrial Relations Act 1990 stated: "I continue to adhere to my observation in Breust (at 779) that the strengths and weaknesses of the applicant's substantive case will not always emerge, and add that in my view it would be inappropriate to permit the hearing of an application for extension of time to develop into a preview of the trial in order that a view might be formed of the Applicant's prospects of success. In my view, in the ordinary case, an application for extension of time should be a short matter dealt with expeditiously. A conclusion that an applicant could not in any event succeed will usually flow from formation of a view that there is an obstacle which no amount of evidence will overcome, eg. a conclusion that the respondent was not the employer or that the applicant was not an employee."18 [61] What makes this matter different from other applications where prospects of success need to the assessed is that the proceeding have, to a certain extent, been rehearsed in a different forum. In that regard both the regulator and second respondent submitted that the proceedings in the Federal Circuit Court traversed many of the areas which would be the subject of a hearing in the Commission. [62] I have the advantage of the decision of Vasta J in the Federal Circuit Court. Both the first and second respondents have made submissions in relation to it. What can be gleaned from the decision is that whilst employment with the second respondent contributed to the appellant's mental state, there were many competing causes of the appellant's illness other than his employment with the second respondent. [63] The second respondent submits that the reasonable conclusion that can be drawn from the decision is that if the appellant suffered any illness as a consequence of his employment with the second defendant, it arose from the termination of his employment which was reasonable management action taken in a reasonable way. [64] In relation to the merits of the matter, the regulator submitted that: "To succeed in this appeal, Mr Barnes must be able to satisfy the Commission that his employment is a significant contributing factor to the development of this personal injury and that his injury does not arise out of or in the course of reasonable management action taken in a reasonable way in connection with his employment. 17Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010. 18 Ibid 1011. -- 12 of 15 -- 13 The very thorough analysis of Judge Vasta and the ultimate conclusions made on the contribution of employment to Mr Barnes' injury would suggest that after a trial of the action, those matter would be found against Mr Barnes. Otherwise, Mr Barnes had not produced any evidence to the Commission which would lead to any conclusion that he has reasonable prospects of success in this appeal. The inference available to the Commission, on this application, is that Mr Barnes' appeal has no real prospects of success, which should influence the decision to reject the application for leave to proceed and dismiss the appeal." [65] It would appear from both the reasons for decision of Vasta J and the submissions of the regulator and second respondent, which I accept, that the appellant has poor prospects of success. Why the court, commission or registrar should not strike out the application despite the delay [66] I have not been persuaded by anything before the Commission as to why the appellant's appeal should proceed. He has not, in my view, adequately demonstrated why the delay in these proceedings occurred. There were no submissions made by the appellant on why the matter should not be struck out, rather explanations were offered along with the statement that the appellant wanted to continue. The mere fact that the appellant wants to continue is not, in these circumstances, a reason in itself as to why the proceedings should be allowed to continue. Conclusion [67] The appellant has failed, apart from attending a s552A conference on 1 October 2013, to prosecute his proceedings in any meaningful way since the appeal was lodged in the Industrial Registry on 23 August 2013. He failed to comply with directions made on 12 March 2015, 10 April 2015 and 29 April 2015. [68] The Commission might have taken steps to strike out his proceedings following the correspondence of the regulator of 4 December 2014. Instead the appellant was given an opportunity to deal with his non-compliance. Despite being given numerous opportunities to progress the matter under a revised timetable, the appellant failed to comply with the directions orders of the Vice President and Deputy President Bloomfield. [69] When the matter came before me for mention the appellant again had the opportunity to attend to outstanding matters. He failed to do so. [70] In Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd, Wilcox and Gummow JJ in dealing with a similar provision under the Federal Court Rules stated that the discretion conferred by the rule was "unconfined, except for the condition of non- compliance with a direction ... [b]ut two situations are obvious candidates for the exercise of the power." The first were "cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an -- 13 of 15 -- 14 acceptable period". The second were cases "whatever the applicant’s state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent." 19 [71] Their Honours went on to observe: "Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate, or for some reason, is unable to do so. Such a conclusion would not readily be reached; but where it was, fairness to the respondent would normally require the summary dismissal of the proceeding."20 [72] In the second of the two situations namely a significant continuing default, their Honours wrote: "it does not really matter whether there have been earlier omissions to comply with the Court’s directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent."21 [73] The discretion conferred under the Rules must be exercised judicially. [74] As Martin P observed in Burke v Simon Blackwood (Workers’ Compensation Regulator),22 "The burden upon a person seeking to upset the exercise of such a discretion is described in the well-known decision of the High Court in House v The King: 'The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.' (emphasis added)"23 [75] The discretion to dismiss the proceeding has, in my view, been enlivened. Accordingly, having regard to the history of delay, the unjustified non-compliance 19 Lenijamar Pty Ltd and Ors. v AGC (Advances) Ltd (1990) FCR 388, 396. 20 Ibid. 21 Ibid 397. 22 Burke v Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) – Decision. 23 Ibid [11] (citations omitted), quoting House v The King (1936) 55 CLR 499, 504–5. -- 14 of 15 -- 15 with the directions orders, the absence of any indication when compliance would be forthcoming, in particular, the provision of the list of stressors or when the matter might reasonably come on for hearing if the appellant was given more time are all grounds to exercise the discretion to dismiss the proceeding. [76] I have little confidence that if the appellant was given leave to proceed that the proceedings would progress with any higher degree of speed than has been demonstrated in the past. The appellant elected to pursue judicial review in the first instance and then to prosecute his claim in the Federal Circuit Court all of which were unsuccessful. In doing so, the appellant has neglected this appeal in the Commission. In comparison to the Federal Circuit Court proceedings, this appeal was given no priority at all by the appellant. [77] The appellant has demonstrated over an extended period of time an inability or unwillingness to co-operate with the Commission in assisting it to progress the appeal to a hearing within an acceptable period. It must be remembered that the appellant remains in default in complying with the Commission’s directions. There was no proposal as to how or when he would might cure his default. [78] This matter is, for the reasons given, an obvious candidate for the exercise of the power to dismiss the proceedings under r 45 because:  the appellant received three directions orders on 12 March 2015, 10 April 2015 and 29 April 2015; and  the appellant failed to comply with any of the orders. [79] The appellant bears the onus of establishing that there is a "… good reason for excepting the particular proceedings from the general prohibition."24 For the reasons given above, the appellant has not shown why leave should be granted to proceed under r 230. I therefore decline to exercise my discretion under r 230 and dismiss the application under r 231. [80] Leave having been refused, it is appropriate that I order that the matter be struck out. [81] As observed in paragraph [78] this matter is one which is amenable to an order under r 45. Accordingly, if it be necessary to do so, pursuant to r 45 I would also dismiss the proceedings. ORDERS [82] The orders will be: 1. The appellant's application is dismissed; 2. The proceedings are struck out; and 3. Pursuant to r 45 the proceedings are dismissed. 24 William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, 496. -- 15 of 15 --