Bell v Workers' Compensation Regulator [2016] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bell v Workers' Compensation Regulator [2016] QIRC 049 PARTIES: Bell, Edward (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2015/199 PROCEEDING: Appeal against a decision of Workers' Compensation Regulator DELIVERED ON: 28 April 2016 HEARING DATES: 8 April 2016 HEARD AT: Brisbane MEMBER: Industrial Commissioner Thompson ORDERS: 1. The hearing listed in Mackay on 11, 12 and 13 April 2016 be vacated. 2. The Appellant is to meet the costs "thrown away" of the Regulator as a consequence of the request by the Appellant to have the dates 11, 12 and 13 April 2016 vacated. Those costs are $3,122.50. 3. The costs ordered are to be paid by the Appellant to the Regulator by no later than 28 days from the date of this Order. 4. The Appeal will not be relisted until the abovementioned costs order has been complied with by the Appellant. 5. There be an adjournment of the Appeal until notification is received in writing from the Appellant they are in a position to proceed to hearing. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Decision of Workers' Compensation Regulator - Preliminary matter regarding vacating of hearing dates - Costs - Orders issued. -- 1 of 4 -- 2 -- 2 of 4 -- 3 CASES: Workers' Compensation and Rehabilitation Act 2003 Uniform Civil Procedure Rules 1999 APPEARANCES: Mr P. Moore, Counsel instructed by Eureka Legal, for the Appellant. Mr S. Gray, Counsel directly instructed by Workers' Compensation Regulator, Respondent. Decision from the Bench (as edited) [1] This matter was the subject of a hearing with submissions from each of the parties as a consequence the hearing days of 11, 12 and 13 April 2016 being vacated and the Commission to further consider the issue in relation to costs "thrown away". [2] There was no formal application as such from the Appellant to vacate the dates however there was correspondence by way of an email received on 8 April 2016 which contained a request for the dates to be vacated on his behalf with submissions made in the course of the proceedings by Counsel for the Appellant for that to occur. [3] I have determined, based on the submissions that have been made, to in effect, grant the request made by the Appellant to vacate the days scheduled for 11, 12 and 13 April 2016 in Mackay in respect of this matter. [4] The Appellant, in my view, has established that there is some material at this stage which might be described as being "at large" which they've not been able to access and that material could have some beneficial impact in terms of the prosecution of the Appeal on behalf of the Appellant. I have formed a view that if the Appellant was not afforded the opportunity to make an effort to obtain such material, then there could be a denial of natural justice which would have some negative impact upon their conduct of the Appeal. [5] I note that the Regulator, through Counsel, indicated they were a model litigant, and had also formed a view that there may well be some beneficial material available which the Appellant could utilise in the course of the Appeal. Those comments were made in relation to material that had been obtained on 30 March 2016 and again on 5 April 2016 by the Regulator as a result of witness conferencing for the proposed hearing. [6] On the point of the Regulator's conduct, the Appellant in the course of the proceedings acknowledged whilst they had not come to the hearing with "clean hands" there was an issue regarding the Regulator being in a same or similar position. It has not been established to my satisfaction that the Appellant's submissions on this issue are borne out that the Regulator's conduct had led to the vacating of hearing dates 11, 12 and 13 April 2016. [7] The position of the Regulator was that in compliance with Further Directions Orders issued on 31 July 2015 they had provided to the Appellant a list of all documents in their possession as required by those directions and later provided to the Appellant additional material as it came into their hands on 1 and 5 April 2016. The disclosure -- 3 of 4 -- 4 of the latter documents had not effected the compliance by the Regulator with the Further Directions Orders as alleged by the Appellant. Orders [8] I make the following Orders: 1. The hearing listed in Mackay on 11, 12 and 13 April 2016 be vacated. 2. The Appellant is to meet the costs "thrown away" of the Regulator as a consequence of the request by the Appellant to have the dates 11, 12 and 13 April 2016 vacated. Those costs are: Uniform Civil Procedure Rules 1999 - SCHEDULE 3 - Magistrates Court - Scale of Costs 5. Preparing for trial, including directions conference (a) including brief if counsel engaged $1,252.50 6. (f) on trial or hearing (other than an application in a proceeding) - first day $1,120.00 (g) on each subsequent day of hearing (if the matter occupies 2 or more hours of the day and the appearance is certified by the court) $750.00 Total $3,122.50 3. The costs ordered are to be paid by the Appellant to the Regulator by no later than 28 days from the date of this Order. 4. The Appeal will not be relisted until the abovementioned costs order has been complied with by the Appellant. 5. There be an adjournment of the Appeal until notification is received in writing from the Appellant they are in a position to proceed to hearing. [9] I order accordingly. -- 4 of 4 --