Egan v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 40

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Egan v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 040 PARTIES: Egan, Peter (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/100 PROCEEDING: Application by Workers' Compensation Regulator for award of costs DELIVERED ON: 21 February 2014 HEARING DATE: 11 November 2013 MEMBER: Commissioner Black ORDERS : The Application is dismissed CATCHWORDS: WORKERS' COMPENSATION - APPLICATION FOR COSTS - adjournment of proceedings sought by Appellant - respondent seeks an order for costs - significant reasons advanced by the Appellant justifying the adjournment. CASES: Workers' Compensation and Rehabilitation Act 2003, s 550 APPEARANCES: Mr P. Egan, the Appellant, in person. Mr S. Gray, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). [1] The Workers' Compensation Regulator has made an application for costs arising from an application by the Appellant that proceedings scheduled for Clermont in the week commencing 11 November 2013, be adjourned. [2] The Appellant's notice of appeal against a decision of the regulator pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act") was lodged in the Commission on 25 March 2013. The matter was listed for call-over on 23 April 2013 and was the subject of a conference on 15 July 2013. A directions hearing was convened on 3 September 2013 before the substantive hearing which -- 1 of 3 -- 2 was scheduled to take place from Monday 11 November 2013 to Friday 15 November 2013 in the Clermont Court House. [3] On Friday 8 November 2013 the parties to the proceeding were advised that because of limited court room facilities in Clermont, the commencement of the hearing would be delayed until Tuesday 12 November 2013, and that medical evidence would be heard at a later date in Brisbane. [4] On Monday 11 November 2011, Mr Egan advised the Commission that he wanted the complete hearing adjourned until a date to be fixed in Brisbane. He detailed his grounds for an adjournment in an email sent to the Commission at 10.44 am. Subsequently a hearing was convened at 12.00 pm on 11 November 2013 to enable both parties to address the matter at hand. [5] At the hearing Mr Egan advanced a number of reasons in support of his application for an adjournment: (a) The mother of a key witness, Graham Anstis, had died in Melbourne on Friday 8 November 2013 and as a result Mr Anstis would be unavailable to give evidence in Clermont. Mr Anstis was expected to have given significant evidence relating to a number of the alleged stressors. (b) On Friday 8 November 2013 the regulator had faxed to Mr Egan a significant number of documents which the regulator intended to rely upon in the proceedings. Mr Egan said that it was vital that he be given time to properly address the documents. Further, on his initial assessment of the material it was probable that the content would require him to call additional witnesses. This could not be arranged for the current week. (c) A key witness for the regulator had made telephone contact with one of Mr Egan's witnesses with the implication being that the witness may be persuaded not to give evidence in support of Mr Egan. (d) A witness for Mr Egan had just informed him that he was considering not giving evidence. In the circumstances Mr Egan may need time to serve an attendance notice on the witness. (e) The psychologist giving evidence for Mr Egan is currently very unwell and may not be able to give her evidence during the scheduled hearing days. An adjournment would allow time for the witness to recover and complete her report on Mr Egan's psychological injury. (f) Mr Egan did not believe that he would be medically fit to attend at Clermont for the scheduled hearing. Mr Egan had a doctor's appointment that afternoon and would request a certificate dealing with his capacity to travel and participate in the proceedings. Mr Egan resides in Oakey and would need to survive a ten hour car trip in order to get to Clermont. Subsequently, and in the afternoon of the hearing, Mr Egan emailed a doctor's certificate to the Commission which stated that Mr Egan was receiving medical treatment for the period from 11 November 2013 and 15 November 2013 and indicated that he will be unfit to travel during this period. -- 2 of 3 -- 3 [6] The regulator opposed the adjournment and flagged that it would make a costs application should Mr Egan's application for adjournment be successful. The regulator submitted that Mr Egan had been made aware of the challenges that he would confront in endeavouring to conduct the trial by himself (unrepresented) and that he should have taken the necessary precautions or preparations to ensure that he was able to prosecute his appeal in accordance with the stated timetable. Alternatively if he was obliged to seek an adjournment of proceedings he should have taken this step much earlier to avoid the inconvenience and wastage that would result from an abandonment of proceedings. Costs claimed by the regulator totaled $5,997.50. [7] Having regard to the particular facts and circumstances associated with the application for adjournment, I am not prepared to award costs against Mr Egan on this occasion. [8] The determining considerations in arriving at this conclusion are as follows:  The first day of the trial had to be vacated, and the hearing of medical evidence deferred to a future date, through no cause of the Appellant. These factors meant that the hearing could not conclude in Clermont on 15 November 2013 as programmed and that further hearing dates would need to be secured.  While it may have been practicable to utilise some of the hearing days available in the week commencing 11 November 2013, the deferral of the medical evidence and the evidence of Mr Anstis would have meant that the appellant's case could not have been concluded before the respondent commenced its case. Consequently witnesses would have had to be interposed, an undesirable outcome which is preferably avoided.  I accept that Mr Egan may have required time to review the material faxed to him by the regulator on 8 November 2013, and that he may as a consequence be required to call additional evidence. These circumstances would have necessitated some further delay in the commencement of the hearing in the week commencing 11 November 2013, or the abandonment of the hearing for that week.  Mr Egan presented a medical certificate to the Commission indicating that he would be unable to attend the proceedings in Clermont in the scheduled week. [9] The application is therefore dismissed. Having so concluded it is self evident that the Commission will be very reluctant to accommodate further requests for adjournment. The matter will now be listed for call-over to enable the scheduling of new hearing dates and to resolve the location for the hearing. [10] I order accordingly. -- 3 of 3 --