Burke v Simon Blackwood (Workers' Compensation Regulator) [2013] ICQ 23

CITATION: Dominic Burke AND Simon Blackwood (Workers' Compensation Regulator) (C/2013/38) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers Compensation and Rehabilitation Act 2003 - s. 561 - appeal against decision of the Industrial Commission Dominic Burke AND Simon Blackwood (Workers’ Compensation Regulator) (C/2013/38) JUSTICE MARTIN, PRESIDENT 12 December 2013 DECISION [1] This is an appeal from a decision of the Vice President given on 28 August 2013. In that decision the Vice President dismissed an appeal by the Appellant against a decision of Q-Comp made on 6 March 2013. [2] The history of this matter can be stated briefly as follows: Date Comments 9 December 2010 WorkCover made a decision adverse to Mr Burke 18 February 2013 Mr Burke lodged an application for review with the Q-Comp Review Unit. The application was rejected on the basis that Q-Comp did not have a discretion to extend the period of time for the lodgement of an application for review when such an extension had not been sought within the three month period allowed for the lodgement of an application. 15 March 2013 Mr Burke filed an appeal against that decision. 4 April 2013 Mr Burke was notified that his appeal was listed for callover on 23 April 2013. The matter was set down for hearing for 25 July 2013 and directions were issued, including a direction that Mr Burke file a list of names of witnesses by 31 May 2013. 27 June 2013 Q-Comp informed the Industrial Registrar that it had not received Mr Burke’s list of witnesses and that it did not intend to call witnesses at any trial. 2 July 2013 to 23 July 2013 Attempts were made by the Vice President’s Associate to contact Mr Burke. He did not appear at a mention of the matter. He sent an email to the Industrial Registry in which he said was sick and that he could not appear at the 25 July hearing. He was informed by the Industrial Registry that he would need to provide evidence of his inability to appear at the trial. Mr Burke said that he would provide such material but that he was suffering from a broken ankle and had lost all his paperwork and his telephone. 25 July 2013 Mr Burke failed to appear at the hearing and did not make any contact with either the Commission or Q-Comp about the appeal. 28 August 2013 The appeal was dismissed. [3] In the submissions filed by Mr Burke on this appeal he provides no material dealing with the issue of his failure to appear on 25 July or at earlier directions hearings or to comply with the directions which were made. The submission is confined to an attack upon his former employer alleging that it is dishonest and unethical. [4] The history of the appellant’s conduct of his own appeal was summarised in the Vice President’s reasons as follows: "[3] On 4 April 2013 the appeal was listed for Callover on 23 April 2013. The Industrial Registry received an e-mail from the Appellant on 15 April 2013 to say that he could not make the Callover but could be contacted on a particular telephone number. In that email the Appellant went on to state the following: "… I have spoken to WorkCover and we are, or at least were, in agreeance [sic] that my claim should succeed as indicated in Federal Maggy Jarrets [sic] decision as he well & truly discovered my employer, Serco to be unetical [sic] dishonest gutter filth who were found to be exactly that. However, in forcing me to pursue this through their bullying standover actions I seek interest, super -- 1 of 5 -- 2 and stress & anxiety for the period Serco deliberately lied and cost me my rental house & quality of life…". [4] On the day of receipt of this email, my Associate telephoned the Appellant and advised him that he would need to complete the Callover Information Sheet and return it to the Industrial Registry prior to 23 April 2013. On 16 April 2013 the Appellant apparently sent an e-mail to Q-COMP which was responded to by Ms Fergusson on 17 April 2013 as follows: "I acknowledge your email to Q-COMP yesterday in relation to your appeal and note that you will be unable to attend the Callover set down by the Vice President of the QIRC for 23 April 2013. I wish to advise that there will be 15 matters heard by the Vice President at this Callover (of which one is yours). The purpose of the callover is for the Vice President to set hearing dates and determine the number of witnesses each party is calling. We have no control over the setting of these dates. I suggest that you contact the QIRC Registry to advise of your position ...". [5] That e-mail went on to advise the Appellant of the QIRC Registry's telephone number and e-mail address. [6] At the Callover on 23 April 2013, WC/2013/86 was set down for hearing on 25 July 2013 in the absence of any information provided by the Appellant. A Further Directions Order was issued on 23 April 2013 and forwarded to the Appellant. As a result of those directions the Appellant was required to file, by 31 May 2013, a list of the names of all witnesses to be called at the hearing on 25 July 2013. [7] In correspondence dated 27 June 2013, Q-COMP wrote to the Industrial Registrar advising that it had not received the Appellant's list of witnesses and advising that it did not intend to call any witnesses in this matter. Myself and my Associate were on leave at the time this correspondence arrived in the Industrial Registry. On 2 July 2013 my Associate attempted to contact the Appellant on the mobile telephone number that he had provided to the Industrial Registry. The telephone had been disconnected. She then sent an email to the Appellant advising him that she had attempted to telephone him but that his number had been disconnected and asked that he urgently telephone her. That email was successfully delivered to the Appellant's email address at 11.40 am on 2 July 2013. [8] In the Further Directions Order dated 23 April 2013, a Mention of the matter was scheduled for 4.00 pm on 8 July 2013. The Appellant did not appear at this Mention. [9] The next thing that was heard from the Appellant was an e-mail sent on 13 July 2013 to the Industrial Registry as follows: "I am quite, sick at presentt, there is no way I can make 25th of July date. I also had all my stuff stolen - computer and phone - hence, not being able to contact anyone and/or access all the information in regard this silly issue of which harebrains at Q-COMP admitted to me six months they had made - they made mistake rejecting my claim against the ruling of a Federal Magistrate, which once again displays these brain-dead scum from Q-COMP are a waste of space as a Federal Magistrate Jarrett's decision because they are halfwits accountable to no-one." [10] On 16 July 2013 the Industrial Registry sent the Appellant an email in the following terms: "I refer to your email of the 13 July wherein you state that 'there is no way I can make the 25 July date' as you are 'quite, sick at present'. There was a mention of this matter at 4.00 pm on 8 July 2013. The matter is listed for hearing on 25 July 2013 and is an application by you to extend the time for you making an application to Q-COMP for a review of a WorkCover decision. You will need to liaise with Q-COMP about your application to vacate the hearing date of 25 July 2013 as Q-COMP would have already incurred certain costs of the hearing e.g. the costs of their barrister for the date of 25 July 2013. Thus they may only agree to the vacating of the hearing date provided that you meet costs thrown away. Prior to the Vice President's consideration of your application to vacate the hearing date of 25 July 2013, she will need to know of Q-COMP's position as to your application. In addition, the Vice President will require a medical report from your treating medical practitioner as to the following: • that the treating medical practitioner certifies that you are medically unfit to attend the hearing on 25 July 2013; -- 2 of 5 -- 3 • the details of the medical conditions that you currently suffer and which your medical practitioner is of the opinion that they prevent you from attending the hearing of your application on 25 July 2013; • an indication from your treating medical practitioner as to when you will be able to attend the hearing of your application to extend time; and • the length of time that you have been a patient of that treating medical practitioner. The quicker you supply that medical report the better as Q-COMP may need to have that prior to determining their position on your application to vacate the hearing date of 25 July 2013.". [11] The e-mail response from the Appellant on 22 July 2013 was as follows: "Hi, I will provide certificate/s no problem at all, its [sic] just I have also broken an ankle and lost all paperwork/phone and my healt [sic] is priority at present, if you could let othrr [sic] side know July 25 is impossible." [12] Following receipt of this e-mail a further e-mail was forwarded to the Appellant on 23 July 2013 in the following terms: "I refer to your email of 22 July 2013. Please note that the Commission has received no correspondence from Q-COMP regarding their agreement to vacate the hearing dates … The hearing commencing 25 July 2013 will still commence at 10:00 am.". [13] The Appellant did not provide the Commission with any medical report/certificate. Further, he did not make contact with Q-COMP in an attempt to ascertain their position in respect of the vacation of the hearing date of 25 July 2013. Thus the hearing remained scheduled for 25 July 2013. The Appellant failed to attend the hearing of his appeal which was scheduled for 25 July 2013." [5] At the hearing of this appeal, Mr Burke sought to explain his failure to appear at the hearing. What he had not told the Commission in his earlier correspondence was that, at the time of the hearing, he was in the United States of America on a holiday. It was accepted by Mr Gray that Mr Burke had broken his ankle in the United States. The appellant had not been truthful in his correspondence with the Commission. The real reason he could not attend the hearing was that he was not in Australia. [6] It became clear in Mr Burke’s oral submissions that he places substantial weight on a decision1 made by Federal Magistrate Jarrett (as his Honour then was) on an application by Mr Burke for relief on an unfair dismissal claim. Mr Burke is of the view that the decision of FM Jarrett vindicated his claim for workers’ compensation and that there was, therefore, little need to say anything more. Mr Burke appears to have misunderstood a statement made by the Federal Magistrate about his entitlement to succeed. [7] In the Federal Magistrates Court proceedings he claimed that his dismissal by his employer (Serco Pty Ltd) was adverse action taken against him in contravention of the general protections contained in the Fair Work Act 2009 (Cth). After consideration of the evidence, FM Jarrett concluded: "46. In my view, Serco has not discharged the onus upon it to show that it did not take the adverse action that it took against Mr Burke for the proscribed reasons he alleges. Serco has failed to discharge the onus of proof upon it. 47. In the circumstances, I am of the view that Serco has contravened s.340 of the Fair Work Act 2009 in that it has taken adverse action against Mr Burke because he exercised a workplace right, namely his right to: (a) Make a complaint or inquiry about his working environment with his employer; (b) Make a complaint or inquiry about his working (safety) conditions with his employer; and (c) Making a WorkCover claim. 48. Mr Burke’s claim is entitled to succeed." [8] The appellant relies upon the finding that: "Mr Burke’s claim is entitled to succeed." But that is not a reference to the appellant’s workers’ compensation claim – it is clearly referring to the matter before the Federal 1 Burke v Serco Pty Ltd [2012] FMCA 1134 -- 3 of 5 -- 4 Magistrate, viz., the wrongful dismissal claim. FM Jarrett could have made no finding on the workers’ compensation claim nor did he purport to do so. [9] Finally, there was no evidence from Mr Burke about his initial failure to lodge his application within the three month time limit. He asserted that his previous employer had withheld documents but he provided nothing to support that. [10] The decision by the Vice President to dismiss the appeal was made pursuant to the power provided by r 45 of the Industrial Relations (Tribunals) Rules. That rule provides: Failure to attend or to comply with directions order (1) This rule applies if— (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar stating a time, date and place for a hearing or conference for the proceeding; and (b) the party fails to attend the hearing or conference. (2) This rule also applies if— (a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and (b) the party fails to comply with the order. (3) The court, commission or registrar may— (a) dismiss the proceeding; or (b) make a further directions order; or (c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or (d) make orders under paragraphs (b) and (c). [11] The Commission has a discretion under r 45 which must be exercised judicially. 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 King2: "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." 3 (emphasis added) [12] The appellant has not demonstrated that the Vice President erred in her exercise of discretion in dismissing the application. [13] In any event, for the reasons given above, the application was misconceived and doomed to failure. In the application before the Vice President, Mr Burke should have presented material which: (a) explained his lengthy delay in lodging an application for review with the Q-Comp Review Unit, and (b) demonstrated that the Q-Comp Review Unit had erred in rejecting his application. He did neither. [14] At the hearing before the Vice President, the respondent did not seek an order for costs. In the Vice President’s decision of 28 August costs were reserved. On the appeal, Mr Gray sought an order for costs of both the initial 2 (1936) 55 CLR 499 3 Ibid at 504-505 -- 4 of 5 -- 5 hearing and the appeal. He explained that his client’s change of position was occasioned by the knowledge, obtained after the hearing, that Mr Burke was in the United States rather than in Australia at the relevant time. As I have observed above, the application as framed by Mr Burke could not have succeeded – even if he had explained the lengthy delay. It is appropriate, then, to consider the question of costs. [15] This appeal has been brought under the provisions of the Workers Compensation and Rehabilitation Act 2003. Section 558(3) of that Act provides: "Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation." [16] In that section “appeal body” includes the Commission and, in the ordinary course, a successful party could expect to obtain an order for costs under that section. [17] There is a difference, though, with respect to costs in the Industrial Court. Section 563 provides: "On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause." [18] There is no readily apparent reason for this difference in capacity to award costs. It may be that the restriction on the Industrial Court’s power is intended to mirror the provisions in the Industrial Relations Act 1999 (s 335). If so, the mirror has not been used for the power of the Commission to award costs. It is an inconsistency which does not appear to have a sound basis. [19] In any event, where an appeal is brought to the Commission on a footing which is misconceived and doomed to fail, costs should follow the event. The appeal from the decision of the Commission in these circumstances was one which was brought without reasonable cause. Orders [20] The appeal is dismissed. The appellant is to pay the respondent’s costs in both the Commission and this Court. JUSTICE MARTIN, President. Hearing Details: 2013 9 December (Appeal) Released: 12 December 2013 Appearances: Mr D. Burke, Appellant in person Mr S. Gray Counsel, directly instructed by the Respondent. -- 5 of 5 --