Buxton v Q-COMP [2011] QIRC 17

CITATION: Pam Buxton AND Q-COMP (WC/2010/85) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Pam Buxton AND Q-COMP (WC/2010/85) DEPUTY PRESIDENT BLOOMFIELD 9 March 2011 DECISION [1] On 6 December 2010 I issued a Further Directions Order concerning the exchange of material relative to Ms Buxton's appeal under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), leading up to a hearing scheduled for 14, 15, 16 and 17 March 2011. [2] Order No. 2 required Ms Buxton to provide all of her material, including a detailed statement and list of documents she proposed to rely on, by 17 December 2010. The Order was complied with several days ahead of time. Subsequently, on 9 January 2011, Ms Buxton filed additional material she had located and which she proposed to rely upon during the course of the hearing. [3] Order No. 3 required Q-COMP to file statements of evidence from witnesses it proposed to call by Friday 11 February 2011. However, several days prior to this date Q-COMP approached the Commission to ask for the matter be re-listed at short notice in accordance with Order No. 6 of the Further Directions Order. [4] When the matter came on for mention on 9 February 2011 Counsel for Q-COMP, Mr S. McLeod, informed Ms Buxton and the Commission that Q-COMP would seek to be relieved of its obligation to file statements in response on the basis Q-COMP had reached a decision it would not be defending the appeal. Mr McLeod also advised that he and Ms Shedden, an Officer within the Appeals Unit of Q-COMP, had, earlier that day, conveyed Q-COMP's intention to a Senior Officer at Disability Services Queensland (the Department), Ms Buxton's employer. Mr McLeod also advised that the Department might need some time to assess its own position and to decide what view it might take in respect of the position now adopted by Q-COMP. [5] On the basis the 6 December Further Directions Order listed the matter For Mention on 28 February 2011, for the purposes of making certain that all arrangements for the trial were in place, I adjourned the proceedings to that date. In doing so I requested Q-COMP to advise the Department that it should let Ms Buxton and the Commission know by 4.00 p.m. on Wednesday 23 February 2011 if it intended to seek to become involved in the proceedings. [6] When the matter was mentioned again on 28 February 2011 Mr McLeod informed me that a copy of the Transcript of the proceedings of 9 February 2011 had been made available to Crown Law who, he understood, was acting for the Department. He noted that the Transcript recorded the Commission's comments to the effect that if the Department was going to make an application to seek to be involved it would need to take such step by 23 February 2011. However, other than to record the fact that the Department had "flagged", with Q-COMP, an intention to bring an application in the Commission he could not take the matter any further. [7] Having considered the position adopted by Q-COMP, as well as the fact that there was no application or correspondence from the Department to indicate any intention to seek leave to become a participant in the proceedings, I decided to determine the appeal based upon the material then before me. [8] In doing so, I stated it was not up to Q-COMP to chase up the Department to secure its involvement. Equally it was not up to the Commission to make contact with either the Department or Crown Law to determine if they wished to make an application to seek to be heard in relation to Ms Buxton's appeal. If the Department had "a real and genuine interest" in the proceedings it had had ample time to make the necessary application to seek to draw that interest to the Commission's attention. It simply had not done so. [9] Accordingly, after Q-COMP reaffirmed it would not be defending the appeal, I vacated the hearing dates previously set and issued the following decision on Transcript (as edited): "I allow the appeal. I set aside the decision of the Review Unit of Q-COMP dated 15 July 2010. I find that Ms Buxton's application for workers' compensation dated 20 January 2010 is one for acceptance. -- 1 of 2 -- 2 I direct the legal representatives of Q-COMP and the legal representative of Ms Buxton to confer about the terms of an appropriate order to give effect to the decision I have just made. If the parties are unable to agree the terms of a suitable order within 14 days they are to inform me of the areas of agreement and disagreement and I will issue a formal order, after taking into account what the parties have to say about the areas where they cannot agree. I so order.". A.L. BLOOMFIELD, Deputy President. Hearing Details: 2010 3 December (Directions) 2011 9 & 28 February (For Mention) Released: 9 March 2011 Appearances: Mr C. Patino (Colin Patino & Company Personal Injury Lawyers) for the Appellant. Mr S. McLeod (Counsel), directly instructed by the Respondent. -- 2 of 2 --