Cacciola v Q-COMP ; State of Queensland v Cacciola [2009] QIRC 15

CITATION: Domenico Cacciola AND Q-COMP (WC/2009/38) and State of Queensland AND Domenico Cacciola (WC/2009/104) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 274(2) - general powers Industrial Relations (Tribunals) Rules 2000 - r. 57 - application to set aside attendance notice to produce Workers' Compensation and Rehabilitation Act 2003 - s. 550 appeal to commission Domenico Cacciola AND Q-COMP (WC/2009/38) and State of Queensland AND Domenico Cacciola (WC/2009/104) COMMISSIONER ASBURY 11 December 2009 DECISION [1] On 7 May 2009, Mr Domenico Cacciola filed a notice of appeal against a decision of the Q-COMP Review Unit - WC/2009/38. There have been a number of directions hearings in relation to disclosure of documents and other procedural matters. Attempts to list the appeal for a full hearing have been unsuccessful due to availability issues on both sides. [2] On 5 November 2009, Mr Cacciola wrote to the Commission stating inter alia that he was unable to attend a directions hearing listed for 9 November 2009, as his health had deteriorated. Attached to Mr Cacciola's letter was a medical certificate, indicating that Mr Cacciola was medically unfit to attend a hearing of the Commission on 9 November 2009. Attempts to contact Mr Cacciola to set a date for a further directions hearing have been unsuccessful. Such a hearing is required so that dates for the hearing of the appeal may be listed. [3] On 19 November 2009, the Commission issued an attendance notice to produce at the request of Mr Cacciola. The notice was made out to the Director-General, Department of Education and Training, and required the production of documents by 30 November 2009. [4] On 30 November 2009, the State of Queensland made application for the attendance notice to produce to be set aside pursuant to Rule 57 of the Industrial Relations (Tribunals) Rules 2000. [5] Attempts were made by my Associate to make contact with Mr Cacciola for the purposes of setting hearing dates for the application for the attendance notice to be set aside. Those attempts were unsuccessful. [6] On 30 November 2009 Mr Cacciola attended a hearing before another member of the Commission for the purpose of mentioning a further appeal filed by Mr Cacciola on 11 November 2009. [7] On 2 December 2009, at my request, the Industrial Registrar wrote to Mr Cacciola requesting that he advise the Commission of his availability for proceedings to set dates for the hearing of his appeal, and to deal with the application by the State of Queensland to set aside the attendance notice issued on 19 November 2009. [8] On 7 December Mr Carmelo Cacciola wrote to the Commission stating as follows: "I have been asked by Domenico to respond on his behalf as I see fit as he is not well and has been ordered to rest by his medical team. Domenico, a teacher is currently on sick leave and as he has informed the commission, will be on annual leave from 11 December 2009 to 22 January 2010. He has no legal representation in this matter. His medical advice is to avoid stressful and adversary situations similar to the previous lengthy hearing. In fact Margaret from Q-Comp rang his doctor after that hearing and commented about Domenico's failing health. The attendance 30 November 2009 was to set dates in a diary, was of a short duration, I was there to ensure that he received appropriate support and on this basis, and only on that basis, he was allowed dispensation to attend on the strict proviso that his participation was limited to setting dates in a diary and no 'court room dramas'. I mention that the other parties have requested exclusion for teachers during the holiday period and Domenico, who is not well, is entitled to the same treatment. -- 1 of 2 -- 2 He has been ordered by his medical team not to stress by going over these matters and to rest until his leave is complete when he will be reassessed. I ask that you respect his situation and that he not be contacted until after the holidays. His doctor's certificate is attached.". [9] Attached to that correspondence is a medical certificate stating that in relation to Mr Cacciola that: "He is unable to attend to matters concerning your Commission, including hearings before you until mid January 2010.". [10] In all of the circumstances, I have decided to use the general powers under s. 274(2) to stay the operation of the attendance notice with effect from 30 November 2009 until the application by the State of Queensland seeking that the attendance notice be set aside, is heard and determined. [11] In the event that the application succeeds the attendance notice will then be set aside. In the event that the application does not succeed, the stay will be lifted and Mr Cacciola will be spared the time and expense of reissuing the notice. [12] In all of the circumstances I am of the view that this is the fairest outcome for both parties. [13] Accordingly, I Order that the attendance notice issued at the request of Mr Cacciola on 19 November 2009, is stayed with effect from 30 November 2009 until further Order of the Commission. I.C. Asbury, Commissioner. Released: 11 December 2009 -- 2 of 2 --