APP Autocare Pty Ltd v Q-COMP [2009] QIRC 66 (2009) 191 QGIG 215

[Extract from Queensland Government Industrial Gazette, dated 26 June, 2009, Vol. 191, No. 7, pages 215-217] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - appeal to commission APP Autocare Pty Ltd AND Q-COMP (WC/2008/67) VICE PRESIDENT LINNANE 16 June 2009 DECISION [1] The substantive application is an appeal by APP Autocare Pty Ltd (Appellant) under s. 550 of the Workers' Compensation and Rehabilitation Act 2003 (Act) against a decision of the Q-COMP Review Unit which found that the worker, Ralph Hannant, had sustained a personal injury, diagnosed as "right knee", and that the personal injury arose in the course of his employment with the Appellant and that the employment was a significant contributing factor to the injury. [2] The appeal was filed in the Industrial Registry on 22 August 2008. The matter was originally listed for Callover on 3 September 2008 but was adjourned at Q-COMP's request until a Callover on 17 September 2008. On 16 September 2008, Solicitors for the Appellant sought an adjournment of that Callover hearing. The Callover was then scheduled for 19 November 2008. At that Callover, Solicitors for the Appellant were granted leave to withdraw as Solicitors on the record. Directions were issued at that Callover for the further conduct of this appeal. That Further Directions Order was forwarded directly to the Appellant. The original hearing date was scheduled for 15 December 2008. [3] On 26 November 2008 Mr Lloyd Matlin, a director of the Appellant, telephoned seeking to have the hearing on 15 December 2008 adjourned due to a medical condition. That request for an adjournment was granted and the Appellant was advised of the adjournment and a new mention date of 2 February 2009 in an email of 26 November 2008. The Directions issued on 19 November 2008 were vacated in a Further Directions Order issued on 27 November 2008 and forwarded to the Appellant. [4] On 29 January 2009 Mr Matlin's sister forwarded an email advising that Mr Matlin was ill and requesting an adjournment of the mention scheduled for 2 February 2009. The matter was then adjourned to a mention on 7 April, 2009. On 6 April 2009 Mr Matlin advised that he was currently overseas and would not be back in Australia until 8 April 2009. The mention on 7 April 2009 was vacated and a further mention was then scheduled for 15 April, 2009. Mr Matlin was advised of the new mention date on both 8 and 9 April, 2009. [5] In the meantime, Mr Hannant sought to be made a party to the appeal and an Order making him a party was made on 8 April, 2009. Mr Matlin was advised of this Order via email on 8 April, 2009. Mr Matlin attended the mention hearing on 15 April 2009 at which Further Directions for the conduct of the appeal were issued, including hearing dates of 2 and 3 June 2009. These Directions were confirmed in a Further Directions Order issued on the same day and forwarded to Mr Matlin. This Further Directions Order confirmed the hearing dates of 2 and 3 June, 2009. [6] I am satisfied that the Appellant was aware of the time, date and place of this hearing. Mr Matlin was present in the Commission when the dates of hearing were scheduled. I am further satisfied that the directions order stipulating the time and date were forwarded to the Appellant at the last known address for service. I am also satisfied that the Appellant was reminded of the hearing dates in the correspondence forwarded to him by Q-Comp on 25 May 2009. [7] As a result of the Further Directions Order issued on 15 April 2009, the Appellant was required to supply a list of documents by 22 April 2009 and provide copies of the documents requested by both Q-COMP and the Worker's Solicitors by 24 April 2009. The Appellant was further required to provide a list of witnesses and a list of the documents on which it intended to rely at the hearing by 1 May 2009. [8] A further mention was listed for 13 May 2009 which Mr Matlin also attended. The failure of the parties, including the Appellant, to comply with Directions Orders regarding disclosure of documents was raised during the course of the mention. The Appellant was directed to provide copies of documents disclosed in his list dated 21 April 2009 to both Q-COMP and the worker's Solicitors in the overnight post. It is apparent that neither Q-COMP nor the worker's Solicitors received any such documents: see transcript and Exhibit 1. The Appellant was also directed to advise the name of any medical witness he intended to call by close of business on 22 May 2009. When advised by both Q- COMP and the worker's Solicitors that they had not received the Appellant's documentation, my Associate telephoned Mr Matlin and her file note of that conversation is on the transcript. [9] Q-COMP subsequently corresponded with Mr Matlin on 25 May 2009 advising the Appellant that it intended to make an application under s. 331 of the Industrial Relations Act 1999 to have the Appellant's appeal struck out given the Appellant's failure to comply with the Directions issued on 13 May 2009. In that correspondence Q-COMP referred to the hearing dates of the appeal being 2 and 3 June 2009. Correspondence from Solicitors for the worker was also -- 1 of 3 -- 2 forwarded to Mr Matlin on 25 May 2009 indicating that the worker would support any application made by Q-COMP under s. 331 of the Industrial Relations Act 1999. [10] At the scheduled commencement of the hearing on 2 June 2009 the Appellant failed to appear having been called. Q- COMP then made an application under s. 331(b) of the Industrial Relations Act 1999. That section relevantly provides as follows:- "331 Decisions generally The court or commission may, in an industrial cause- (b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers- (i) the cause is trivial; or (ii) further proceedings by the court or commission are not necessary or desirable in the public interest;". [11] Q-COMP also relied upon Rules 42 and 113 of the Industrial Relations (Tribunals) Rules 2000 in support of its application. Rule 42 provides as follows: "42 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 specifying a time, date and place for a hearing or conference in the proceeding; and (b) the party fails to attend at the hearing or conference. (2) This rule also applies if a party to a proceeding receives notice of a directions order made by the court, commission or registrar and 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; or (d) make orders under paragraphs (b) and (c).". [12] Rule 113 provides as follows: "113 Failure to prosecute appeal If the appellant fails to comply with any of the following, the court or commission may, at or before the hearing of the appeal, on its own initiative or on application by the respondent, dismiss the appeal for want of prosecution- (a) any step required under the Act or these rules; or (b) any direction or order, including a direction or order about filing or serving a written outline of submissions or argument.". [13] The Appellant has failed to appear at the hearing of this matter. The Appellant had filed a Notice of Appointment of Agent on 15 April 2009 appointing Mr Matlin as its agent. I am satisfied that Mr Matlin was well aware that the appeal was set down for hearing on 2 and 3 June 2009. He was in attendance at the Commission when the date was originally set i.e. 15 April 2009 and he received the Further Directions Order issued on the same date. Mr Matlin was reminded of the hearing dates when Q-COMP forwarded correspondence to him dated 25 May 2009 to the address -- 2 of 3 -- 3 which he notified the Commission on 15 April 2009 was his new address. I am further satisfied that the Further Directions Order dated 15 April 2009 was also sent to the address notified to the Commission on 15 April 2009. [14] There was no contact made with the Industrial Registry providing any explanation for the Appellant's failure to attend or be represented at the hearing. On all previous occasions some notification of the reasons for adjournments or Mr Matlin's inability to attend has been provided either by Mr Matlin or his sister. There has been no contact made by Mr Matlin or any person, on his behalf, to the Industrial Registry since the hearing date of 2 June 2009. [15] The failure on the part of the Appellant to be represented at the hearing of this appeal is not the only occasion on which the Appellant has failed to properly prosecute its appeal. The Appellant's failure to comply with Directions issued by the Commission is outlined earlier in this decision. [16] Rule 42 of the Industrial Relations (Tribunals) Rules 2000 applies when a party fails to attend at a hearing and fails to comply with a Directions Order. I am satisfied that the Appellant has failed to attend at the hearing of its appeal which is also a failure to comply with a Directions Order. I am also satisfied that the Appellant has failed to comply with Directions issued on 15 April 2009 and 13 May 2009. [17] I am of the view that it is in the public interest that matter WC/2008/67 be dismissed at this time. Whilst I am satisfied that the Appellant was aware of the hearing dates, should Mr Matlin's health have been the cause of the Appellant's non-appearance at the hearing and non-compliance with Directions Orders then the Appellant may choose to make a further application which, of course, would be dealt with on the merits at the time any such application is made. At this time, however, the Appellant has failed to properly prosecute its appeal. [18] I thus order that the appeal be dismissed. [19] Both Q-COMP and Mr Hannant have sought costs of the appeal. I direct that both parties provide me with an Affidavit as to costs being sought within fourteen (14) days of release of this decision. D.M. LINNANE, Vice President. Hearing Details: 2009 15 April 13 May 2 June Appearances: Mr S.P. Sapsford, Counsel, directly instructed by Q-COMP. Mr C.J. Murdoch, Counsel, instructed by Rostron Carlyle Solicitors for Ralph Hannant. No appearance for the Appellant. Released: 16 June 2009 Government Printer, Queensland The State of Queensland 2009. -- 3 of 3 --