Clarke v Q-COMP [2007] QIRC 78 (2007) 186 QGIG 260

[Extract from Queensland Government Industrial Gazette, dated 7 September 2007, Vol. 186, No. 3, pages 260-261] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Troy John Clarke AND Q-COMP (WC/2006/5) DEPUTY PRESIDENT SWAN 29 August 2007 DECISION In the matter of the appeal by Mr Troy Clarke against Q-COMP (WC/2006/5), an issue has arisen during the course of the hearing which requires determination by the Commission (as currently constituted). Briefly, the history of this application, as I understand it, is as follows. The application was lodged on 20 February 2006. The matter was listed for Call Over on 6 March 2006. That date was subsequently vacated by the appellant. The matter was then listed on 5 April 2007 for mention. On 19 June 2007, a further mention was conducted before the Tribunal for the purpose of setting dates for the trial of the matter. A final mention occurred on 7 August 2007. Those matters were not before the Commission as currently constituted. The matter was signed for allocation to the Commission (as currently constituted) on 10 August 2007 and delivered to Chambers on 14 August 2007 while the Member and Associate were on leave from 13-17 August 2007. The file was viewed by the Commission (as currently constituted) on Monday, 20 August 2007. The dates set for the trial were 21, 22 and 23 August 2007. As of 20 August 2007, the file consisted of Q-COMP's documents which were stamped as received by the Industrial Registrar on 11 July 2007 (within the timeframes set in the Further Directions Order of 19 June 2007), and a very large bundle of documents (380 in total) from the solicitors representing the appellant, Maurice Blackburn Cashman. These documents were received by the Industrial Registrar on 8 August 2007. The contents of that file were unusual to the extent that they were not in any chronological order and appeared to be a series of documents bundled together in haste. Primarily, because of the unordered nature of the appellant's file, all material in the file, together with the transcripts of the mentions, was viewed by the Commission (as currently constituted) prior to the commencement of the hearing either by way of a quick scan or, in some instances, by fully reading some documents, and specifically the Q-COMP report upon which the appeal was based. Decision makers frequently have before them material which may or may not be admissible as evidence and more often than not are required to read such material before making any determination on admissibility. Decision makers generally are able to ensure that any inadmissible material does not influence their perspective of the trial. In this case undue attention was given to the file which normally would not have occurred had there been some order and flow to the documents. The reading of the file was an attempt to ensure that the matter could progress satisfactorily in the time allocated. The hearing of this matter has been problematic from the start. At a previous mention of the matter the appellant's solicitors had not believed they were ready for trial, however, at the request of their client they proceeded to trial. One can understand the appellant's desire to have the matter dealt with as expeditiously as possible. The application had been filed in early 2006 and the appellant had not worked since 2005. I must say that apprehension about preparedness for trial was also mentioned by the Member of the Commission conducting the mentions. The many problems associated with the hearing related to documents filed at the last minute, acquiescence by Q-COMP to the very late production of a medical report from an overseas based medical specialist, unavailability of Doctors to give evidence on particular days, evidence from overseas Doctors and the scheduling thereof, the attempt to condense the trial into a shorter period and propositions canvassed prior to the trial which then dissipated at trial. Most of the problems associated with this matter emanate from the desire of all to have the matter heard sooner rather than later. To be blunt, the parties were not ready to go to trial. There had also been some discussion during one of the mentions about scheduling a medical specialist for 12.00 p.m. on the first day and the interposing of the appellant's evidence with the medical evidence. This was suggested to suit the availability of medical witnesses. It is not necessary to traverse the stop/start nature of this trial save to say that the matter should be remitted back to the Vice President for re-allocation. Having read the material (supplied by the appellant's solicitors under the general description of "clinical notes" of Associate Professor Murrell) which was presumed would have been tendered as evidence, Q-COMP informed the Commission that some of the material would be challenged on the grounds of inadmissibility. Prima facie that contention may be correct. -- 1 of 2 -- 2 As well, in an attempt to get the matter back on track, a conference was held before another Member of the Commission. Unfortunately, this did not resolve the difficulties faced by the parties. Q-COMP's concern was that, the material having been read, the Commission may have been affected by the content of such material. Given that the material was read for the reasons outlined previously, I accept that this apprehension is sufficiently founded. I have given serious consideration to these matters, and whilst being conscious of costs associated with this trial, have formed the view that the matter needs to be re-allocated to another Member of the Commission. In making the above comments it is clear that no blame can be attributed to any of the parties separately. From all accounts, it appears all involved attempted to facilitate the desire to have the matter heard expeditiously. In my view, this matter, however, requires more pre-trial attention before progressing to a hearing. Regrettable as it is, I now refer the matter back to the Vice President for re-allocation. Order accordingly. D.A. SWAN, Deputy President. Hearing Details: 2007 21, 22, 23 August Released: 29 August 2007 Appearances: Mr J.J. Wiltshire, Counsel, instructed by Mr P. Koutsoukis and Ms J. Keogh of Maurice Blackburn Cashman, for the appellant. Mr P. Rashleigh, Counsel, instructed by Ms L. Booth of Q-COMP, for the respondent. Government Printer, Queensland The State of Queensland 2007. -- 2 of 2 --