Buchanan v WorkCover Queensland [1999] ICQ 26 (1999) 161 QGIG 255

254 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 23 July, 1999 QUEENSLAND GOVERNMENT INDUSTRJAL GAZETTE 255 #####-###############################-###############-##################################################-###################### QUEENSLAND INDUSTRJAL COURT WORKCOVERQUEENLAND ACT 1996 Workplace Relations Act 1997 - s . 360(3) - appeal from decision of industrial magistrate Caroline Buchanan AND WorkCover Queensland (No. CS of 1999) JUSTICEWILLIAMS, PRESIDENT REPORT ON JUDGMENT (as edited) In giving his Judgment from the Bench on 12 July J 999, th e President said:- 15 July 1999 "The applicaot's appeal against the decision of WorkCover to refuse her workers' compensation was dismis sed in the Magistrates Court on 17 February 1998 on the ground that she failed to appear on that date. The Magistrate was satisfied on material placed before him that the applicant had been s er ved with appropriate notice. From that decision the applicant has appealed to this Court, the appeal documents being signed on I 5 December 1998. The y were filed in this Court on 27 January 1999. It is unfortunate that. partly because of the fact that the applicant, Ms Buchanan, is representing herself, rele vant mate rial has not been formally placed before this Court. I should say for future reference that it is desirable in applications of this kind that affidavit material verifying critical dates should be place d before the Court. On an application such as this it is also relevant to consider the applicant's pro�-pects of success on the merits and again it is desirable in most instances that some material relevant to that be placed before the Court and verified by affidavit. However, there appe ars to be no dispute between the parties as to a number of critical dales and events. The applicant was employed at Conrad Treasury Casino. On 3 I January J 997 she made an application for workers' compensation cont.ending that as a result of harassment by work colleagues she was suffering from a stress re lated condition. It appears that she was then receiving medical treatment for her condition. Consequent upon the application being received WorkCover required the applicant to be examined by a psychiatrist. Ultimately on 30 June 1997 WorkCover refuse d to admit the claim for compensation. 208626-23 :ODMA\GRPWIS E\QIRC-DOM.IRO-POI .GENERALJ :29 I 68. I QGIG 23n199 -- 1 of 2 -- 256 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 Within time, on 6 July I 997, the applicant personally lodged in the Industrial Magistrates Court an appeal against that decision . At that time she gave as her address 6/68 Browning Street, South Brisbane, which was where she was then resid.ing. The first return date for the appeal was 18 November 1997. It is not clear whether or not notice of that was received by the applicant but in any event that notice specified that 18 November 1997 was a callover date and there was no strict necessity for the applicant to a11end. There was in fact no appearance by the applicant on I8 November 1997. Then the mauer was set for hearing on 17 February 1998. It would appear that following the usual Court practice notice of that date was sent to the applicant at the Browning Street address. However, by then she had left that address and was residing out of Brisbane. Jn fact she did not receive the notice. The letter from the Court was not returned unclaimed and in the circumstances the Magistrate understan dably accepted that there had been due service of the notice of hearing and dismissed the claim. Again it is not entirely clear what steps the applicant took thereafter. She says that on a number of occasions she telephoned WorkCover's office to ascertain what was happening. Cenainly it is agreed that there was one such phone call on 3 1 August J 998. It would appear to be clear that once the applicant was made aware that the case had been dismissed on J 7 February 1998 she took steps to have the problem addressed. The mauer came before the Magistrate's Court on J 5 December 1998 on an application to set aside the order of I 7 February 1998. It was then pointed out to the Industrial Magistrate that he had nojurisdiction to do so given a number of decisions of this Coun 10 which reference will be made in a moment. On that very day the applicant took steps to lodge an appeal in this Court from the decision dismissing her appeal. Whilst there was delay from February 1998 in lodging that appeal it is not inordinate and is explicable given the applicant's lack of understanding of Court procedures. There are at least three decisions of this Court dealing with somewhat similar factual situations. Justice de Jersey as President of this Court delivered judgments in Ca,maway v. Worker.,' Compensation Board of Queensland on JO October 1996 and Cam,ody v. WorkCover Queens/.a11d on 5 February 1998. I gavejudgnient in the maHer of Harmigan v. WorkCoveron 16 December 1998. Jn each o( those decisions the Court concluded that there were good reasons for exercising a discretion to set aside the default judgment and allow the appeal to be heard on the merits. The facts differed in each of the cases and it doos appear from a consideration of the reasoning that, as is oft.en the ,-ase in situations such as this, the Coun should look 10 the reasons for the delay in bringing the application and the prospects of success. Also the question whether or not there is any prejudice to WO(kCover in consequence of the delay is a material factor. Here, as I have said, WorkCover had the applicant medically examined in the first half of 1997. 111e applicant it would appear has been under ongoing medical treatment and un doubtedly reports would be available from the treating doctors. I cannot see that from the medical point of view there is any prejudice 10 WorkCover. No other prejudice is pointed to by counsel for WorkCover in his submissions. I am satisfied that there is an explanation for the delay and that in all the circumstances of this case there is good reason for setting aside the default judgment of J 7 February 1998 and allowing the matter to be heard in the Industrial Magistrates Court on the merits. WorkCover does nOt ask for costs. The orders of the Court will therefore be: appeal allowed; set aside the judgment of the Industrial Magistrates Court of 17 February 1998, remit the matter to the Industrial Magistrates Coun at Brisbane for hearing on the merits.". Date,d this fifteenth day of July, 1999. By the Court, IL.S.J E. EWALD, Industrial Registrar. Released: 15 July 1999 Appeara11ces:- Appellant appeared on her own behalf. Mr G. Rhead instrueted by and on behalf of WorkCover Queensland. ########################################################################################################################### 23 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 257 I,I -- 2 of 2 --