Bale v Workers' Compensation Regulator [2024] QIRC 235

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bale v Workers' Compensation Regulator [2024] QIRC 235 PARTIES: Bale, Lauren Applicant v Workers' Compensation Regulator Respondent CASE NO: B/2024/27 PROCEEDING: General Application DELIVERED ON: 25 September 2024 HEARING DATE: 19 June 2024 MEMBER: HEARD AT: Caddie IC Brisbane ORDER: 1. The Applicant may take further action on Application WC/2022/188 pursuant to s 451(2)(c) of the IR Act. 2. The substantive matter WC/2022/188 is to be allocated from the Registry to a Member of the Commission to oversee the next steps. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – DORMANT PROCEEDINGS – Applicant is a worker who made an application for workers' compensation pursuant to the Workers' Compensation and Rehabilitation Act 2003 – claim not accepted by a review decision of the Respondent – -- 1 of 20 -- 2 Applicant appealed against the review decision – Applicant's legal representation withdrew during the course of proceedings – Applicant's legal representation re-entered matter and applied for an order pursuant to r 230(2) of the Industrial Relations (Tribunals) Rules 2011 to take further action in respect of its appeal – consideration of whether the Applicant's appeal had lapsed within the meaning of r 230(1) of the Industrial Relations (Tribunals) Rules 2011, had taken action in relation to its appeal for at least one year since the last action was taken – no action has been taken by the applicant in relation to the application, enlivening r 230(1) of the Industrial Relations (Tribunals) Rules 2011 – Applicant established that the Commission should make the order despite the delay because it is in the interests of justice to do so – decision made pursuant to s 451(2)(c) of the Industrial Relations Act 2016 that the Applicant may take further action on the appeal. LEGISLATION: CASES: Industrial Relations Act 2016 ss 451, 544. Industrial Relations (Tribunals) Rules 2011 r 230. Aon Risk Services Australia v Australian National University (2009) 239 CLR 175. Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2012] QSC 413. Bajon v Q-COMP (2008) 188 QGIG 389. Bell v Simon Blackwood (Workers' Compensation Regulator) [2020] QIRC 37. Breust v Qantas Airways Limited (1995) 149 QGIG 777. Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 -- 2 of 20 -- 3 Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 23 Sandan v Minister for Immigration [2015] FCCA 116 Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353 Sharples v Workers' Compensation Regulator [2020] ICQ 20. State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10. APPEARANCES: Mr W Isdale of counsel, instructed by Sciaccas Lawyers for the Applicant. Mr P Rashleigh of counsel, instructed by the Respondent. Reasons for Decision [1] Lauren Bale ('the Applicant') was employed at Burpengary Station within the Queensland Police Service ('QPS'). [2] The Applicant claims she sustained a psychological injury at work arising from a sexual assault which allegedly occurred in October 2020. [3] The Applicant also claims she suffered a psychological injury at work due to workplace pressure from events between 4 September 2021 and 5 October 2021, regarding the QPS COVID-19 mandate. -- 3 of 20 -- 4 [4] On 15 November 2022, the Applicant filed an appeal in the Commission against a review decision of the Workers' Compensation Regulator ('the Regulator') dated 18 October 2022. The matter number of that appeal is WC/2022/188. [5] A Directions Order was issued by the Registry on 16 November 2022, requiring parties to complete initial disclosure steps and file statements of facts and contentions. The requirement for the Applicant to file their statement of facts and contentions was not complied with. On 2 March and 14 March 2023, the Registry sought an update from the Applicant. The Applicant's legal representatives subsequently sought on 14 March 2023 that the matter enter abeyance for three months. The matter was placed in abeyance by agreement on 15 March 2023. [6] On 26 September 2023, the Applicant's legal representatives withdrew. [7] On 5 April 2024, the Applicant's legal representatives, re-entered the matter by filing a Form 2 general application to have the matter 'reopened.' That general application is the subject of the present proceedings.1 [8] Pursuant to directions, parties filed written submissions, and the Respondent sought leave to make further oral submissions. Both parties' oral submissions were heard on 19 June 2024. [9] Having regard to the submissions made by the parties, there are two questions for my determination: • Did the Applicant's appeal lapse by application of r 230(1) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules')? • If so, pursuant to rr 230(2) and (3) of the Rules, should the Commission make an order allowing the Applicant to take further action on its appeal? [10] For the reasons which follow, the Applicant's appeal did lapse because r 230(1) of the Rules was enlivened; however, in consideration of r 230(3), the Applicant has established that the Commission should make an order allowing the Applicant to take further action on the appeal despite the delay, because, inter alia, it is in the interests of justice to do so. Relevant background 1 The application described that it sought to have the matter 'reopened.' It did not refer to a specific section of the Act or Rules. The Commission's power to reopen proceedings is contained in s 484 of the IR Act, which must be in the approved form per r 78 of the IR Rules. However, what the Application is actually seeking is for the Applicant to be able to take further action in respect of the Appeal, pursuant to r 230(2) of the IR Rules, as identified in written and oral submissions. -- 4 of 20 -- 5 The events prior to the Workers' Compensation appeal being lodged [11] The information available to me at this stage of the proceedings is limited, as no statements of facts and contentions in the substantive matter have been filed. The below summary is extracted from the Regulator's review decision letter dated 18 October 2022. Relevantly, this is the decision subject to the substantive appeal. [12] Ms Bale alleges she suffered a psychological injury reported as being sustained at work on 8 September 2021. She applied to WorkCover on 6 December 2021. [13] With regards to the alleged sexual assault, an injury notification was submitted to her employer on 5 January 2022, and Ms Bale reported the incident to her employer on 6 January 2022. [14] An electronic application for compensation was generated on 17 January 2022 with respect to the alleged sexual assault. [15] Ms Bale's nominated support person prepared a statement which was sent on her behalf to WorkCover on 21 February 2022. It outlined two factors for consideration as part of Ms Bale's application for compensation, being the workplace pressure aspect and the sexual assault aspect. [16] On 4 April 2022, the Regulator was advised by QPS that an internal investigation commenced, which was still ongoing at the time of the email; however no criminal complaint was forthcoming. [17] An electronic claim was generated by WorkCover on 7 April 2022. This electronic claim included both the workplace pressure and sexual assault aspects of Ms Bale's claims. In assessing the claim, WorkCover only accepted the COVID-19 stressor as a significant causative factor to Ms Bale's psychological injury, finding that the sexual assault could not be substantiated. [18] The Applicant's former representatives (Travis Schultz & Partners) lodged an application and grounds for review on the same date. The material of the review application is not before me, however the review decision letter provides a summary. In which, Ms Bale notes she was originally provided two separate claim references from WorkCover for the workplace pressure and sexual assault aspects respectively, which for reasons unknown to her were later merged into a single claim reference. Ms Bale contended that WorkCover did not carry out sufficient investigations in relation to her sexual assault and did not request relevant documents from QPS. [19] On 17 October 2022, the Workers' Compensation Regulator wrote to Ms Bale's former representatives, stating: -- 5 of 20 -- 6 [You] requested a review of the one rejected factor, being the sexual assault. As this is a single application, I am unable to separate factors and as a result, Ms Bale's review request will require me to conduct a review of the totality of the claim acceptance by WorkCover… [20] On 18 October 2022, the Workers' Compensation Regulator set aside the decision of WorkCover to accept the QPS workplace pressure aspect of Ms Bale's application, and substituted a new decision to wholly reject the application. [21] In making the decision to wholly reject the application, the Regulator noted, in summary, the following: • The Regulator accepted that Ms Bale sustained a personal injury, arising out of or in the course of her employment, and that her employment was a significant contributing factor to her injury. • The Regulator was not satisfied after consideration of the totality of factual evidence with respect to the sexual assault that there was sufficient evidence available to substantiate the event took place in the manner described by Ms Bale. The Regulator had regard to what it described as inconsistencies between Ms Bale's recollection of events and that of another witness, and an eighteen-month delay between the incident allegedly occurring in October 2020 and it being reported to her employer in January 2022. • The Regulator further notes that QPS' internal investigation of the incident was completed, and considered there was insufficient evidence for Ms Bale's allegations of sexual assault to be substantiated. There is no information as to when the internal investigation was finalised. • The COVID-19 vaccine mandate and the communications to Ms Bale surrounding it constituted reasonable management action taken in a reasonable way. The events following from the appeal being lodged [22] The Applicant's appeal was filed on 15 November 2022. The Applicant was represented by Sciaccas Lawyers at the time of filing. [23] Directions were issued on 16 November 2022 for parties to disclose documents, file statements of facts and contentions, file witness lists and exchange outlines of evidence. [24] There is no material before the Commission as to whether the disclosure directions between the parties in December 2022 and January 2023 were complied with. [25] The Applicant’s statement of facts and contentions was due to be filed on 24 February 2023. The Industrial Registry sent an email to parties on 2 March 2023, noting that the -- 6 of 20 -- 7 direction had not been complied with, and requesting an update by close of business on 3 March 2023 from the Applicant. No response from the Applicant or her solicitors was received. [26] The Industrial Registry sent a further email to parties on 14 March 2023, again noting the statement of facts and contentions was not yet filed. In that email, it was noted: Please note the Appellant is responsible for their matter proceeding. If no action, (formal step having the effect of moving the application toward the relief sought) is taken by the Appellant to progress their matter within 12 months of the last action, the matter will lapse pursuant to rule 230 of the Industrial Relations (Tribunals) Rules 2011. [27] Later that day, the Applicant's solicitor requested that the directions be vacated and the matter be placed in abeyance for three months, stating that they were "waiting for an advice and further instructions." [28] The directions were subsequently vacated and the matter was placed in abeyance on 15 March 2023 by agreement. The email from the Registry to parties included the same note quoted above at [26]. [29] Six months later, on 26 September 2023, Sciaccas Lawyers filed a Notice of Withdrawal. They advised Ms Bale on 27 September 2023 that the form had been filed and "any communication regarding the appeal would need to be made by the Applicant herself."2 [30] No further correspondence was received, or documents filed within the substantive appeal proceedings by the Applicant. [31] On 5 April 2024, Sciaccas Lawyers re-entered the matter and filed the present application. [32] The events which took place between the matter being placed in abeyance and the lawyers re-entering with the current application, are largely captured within the Applicant's filed material and oral submissions in this matter and are discussed below. Relevant legislation [33] Chapter 11, pt 2, div 3 of the IR Act sets out the functions, jurisdiction and general powers of the Commission. Section 451 of the Act is contained in that division and relevantly provides: 451 General powers (1) The Commission has the power to do all things necessary or convenient to be done for the performance of its functions. 2 General Application filed 5 April 2024, Annexure A ('Application annexure'), [21]. -- 7 of 20 -- 8 (2) Without limiting subsection (1), the commission in proceedings may- (a) give directions about the hearing of a matter; or (b) make a decision it considers appropriate, irrespective of the relief sought by a party; or (c) make an order it considers appropriate. [34] Rule 230 of the IR Rules provides: 230 Lapse of proceeding after at least 1 year's delay (1) This rule applies if- (a) an application starting a proceeding has been filed; and (b) no action has been taken by the applicant in relation to the application for at least 1 year since the last action was taken by the applicant in the application. (2) A party may only take further action on the application with an order of the court, commission or registrar. (3) An application for an order under subrule (2) must be in the approved form and state the following- (a) the steps taken in the proceeding; (b) an explanation for the circumstances of the delay; (c) the steps (including a timetable) proposed to be taken to progress the proceeding; (d) any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out; (e) the merits of the proceeding (f) why the court, commission or registrar should make the order despite the delay. [35] The application of r 230 was discussed by Merrell DP in State of Queensland (Queensland Health) v Workers Compensation Regulator:3 [15] First, assuming that the elements in r 230(1) of the Rules are made out, it is for a party who wishes to take further action on the application which started a proceeding which has been filed, to show there is good reason for excepting the proceedings from the general prohibition imposed by r 230(1) of the Rules. [16] Secondly, the type of action contemplated in r 230(1)(b) and r 230(2) is action taken in moving the matter towards judgment or the relief sought, or an act or activity that has the characteristic of carrying the cause or action forward. [17] Thirdly, in determining an application under r 230(2) of the Rules, the factors to which regard should be had are those referred to in r 230(3). Did the Applicant's appeal lapse because of the application of r 230(1) of the Rules? Applicant's submissions 3 State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10 ('Queensland Health'). Citations omitted. -- 8 of 20 -- 9 [36] The Applicant submits that Ms Bale took actions which progress the matter towards a conclusion, albeit not in the Commission or in the Registry.4 [37] The Applicant in summary submits that she took the following actions: • By way of background, the Applicant notes that before the filing of the appeal, Ms Bale provided a submission into her experience of sexual assault to the Independent Commission of Inquiry into Queensland Police Service responses to domestic and family violence.5 The Inquiry Report was publicly released on 21 November 2022. • The Applicant claims she received advice from the Respondent to lodge a fresh application for compensation with WorkCover relating only to the alleged sexual assault, which the Applicant lodged on 13 March 2023. This fresh application was denied, and an application for review was filed on 9 June 2023. The review decision, confirming the original decision to deny the fresh application, was issued on 11 October 2023.6 • The Applicant filed a human rights complaint in the Queensland Human Rights Commission with the assistance of different legal representatives (Gnech & Associates), which was accepted on 21 September 2023. Ms Bale attended a conciliation conference on 16 October 2023, and as a result QPS issued an apology dated 18 October 2023 in relation to the workplace pressure aspect of her complaint (and substantive appeal).7 The sexual assault aspect of her complaint was stayed on 4 March 2024, pending the outcome of criminal proceedings.8 • The Applicant was contacted by QPS Ethical Standards Command in July 2023, inquiring whether the Applicant was in a position to make a formal complaint.9 The Applicant attended police headquarters to make a criminal complaint and provided a statement on 7 August 2023.10 • The Applicant advised Sciaccas Lawyers on 5 March 2024 that the person who allegedly sexually assaulted her had been criminally charged, and that her human rights complaint was stayed.11 4 T 1-12 ll 37-43. 5 Application annexure (n 2), [11]. 6 Ibid [12]-[13], [16], [22]. 7 Applicant's submissions filed 7 June 2024 ('Applicant's submissions'), [4]-[5]. 8 Application annexure (n 2), [18]. 9 Applicant's submissions (n 7), [3]. 10 Application annexure (n 2), [17]. 11 Ibid [23]. -- 9 of 20 -- 10 [38] The Applicant characterises these events as steps taken to progress her complaints "in order to obtain evidence to support her appeal."12 The Applicant submits that while the perpetrator has the presumption of innocence, the Applicant's attempts to seek updates in the criminal and human rights matters is supportive of her continuing to progress the workers' compensation matter.13 [39] This is further summarised by counsel for the Applicant in oral submissions:14 There have been actions by Ms Bale, just not in the Commission, and that includes actions to get further evidence, including by way of progressing criminal investigations, so that sufficient evidence is available to progress the matter, and that evidence is now available and provides the factual context, if you like, for why this application is now made, which is that in March this year there was confirmation to my instructing solicitor that criminal proceedings had now been brought against the alleged – the officer who is alleged to have committed the sexual assault against Ms Bale. Respondent's submissions [40] The Respondent submits the first and only action taken by the Applicant as contemplated by r 230 of the Rules was the filing of the Appeal on 15 November 2022.15 It further submits that when the Applicant's legal representatives withdrew, it was a matter for the Applicant to communicate with the Commission, however no such communication was forthcoming.16 [41] As noted by counsel for the Respondent at hearing: 17 My respectful submission is it's too little too late. The matter's been on foot for some time now. The appellant – the applicant had ample opportunity to put in affidavit material to advance this matter. They chose not to. [42] In addressing the Applicant's submissions at hearing that actions were taken, counsel for the Respondent stated: 18 There seems to be a huge emphasis here on the criminal proceedings and the fact that the applicant was taking steps in the criminal proceedings. Steps have to be taken in the proceeding; not the criminal proceeding. … In my respectful submission, that is completely irrelevant. Because prosecutors have some view of the matter, that's – they're said to be omnipotent, apparently. All knowing. That's absolutely irrelevant. Prosecutions have proceeded, and prosecutions have failed. As you say, that’s hypothetical. It doesn’t help you in any way at all. It’s irrelevant and shouldn’t be a consideration for you, because it doesn’t fit within those provisions with respect to what needs to be taken into account. 12 Applicant's submissions (n 7), [2]. 13 Ibid [6]. 14 T 1-13 ll 5-12. 15 Respondent's submissions filed 7 May 2024 ('Respondent's submissions'), [12]. 16 Ibid [13]-[14]. 17 T 1-3 ll 7-10. 18 T 1-19 l 30 to T 1-20 l 7. -- 10 of 20 -- 11 She's been off doing the – the appellant's been off doing things in all other jurisdictions, but she chose not to, within the time – as I said, having been warned about the time – chose not to do anything here. It's only now that she's had some criminal proceedings started that she – she's at – regained a taste for this. There was no taste for it before. It was less [indistinct] lapsed. With absolutely nothing done within the 12 month period. In fact, the orders sought retarded the matter rather than progressed it. That is, to have it adjourned. So in my respectful submission, despite what my learned friend says about prosecutors and prosecuting authorities, the Director’s directions requires that it not be – it be more than a prima facie case. It doesn’t require that the – it be able to be proved beyond reasonable doubt.19 That’s not the case if you look at the Director of Public Prosecutions Directors [sic.] in respect of criminal matters. [43] The Respondent concludes that r 230(2) applies as the proceeding has lapsed. Consideration [44] There is no doubt that in the period between the appeal being filed in November 2022 and this application being filed in April 2024, the Applicant and her various legal representatives have acted and ventilated issues in other proceedings, that are also issues relevant to the substantive appeal. However, I do not accept that these actions are actions within the context of the substantive appeal which have the characteristic of carrying the cause or action forward. [45] The criminal proceedings and human rights complaint are proceedings in different jurisdictions, for different causes of action, and importantly, involve different defendants and respondents. While material that is relevant in the appeal against the Regulator’s decision might result from those proceedings, they are not of themselves actions taken in the substantive appeal. [46] This is distinguished from the actions which Merrell DP considered in Queensland Health,20 which involved actions arising from and related to the underlying cause.21 The Deputy President further reasons in that decision that the particular action taken by the Appellant to gather further medical evidence directly related to the key issue in dispute in the appeal – it carried the State's case forward.22 [47] A decision made by separate authorities to lay criminal charges cannot be characterised as the Applicant taking action to move the workers' compensation appeal towards 19 The Respondent appears to have been referencing the Director of Public Prosecutions (Qld) Director's Guidelines (as at 30 June 2016, currently under review). This submission insofar as it relates to a prosecutor's assessment of the strength of the evidence is misconceived. Clause 4 of the Director's Guidelines provides "a prosecution should not proceed if there is no reasonable prospect of conviction before a reasonable jury (or Magistrate)" and further, "The test for the Magistrate is limited to whether there is a bare prima facie case. The prosecutor must go further to assess the quality and persuasive strength of the evidence as it is likely to be at trial." 20 n 3. 21 Ibid, [38]-[42]. 22 Ibid, [40]. -- 11 of 20 -- 12 conclusion. The decision of those authorities is not a mechanism for the Applicant to adduce further evidence. Criminal proceedings being commenced is not an action generally contemplated in workers' compensation appeal proceedings, whereas the action contemplated by Merrell DP in Queensland Health,23 which involved seeking medical evidence, is.24 [48] Similarly, whilst the employer's apology to the Applicant arising from the human rights complaint might have some future relevance in the context of the workplace pressure aspect of the appeal and consideration of what constitutes reasonable management action, they are a by-product from the proceedings in another jurisdiction. The human rights conciliation was not an action in the workers' compensation appeal moving the substantive matter towards its conclusion. [49] The commencement of the separate workers' compensation claim in relation to the sexual assault factor, and its subsequent request for review, does have more direct relevance to the substantive appeal. Both matters are underpinned by the same statute and consider the same circumstances. Whilst I have no reason to doubt the submissions of the Applicant's counsel that the Applicant believed these were actions taken to achieve a different decision to the one being appealed, they cannot be characterised as action taken in the substantive matter. It is further noted by the Respondent that the Regulator's review decision in the separate claim was ultimately not appealed.25 [50] I agree with the Respondent that the request to place the substantive matter in abeyance is not an action or activity carrying the cause forward, particularly as no action occurred after the conclusion of the three-month period of the request. Even if I was to consider that this was an action taken, the abeyance request was made in March 2023. It would not assist the Applicant, as the present application was not filed until April 2024. The notice of withdrawal of representation cannot on any level be characterised as an action carrying the matter forward. [51] For these reasons, I find the Applicant has taken no action within the proceeding for at least one year since the last action. The last action was the filing of the appeal itself on 15 November 2022. Accordingly, the appeal lapsed on 16 November 2023. Should the Commission make an order allowing the Applicant to take further action on its appeal? [52] Now that I have determined that the Applicant's appeal has lapsed, I must turn my mind to whether I should order that the Applicant may take further action on her appeal. I consider the factors set out in r 230(3) below. 23 n 3. 24 See s 556 of the Workers' Compensation and Rehabilitation Act 2003, wherein seeking and disclosing further medical evidence is contemplated. 25 Respondent's submissions (n 15), [34]-[36]. -- 12 of 20 -- 13 The steps taken in the proceeding [53] I have discussed the steps taken in the proceeding above. I consider that prior to the filing of this application, no relevant steps were taken in the proceeding. An explanation for the circumstances of the delay [54] The Applicant in oral submissions noted there were a number of strands to this factor. [55] The Applicant firstly noted that as contained in an email from Marisha Mees of Sciaccas Lawyers dated 14 March 2023, Ms Bale initially requested a three-month abeyance of the matter as she sought further advice.26 On 26 September 2023, the Applicant's legal representatives withdrew due to a funding issue.27 [56] On 5 April 2024, the Applicant's legal representatives re-entered the matter and filed a Form 2 general application to have the matter 'reopened.' [57] Secondly, the Applicant noted the fresh WorkCover compensation application lodged on 13 March 2023, which I have summarised above. Noting that the fresh application was rejected by WorkCover (and the Regulator on review) on the basis that the subject matter had already been determined in the original application and review, the Applicant's counsel submitted:28 So it’s not necessary to resolve the precise circumstances as to why that application was made. It may have been informed by incorrect advice whether from the Regulator or from Ms Bale’s at that time alternative legal representation. Either way the point simply is that Ms Bale was not doing nothing. She may have mistakenly at that time thought that the right way to progress her claim for workers compensation in respect of the alleged sexual assault was to make another application. That is what she did, it seems mistakenly, but there’s no reason to believe that it was done other than in good faith as to what she understood to be the right way to progress her matter at that time. [58] Thirdly, the Applicant noted that Ms Bale was taking other steps in relation to the sexual assault investigation and criminal proceedings, which are the same in substance to the substantive proceedings.29 I have described these matters above at [37]. [59] The crux of the Applicant's submissions on delay was put by the Applicant's counsel as follows:30 The overriding point in relation to this factor, Commissioner, is that Ms Bale was not sitting around doing nothing while this appeal was in abeyance. She continued to take numerous steps to either 26 Affidavit of Carolyn Shedden filed 7 May 2024 ('Ms Shedden's affidavit'), Annexure 'CAS 2'. 27 Application annexure (n 2), [20]. 28 T 1-14 ll 23-31. 29 T 1-14 ll 33-39. 30 T 1-14 l 41 to T 1-15 l 2. -- 13 of 20 -- 14 obtain workers compensation in relation to this matter generally, including by way of an alternative application, or to advance investigations into the assault which were directed at and have resulted in further evidence being available now for the purposes of this appeal. So there were things – those matters, in my submission, go to explain the period of time that has now elapsed. [60] The Respondent submissions on delay largely follow their submissions on whether actions were taken in proceedings, which I reproduced above at [40]-[43]. The submission is that Ms Bale's actions in other jurisdictions are not relevant to this application. Consideration [61] While I consider the actions as outlined by the Applicant were not actions taken in the context of r 230(1), I do find that they are relevant in the context of r 230(3)(b) in explaining the circumstances of the delay. [62] Following lodgement of the appeal in November 2022, the matter was subject to directions, and then by agreement was placed into abeyance for a period of three months from 15 March 2023. This explains the circumstances of the delay until June 2023. [63] On 13 March 2023, the Applicant lodged a new workers compensation claim for the sexual assault component only. As indicated above, I have no reason to doubt submissions on behalf of the Applicant that for whatever reason she pursued this claim in the belief that it could lead to a different outcome to the one being appealed. The Applicant continued to pursue this avenue by seeking a review of WorkCover's rejection of her claim on 9 June 2023. The decision to reject the claim was confirmed by the Regulator on review on 11 October 2023. [64] Evidence attached to the affidavit material filed by the Respondent demonstrates there was an awareness of the Applicant’s purported intention to lodge a new claim for compensation as early as 28 February 2023.31 The Regulator (although not Ms Shedden, the current Appeals Officer with carriage of the matter) was aware the claim had been lodged when the review request was filed on 9 June 2023. The Regulator was also aware that the underlying matter had already been determined and was under appeal (albeit in abeyance) during the more than three-month period the review was being undertaken. [65] While I consider it is likely the case that within the Regulator, officers responsible for review are functionally separate from the officers responsible for appeals, it seems such a waste of time and resources for both parties that those dots were not connected. However misguided, pursuit of the separate claim does also explain the circumstances of the delay leading up to the decision of the Regulator issued 11 October 2023. 31 Ms Shedden's affidavit (n 26), Annexure 'CAS 1': Telephone call file note dated 28 February 2023. -- 14 of 20 -- 15 [66] On 16 October 2023, the Applicant participated in conciliation in relation to her human rights complaint. She had also been involved in participating in the criminal proceedings since making her official statement to the police in August 2023. Involvement in the criminal proceedings has been ongoing, leading to the contact with her former lawyers in March 2024 and the subsequent application subject to this decision. [67] Further, it seems clear that several solicitors have acted for the Applicant in various capacities within the different proceedings, and that in some instances, the Applicant has been representing herself. While there are inferences in the material that the Applicant has not always been well-served by her legal representation and that she might have lost financial support from her union for ongoing legal representation, the lack of a coherent legal strategy has undoubtedly also contributed to the delay. [68] I conclude for the reasons above that the circumstances of the delay have been adequately explained by the Applicant. The steps (including a timetable) proposed to be taken to progress the proceeding [69] In the Application as filed, no steps or timetable was proposed by the Applicant. This was criticised by the Respondent in their submissions.32 In their submissions in reply, the Applicant proposed: … Directions Orders be issued to progress the matter, with the first order being for the Applicant to provide a List of Documents to the Respondent, followed by Directions which would ordinarily be issued by the Registry in Workers' Compensation Appeals in accordance with Industrial Relations (Tribunals) Rules 2011, Rule 4.33 [70] At the hearing, the Applicant's counsel advised his instructing solicitor prepared draft directions which could appropriately be made by the Commission to progress the proceeding.34 Consideration [71] I considered at the hearing that this matter would be more appropriate to consider further if I decided that action could be taken in the appeal.35 The substantive appeal is still early in proceedings, and early steps such as disclosure have not yet been completed. Logically, and as outlined by the Applicant above, any proposed directions would essentially be to program the usual conduct of the matter from its start. [72] I note at this point that while r 230(3) states an application for an order to take further action must be in the approved form and state the steps (including a timetable) proposed, 32 Respondent's submissions (n 15), [23]. 33 Applicant's submissions (n 7), [8]. 34 T 1-15 ll 4-10. 35 T 1-15 ll 12-22. -- 15 of 20 -- 16 the Applicant's failure to include this information when the application was filed, whilst not ideal, is not fatal to the application.36 This is a technical deficiency that has no identified or actual prejudice to the Respondent or to the efficient progress of the substantive matter, as the Applicant did (albeit not in the application as filed) make proposals. Any prejudice suffered or likely to be suffered by another party to the proceeding if the application starting the proceeding is not struck out [73] The Respondent in their submissions acknowledged that they could not point to any particular prejudice should the matter proceed, however noted that memories fade over a period of time such that there may be some prejudice to the Respondent.37 While I accept the general proposition, there is no evidence to this effect, nor is there any evidence that the critical witnesses have moved or are no longer available.38 [74] The Applicant submitted at hearing that with criminal proceedings now on foot, prosecutors, having taken fading memories into account, have nevertheless considered the matter as being capable of obtaining a criminal conviction.39 Consideration [75] I consider that this factor weighs neutrally. I do not accept the Applicant's submission that I should draw any conclusion as to what is in the mind of prosecuting officials. However, I do accept, as the Respondent has rightly conceded, that there is no real prejudice to them. The merits of the proceeding [76] The merits of a proceeding has alternatively been described as a proceeding's prospects of success.40 Where on the basic uncontested facts, the prospects of success are minimal, an application is liable to be rejected.41 [77] The Applicant submits that the Commission can draw inferences as to the merits of the proceeding by virtue of there now being criminal proceedings on foot:42 36 This is consistent with powers incidental to exercise of the Commission's jurisdiction contained within ss 539(e) and (k) of IR Act. 37 Respondent's submissions (n 15), [26]. 38 Commissioner Asbury, as she then was, made similar findings with regards to application of the precursor to r 230 in Bajon v Q-COMP (2008) 188 QGIG 389. 39 T1-15 l 35 to T 1-16 l 7. 40 Breust v Qantas Airways Limited (1995) 149 QGIG 777; Sharples v Workers' Compensation Regulator [2020] ICQ 20, [95]. 41 See e.g. Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353 in the context of extensions of time. 42 T 1-22 ll 29-39. -- 16 of 20 -- 17 … it’s uncontroversial that there is a criminal proceeding. Your Honour can draw reasonable inferences about that, and what that entails, as being a matter likely to indicate that the appeal is capable of being substantiated. That’s as high as I put it. Now, what the regulator says is not irrelevant because without a full hearing on the merits, in my submission, it’s open to the Commission to take into account the views reached by others in relation to other aspects of the appeal, which included the decision by WorkCover and by the regulator, that other aspects of the test were satisfied, leaving the only aspect that did not satisfy them of as being whether or not the sexual assault was substantiated. I don’t say that the Commission is bound by that, but that at this stage on this application, the Commission is permitted to take that view into account. [78] The Respondent submits the Commission is unable to assess merits of the proceeding.43 It submits the appeal is a hearing de novo, and any views expressed by the Regulator in their decision are irrelevant. It submits that a person being charged with an offence is also irrelevant,44 and no inferences should be made:45 You can’t infer that. It might be a – one statement – it could be the statement by the applicant and a – and that’s all the – that’s all the evidence. Who knows? You know, to be speculating about that is not your function. [79] The Respondent further submits that no material, such as a statement of facts and contentions, has been filed to support the allegations.46 It states that outside of the allegations, there is nothing to suggest that the Applicant's claim is meritorious.47 Consideration [80] In the absence of statements of facts and contentions, all that is currently before the Commission is the notice of appeal, the decision being appealed against, and submissions made by both parties in the present application. The present application has been brought on the basis that progress of the criminal proceedings and an apology issued in the human rights proceeding means it is likely that further evidence can be brought by the Applicant in support of her appeal – particularly as it relates to the previously unsubstantiated sexual assault allegations. [81] I concur with the submissions of the Applicant that for the purpose of this application, I may have regard to the views of the Regulator in the decision that is subject to the appeal. While the appeal is a hearing de novo, I am not assessing merits for the purpose of deciding the appeal. I am considering the merits in the context of deciding whether I should make an order allowing further action to be taken in the appeal. Relevant to the assessment of this factor in the context of this application is the Regulator's decision that 43 Respondent's submissions (n 15), [27]. 44 Ibid [29]. 45 T 1-20 ll 21-23. 46 Respondent's submissions (n 15), [28]-[31]. 47 Ibid [30]. -- 17 of 20 -- 18 there was insufficient evidence to substantiate the sexual assault factor – a view which according to the review decision was supported by the police at the time.48 [82] While the Respondent rightly points out the Commission cannot know what new evidence exists as this evidence is not before the Commission, the Respondent did not contest that there are now criminal proceedings.49 [83] While I am currently unable to fully assess the merits of the proceeding, that is not the same as concluding that "there is nothing to suggest the claim is meritorious." Rather, the criminal proceedings are a new development capable of providing additional information relevant to the consideration of the appeal, which did not previously exist. Why the Commission should make the order despite the delay [84] With regards to this factor, the Applicant submits: … In my submission, the Commission should make the order to allow Ms Bale to reopen or recommence her appeal, because it's in the interests of justice that Ms Bale be allowed an opportunity now that additional evidence is available which was not available at the time that she filed her appeal to seek compensation for the sexual assault that she alleges she experienced in the workplace, and which caused her injury. It would be unjust, in my submission, to deny her that opportunity.50 … It's not hypothetical or irrelevant that police have undertaken further investigations in relation to the very matters that are the subject of Ms Bale's appeal, and for which there is now further evidence that could be used in this appeal. And she could only have done – she could only have taken the step that she has now taken relatively recently, because at the time that her appeal was filed, those further materials were not available from the QPS, which considered that at that time, that the allegation could not be substantiated.51 [85] The Respondent submits there is no evidence provided of further material in the application.52 The respondent refers back to its submissions with respect to r 230(3)(a) – (e) as reasons for why the Commission should not make an order despite the delay.53 Consideration [86] In considering this factor, I have regard to my findings on the other factors in r 230(3)(a) – (e). However, r 230(f), properly considered, is also a factor to be considered 48 Review decision dated 18 October 2022, annexed to notice of appeal filed 15 November 2022 in matter WC/2022/188. 49 The existence of proceedings on foot is confirmed in Annexure 'B' to the Applicant's submissions (n 7). 50 T 1-17 ll 10-18. 51 T 1-22 ll 6-12. 52 T 1-22 ll 14-16; Respondent's submissions (n 15), [32]. 53 Respondent's submissions (n 15), [32]-[42]. -- 18 of 20 -- 19 in its own right. Guiding my consideration of whether I should make an order despite the delay is the Commission's general power in s 544 of the IR Act to make decisions considered necessary in the interests of justice.54 [87] Applications seeking the exercise of the Commission's discretion must be made with adequate explanation and justification.55 Merrell DP in Sharples v Workers' Compensation Regulator56 described r 230(1) as a 'general prohibition' which requires 'good reason' for an exception. I note the reasoning of McHugh J in Brisbane South Regional Health Authority v Taylor:57 A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. [88] I consider that an application concerning taking action after a lapse in proceedings shares common features with applications for re-opening proceedings or for extensions of time in instituting proceedings. Just as an Applicant bears the positive burden of demonstrating that the justice of the case requires the Commission's discretion be enlivened to allow filing of an application out of time,58 in considering the application of r 230(3)(f), it can be said that for a lapsed proceeding, the justice of the case requires the Commission's discretion be enlivened to allow an Applicant to take further action. This view is supported by the Commission's aforementioned ability to make decisions it considers necessary in the interests of justice in proceedings before it, pursuant to s 544 of the IR Act.59 [89] In Bell v Simon Blackwood (Workers' Compensation Regulator),60 Hartigan IC, as the Deputy President then was, considered the interests of justice in the context of s484 applications to reopen proceedings as follows: [6] ...The power to be exercised to serve the interests of justice and should not be construed narrowly. The guiding principle in deciding whether to exercise the discretion to grant leave 54 As well as the general powers contained in s 451. 55 Aon Risk Services Australia v Australian National University (2009) 239 CLR 175. 56 [2020] ICQ 20. 57 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, (McHugh J). 58 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 23 59 See also Sandan v Minister for Immigration [2015] FCCA 1166 at [24]-[26], which considers provisions in the former Federal Circuit Court Rules 2001 (Cth) regarding applications for extension of time and powers to dispense with compliance of the Rules. 60 Bell v Simon Blackwood (Workers' Compensation Regulator) [2020] QIRC 037. -- 19 of 20 -- 20 to reopen is whether or not the interests of justice are better served by allowing or rejecting the application.61 [90] Considering what is in the interests of justice requires consideration of the context of each case, what is in the public interest, and what is necessary for a fair and just trial. It is a serious matter to dismiss an application and thereby deprive a litigant an opportunity to have their claim determined at trial.62 [91] I do not agree with the characterisation of the delay in the substantive proceedings as demonstrating the Applicant had 'no taste for' the proceedings, or that the Applicant was 'off doing other things' or anything other than the substantive matter.63 While the actions the Applicant took were not actions taken within the meaning of r 230(1), they adequately explain the circumstances of the delay and have led to the present application being made. [92] I have determined that the commencement of criminal proceedings in relation to the sexual assault allegation is a new development capable of providing additional information relevant to the consideration of the appeal. It would not be in the interests of justice to deprive the Applicant of the opportunity to present that evidence in circumstances where procedurally the appeal is still at its start, and the Respondent has identified no real prejudice if the appeal proceeds. Conclusion and next steps [93] For the reasons above, I am persuaded that I should exercise my discretion and make an order that the applicant should be allowed to take further action on her appeal pursuant to r 230(2). [94] I note the application WC/2022/188 lapsed prior to it being allocated to a Member of the Commission. Having a Member of the Commission allocated to oversee the conduct of the matter would be an appropriate next step. Order 1. The Applicant may take further action on the appeal WC/2022/188 pursuant to s 451(2)(c) of the IR Act. 2. The substantive matter WC/2022/188 is to be allocated from the Registry to a Member of the Commission to oversee the next steps. 61 Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12, 16-17 cited with approval in Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232, [19]. 62 Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2012] QSC 413, [91]. 63 T 1-21 l 11. -- 20 of 20 --