Brownlee v Workers' Compensation Regulator [2022] QIRC 258

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brownlee v Workers' Compensation Regulator [2022] QIRC 258 PARTIES: Brownlee, Robert Jason (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/202 PROCEEDING: Application in existing proceedings DELIVERED ON: 1 July 2022 HEARING DATE: 27 June 2022 MEMBER: HEARD AT: O'Connor VP Brisbane ORDER: 1. That the appeal filed by Mr Robert Brownlee (WC/2019/202) in the Queensland Industrial Relations Commission on 21 November 2019 be dismissed pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011. 2. That there be no order as to costs. CATCHWORDS: INDUSTRIAL LAW – APPEAL – WORKERS' COMPENSATION – INTERLOCUTORY APPLICATION – where an application has been brought to dismiss – where there exists history on non- -- 1 of 6 -- 2 compliance – whether just and reasonable to dismiss substantive matter LEGISLATION: CASES: Industrial Relations (Tribunals) Rules 2011 (Qld) r 5, r 6, r 45 Belal Yousif v Workers' Compensation Regulator [2017] ICQ 4 House v The King (1936) 55 CLR 499 Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd (2005) 180 QGIG 1209 Quinlan v Rothwell & Anor [2002] 1 Qd R 647 APPEARANCES: No appearance for the Appellant Mr G Clark for the regulator Reasons for Decision Background [1] Mr Robert Jason Brownlee ('the Appellant') filed an appeal in the Industrial Registry on 20 November 2019. [2] On 21 November 2019 the Industrial Registry issued a standard directions order requiring the exchanging and copying of relevant documents between the parties prior to the listing of a conciliation conference. [3] A conference was held before Deputy President Merrell on 6 March 2020. The matter did not resolve and so further directions for filing were issued on the same day. [4] On 6 April 2020 the above directions were vacated and substituted with identical directions albeit with extended dates for filing. The final date for filing on the re-issued directions order was 17 July 2020. [5] On 15 July 2021these directions were re-issued once again with further extended dates. The final date for filing on this directions order was 8 November 2021. -- 2 of 6 -- 3 [6] During the period between 15 July and 8 November 2021 it became apparent that the Appellant was not complying with directions. On 25 August 2021 the Industrial Registry wrote to the Appellant on the following terms: Dear Mr Brownlee Further to the Call Over held on 13 July 2021 the attached Directions Order 5 was issued. It states you were to file your Statement of Facts and Contentions by 20 August 20 August 2021, to date the Registry has not received it. Could you please update the registry by close of business tomorrow as to the progress of this submission? (original emphasis) [7] The Appellant replied two days later on 27 August with the following: Hi, im (sic) very sorry, I'm still working on submission, (sic) have had an unexpected illness in the family. I will submit form asap, before end of month, thank you for your understanding. Regards Rob (original formatting) [8] On 31 August 2021 Ms Schultz for the Regulator wrote to the Industrial Registry: Dear Registry Officer, I refer to matter WC/2019/202 and the current Directions Order. The Regulator have yet to receive the Appellant's Statement of Facts and Contentions. We respectfully request the current Directions Order be vacated. [9] The directions order was subsequently vacated on 1 September 2021 with a note from the Industrial Registry reminding the Appellant to file his Statement of Facts and Contentions as soon as possible. [10] By 5 October 2021 the Industrial Registry had still not received the Appellant's statement of facts and contentions. [11] On 29 November 2021 the matter came before me once more for mention, whereby an extension of time was afforded to the Appellant with the consent of the Respondent. [12] The matter was listed for another mention as part of a callover held on 19 May 2022. There was no appearance from the Appellant. On that basis I adjourned to the matter to be relisted at a later date. -- 3 of 6 -- 4 [13] On 25 May 2022 the Regulator filed an application in existing proceedings to have the matter struck out. In their Application, the Regulator asked the Commission to exercise its discretion to strike out the matter on the following grounds: The conduct of Mr Brownlee, who is the respondent to this application, in failing to comply with numerous Directions Orders and his failure to attend the callover on 19 May 2022 indicates that he has no intention to comply with the Commissioner's orders and / or to prosecute his appeal. Therefore, the applicant respectfully respects (sic) the following orders be made: 1. That the appeal filed by Mr Robert Brownlee (WC/2019/202) in the Queensland Industrial Relations Commission on 21 November 2019 be dismissed pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011. 2. That there be no order as to costs. [14] On 17 June 2022 the Industrial Registry issued a notice of listing to the Regulator and the Appellant for 27 June 2022. Once again, the Appellant did not attend and the Industrial Registry has to date received no correspondence from the Appellant. The Rules [15] Rule 45 of the Industrial Relations (Tribunals) Rules 2011 (Qld) addresses the consequences of failure to attend and or failure to comply with directions orders. Relevantly, where a party fails to comply with a directions order, r 45(3) reads: (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, including, for example, a final order; or (d) make orders under paragraphs (b) and (c) . Should the Appellant's proceeding be dismissed [16] This appeal was filed in the Industrial Registry on 21 November 2019. It has had a long and protracted history. [17] The brief chronology outlined above demonstrates a persistent pattern of non-compliance with the directions of the Commission. When this matter was again before the Commission on 27 June 2022, the Appellant failed to attend. No explanation has been given for his non-attendance today. [18] In my view, this is a case where I should exercise my discretion to dismiss the Appellant's proceedings. -- 4 of 6 -- 5 [19] In forming that view, I have had particular regard to the Appellant's non-compliance with the Further Directions Order dated 15 July 2021 requiring the filing of the Appellant's Statement of Facts and Contentions. [20] The Statement of Facts and Contentions is an important document in the conduct of an appeal under the Workers' Compensation Legislation. It alerts the other party to the case it will have to deal with, and it identifies the issues which exist which, in turn, allow for a confinement of the matters in dispute. A party will be bound by its Statement of Facts and Contentions and may not lead evidence which is not relevant to the identified issues.1 [21] In Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd,2 his Honour President Hall, in dealing with an application to strike out for want of prosecution, cited with approval the reasoning of Thomas JA in Quinlan v Rothwell & Anor,3 as follows: There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended. At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules. [22] The non-compliance with the directions of the Commission and the cumulative effect of the Appellant's defaults are sufficient to satisfy me that the Appellant is either subjectively unwilling to co-operate with the Commission or for some other reason unable to do so.4 [23] In my view, the discretion conferred on the Commission under Rule 45 has been enlivened and accordingly the proceedings should be dismissed. Order 1. That the appeal filed by Mr Robert Brownlee (WC/2019/202) in the Queensland Industrial Relations Commission on 21 November 2019 be dismissed pursuant to rule 45 of the Industrial Relations (Tribunals) Rules 2011. 1 [2017] ICQ 4 [15]. 2 [2005] ICQ 59. 3 [2002] 1 QdR 647, 658. 4 Ibid. -- 5 of 6 -- 6 2. That there be no order as to costs. -- 6 of 6 --