Davis v Workers' Compensation Regulator [2021] QIRC 107

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Davis v Workers' Compensation Regulator [2021] QIRC 107 PARTIES: Davis, Kellie (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2019/142 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 22 March 2021 HEARING DATE: 22 March 2021 MEMBER: Industrial Commissioner Dwyer HEARD AT: Brisbane ORDER: 1. The appeal is dismissed. CATCHWORDS: LEGISLATION: WORKERS' COMPENSATION – APPEAL AGAINST DECISION – failure to comply with directions – failure to attend proceedings Industrial Relations Tribunal’s Rules 2011 r 45 Workers Compensation and Rehabilitation Act 2003 (Qld) s 552A -- 1 of 4 -- 2 Reasons for Decision Delivered ex tempore on 22 March 2021 Background [1] Ms Davis filed an appeal against a decision of the Workers' Compensation Regulator on 2 August 2019 ('the appeal'). Following the filing of the appeal, directions were issued by the registry which included directions to make certain disclosure on 5 August 2019. [2] On 21 October 2019, Ms Davis filed a notice of non-party disclosure and an objection to that notice was received on 29 October 2019. [3] On 26 November 2019, Ms Davis sought the matter be placed into abeyance until 31 January 2020, saying that she was waiting for some documents. Her request for the matter to be placed into abeyance was granted. [4] On 6 February 2020, having not heard further from her, the registry contacted Ms Davis to see if she was ready to proceed. Ms Davis replied on 10 February 2020 saying that she had just moved house and that she would be in further contact within the next two days. It appears that Ms Davis did not follow up as promised and there was no contact with her until the next listing of the matter on 14 October 2020. [5] On 14 October 2020, the matter was listed before the Vice President at a general callover. Ms Davis participated in that callover by telephone and the file indicates that she informed the Vice President that she was ready to proceed. Consequently, the Vice President issued directions for disclosure on 21 October 2020. [6] On 26 November 2020, the registry wrote to the parties seeking appropriate dates for the listing of conference per s 552A of the Workers Compensation and Rehabilitation Act 2003 (Qld). The Regulator replied to that correspondence to the effect that Ms Davis had not yet complied with the disclosure directions that had been issued by the Vice President, but that the Regulator was still prepared to proceed to a s 552A conference. [7] On 18 January 2021, the file was allocated to me and I proceeded to list the matter for a s 552A conference. The matter was listed for 5 February 2021. [8] On 5 February 2021, there was no attendance by Ms Davis at the scheduled s 552A conference. Attempts to contact her in relation to her attendance failed. The matter was adjourned and I listed the matter then for mention on 16 February 2021. [9] The listing notice was emailed to Ms Davis on 5 February 2021. On the morning of the mention on 16 February 2021, my associate made a call and emailed Ms Davis to check that she was attending. -- 2 of 4 -- 3 [10] The matter was listed for 10am and we received an email from Ms Davis at approximately 9.35am querying the message we had sent to her and indicating something to the effect that she had just moved house again and was seeking an adjournment. [11] I declined an adjournment but advised Ms Davis, via email, that she could attend by telephone and sought her telephone number. Ms Davis provided a phone number and the mention proceeded with Ms Davis appearing by telephone. The transcript details the conversation that took place between myself and Ms Davis regarding the progress of this matter.1 In particular, I said to Ms Davis: If there is any further non-compliance or if we get any more radio silence from you I will dismiss this appeal without further notice to you. So you are on notice that this is your last chance. Okay? [12] Ms Davis responded "yes". [13] Also, on 16 February 2021 the Regulator confirmed that Ms Davis had still not complied with the directions issued on 21 October 2020. [14] The matter was then re-listed for a s 552A conference on 22 March 2021. Ms Davis failed to attend, failed to contact the Commission to explain her non-attendance and was unable to be reached by telephone prior to the commencement of the conference at 10am on 22 March 2021. Multiple failures to comply with Directions [15] In the circumstances there are multiple examples of a failure to comply with directions issued by the Commission. There have been failures to comply with the order made on 21 October 2020. There is a failure to attend the s 552A conference on the 5 February 2021 and there is now a further failure to attend the s 552A conference scheduled for 22 March 2021. [16] There has been repeated instances of poor communication on the part of Ms Davis as well, including her failure to contact the registry in February 2020 as promised, her failure to explain her absence from the s 552A conference on 5 February 2021 and her failure to explain her absence on 22 March 2021. [17] In the circumstances it is my view that Ms Davis has demonstrated consistently poor communication and persistent non-compliance with directions issued by the Commission. Whatever the limits of our patience should be, Ms Davis has now exceeded it. 1 Transcript of proceedings, 16 February 2021. -- 3 of 4 -- 4 [18] The time and the resources of the Queensland Industrial Relations Commission are in great demand and parties ought not be permitted to amble their way through proceedings, repeatedly ignoring directions designed to progress the matter. Ms Davis has had every chance to advance her appeal (filed over 18 months ago) and she has consistently failed to pursue it in any meaningful way. Further still she has offered no reasons why she should be allowed to continue. What decisions can the Industrial Commissioner make? [19] Rule 45 of the Industrial Relations Tribunal’s Rules 2011 (Qld) provides as follows: (1) This rule applies if — (a) a party to a proceeding receives notice of a directions order made by the court, Commission or registrar stating a time, date and place for hearing or conference for the proceedings; and (b) the party fails to attend the hearing or conference. (2) This rule also applies if — (a) a party to a proceeding receives a notice of a directions order made by the court, Commission or registrar; and (b) 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, including, for example, a final order; or (d) make orders under paragraphs (b) and (c). Consideration [20] Subsection 3 of rule 45 provides that the court, Commission or registrar may dismiss the proceeding in circumstances where a party fails to attend a hearing or conference, or fails to comply with an order. Ms Davis has done all of this multiple times. [21] In those circumstances I propose to dismiss the appeal. Ms Davis has failed repeatedly to comply with directions, has failed entirely to progress her appeal and I see no reason why she should be allowed to continue beyond 22 March 2021. Order [22] In the circumstances I make the following order: 1. The appeal be dismissed. -- 4 of 4 --