QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Bell v Simon Blackwood (Workers' Compensation Regulator) [2020] QIRC 037

PARTIES:	
	Edward James Bell 
(Appellant)

v

Simon Blackwood (Workers' Compensation Regulator) 
(Respondent)

CASE NO:
	WC/2015/199
	
PROCEEDING:
	Application to reopen proceedings   
	
DELIVERED ON:
	5 March 2020   
	
HEARING DATE: 	9 December 2019 
	
MEMBER:

HEARD AT:	HARTIGAN IC 

Brisbane 

ORDER:
	1.	The application to reopen the appeal is dismissed.

2.	The appellant is to pay the respondent's costs of this application to be agreed, or failing agreement, to be the subject of a further application to the Commission. 
	
CATCHWORDS:	INDUSTRIAL LAW – proceedings struck out for failure to prosecute – application to reopen proceedings – whether in the interests of justice to reopen proceedings.    
	
LEGISLATION:

CASES:	Industrial Relations Act 2016 (Qld), s 484  

Industrial Relations (Tribunals) Rules 2011 (Qld), r 231  

Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2012] QSC 413

Brisbane South Regional Authority v Taylor (1996) 186 CLR 541

Emaas Pty Ltd v Mobil Oil Australia Limited [2003] QCA 232

Finborough Investments Pty Ltd v Airlie Beach Pty Ltd [1995] 1 Qd R 12

Page v The Central Queensland University [2006] QCA 478

Tyler v Custom Credit Corp Ltd [2000] QCA 178 	
		
APPEARANCES:	Ms C.B. Donnan of counsel for the appellant. 
					        
Mr S.P. Gray of counsel for the respondent. 

Reasons for Decision

Introduction

[1]	On 29 August 2017, the Industrial Registry requested Mr Bell to show cause as to why his appeal should not be struck out, as no action had been taken in the appeal for at least 1 year.  Mr Bell had in fact not taken a step in the appeal since 8 April 2016.  Mr Bell did not respond to the request to show cause. On 26 September 2016, the appeal was struck out. Mr Bell now applies to reopen the proceedings pursuant to s 484 of the Industrial Relations Act 2016 (Qld) ("the Act").

[2]	A notice of appeal was filed by Mr Bell on 16 July 2015 with respect to a decision of the Regulator that confirmed a decision of WorkCover to reject Mr Bell's application for compensation. The appeal was initially listed for hearing in Mackay on 3 to 5 November 2015. At a review mention on 22 October 2015, Mr Bell sought, and was granted, an adjournment of the trial to obtain further medical evidence.

[3]	The appeal was relisted for hearing in Mackay on 11 to 13 April 2016. On 8 April 2016, Mr Bell sought, and was granted, a further adjournment of the hearing. The purpose of the adjournment on that occasion was for Mr Bell to serve a Notice of Non-Party Discovery. The Regulator was awarded the costs thrown away of the adjournment.

[4]	Mr Bell's application for an adjournment on 8 April 2016 was the last step taken by him in the appeal prior to it being struck out. Mr Bell states that his solicitor did not receive the show cause letter from the Industrial Registry. Mr Bell became aware in or about October 2017, that the appeal had been struck out, however, he did not apply for leave to reopen the appeal until 22 May 2019.

[5]	Mr Bell raises a number of grounds with respect to why leave should be granted to reopen the appeal, including, that the appeal was struck out before a determination was made, that he has not had the opportunity to have his case assessed on its merits and to not grant leave would result in the litigation being at end. He argues that the delay in progressing the matter was caused by his legal representative. The Regulator contends that that these matters are not relevant, as the nature of the determination to be made in the exercise of the power to grant leave to reopen is whether Mr Bell has demonstrated that good reasons exist to reopen the appeal.

Relevant principles 

[6]	The Commission's power to reopen a proceeding is discretionary and is not subject to any statutory conditions. The power is 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 to reopen is whether or not the interests of justice are better served by allowing or rejecting the application.

[7]	Mr Bell nominated the following four factors as being relevant to his application:

(a)	there has been no substantive determination made by the Commission regarding this appeal;

(b)	the actions taken by Mr Bell to progress proceedings; 

(c)	the prejudice arising out of the exercise of the discretion; and

(d)	the prospects of success if the proceedings were reopened.

[8]	The Regulator submitted that the Commission, in considering whether to exercise the power to reopen, should have regard to the matters set out in rule 231(4) of the Industrial Relations (Tribunals) Rules 2011 (Qld) ("the Rules"). These are matters that a respondent must address when responding to a show cause notice sent pursuant to r 231(2). The matters referred to in r 231(4) include:

(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 is not struck out;

(e)	the merits of the proceeding;

(f)	why the court, commission or registrar should not strike out the application despite the delay.

[9]	As noted above, the power to reopen is not constrained by any statutory conditions. Accordingly, there is no requirement that the consideration of an application to reopen must address the matters referred to in r 231(4) of the Rules. However, given that Mr Bell did not respond to the show cause request and that failure to respond forms part of the factual matrix of this matter, I consider that some of the matters referred to in r 231(4) of the Rules, to the extent that they have been addressed by the parties, may be relevant to the consideration of whether to exercise the power to reopen the appeal.

Why was Mr Bell's appeal struck out?

[10]	As noted above, the Industrial Registry, on 29 August 2017, requested Mr Bell to show cause as to why his appeal should not be struck out on the basis that no step had been taken in more than 1 year. The request to show cause was sent to Mr Bell's solicitor, Mr Peter Clark at Eureka Law Pty Ltd.

[11]	At that time, Eureka Law Pty Ltd remained on the record as Mr Bell's legal representative. However, Eureka Law Pty Ltd had ceased trading in or about May 2017.   Following the closure of Eureka Legal Pty Ltd, Mr Clark was employed as a solicitor at Strutynski Law and he says he continued to have the conduct of Mr Bell's file which was transferred to Strutynski Law.

[12]	Mr Clark does not explain why Eureka Law Pty Ltd remained Mr Bell's solicitors on the record or why he failed to file a new Notice of Address for Service, given he continued to have carriage of the matter at Strutynski Law. The only explanation provided by Mr Clark is that Mr Bell's file "fell through the cracks", following the departure of the principal of Strutynski Law in or about September 2017.

[13]	The consequence of Mr Clark's conduct is that the correspondence from the Industrial Registry was not received by either Mr Bell or Mr Clark and that no response was subsequently provided on behalf of Mr Bell.

[14]	Accordingly, Mr Bell's appeal was struck out.  

[15]	After considering Mr Clark's affidavit, I find that the delay during the period April 2016 to August 2017 was primarily caused by Mr Clark and his failure to progress Mr Bell's claim.  I make this finding noting, however, that there is limited evidence with respect to the steps taken by Mr Bell (or his wife on his behalf) to ensure his legal representative was acting in accordance with his instructions. However, this finding is made having regard to Mr Clark's own concession that personal events intervened in his life which unfairly delayed the progress of Mr Bell's appeal until or about September 2017.

The steps taken by Mr Bell following the appeal being struck out and his explanation for delay

[16]	The steps taken by Mr Bell following being advised of the strike out of his appeal are relevant.

[17]	Mr Bell submits that the cause of the delay cannot be attributed to him. He says he has done all he could to progress his claim, including by signing all necessary claims and applications. He further says that he retained and gave adequate instructions to his solicitors and in sufficient time to enable his solicitors to prepare the appeal within the time required. Mr Bell submits that the delay in the prosecution of his appeal and the subsequent strike out of his appeal was caused by the inadvertent errors on the part of his solicitors. Mr Bell submits that he had done what a reasonable person might have been expected to do, namely leave the matter in the hands of an apparently competent solicitor. 

[18]	The Regulator contends that Mr Bell's submission that he has done all he could to progress the claim should be rejected. The Regulator also contends that Mr Bell cannot rely on the admitted negligence of his solicitor as a reasonable excuse, as there were countless instances where Mr Bell was put on notice that Mr Clark was not diligently pursuing his appeal. 

[19]	Whilst I accept the thrust of Mr Bell's submissions with respect to the period leading up to the strike out of Mr Bell's appeal, there is limited evidence to support that it was reasonable to leave the carriage of his matter in Mr Clark's hands, following Mr Bell being advised of the strike out and the reasons for it and then the subsequent delay in commencing the application to reopen the appeal.

[20]	Mrs Bell deposes to being advised at some time between 13 September 2017 and 25 October 2017 that Mr Bell's appeal had been struck out. Neither Mr or Mrs Bell's affidavits further address the circumstances of the striking out of the appeal, the communication (or lack of communication) from Mr Clark or their reaction to the information that the appeal had been struck out.

[21]	Mr Bell's relative, Ms Wall (who is also a solicitor), contacted a representative of the Regulator in mid-September 2017, prior to the appeal being struck out. Ms Wall was advised that there had been no action taken on the appeal for over 12 months and that it was recommended that the Industrial Registry be contacted on Mr Bell's behalf.

[22]	On 27 September 2017, the Regulator forwarded a copy of the correspondence of 26 September 2017 advising that Mr Bell's appeal had been struck out to Ms Wall. It is likely, given Mrs Bell's evidence, that it was around this time that Ms Wall advised Mr and Mrs Bell that the appeal had been struck out.

[23]	It follows that it was apparent at this stage that Mr Bell's appeal had been struck out because it had not been progressed in a timely manner.

[24]	On 2 October 2017, Ms Wall confirmed by email her receipt of the correspondence from the Regulator and stated that "We are in the process of getting Eddie new legal representation".

[25]	On 7 October 2017, Mr Bell attended his treating GP, Dr Luke Notley. The attendance note of that consultation states "Has found the lawyer handling his case has mishandled it and now may not get a payout".

[26]	Mr Bell and his wife met with Mr Clark on 25 October 2017. During this meeting, and despite the history of Mr Clark's involvement in the matter, Mr Bell made the decision to re-engage Mr Clark.  Mr Bell instructed Mr Clark to "proceed with the appeal against the Regulator's decision". Mr Bell also instructed Mr Clark to "pursue a Notice of Claim for Damages".

[27]	It might be imagined, given that the appeal had been struck out because of a failure to progress the appeal, that Mr Bell might have been anxious to ensure that Mr Clark took all necessary steps to institute the application to reopen the appeal expeditiously.  However, Mr Bell did not sign the application to "reinstate his appeal in the QIRC" until 14 February 2018. Neither Mr Bell or Mrs Bell provide any explanation for the delay of some three months between when they met with Mr Clark on 25 October 2017 and when the application was signed on 14 February 2018. Mr Clark does not address the reason for the delay in signing the application.

[28]	In any event there was a further substantial delay. Mr Clark did not file the application to reopen the appeal until 22 May 2019.

[29]	Mr Bell does not address in his affidavit the further delay following the signing of the application on 14 February 2018 or what steps he (or his wife on his behalf) took to ensure that Mr Clark progressed the application. Given the history of the matter and the serious consequence of the delay caused by Mr Clark in the past, it is alarming that Mr Bell did not take steps to ensure that his matter was progressing as he had instructed.

[30]	Mrs Bell states that following the signing of the application by her husband on 14 February 2018 she received a phone call in mid-June 2019 from Ms Donnan of Counsel. She states that "until that telephone call I had assumed Edward's appeal had been reinstated because I had not heard from Peter [Mr Clark] about this". It can be taken from this that Mrs Bell, on Mr Bell's behalf, did not take any steps to ensure that the application to reopen had been progressed at any time after 14 February 2018 or had even sought confirmation from Mr Clark that it had occurred. 

[31]	Mr Clark does not depose to the precise reason why the application was not filed following Mr Bell signing it on 14 February 2018. His affidavit makes a general statement that due to workload issues associated with taking over the practice (in September 2017) that the "prosecution of Mr Bell's file fell through the cracks".

[32]	Further the material relied on by Mr Bell does not address why the prosecution of his appeal fell through the cracks, yet he sought to prosecute his common law claim by signing a Notice of Claim for Damages on 29 December 2017 which was served on 12 January 2018.

[33]	Submissions made on behalf of Mr Bell state that the application was not filed in the Commission "due to an oversight". There is no evidence filed by either Mr Clark or Mr Bell particularising the nature of the oversight that resulted in Mr Clark not filing the application until 22 May 2019.

[34]	Further, the evidence relied on by the Regulator indicates that Mr Clark's failure to file the application to reopen the appeal was brought to his attention by representatives of the Regulator and WorkCover during 2018 as follows:

(a)	On 27 March 2018, Ms Godfrey, on behalf of the Regulator, wrote to Mr Clark by email confirming that she had spoken to the Industrial Registry who confirmed that no application to reopen had been filed and consequently Ms Godfrey intended to close the Regulator's filed based on the Industrial Registry's correspondence of 26 September 2017;

(b)	On 24 April 2018, WorkCover's representative, Mr Fraccaro from DWF, wrote to Mr Clark requesting he advise if the appeal had been set down for hearing;

(c)	On 23 May 2018, after becoming aware of the Industrial Registry's correspondence of 26 September 2017, Mr Fraccaro wrote to Mr Clark requesting his advice with respect to what steps he had taken to re-enliven the appeal; and

(d)	On 18 July 2018, Mr Fraccaro again wrote to Mr Clark asking, amongst other things, what steps had been taken to re-enliven the appeal in the QIRC.

[35]	Despite filing an affidavit replying to other matters raised in Ms Godfrey's affidavit, Mr Clark did not file any evidence responding to Ms Godfrey or Mr Fraccaro's evidence that they had variously raised the listing of the appeal and/or the reopening of the appeal with him during the course of 2018. It follows that he did not provide any further explanation as to how the matter "fell through the cracks" in circumstances where the failure to file had clearly been brought to his attention. 

[36]	For the forgoing reasons, I consider that neither Mr Bell or Mr Clark have provided adequate reasons to explain the delay in filing the application to reopen the appeal following receipt of the knowledge that Mr Bell's appeal had been struck out.   

Is the matter ready for trial?

[37]	Mr Bell has provided no information with respect to the readiness of the appeal to proceed to hearing should leave be granted to reopen the proceeding. 

[38]	The appeal, prior to being struck out, has been listed for hearing twice and on each occasion, Mr Bell sought an adjournment to allow for further steps to be taken.  He does not provide any comfort to the Commission by way of material or submission that such behaviour will not be repeated should leave be granted to reopen the appeal. 

[39]	Relevantly, there has been no indication, that Mr Bell served the Notice of Non-Party Discovery which was the basis for the last adjournment. Further, there is no indication as to the state of the evidence and whether the list of witnesses will be sought to be amended.

[40]	Whilst Mr Clark has produced evidence of his attempts to locate the respondent's witness, he has not provided any evidence with respect to the appellant's witnesses, including, whether they are able to be located and if they are available to give evidence should the matter proceed.

[41]	Despite the history of the matter, Mr Bell has not produced any material indicating that there are no further steps to be taken prior to the matter being listed for hearing.  Given the substantial delay and the history of inaction with respect to the earlier progress of the appeal, I am not satisfied, on the material, that the appeal is ready to proceed to hearing.

The merits of the appeal

[42]	Both Mr Bell and the Regulator submit that Mr Bell's prospects of success cannot be accurately determined until all evidence is presented and tested before the Commission. Accordingly, the potential merit of Mr Bell's appeal holds little weight in the circumstances of this matter when determining whether the interests of justice favour granting the application.

Will dismissing Mr Bell's application to reopen conclude the litigation?

[43]	It is accepted by both Mr Bell and the Regulator that if leave is not granted to reopen the appeal then the litigation will be concluded.

[44]	Mr Bell submits that he will be permanently shut out of the proceedings and will have no other viable course of action. The Regulator disputes this submission on the basis that the material demonstrates negligence by Mr Clark's solicitor, and he has an available action for negligence and may have recourse through his solicitor's professional indemnity insurer.

[45]	These are matters which are relevant to the determination of whether the interests of justice favour granting the application.

What prejudice will the Regulator suffer if leave to reopen is granted?

[46]	Whilst the Regulator accepts that it cannot demonstrate that a fair trial is impossible, it does submit that it will suffer prejudice if leave to reopen was granted.  The Regulator's submissions focus on the prejudice caused by the delay and include, in summary, the following:

(a)	it can be accepted that the effluxion of time alone can erode the quality of the witnesses' evidence, particularly Mr Bell;

(b)	it was stated by McHugh J in Brisbane South Regional Authority v Taylor that "the longer the delay … the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose"; and

(c)	had the appeal been conducted in a timely fashion, the Regulator could have organised its witnesses by coordination through the employer however, as those witness no longer work for the employer, that opportunity has been lost.

[47]	The Regulator also submits that if leave to reopen was granted, it would incur the expense of being forced to defend a reopened appeal. The Regulator argues that it would virtually have to start again in the preparation of its defence of the appeal.

[48]	Submissions made on behalf of Mr Bell concede that the Regulator may suffer potential prejudice arising from the costs associated with defending the appeal (although he argues that is ameliorated by the earlier costs awarded in the Regulator's favour and any future costs order following the appeal) and the fact that the Regulator will no longer have the convenience of some of its lay witnesses being employed by the same employer.

[49]	Mr Bell lodged his application for compensation on 28 January 2015.  If the matter were to be reopened, then the evidence would be required to address matters that occurred more than 5 years ago. I accept that this would require the Regulator to essentially start preparing its defence to the appeal from the beginning.  There are cost implications associated with this which will not necessarily be the subject of a future costs order. I find that the Regulator would suffer prejudice associated with the costs of preparing the matter. 

[50]	I further find that the Regulator will suffer potential prejudice arising out of the delay of the matter. The Regulator's witness list includes several lay witnesses who formerly worked with Mr Bell. These witnesses would be required to recall events occurring more than five years ago. Similarly, Mr Bell will also be required to give evidence of such matters. As Keane JA observed in Page v The Central Queensland University:

The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair to either party.

[51]	Given the length of the delay, I consider it would be difficult to overcome the prejudice that arises due to the effluxion of time and which has been described as "insidious as it is subtle in that the parties cannot demonstrate what it is that they have forgotten". There is a risk that the Regulator will be prejudiced to such an extent that the hearing may be unfair.

The interests of justice

[52]	I have considered the factors which Mr Bell submits favours the exercise of the power to reopen the appeal. It is a serious matter to dismiss a proceeding and thereby deprive a litigant an opportunity to have their claim determined at trial. The consequence of the dismissal of Mr Bell's application is that he will not receive a determination regarding the merits of his appeal.

[53]	However, the loss of opportunity for Mr Bell to litigate his claim needs to be considered in the context of this matter. The application to reopen is made against a backdrop of inaction not only while the appeal was on foot, but perhaps more troubling, by inaction following Mr Bell being advised that the appeal had been struck out.

[54]	On and from October 2017, at least, Mr Bell was aware that his appeal had been struck out. Ms Wall had advised that attempts were being made to retain new legal representation for Mr Bell. As of 7 October 2017, when Mr Bell attended on Dr Notley, he had formed the view that because of his solicitor's mishandling of the case, he may not get a payout. 

[55]	Yet despite this, Mr Bell did not seek to protect his interests by retaining new solicitors. Rather, he re-engaged Mr Clark on 27 October 2017. The matter was then marked by further periods of significant delay and until the application to reopen was filed on 22 May 2019.

[56]	There is no evidence, that after re-engaging Mr Clark, Mr Bell (or with the assistance of Mrs Bell or Ms Wall) took steps to ensure Mr Clark did not repeat his conduct from the past. Mr Bell had expressed a view that because of Mr Clark's mishandling of his matter that he may not receive a payout, yet he took no active steps to protect his own interests. He effectively sat on his hands for 18 months after instructing Mr Clark to file the application and now blames the delay entirely on Mr Clark. 

[57]	In Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ords Applegarth J relevantly stated:

… Although the plaintiff has been poorly served by the lawyers which it re-engaged in October 2010, the delay that has been caused by the plaintiff's lawyers being dilatory … should be sheeted home to the plaintiff, which took the exceptional step of re-engaging in those lawyers with knowledge of their failings.

[58]	In this matter, I consider that upon Mr Bell choosing to re-engage Mr Clark, he should have known that history was likely to repeat itself. The delay caused by Mr Clark's dilatory conduct from 27 October 2017 can be sheeted home to Mr Bell.

[59]	In addition to these matters, I have also considered that there are a number of factors that weigh against the exercise of the power to reopen the appeal. The application for damages and the events relevant to it occurred some time ago, in around January 2015. The appeal, prior to being struck out, was characterised by lengthy delays, which included two applications made by Mr Bell to adjourn the trial. The second of the adjournment applications occurred late in that it was heard on 8 April 2016 when the trial was to commence on 11 April 2016. The reason for the adjournment on that occasion, was in order for further preparatory steps to be taken prior to the hearing of the appeal. The Industrial Registry considered that there were grounds to require Mr Bell to show cause why the appeal should not be struck out. There is no material to support a conclusion that the appeal is ready to proceed. I am unable to make an assessment as to the merit of the appeal as the evidence is yet to be heard and tested. Mr Bell's delay has prejudiced the Regulator. The delay jeopardises a fair trial of the appeal. The cause of the delay on and from 27 October 2017 can be sheeted home to Mr Bell.

[60]	The loss of opportunity for Mr Bell to litigate his claim is a matter weighted in Mr Bell's favour. However, I have concluded for the reasons referred to above that this favourable factor is outweighed by factors not in his favour. For this reason, I am not persuaded that the interests of justice are better served by allowing the application.

Conclusion

[61]	The application to reopen the appeal is dismissed.

[62]	The appellant is to pay the respondent's costs of this application to be agreed, or failing agreement, to be the subject of a further application to the Commission.