Campion v Workers' Compensation Regulator [2025] QIRC 332

Black & Black v De Waard & De Waard & Anor [2021] QDC 138

Citicorp Australia Ltd v Metropolitan Public Abattoir Board and The Queensland Meat Industry Organisation and Marketing Authority [1991] QSCFC 59

McCarthy v Workers' Compensation Regulator [2022] QIRC 187

State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10

Sharples v Workers Compensation Regulator [2020] ICQ 20

• [1] Putting one's case on hold, or putting it into "abeyance", is not an indefinite pause. If an applicant or appellant whose matter is in abeyance takes no action to advance the matter within a year since last acting to advance it, they will need to make a case for reopening the matter before being allowed to proceed.[1] That is the situation Ms Campion finds herself in because she placed her worker's compensation appeal into abeyance for over a year before seeking to move the matter forward. Ms Campion initially intended that the matter be paused for only three months so she could obtain legal advice and obtain medical reports.

• [2] The situation Ms Campion is experiencing has been described as a general prohibition imposed by the Industrial Relations (Tribunals) Rules 2011 (the Rules_)_[2] to ensure that parties take timely steps to keep their matters moving towards judgment.[3] Accordingly, there is only one issue that I must decide - whether Ms Campion can proceed with her appeal of a decision by the Workers' Compensation Regulator ('Respondent'). There is a test to be applied, which has several considerations within it. The application of that test to the relevant facts in this case has lead me to decide that the matter should not be allowed to proceed. I set out my reasons below.

What is the test for hearing maters after they have lapsed?

• [3] The considerations for deciding whether a matter should proceed after more than a year in abeyance are set out in r 230(3) of the Rules_._ I will deal with each of the considerations in turn. The first element to consider is what "steps" Ms Campion took in the proceedings. That assists in determining whether the matter has in fact "lapsed". The relevant period of time in this case is from when the last step was taken (10 July 2023) until when the matter is said to have lapsed on or around 10 July 2024. What constitutes a step taken in a proceeding is key.

Were any relevant "steps" taken in the proceeding during the relevant time?

• [4] What constitutes a "step" is something that has the practical effect of carrying the matter forward towards judgment. Consent given by the other side to placing a matter in abeyance has no impact on the effect of r 230.[4] Doing work in preparation for running a matter will not always constitute a step which has the effect of carrying the matter forward.[5] For instance, a party's solicitor seeking to meet with the other side for the purpose of negotiations, or writing letters about further disclosure of documents, has been deemed to not be conduct that has the effect of carrying the matter forward.[6] The act of sending a medical report to the other side, which was prepared for the purposes of the matter, would have the necessary effect of carrying the matter forward towards judgment.[7] That is because it is an action that is more than something one party does, of which the other party, or the court/tribunal is not aware, and where no readily discernible impact on the progress of the matter occurs.[8]

• [5] Ms Campion filed her appeal notice on 9 July 2023, requesting at the same time that the case be placed in abeyance for three months so that she could seek legal advice and gather further medical reports to support her case. Two days later the Respondent conveyed in writing that it consented. The Commission notified the parties that the appeal was placed in abeyance the following day, 12 July 2023. The Commission registry correspondence, which is not disputed, states that:

Please note the Applicant 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 Applicant to progress the matter within 12 months of the last action, the matter will lapse pursuant to rule 230 of the Industrial Relations (Tribunal's) Rules 2011.

• [6] On 23 September 2024, Ms Campion filed an application to reopen the lapsed proceedings mentioned above, having attempted earlier to file a new appeal and been told that the old one had lapsed. Ms Campion essentially argues that she was confused by the above-mentioned email in light of on an email from the Respondent stating that it consented to the matter being placed into abeyance.

• [7] Ms Campion says that she has continued to seek medical advice to establish her previous and current medical condition, which has included two stays in hospital. Ms Campion says that she finally obtained a diagnosis late in 2024, which is after the matter is said to have lapsed.

• [8] Ms Campion has provided a 24 August 2023 report by Consultant Psychiatrist, Dr Christopher Slack. That report was commissioned by Queensland Health, Ms Campion's employer. Its purpose was to look into Ms Campion's capacity to perform the inherent requirements of her contract of employment. However, this report is outside the relevant period of time and was prepared at the request of the employer. It was not something that Ms Campion did to advance her matter towards judgement in my opinion.[9] It was not therefore a step taken by Ms Campion to carry her matter forward towards judgment.

• [9] A short letter by Dr Howard Granger, Psychiatrist, dated 14 December 2022, pre-dates the proceedings. It is therefore not a step taken in the proceedings in the sense that it was not action taken in the relevant period of time by Ms Campion to advance her matter towards judgment.

• [10] A 12 September 2024 letter from Consultant Psychiatrist, Dr Peter Parry, is also outside the relevant period of time. So too a similar letter from Dr Parry dated 15 October 2024. Neither of those letters were steps taken in the proceedings in my opinion. As well, they are more a statement of Ms Campion's recovery than an opinion on cause. Even if they were prepared during the relevant time, they do not have the effect of carrying the matter towards judgement.

• [11] Ms Campion has also produced an 11 December 2024 claim for income protection benefit. However, this does not have the effect of carrying her matter forward toward judgment in my opinion. That is for two reasons. First, because it is outside the relevant period of time. Second, because it is simply a document Ms Campion prepared for her insurer for the purposes of seeking payment on a policy. Its creation, and the act of submitting it to the insurer, did not have the effect of moving the matter towards judgement.

• [12] Ms Campion says that she called Shine Lawyers on 26 August 2023 to inquire about whether that firm would assist her with her case. I note that this too was after the matter had lapsed. In any event, Ms Campion did not engage Shine Lawyers and did not issue instructions to get the matter moving. Even if she had, that does not have the requisite quality of action that carries the matter forward towards judgement.[10] I do not accept that this was a step taken in the relevant time the effect of which was to advance the matter towards judgement.

• [13] For the above reasons, I am not satisfied that any action Ms Campion has taken qualifies as having the effect of carrying the matter forward towards judgment. Ms Campion has undergone some treatment and has produced evidence of having done so. But that does not come up the required standard of, for example, obtaining a medical report on the cause of an injury and serving it on the Respondent.[11] I conclude, therefore that Ms Campion's appeal has in fact lapsed.

• [14] There are two explanations for the delay. First, a misunderstanding that the matter would lapse after a year of no steps being taken to advance it towards judgement. Second, in summary, challenges that Ms Campion has faced over the relevant period of time in dealing with her health issues.

• [15] On the first point of a misunderstanding, the Respondent argues that Ms Campion's claim cannot be maintained. It says that the email from the Registry that I have excerpted above is clear and cannot reasonably be misinterpreted. Ms Campion argues that she had received an equally clear consent position from the Respondent, which caused her to doubt the correspondence from the Registry as to the matter lapsing. I construe Ms Campion's argument here to be that Respondent's consent to the matter being placed in abeyance, with no end date referred to, carried some legal weight as to whether the matter would in fact lapse as the Registry forewarned.

• [16] I accept that Ms Campion was confused as to what in fact the legal situation was. However, that simply amounts to being unaware of the law in my opinion. That is not an acceptable explanation for the delay because there was ample time for Ms Campion to take legal advice to resolve what she thought was a conflict in views. Even if Ms Campion placed some weight on the Respondent's consent position, she had a very clear statement from the Registry, referring to the relevant rule, stating that the matter would lapse in a year if she did not take action to advance it. Even though I accept Ms Campion's claim of confusion, Ms Campion was on notice that there was an issue here that she needed to take advice on and resolve. She did not do so and there is no acceptable explanation for that.

• [17] On the point of ill health, Ms Campion has provided evidence of two periods of hospitalisation and relevant illness. However, the hospitalisations are marked by corresponding release letters. Those letters give no indication that Ms Campion lacked capacity to take action to progress her case once discharged. Quite the opposite in my opinion. It is not disputed that Ms Campion had some health challenges over the course of the relevant year. However, I find that this did not amount to an acceptable explanation for the delay. That is because there is no evidence suggesting that Ms Campion was so unwell for the entire relevant period that she lacked capacity to act positively in advancing her case toward judgement. I accept that things were difficult for Ms Campion but any incapacity was relatively brief. The health issues Ms Campion refers to do not therefore satisfactorily explain the failure to take steps during the relevant time.[12]

What steps are proposed to be taken to progress the matter?

• [18] Ms Campion proposes to continue to receive medical treatment and consult with her legal team as to the best path forward. Under this heading, Ms Campion also claims to have received "a large number of new medical reports". Those are not provided, however. No description of what they contain is provided either.

• [19] I accept that Ms Campion wants to progress her matter. However, I cannot accept that Ms Campion has described any clear steps for doing so. Nor are any dates or time frames stated by which time the matter would be back on track.

What prejudice might the Regulator suffer if Ms Campion's case is not struck out?

• [20] Ms Campion argues that the Respondent will not suffer any prejudice and the Respondent does not address this consideration. I find therefore that there is no real case for prejudice being suffered by the Respondent should the matter be allowed to proceed.

Can the merits of Ms Campion's case be assessed at this stage?

• [21] It is impossible to tell at this early stage what sort of prospects Ms Campion's case has. This consideration is therefore neutral and carries no weight.

• [22] It is generally up to an appellant to take steps to keep their matter moving. There is no obligation on either the Commission or the Respondent to keep an appellant aware of the effect of r 230.

• [23] In this case, Ms Campion had clear notice from the Registry that her matter would lapse in a year if she took no action to advance it toward judgment. Any confusion caused by the Respondent consenting to the matter being placed into abeyance could have been quickly resolved had Ms Campion taken advice. She had a year to do that, even though part of that year included two stays in hospital. I accept that Ms Campion was unwell. However, there is no evidence suggesting that this was an incapacity that prevented Ms Campion from taking steps to advance the matter toward judgment throughout the entire relevant period of time. For these reasons I am not satisfied that there is an acceptable explanation for the delay.

• [24] Nothing Ms Campion has produced in this application constitutes evidence that she took steps in the relevant period of time to advance her case toward judgement. I have found above that the matter did lapse on or about 10 July 2024. There being no satisfactory explanation for the delay, and no clear plan to get the matter moving again (as opposed to a desire), leads me to conclude that this is not a case warrants an exercise of the discretion to let it proceed. I therefore order that the application to reopen matter WC/2023/92 be dismissed.

• [25] The Respondent's submissions seek orders dismissing the application "with costs". Ms Campion says that she was not aware she was exposed to a costs order. However, neither party has had an opportunity to address me properly on costs. Accordingly, I order the parties to put on written submissions and any relevant evidence addressing the issue of costs.

1. The application to reopen matter WC/2023/92 is dismissed.
   1. The Respondent is to file in the Registry and serve written submissions and evidence it seeks to rely on (no more than five A4 pages of submissions) on costs by 19 December 2025.
   2. The Applicant is to file in the Industrial Registry and serve on the Respondent written submissions and evidence she seeks to rely on (no more than five A4 pages of submissions) on costs by 23 January 2026.
   3. The Respondent is to file and serve written submissions and evidence it seeks to rely on in reply (no more than three A4 pages of submissions) on costs by 6 February 2026.

[1] Industrial Relations (Tribunals) Rules 2011 (Qld), r 230.

[2] Industrial Relations (Tribunals) Rules 2011 (Qld).

[3] Sharples v Workers Compensation Regulator [2020] ICQ 20 ('Sharples'), [20].

[4] See, for example, Bale v Workers' Compensation Regulator [2024] QIRC 235 ('Bale'), where consent by the opposing side for a matter going into abeyance was given but not otherwise a feature in any reasoning as to whether the matter could be reopened.

[5] Citicorp Australia Ltd v Metropolitan Public Abattoir Board and The Queensland Meat Industry Organisation and Marketing Authority [1991] QSCFC 59 ('Citicorp').

[6] Black & Black v De Waard & De Waard & Anor [2021] QDC 138.

[7] State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10, [40], cited and followed in Bale, [46].

[8] Citicorp, 593-595 cited and followed in State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10, [27].

[11] State of Queensland (Queensland Health) v Workers' Compensation Regulator [2024] QIRC 10, [40].

[12] McCarthy v Workers' Compensation Regulator [2022] QIRC 187, [22].