Kelly v Workers' Compensation Regulator [2025] QIRC 258

• [18] On 12 August 2025, I issued Directions to hear the parties as to whether Appeals WC/2023/12 and WC/2025/72 should be dismissed under rule 45 of the Industrial Relations (Tribunals) Rules 2011.

• [19] The Respondent complied with the Directions to file written submissions on 21 August 2025.

• [20] The Respondent set out the extent of Mr Kelly's non-compliance as follows:

ii. Provision of a statement of facts and contentions (WC/2025/72)

iii. Provision of a list of witnesses and outlines of evidence (WC/2025/72)

iv. Attendance at a mention (WC/2023/12 & WC/2025/72)

v. Provision of submissions in relation to the current application (WC/2023/12 & WC/2025/72).[16]

In addition to these matters of non-compliance, to the Respondent's knowledge, the Appellant has taken no action to progress appeal WC/2023/12 since 12 October 2023 and no action to progress appeal WC/2025/72 since it was filed on 8 April 2025.

The Appellant's conduct in this regard has left the Respondent with no confidence that he is likely to further advance either appeal.[17]

• [22] The Respondent submitted rule 45 of the Industrial Relations (Tribunals) Rules 2011 provided that the Commission may "dismiss the proceeding"[18] because Mr Kelly had "failed to attend the hearing"[19] (a Directions hearing or Mention, in this case) and Mr Kelly had "failed to comply with the order"[20] (several orders, in this case) of the Commission.

• [23] The Respondent drew the Commission's attention to President Hall's decision in Quaedvlieg and Others v Boral Resources (Qld) Pty Ltd,[21] citing Thomas JA in Quinlan v Rothwell,[22] that urged "efficiency in the use of the courts as a public resource..." in determination of a strike out application (albeit made on different grounds to the present matter).[23]

• [24] The Respondent contended that Mr Kelly's persistent failures to comply with the Commission's orders, including non-attendance at the Mention, warranted the exercise of discretion pursuant to r 45 to dismiss the appeals. The Respondent noted several recent Commission decisions in which such discretion was exercised.[24]

• [25] The Respondent sought no order for costs.[25]

• [26] Mr Kelly did not file written submissions in accordance with the Directions. Further, Mr Kelly did not seek an extension of time to do so, or provide any excuse for his continued non-compliance.

Rule 45

• [27] Rule 45 of the Industrial Relations (Tribunals) Rules 2011 provides that (emphasis added):

45 Failure to attend or to comply with directions order

(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 a hearing or conference for the proceeding; and

(b) the party fails to attend the hearing or conference.

(a) a party to a proceeding receives notice of a directions order made by the court, commission or registrar; and

(c) make another order dealing with the proceeding that the court, commission or registrar considers appropriate, including, for example, a final order; or

• [28] The power under r 45(3)(a) of the Tribunal Rules involves an exercise of discretion. Foremost, discretionary powers must be "exercised judicially, according to rules of reason and justice, and not arbitrarily or capriciously or according to private opinion."[26] In exercising that discretion, I am informed by several factors, as set out in this Decision. Ultimately, however, I must consider the particular circumstances of this case.[27]

• [29] In Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd,[28] their Honours Wilcox and Gummow JJ considered a provision under the Federal Court Rules which is materially similar to r 45 of the Tribunal Rules. In that case, their Honours identified two broad types of failure to comply with directions which would warrant the dismissal of a matter (emphasis added):

As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor**,** the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.

In the second of the two situations we postulate, a significant continuing default, it does not really matter whether there have been earlier omissions to comply with the Court's directions. Ex hypothesi the default is continuing and is imposing an unacceptable burden on the respondent.[29]

• [30] Such reasoning was followed by O'Connor VP in Workers' Compensation Regulator v Varga[30] and Seymour v Workers' Compensation Regulator,[31] as well as by Merrell DP in Cady v Capital SMART Repairs Australia Pty Ltd & Anor.[32]

• [31] Here, Mr Kelly's default is certainly continuing, given his ongoing failure to comply with the substantive requirements outlined in the Directions Orders, including non-attendance at the telephone Mention. Mr Kelly has even failed to provide an informal explanation of delay and instead has blatantly disregarded the Directions Orders, Notice of Listing and email correspondence from the Industrial Registry.

• [32] As earlier noted, Mr Kelly has been issued with email correspondence from the Industrial Registry and copied into correspondence from the Respondent that ought to have served as a reminder of his obligations under the Directions Orders and a prompt to action the requirements.

• [33] Mr Kelly's default imposes an unacceptable burden on the Respondent, as it is unable to meaningfully respond to the appeals. Mr Kelly's persistent non-compliance with Directions for matter WC/2025/72 includes his ongoing failure to provide a list of documents, statement of facts and contentions, list of witnesses and outlines of evidence. I further note Mr Kelly's non-compliance extended to failure to attend the telephone Mention regarding both appeals on foot. As earlier observed, Mr Kelly has also failed to provide submissions as to whether his appeals should be dismissed under r 45, without any request for extension of time to do so or excuse for non-compliance being made via the Industrial Registry.

• [34] By failing to respond to the Directions Orders, or the requirement to attend the telephone Mention listed, Mr Kelly has and continues to extend the time between now and the determination of his appeals. As earlier noted, Mr Kelly filed his appeal in matter WC/2023/12 on 3 February 2023. Mr Kelly filed his appeal in matter WC/2025/72 on 8 April 2025. Whilst the appeals are on foot, the Respondent continues to incur the expense of defending the matter - and Mr Frelek, the injured worker, is denied his right to have his common law claim progressed by WorkCover Queensland. That burden is compounded in circumstances where Mr Frelek is suffering financial hardship, as reported by Miss Godfrey at the telephone Mention. In my view, they are all compelling reasons to deal with this matter as expeditiously as possible.

• [35] Mr Kelly's continuous disregard for compliance with the express tasks and timelines prescribed in the Commission's Directions Orders has evinced in my mind that this behaviour will be repeated, and this matter will be drawn out substantially to the Respondent's detriment. For that reason, I am not convinced that giving further chances to explain and adhere to the Directions Orders is appropriate. Mr Kelly has already evinced disregard for the Commission's Directions, thereby signalling a lack of intention to proceed with his appeals.

• [36] Even if Mr Kelly did so intend to proceed with his appeals, despite his repeated and persistent failures to abide by the Commission's Directions, his non-compliance demonstrates an unwillingness or inability to proceed in accordance with the Tribunal Rules.

• [37] I have no doubt that Mr Kelly understands his obligations under the Directions Orders with respect to time periods, as this was clearly stipulated therein.

• [38] I acknowledge that Mr Kelly is now a self-represented litigant, although he had formerly engaged legal representation. In that regard, I would note that a lack of representation is a misfortune, which should be met with necessary procedural assistance, but is not a privilege entitling a self-represented litigant to special consideration at the expense of the party or parties who are represented or more experienced in the jurisdiction.[33]

• [39] In circumstances where Directions Orders were issued, Notice of Listing issued requiring the parties' attendance at the telephone Mention, and email correspondence sent from the Industrial Registry to serve as a reminder of his obligations - Mr Kelly's non-compliance cannot be said to arise from his lack of understanding of the law.

• [40] Noting that Mr Kelly has failed to comply with Directions Orders, failed to attend the telephone Mention and failed to file written submissions regarding the current application, the cumulative effect of his non-compliance is substantial enough to satisfy me that Mr Kelly is either unwilling to comply or for some reason is unable to do so and as a result, the Respondent's case is prejudiced.

• [41] In the exercise of my discretion under r 45 of the Tribunal Rules, I am also minded to consider the purpose of the Tribunal Rules, as set out in r 6:

The purpose of these rules is to provide for the just and expeditious disposition of the business of the court, the commission, a magistrate and the registrar at a minimum of expense.

• [42] The terms 'just' and 'expeditious' may sometimes appear to be at odds. Australian Courts and Tribunals often wrestle with the task of maintaining the precarious balance between expeditious resolutions, and the ability of parties to prepare for and present their case. In considering that balance while dealing with an application to dismiss for want of prosecution, his Honour Thomas JA in Quinlan v Rothwell & Anor provided (emphasis added):

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.[34]

• [43] While his Honour was considering the Uniform Civil Procedure Rules 1999 (Qld), that passage has been adopted in this jurisdiction on a number of occasions[35] as the underlying question to be determined is consistent with the exercise of discretion under r 45 of the Tribunal Rules.

• [44] In Smith v Workers' Compensation Regulator, O'Connor DP (as he then was) concluded:

The Commission has an obligation to actively manage the matters filed in the Industrial Registry and to ensure the parties comply with the directions orders issued by it. The Rules aid the Commission to case manage its list; to assist the parties to prepare their cases; to ensure the efficient use of the Commission's time and resources; and to assist in the resolution of the real issues in the proceedings.[36]

• [45] Adherence to Direction is necessary to ensure fairness between the parties as well as to ensure the expeditious advancement of the matter. Repeated failure to comply with Directions is inconsistent with r 6 of the Tribunal Rules. Further delay would create a futile and unnecessary impediment to the expeditious resolution of this matter.

• [46] Therefore, in my opinion, the purpose of the Tribunal Rules is best fulfilled in this case by exercising the discretion under r 45 of the Tribunal Rules to dismiss both Mr Kelly's appeals.

1. Pursuant to r 45(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld) appeals WC/2023/12 and WC/2025/72 are dismissed_._

1. The decisions of the Workers' Compensation Regulator dated 16 December 2022 and 5 March 2025 are confirmed.

[1] Correspondence from Mr S. May, A/Principal Review Officer, Review Unit, Workers Compensation Regulatory Services to Mr D. Whitelegg, Shine Lawyers (acting for Mr P. Frelek) dated 16 December 2022.

[2] Respondent's written submissions filed 21 August 2025, [2].

[3] Respondent's written submissions filed 21 August 2025, [4].

[4] Review Decision of the Workers' Compensation Regulator, made by Mr K. Goncalves, dated 5 March 2025.

[5] Respondent's written submissions filed 21 August 2025, [3].

[6] Respondent's written submissions filed 21 August 2025, [4].

[7] Respondent's written submissions filed 21 August 2025, [4].

[8] Respondent's written submissions filed 21 August 2025, [4].

[9] Respondent's written submissions filed 21 August 2025, [4].

[10] Respondent's written submissions filed 21 August 2025, [4].

[11] Transcript of Mention held on 23 July 2025, lines 5 - 7.

[12] Notice of Listing, issued 17 July 2025.

[13] Transcript of Mention held on 23 July 2025, lines 18 - 22.

[14] Transcript of Mention held on 23 July 2025, lines 32 - 35.

[15] Form 4 - Application in existing proceedings filed 6 August 2025, 3.

[16] Respondent's written submissions filed 21 August 2025, [5].

[17] Respondent's written submissions filed 21 August 2025, [6]-[7].

[18] Rule 45(3), Industrial Relations (Tribunals) Rules 2011.

[19] Rule 45(1), Industrial Relations (Tribunals) Rules 2011.

[20] Rule 45(2), Industrial Relations (Tribunals) Rules 2011.

[21] [2005] QIC 73; (2005) 180 QGIG 1209.

[22] [2001] QCA 176.

[23] Respondent's written submissions filed 21 August 2025, [8]-[9].

[24] Respondent's written submissions filed 21 August 2025, [10]-[12].

[25] Respondent's written submissions filed 21 August 2025, [13].

[26] House v R (1936) 55 CLR 499, 503.

[27] Cooper v Hopgood & Ganim [1998] QCA 114, 6; citing Witten v Lombard Australia Ltd (1968) 88 W.N. (Pt. 1) N.S.W. 405.

[28] [1990] FCA 520; [1990] 98 ALR 200.

[29] Lenijamar Pty Ltd and Ors v AGC (Advances) Ltd [1990] FCA 520; [1990] 98 ALR 200, 210.

[30] [2019] QIRC 028.

[31] [2017] QIRC 061.

[32] [2019] QIRC 144.

[33] See Workers' Compensation Regulator v Bero [2019] QIRC 36; Treanor v State of Queensland [2019] QIRC 146.

[34] Quinlan v Rothwell & Anor [2001] QCA 176, 8.

[35] See Quaedvlieg and Ors v Boral Resources (Qld) Pty Ltd [2005] QIC 73; Workers' Compensation Regulator v Varga [2019] QIRC 028, 5-6.

[36] [2017] QIRC 070, [10].