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Hansen v President of the Industrial Court of Queensland

 

[2011] QSC 130

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

25 May 2011

DELIVERED AT:

Brisbane 

HEARING DATE:

20 May 2011

JUDGE:

Applegarth J

ORDERS:

1.The application is dismissed.

2.The applicant pay the second respondent’s costs of and incidental to the application to be assessed on the standard basis.

3.Liberty to apply in relation to the first respondent’s costs.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – FAILURE TO MAKE CLAIM WITHIN TIME – GENERALLY – where self-insurer rejected applicant’s claim for compensation – where applicant applied to Q-Comp for review of that decision – where application for review made outside the three month time limit prescribed by s 542 of the Workers’ Compensation and Rehabilitation Act 2003 – where Q-Comp declined to consider review because application made out of time and because applicant had not shown good reason why the time limit should not be enforced – whether Q-Comp required to consider application on merits when made out of time – whether Q-Comp entitled to reject application for review where application made out of time and no special circumstances are shown

LEGISLATION:

Workers’ Compensation and Rehabilitation Act 2003, s 539, s 542

CASES:

Australia Meat Holdings Pty Ltd v Q-COMP [2007] QIC 21 cited

Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Queensland & Anor [2011] QSC 103 cited

Cloncurry Shire Council v Workers’ Compensation Regulatory Authority [2007] 2 Qd R 434; [2006] QSC 362 discussed

Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2007] 1 Qd R 1; [2006] QSC 76 cited

Emerson v Coles Myer Ltd [2004] QSC 161 cited

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 cited

NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373 cited

Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255; [2009] QCA 120 cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 cited

Q-Comp v Baulch [2004] QIC 11 cited

COUNSEL:

KC Fleming QC with RD Green for the applicant

RN Traves SC with SA McLeod for the second respondent

SOLICITORS:

Walsh Halligan Douglas for the applicant

Workers’ Compensation Regulatory Authority for the second respondent

[1] The applicant seeks to review a decision of the President of the Industrial Court of Queensland, who dismissed an appeal from an Industrial Magistrate.  The Industrial Magistrate dismissed an appeal from a decision of the second respondent (“Q-Comp”).  The applicant’s employer, a self-insurer, had rejected a claim for workers’ compensation.  Q-Comp had declined to proceed to determine an application to review that decision because that application was not made within the three month time limit fixed by s 542 of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”), and the applicant had not shown good reason why the three month time limit should not be enforced. 

[2] The applicant accepts that to review the decision of the President he must demonstrate that the President’s decision involved jurisdictional error.  This is because a decision of the Industrial Court is final and conclusive, and cannot be appealed against, reviewed, quashed or invalidated in any court.  However, s 349 of the Industrial Relations Act 1999 (Qld), which imposes this restriction on a review, does not apply where the decision involves jurisdictional error.[1]

[3] The applicant raises in this Court an argument that has not been advanced before in this case about the application of the time limit fixed by s 542 of the Act.  He contends that, despite not complying with s 542, his application for review was not invalid, and no occasion arose for him to seek an extension of time.  According to the applicant, Q-Comp was required to deal with his application for review on its merits, and Q-Comp, the Industrial Magistrate and the President of the Industrial Court erred in construing the Act.  The applicant adds that he was not required to show special circumstances or obtain the favourable exercise of a discretion because there was no discretion to be exercised.

[4] Alternatively, he submits that if there was a discretion to be exercised, then the President erred because the Act did not require the applicant to show substantial compliance or special circumstances.

[5] Q-Comp submits that there was no error by the President and that the applicant’s legal argument is flawed.  It submits that if the applicant’s interpretation is correct, there would be no point to the statutory time limit as all applications must be accepted and considered, regardless of when they are lodged with it, and s 542(2) of the Act also would be otiose.

[6] Q-Comp submits that the President correctly construed s 542 as evincing an intention, in a case of non-compliance with s 542, to permit Q-Comp to waive the non-compliance if special circumstances could be demonstrated.  In the alternative, it submits that any error was not a jurisdictional error.

The facts

[7] On 13 October 2006 the applicant made an application for compensation to his employer, which was a licensed self-insurer under the Act at the time.  He stated that he had injured his lower back while sorting pallets on 5 October 2006.  On 11 December 2006 his application for compensation was rejected. 

[8] Part 2 of Chapter 13 of the Act provides for review of such a decision.  Section 542 relevantly provides:

Applying for review

(1)An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision or the failure to make a decision and the reasons for the decision or failure, unless subsection (4) applies.

(2)For subsection (1), the applicant may, within the 3 months mentioned in the subsection, ask the Authority to allow further time to apply for review.

(3)The Authority may grant the extension if it is satisfied that special circumstances exist.”

[9] By letter dated 27 May 2009, the applicant’s solicitors requested Q-Comp to review the self-insurer’s decision of 11 December 2006.  The correspondence detailed the basis upon which it was contended that the said decision was incorrect and requested that the time limit under s 542 of the Act be extended.  Submissions were outlined in support of an extension.  An application for review, in the approved form, was received by the second respondent on 1 June 2009.

[10] By letter dated 11 June 2009, Q-Comp advised the applicant as follows:

“You have requested that Q-COMP consider your submissions in relation to your client’s Application for Review having been lodged outside of the time limits prescribed within the Workers’ Compensation and Rehabilitation Act 2003.

Please be advised that I acknowledge your submissions concerning your client’s inability to lodge the Application.  Q-COMP does not consider that these are sufficient reasons to warrant the Application for Review to proceed.  Q-COMP is not satisfied that your client has demonstrated that there has been compliance in substance with the legislation, or that there is some other good reason as to why the three month time-limit should not be enforced.  Therefore, Q-COMP cannot exercise our discretion to proceed to determine your application for review.”

[11] The applicant appealed the decision of Q-Comp to the Industrial Magistrate at Yeppoon.  The Industrial Magistrate identified the issue before her as whether the applicant’s application for review dated 1 June 2009 was correctly rejected by Q-Comp because it was “out of time” and because the applicant had not shown sufficient reason to warrant the application for review proceeding.  In her comprehensive reasons that were delivered on 12 March 2010 the Industrial Magistrate considered relevant authorities and the applicant’s evidence.  The latter included the applicant’s limited education, and evidence that he was not aware of his legal rights in relation to any appeal against the determination at the time it was made.  However, he became aware that he may have some recourse when he consulted a solicitor in Yeppoon.  Despite this, he allowed many months to elapse before the application was made.  After considering the evidence the Industrial Magistrate concluded:

“I do not find sufficient cause to overturn Q-Comp’s decision to refuse to consider the application for a review of the determination as I am satisfied that there has not been substantial compliance with the provisions of the Act within the time limit or any reasonable time, and therefore there are no special circumstances.”

The appeal was dismissed on 12 March 2010.

[12] On 1 April 2010 the decision of the Industrial Magistrate was appealed to the Industrial Court of Queensland.  In his decision of 12 August 2010 the President referred to earlier authority including the decision of A Lyons J in Cloncurry Shire Council v Workers’ Compensation Regulatory Authority[2] and the decisions of the Industrial Court in Q-Comp v Baulch[3] and Australia Meat Holdings Pty Ltd v Q-COMP.[4]  The President said:

“I continue to accept that non-compliance with the time limit at s. 542(1) of the Act may be waived where the application for a Statutory Review shows substantial compliance or other special circumstance.”

The President stated that there was not substantial compliance, that the application for compensation was rejected by the self-insurer on 11 December 2006 and that it was almost two and a half years later before the applicant lodged an application for review of that decision, whereas the time limit set by s 542(1) of the Act is three months.  The President then addressed the evidence concerning the applicant’s explanation for the delay.  This included the fact that he was informed of the entitlement to seek a review by Q-Comp, but he made no inquiry in relation to it.  The President considered a passage of the appellant’s evidence as being instructive and continued:

“Whilst I do not seek to attribute to the Appellant that he had an understanding of what is involved in a Statutory Review, it is (in my opinion) tolerably clear that the Appellant understood that a Review provided an opportunity to take issue with the self-insurer’s decision.  The Appellant did not take the opportunity because (perhaps wrongly) he did not consider that he had a valid point to argue; not because he was timid.  I note the submission that the Notification read to the Appellant did not inform him of the time limit.  I share the view of the Industrial Magistrate that it might have been better if the advice had disclosed a time limit but, like the Industrial Magistrate, I doubt that the disclosure of the time limit would have made any difference to the Appellant’s decision not to seek a Statutory Review.  Having made a conscious decision not to argue, the Appellant forgot about the matter.  In any event, the obligation of a self-insurer is to act reasonably.  In my view, the advice was reasonable.

In any event, the Appellant’s solicitors were in possession of a copy of the self-insurer’s decision the day before having a telephone conference with the Appellant on 18 November 2008.  The solicitors had a copy of the file from the self-insurer from 8 January 2009.  The Application for Review was dated 1 June 2009.  (In fairness to the solicitors, there was an earlier letter to Q-COMP of 27 May 2009, contemplating that the Application for Review would be made).  Even if one could treat the decision of the self-insurer as being given, not when it was read to the Appellant, but when it reached his solicitors, the time limit set by s. 542(1) of the Act is still exceeded.  The Industrial Magistrate accepted that the fault did not lie with the Appellant.  I agree with Her Honour.  The fault lay with his solicitors who were his agents.  There were no special circumstances.  All that has occurred is that the Appellant and his agents have made conscious decisions later regretted.

Much criticism is made of the Industrial Magistrate’s finding that the Appellant became aware that he may have some rights in relation to the self-insurer’s decision in February 2008.  I accept that on a fair reading of the Appellant’s evidence, he became aware that he might have some rights in November 2008.  However, since at some point in his evidence at first instance, the Appellant agreed that he first became aware of his rights in February 2008, I can sympathise with the Industrial Magistrate’s error.  In any event, the time lapse between November 2008 and June 2009 remains excessive.”

The issue of statutory construction

[13] The applicant relies on the decision in Cloncurry Shire Council v Workers’ Compensation Regulatory Authority.[5]  In that case a self-insurer sought declarations that:

(a)Q-Comp has no power to extend the time limit of three months prescribed by s 542(1); and

(b)Any review conducted by Q-Comp of a decision by a self-insurer in respect of an application for review made later than three months after receipt of written notice is invalid.

A Lyons J analysed the relevant statutory provisions, applied the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority[6] and did not consider that “it is necessarily inconsistent to allow for the timely resolution of disputes and to still allow Q-Comp to consider applications for review outside the period allowed for review.”[7]  The self-insurer did not persuade A Lyons J that an application made after the expiry of the three months period was invalid or that the decision by Q-Comp to undertake a review was invalid.

[14] The applicant submits that because a late application for review is not invalid, “there is then no requirement to exercise a discretion to extend time” and the application for review in this case “remains a valid Application”.  It submits that the purported exercise of a discretion by Q-Comp, the Industrial Magistrate and the President of the Industrial Court to reject the application was wrong.  No occasion to exercise a discretion arose.  According to the applicant, Q-Comp was bound to consider the application for review on its merits, notwithstanding non-compliance with the statutory command in s 542.

[15] I do not accept this submission.  The fact that, according to Cloncurry Shire Council, an application made out of time is not invalid does not lead to the conclusion that such an application must be determined by the Authority.  Cloncurry Shire Council does not state that the Authority is bound to consider an application made after the expiry of the time period set by s 542 and decide it on its merits.  It is authority for the proposition that Q-Comp is allowed to consider applications for review outside the specified period, not that it is bound to do so.[8] 

[16]  The respondent does not submit that Cloncurry Shire Council was wrongly decided and that I should not follow it.  In that regard, I note the following obiter of Dutney J in Emerson v Coles Myer Ltd:[9]

“Since the only right to review a rejection decision on the merits which an applicant has is the right granted to the applicant by the statute itself, it follows that if that right is limited by the imposition of a time constraint, the failure of an applicant to bring herself within that time constraint must be fatal.  That is because she could not bring herself within the scope of the statutory right.  It is not necessary to consider the issue further in this matter because of my conclusions regarding other issues raised.  Nonetheless, I have great difficulty in accepting that a statutory provision authorising a review of a decision within a specific limited time, without a power to extend time being conferred, authorises an application outside the prescribed time.”

It is unnecessary for me to express an opinion on these conflicting views of the statute.  It is sufficient to conclude that the proposition for which the applicant contends, namely that Q-Comp is bound in a case such as this to determine an application for review that is made in contravention of the statutory command in s 542, is not supported by Cloncurry Shire Council

[17] The applicant’s case is not supported by the terms and relevant objectives of the Act.  The objective of the Part of the Act in which s 542 is contained is “to provide a non-adversarial system for prompt resolution of disputes.”[10]  Section 542 advances that objective by requiring an application to be made within three months.  The three month period may be extended if, within that period, the applicant asks the Authority to allow further time to apply for review, and the Authority is satisfied that special circumstances exist.  The section makes no provision for extension of time after the three month period has expired.

[18] Cloncurry Shire Council stands for the proposition that the Authority can decide to accept an application for review that is not made within a three month period and, as it were, waive the non-compliance with s 542.  Nothing in the terms of the statute or its objective suggests that the Authority is bound to accept a late application.  The requirement to show special circumstances in s 542(3) in the case of a request for an extension made within the three month period is hard to reconcile with the interpretation for which the applicant contends.  It would be an odd, and apparently unintended, result if a party could achieve the practical effect of obtaining an extension of time, and avoid having to show “special circumstances” under s 542(2) and (3), by simply and deliberately allowing the three month period to pass. 

[19] Nothing explains why, according to the applicant, a party requesting an extension of time within the three month period must show special circumstances, but someone who deliberately allows the three month period to pass need show no reason for late lodgement, let alone special circumstances.

[20] The issue of statutory construction raised by the applicant does not fall to be determined by the facts of this case.  On the applicant’s argument a well-resourced, educated and legally savvy applicant for review can deliberately ignore the three month period in s 542 and there is nothing the Authority can do, other than accept the late application and give the applicant a hearing on the merits.  To take the extreme example put by me in the course of argument, someone who had the best legal advice about the time limit could sail around the Pacific, flout the time limit and require the Authority to determine a late application for review.  Such an interpretation is inconsistent with a statute which seeks to achieve the objective of the “prompt resolution of disputes” and fixes a three month time limit within which to make an application for review.

[21] According to Cloncurry Shire Council, the Authority may consider an application for review outside the period allowed for review in a deserving case.  The example is given in that case of a worker in a coma who had not been able to comply with the time limit.[11]  The Authority, faced with a late but not invalid application for review, in such a deserving case, may waive non-compliance with s 542(1).  This does not mean that the Authority, when faced with an application for review made in non-compliance with s 542(1), has no choice other than to proceed with the application for review. 

[22] The construction of the statute for which the applicant contends is erroneous.  The terms and objective of the Act support the view that good reason is required for the Authority to accept a late application for review.  The applicant’s interpretation would render the time limit in s 542(1) and the provision for extension of time in ss 542(2) and (3) pointless.

[23] The point of statutory interpretation raised by the applicant, which was not previously raised in argument in this case, should be rejected.

[24] The applicant’s alternative argument is that “if there is a discretion to be exercised, then there is nothing in the wording of [the Act] to import a requirement, either that there is a need for substantial compliance, or that there must be special circumstances.” 

[25] I do not understand Cloncurry Shire Council to be authority for the proposition that  s 542 confers a discretion as such, let alone the kind of “unfettered discretion” for which the applicant contends.  The applicant submits that if there is a discretion, then it is “an unfettered discretion in that there is no statutory basis laid out for its exercise.”  If the power of the Authority to waive non-compliance with s 542 is conceived of as a discretion to extend time, then it is not an unfettered one.  Its exercise is governed by the statutory context in which it arises.  It is consistent with the terms of the statute, particularly the requirement of special circumstances in s 542 in the case of a request within the three month period, and the objective of the prompt resolution of disputes, that a party seeking a waiver of the non-compliance should show substantial compliance or special circumstances. 

[26] There was no error by the President in stating, in accordance with Cloncurry Shire Council and decisions of the Industrial Court, that “non-compliance with the time limit at s. 542(1) of the Act may be waived where the application for a Statutory Review shows substantial compliance or other special circumstance.” 

[27] The applicant submits that the President failed to take account of relevant factors.  This submission was not pressed or developed in oral submissions.  I do not consider that the submission is meritorious.  The President considered the facts.

[28] I conclude that the President did not err.  This makes it unnecessary to decide whether the alleged errors were jurisdictional errors (involving misconstruction of the relevant statute, thereby misconceiving the nature of the function which the Court was performing or the extent of its powers in the circumstances of the particular case)[12] or alleged errors in the construction of substantive provisions of the Act, being an issue committed to the jurisdiction of the Industrial Court and not one affecting the nature or limits of its functions or powers.[13]

Conclusion

[29] The application should be dismissed.  The second respondent seeks its costs.  The applicant does not advance any submission as to why costs should not follow the event.  On 1 October 2010 the first respondent, by consent, was granted leave to withdraw from further attendance in the application save as to the issue of costs should that issue arise.  The first respondent has liberty to apply in relation to costs. 

[30] The orders will be:

1.The application is dismissed.

2.The applicant pay the second respondent’s costs of and incidental to the application to be assessed on the standard basis.

3.Liberty to apply in relation to the first respondent’s costs.

Footnotes

[1] Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2007] 1 Qd R 1 at 4-5, [2006] QSC 76 at [15]; Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255 at 270-273, [2009] QCA 120 at [32]-[38]; NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373 at [11]; Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Queensland & Anor [2011] QSC 103 at [2].

[2] [2007] 2 Qd R 434; [2006] QSC 362.

[3] [2004] QIC 11.

[4] [2007] QIC 21.

[5] [2007] 2 Qd R 434, [2006] QSC 362.

[6] (1998) 194 CLR 355, [1998] HCA 28.

[7] Cloncurry Shire Council [2007] 2 Qd R 434 at 440, [2006] QSC 362 at [26].

[8] Ibid.

[9] [2004] QSC 161 at [26].

[10] The Act, s 539.

[11] Cloncurry Shire Council [2007] 2 Qd R 434 at 440, [2006] QSC 362 at [26].

[12] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 573-74, [2010] HCA 1 at [72].

[13] Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255 at 270-273, [2009] QCA 120 at [32]-[38].

Close

Editorial Notes

  • Published Case Name:

    Hansen v President of the Industrial Court of Queensland & Anor

  • Shortened Case Name:

    Hansen v President of the Industrial Court of Queensland

  • MNC:

    [2011] QSC 130

  • Court:

    QSC

  • Judge(s):

    Applegarth J

  • Date:

    25 May 2011

Litigation History

No Litigation History

Appeal Status

No Status