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Workers' Compensation Regulator v Pearce[2015] ICQ 12

Workers' Compensation Regulator v Pearce[2015] ICQ 12

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Blackwood v Pearce [2015] ICQ 012

PARTIES:

SIMON BLACKWOOD (WORKERS’ COMPENSATION REGULATOR)
(appellant)
v
MICHELLE PEARCE
(respondent)

CASE NO/S:

C/2014/30

PROCEEDING:

Appeal

DELIVERED ON:

28 April 2015

HEARING DATE:

18 August 2014

MEMBER:

Martin J, President

ORDER/S:

  1. Appeal allowed;
  1. The appeal in matter WC/2014/83 is dismissed; and
  1. The decision of the Regulator dated 25 February 2014 is affirmed.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – PROCEDURE – GENERALLY – where WorkCover rejected the respondent’s claim for workers’ compensation – where the application for review of that decision by the appellant was not made within three months as prescribed by s 542 of the Workers’ Compensation and Rehabilitation Act 2003 – where the appellant rejected the application for review – where the Commission found that special circumstances existed and allowed the respondent’s appeal – whether the Regulator has the power to grant an extension of time under the proper construction of s 542 – whether the Commissioner had acted on a wrong principle and had allowed extraneous or irrelevant matters to guide or affect him in assessing the respondent’s reasons for delay in making the application for review

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL TRIBUNALS – INDUSTRIAL COURT – where the Commissioner was bound to apply earlier decisions of the Industrial Court – where a particular line of authority has been established – whether the Industrial Court is bound by its earlier decisions

Acts Interpretation Act 1954, s 7(1)

Industrial Relations (Tribunals) Rules 2011, Schedule 2, r 4, r 19, r 20

Statutory Instruments Act 1992, s 7(3)

Workers’ Compensation and Rehabilitation Act 2003, s 541, s 542

CASES:

Australian Meat Holdings v Q-COMP (2007) 185 QGIG 231

Berowa Holdings Pty Ltd v Gordon (2006) 225 CLR 364

Blackwood v Toward [2015] ICQ 008

Cloncurry Shire Council v Workers’ Compensation Regulatory Authority & Anor [2006] QSC 362

Emerson v Coles Myer Ltd & Anor [2004] QSC 161

Hansen v Q-COMP (C/2010/16) – Decision No 2

< http: www.qirc.qld.gov.au="" >

John v Commissioner of Taxation (Cth) (1989) 166 CLR 417

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531

Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285

Nguyen v Nguyen (1989-1990) 169 CLR 245

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Q-COMP v Deng (C/2010/56) – Decision

< http: www.qirc.qld.gov.au="" >

Q-COMP v Baulch (2004) 175 QGIG 978

Q-COMP v Sargeant (C/2012/31) – Decision

< http: //www.qirc.qld.gov.au="" >

Saville v Q-COMP & Anor (2007) 185 QGIG 243

Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260

APPEARANCES:

S Gray on behalf of the appellant directly instructed by Workers’ Compensation Regulator

D Kent QC for the respondent instructed by Bennett & Philp Lawyers

  1. [1]
    On 21 June 2012 the respondent applied for compensation claiming an injury described as “inhalation and exposure to glutaraldehyde”. Her application was rejected by WorkCover on 8 October 2012.
  1. [2]
    Section 541 of the Workers’ Compensation and Rehabilitation Act 2003 (“the Act”)[1] provides that a person aggrieved by a decision, in this case the rejection of an application, may apply for review.
  1. [3]
    Section 542 of the Act provides:

“542 Applying for review

  1. (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.
  1. (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.
  1. (3)
    The Authority may grant the extension if it is satisfied that special circumstances exist.
  1. (4)
    If the notice did not state the reasons for the decision or the failure to make a decision—
  1. (a)
    the applicant must ask the decision-maker for the reasons within 20 business days after receiving the notice; and
  1. (b)
    the decision-maker must give written reasons within 5 business days after the applicant asks for the reasons; and
  1. (c)
    the application for review must be made within 3 months after the applicant receives the reasons, regardless of whether the reasons addressed the matters prescribed under a regulation.
  1. (5)
    The application for review—
  1. (a)
    must be made in the approved form and given to the Authority; and
  1. (b)
    must state the grounds on which the applicant seeks review; and
  1. (c)
    may be accompanied by any relevant document the applicant wants considered in the review.
  1. (6)
    The Authority must, within 10 business days after receiving the application, give the applicant and the decision-maker written notice that the application has been received.
  1. [4]
    If Ms Pearce had wanted to apply for a review then, in accordance with s 542(1), such an application should have been made no later than 8 January 2013.
  1. [5]
    Ms Pearce did not apply for a review of the decision until 13 February 2014, some 13 months after the expiry of the review period.
  1. [6]
    In rejecting the application for review, Q-COMP (now the Regulator) said, in a letter of 30 January 2014:[2]

“Under section 542(3) of the Workers’ Compensation & Rehabilitation Act 2003 (the Act), an application for review must be made within 3 months after the applicant receives written notice of the decision. An applicant may request an extension of time under section 542(2) before the expiration of the 3 month timeframe. The Workers’ Compensation Regulator (the Regulator) can also consider whether there has been substantial compliance with the timeframe, or that special circumstances exist to allow the application to proceed.”

  1. [7]
    The reference to “substantial compliance with the timeframe” is drawn from the decision of Hall P in Q-Comp v Baulch.[3]
  1. [8]
    Ms Pearce successfully appealed that decision to the Commission. Commissioner Black set aside the decision of the Regulator and granted an extension of time.
  1. [9]
    The Regulator appealed that decision on the limited ground of an assertion that the Commissioner had acted on a wrong principle and had allowed extraneous or irrelevant matters to guide or affect him in assessing the respondent’s reasons for delay in making the application for review. During the hearing of the appeal, I invited the parties to address me on the question of whether the law as expressed by Hall P in Q-Comp v Deng[4] was correct and whether this Court should continue to apply it. Both parties filed further written submissions. I gave leave to the appellant to file an amended notice of appeal. In the further written submissions filed on behalf of the respondent three matters are raised in addition to the issue of the proper construction of s 542. Those matters are:
  1. (a)
    Can an appellant amend a notice of appeal?
  1. (b)
    Is this Court bound to follow or, in these circumstances, should it follow the earlier decisions of the Court?
  1. (c)
    To what extent does the fact that the Act is “beneficial” legislation affect the construction of s 542 of the Act?

Can an appellant amend a Notice of Appeal?

  1. [10]
    In Saville v Q-COMP & Anor[5] Hall P considered whether there was a power to amend a notice of appeal filed in an appeal under s 561 of the Act. He said:

“There is an unresolved issue about whether the Industrial Court of Queensland’s power to grant leave to amend grounds of appeal is to be found in s. 329(d) of the Industrial Relations Act 1999 and/or s. 19 of the Industrial Relations (Tribunals) Rules 2000, or is to be found in the powers incidental to s. 561 of the Workers' Compensation and Rehabilitation Act 2003.  However, all parties are agreed that there is a power to grant leave to amend and that the power is discretionary.”[6] 

  1. [11]
    As the parties in Saville conceded that there was a power, Hall P did not have to determine the matter. In this case, the respondent “does not concede, for the purpose of the further hearing of the appeal, that the amendment is able to be made as of right”. The appellant contends that the power to allow an amendment is to be found in s 329 of the Industrial Relations Act 1999 (“the IR Act”) and r 19 of the Industrial Relations (Tribunals) Rules 2011 (“IRTR”).
  1. [12]
    An appeal of this nature is brought pursuant to s 561 of the Act. It provides, in s 561(2), that the IR Act applies to the appeal.
  1. [13]
    The IRTR was made under the power provided in s 338(1) of the IR Act – “The Governor in Council may make rules under this Act.” The IRTR is a statutory instrument – see s 7(3) of the Statutory Instruments Act 1992.
  1. [14]
    Section 7(1) of the Acts Interpretation Act 1954 provides:

“(1) In an Act, a reference (either generally or specifically) to a law (including the Act), or a provision of a law (including the Act), includes a reference to the statutory instruments made or in force under the law or provision.”

  1. [15]
    It follows, then, that the reference to the IR Act in s 561 includes a reference to the IRTR.
  1. [16]
    Rule 4 of the IRTR provides:

“4 What a reference to application, application to appeal or applicant includes

(1) A reference in part 2, other than rule 8, and in rules 229 to 231—

  1. (a)
    to an application includes a reference to a notice of appeal under an appeal Act; and
  1. (b)
    to an applicant includes a reference to an appellant to an appeal under an appeal Act.”
  1. [17]
    An “appeal Act” is defined in Schedule 2 to the IRTR as including the Act. Thus, for the purposes of the IRTR as set out in r 4, a notice of appeal under s 561 is regarded as an application.
  1. [18]
    Rule 20, which is within part 2 of the IRTR, provides:

20 Amending an application during hearing

  1. After the hearing of an application has started, an applicant may apply to the court, commission or registrar hearing the application for leave to amend the application.
  2. If the proposed amendments substantially alter the scope and nature of the claim, the applicant must file an amended application that incorporates the proposed amendments.
  3. An amendment may be allowed or disallowed on the terms the court, commission or registrar considers appropriate.
  1. [19]
    As a notice of appeal under s 561 is to be regarded as an application for the purposes of r 20 of the IRTR, an amendment of a notice of appeal can be allowed. The application to amend arises out of a matter I raised. Had it been considered below it would not have required the calling of any other evidence. It is not suggested that the respondent will suffer any prejudice. I will allow the application to amend.

 Is this Court bound to follow its earlier decisions?

  1. [20]
    The respondent submitted that I should not depart from a line of authority which commenced with Cloncurry Shire Council v Workers’ Compensation Regulatory Authority & Anor[7]. In that case, A Lyons J held that a failure to comply with the time limit in s 542 did not invalidate the application for review. In arriving at that conclusion, her Honour said:

“[26] I do 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. To give the section the intention sought by the applicant would mean that non-compliance with this time limitation would bring to an end the ability of a worker to seek workers compensation in all possible circumstances. …”

  1. [21]
    There have been a number of cases of this Court which have applied or referred to the reasoning in Cloncurry – Australian Meat Holdings v Q-COMP[8], Hansen v Q-COMP[9], Q-COMP v Deng[10], Q-COMP v Sargeant[11].
  1. [22]
    The respondent argued that this Court is bound to follow its own decisions, especially where a particular construction has been adopted for many years.
  1. [23]
    The boundaries of the doctrine of stare decisis have been closely considered in cases concerning the decisions of intermediate courts of appeal. The High Court is not bound to follow its own decisions but some intermediate courts of appeal have regarded themselves bound by their own, earlier decisions. In Nguyen v Nguyen[12] this issue arose in an appeal from a decision of the Full Court of the Supreme Court of Queensland concerning the compensation to be awarded in a personal injuries case for loss of domestic services. In the relevant part of the reasons of Dawson, Toohey and McHugh JJ[13] the following appears:

“The Full Court in the present case were unanimously of the view that Seymour was wrongly decided. They were correct in that view. Nevertheless, the majority applied Seymour and Williams v. Fleming, following what was said to be the prevailing practice in Queensland whereby the Full Court regards itself as bound by its own previous decisions. Authority in Queensland upon the point is sparse and not altogether consistent. Perhaps the most authoritative statement is to be found in Reg. v. Gassman where the Court of Criminal Appeal held that it was not free to depart from a previous decision. Mack J. said:

“There does not seem to me to be any reason why the rule of stare decisis should not be the same for the Court of Criminal Appeal as for the Full Court. The cases in Queensland appeal courts show that the occasions on which previous decisions will not be followed are limited to decisions pronounced per incuriam and those in conflict with higher authority.”

…

The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself. An example of such a determination is the Practice Statement of the House of Lords in 1966: Practice Statement (Judicial Precedent). The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here … . It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions: … There is no reason to think that the practice in Tasmania is any different, but in Transport Trading and Agency Co. of WA. Ltd. v. Smith there was the suggestion of a contrary practice in Western Australia. In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: … . The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong: Chamberlain v. The Queen.

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predictability of the law: see Queensland v. The Commonwealth, per Aickin J.

This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal … . But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no equivalent of s. 12 of the Administration of Justice Act 1969 (U.K.) to authorize "leapfrog" appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom. See, however, Sanofi v. Parke Davis Pty. Ltd. [No.1]. In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.”[14] (emphasis added, citations omitted)

  1. [24]
    With that in mind, then, it is appropriate to consider the category of court in which the Industrial Court should be placed.
  1. [25]
    An appeal to this Court is available from decisions of the Commission and the Magistrates Court. Depending upon the source of the power, those appeals can be limited to errors of law or jurisdictional error.
  1. [26]
    An appeal from this Court to the Court of Appeal is limited to the matters set out in section 340(1)A and (1) of the IR Act. Parties who wish to contest a decision of the Industrial Court in other areas are restricted to applications under the Judicial Review Act 1991. That position has always been anomalous in that the Industrial Court is a superior court of record (of limited jurisdiction). The decision of the High Court in Kirk v Industrial Relations Commission of New South Wales[15] makes it clear that the Supreme Court is not restricted by the privative provision in s 349 of the IR Act.
  1. [27]
    Notwithstanding the limited capacity to appeal a decision of this Court, it is, given the avenues available for review, closest in nature to an intermediate court of appeal.
  1. [28]
    I will proceed on that basis, then, to consider the issue of stare decisis and whether this Court is bound to follow its earlier decisions. 
  1. [29]
    I have dealt with this, in part, in Blackwood v Toward[16]. In order that what I say later in these reasons may be more easily understood, I will repeat part of what I said:

“[22] Although it was not raised, I should deal briefly with stare decisis – the principle whereby a court considers itself bound by its previous decisions. It is a principle of long standing. But it should not be used as an excuse for the perpetuation of error. In Babaniaris v Lutony Fashions Pty Ltd Mason J closely examined the authorities on this topic. He said:

“There is certainly strong authority for the view that a decision of long-standing, on the basis of which many persons will have arranged their affairs, should not be lightly disturbed by a superior court: Brownsea Haven Properties Ltd. v. Poole Corporation; West Ham Union v. Edmonton Union; Campbell College, Belfast (Governors) v. Northern Ireland Valuation Commissioner; and see generally Reg. v. National Insurance Commissioner; Ex parte Hudson. Adherence to this approach promotes the certainty of the law and protects the integrity of acts and transactions which have taken place in the faith of the law as it has been previously declared.

There are, however, countervailing considerations which have special force in cases of statutory construction. The fundamental responsibility of a court when it interprets a statute is to give effect to the legislative intention as it is expressed in the statute. If an appellate court, particularly an ultimate appellate court, is convinced that a previous interpretation is plainly erroneous then it cannot allow previous error to stand in the way of declaring the true intent of the statute: Blair v. Curran; Platz v. Osborne; Concrete Constructions Pty. Ltd. v. Barnes; Lancashire & Yorkshire Railway Co. v. Mayor, &c., of Borough of Bury. It is no part of a court's function to perpetuate error and to insist on an interpretation which, it is convinced, does not give effect to the legislative intention: Bourne v. Keane. And, as Lord Sumner observed in Pate v. Pate, ‘nor is it in any case sound to misconstrue a statute for fear that in particular instances some hardship may result’. The injustice or inconvenience which will result from displacement of a long-standing decision is certainly a very important factor to be considered, but there is no support in principle or authority for the proposition that the court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience. There is, after all, an obvious injustice in departing from the legislative intention and in most cases a proposed departure from antecedent authority involves competing detriments. The fact that Parliament can, if it so chooses, displace an erroneous interpretation does not provide a justification for the court's refusal to give effect to the law as declared by Parliament. There are factors that may militate against Parliament taking steps to enact appropriate remedial legislation.

Although the use of expressions as "plainly" and "manifestly" erroneous has been criticized in contexts where the question is one on which different minds might reach different conclusions (Queensland v. The Commonwealth), this criticism does not diminish the utility of the expressions in their application to a case in which the question on analysis is capable of but one answer.

The matter may stand differently when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions. This is very often the case when a court is called upon to reconsider one of its earlier decisions. Then it is a matter of ensuring that a change in the law does not proceed from mere personal choice and result in injustice or inconvenience, as, e.g., by impairing actions and transactions undertaken on the faith of the law as it had been declared previously. In such a situation lack of clarity in the expression of the legislative intention makes it legitimate for the court to regard the injustice or inconvenience which would flow from overruling the earlier decision as having an influential effect on the outcome.” (emphasis added, citations omitted)

[23] It is also wrong, as Heydon J observed in Australian Broadcasting Corporation v O'Neill to ‘give the effect of legislation to a decision contrary to the intention of the legislature, merely because it has happened, for some reason or other, to remain unchallenged for a certain length of time’.” (citations omitted)

  1. [30]
    The reasoning set out above was referred to with approval in John v Commissioner of Taxation (Cth)[17].
  1. [31]
    The relevant principles which can be drawn from the authorities may be summarised in this way:
  1. (a)
    Intermediate appeal courts should not regard themselves as strictly bound by their earlier decisions.
  1. (b)
    Rigid adherence to precedent is likely on occasions to perpetuate error without significantly increasing the corresponding advantage of certainty.
  1. (c)
    The injustice or inconvenience which will result from displacement of a long-standing decision is certainly a very important factor to be considered, but there is no support in principle or authority for the proposition that a court should persist with a manifestly incorrect interpretation on the ground that it will cause injustice or inconvenience.
  1. (d)
    The matter may stand differently when the correct interpretation of the statute is highly disputable or finely balanced, involving a difficult choice between strongly competing contentions.
  1. (e)
    In such a situation lack of clarity in the expression of the legislative intention makes it legitimate for the court to regard the injustice or inconvenience which would flow from overruling the earlier decision as having an influential effect on the outcome.

To what extent does the fact that the Act is “beneficial” legislation affect the construction of s 542 of the Act?

  1. [32]
    This question naturally arises because, in Cloncurry, A Lyons J based her decision, in part, on the nature of the Act. Her Honour referred to the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority[18] and said:

“[27] I agree with the submissions of the first and second respondent that s 542 of the WCRA should be interpreted to give effect to a beneficial purpose particularly when there is no inherent conflict between the object of prompt resolution of disputes and the object which recognises the right to seek a review of a decision refusing compensation. In terms of an examination of a hierarchy of provisions, to use the language of the High Court, it is clear that the major aim of the WCRA is to provide benefits for workers who sustain an injury in their employment and provisions which relate to timeliness are clearly provisions which are lower in the hierarchy to provisions which give rights to compensation.

[28] I am not satisfied that non-compliance with the method of applying for a review was intended by the legislature to affect the ambit of the power such that non-compliance is fatal to the existence of the power.” (emphasis added)

  1. [33]
    Later in her Honour’s reasons she held that applications made out of time were not invalid and said:

“[31] Section 542 of the WCRA itself is silent in relation to whether non-compliance constitutes invalidity and I note the comments of the High Court in Project Blue Sky, where it was indicated that if public inconvenience would result from a declaration that the act was invalid then it was unlikely that that was the intention of the legislature:

“Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act. Having regard to the obligations imposed on the ABA by s 160, the likelihood of that body breaching its obligations under s 160 is far from fanciful, and, if acts done in breach of s 160 are invalid, it is likely to result in much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA.”

[32] The decision of the High Court in Berowa Holdings Pty Ltd v Gordon (“Berowa”) is also relevant in this regard. In that case s 151 of the Workers Compensation Act 1987 (NSW) was in issue and the question was whether proceedings commenced by the plaintiff were invalid or a nullity because of non-compliance with that section. In particular the High Court examined principles of statutory construction where the statute imposed a restriction upon the commencement of court proceedings but made no provision for consequences of non-compliance. The High Court held in Berowa:

“First, s 151C(1) does not use the language of nullity or voidness. It is, instead, expressed in terms of what a person to whom compensation is payable under the Act is entitled, or not entitled, to do. Unlike ss 151F, 151G and 151H, it is not addressed to what the court may do in the award of damages. The Act does not state the consequences of breach of the non-entitlement expressed in s 151C(1). Deriving those consequences therefore depends on drawing, from the language and apparent purpose of the provision, outcomes which the Parliament has not stated.

The duty imposed on a person by s 151C(1) is one of imperfect obligation. Where Parliament has enacted a provision in language which holds back from attaching consequences of nullity and voidness to the acts of a person in breach, it requires a very strong indication elsewhere in the Act that this is Parliament’s purpose, if the court is to derive an implication that this is so. This is because of the drastic consequences that can follow conclusions of nullity and voidness in the law.” (citations omitted)

  1. [34]
    The legislation considered in Berowa Holdings Pty Ltd v Gordon[19] differs from s 542 of the Act. In Berowra the court was concerned with this provision:

“151C(1) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation until 6 months have elapsed since notice of the injury was given to the employer.”[20]

  1. [35]
    The court held that a proceeding commenced in contravention of that section nevertheless engaged the jurisdiction of the court in which it was commenced:

“[35] …  Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The “right” which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.

[36] Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a “nullity”. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject matter with which the statute deals is “rights” in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.”

  1. [36]
    Unlike the legislation considered in Berowra  s 542 of the Act does create a right – the right to seek a review – but confines it by reference to a time limit for seeking a review.
  1. [37]
    The liberal interpretation which may be applied when dealing with remedial legislation does not arise unless there is more than one interpretation available or there is uncertainty about the meaning of the words. See Victims Compensation Fund Corporation v Brown[21] and Minister Administering the Crown Lands Act v NSW Aboriginal Land Council[22].  In Cloncurry the concern was not that there was more than one interpretation available, rather it was that the interpretation which was obvious resulted in what was considered to be an unpalatable result. On that basis, the section was given a “liberal interpretation” which resulted in the Regulator being afforded a power which the Act did not, in terms, bestow.

Construction of s 542

  1. [38]
    I regret that I find that I cannot agree with the interpretation arrived at in Cloncurry.
  1. [39]
    While it is correct to categorise the Act as beneficial or remedial legislation, the proper construction is not, by virtue of that unrestrained. It was said in Khoury v Government Insurance Office (NSW)[23] :

“…the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal must, as has been said, be restrained within the confines of "the actual language employed" and what is "fairly open" on the words used.”[24]

  1. [40]
    There is a discretion given to the Regulator to accept an application out of time but “the actual language employed” shows it is clearly confined. There must have been a request under s 542(2) and there must be special circumstances. The Regulator is given a confined power to extend the time in which an application may be made but the construction adopted in Cloncurry ignores the restrictions on that power.
  1. [41]
    The issue has been confused by the consideration of whether an out of time application is invalid. The true issue is not whether an application made out of time is invalid but whether the Regulator has any power other than that set out in s 542(2) and (3). The Regulator does not.
  1. [42]
    In the cases that have followed Cloncurry further glosses have been put on s 542. In addition to the unwarranted creation of a new power to extend time, that “power” has been made subject to a restriction – that there must have been substantial compliance or other special circumstance[25]. There is no legislative basis for either accretion.
  1. [43]
    It follows, then, that the Regulator has no power to extend time except in accordance with s 542.[26]
  1. [44]
    The Commissioner did not err in following the earlier decisions of the Industrial Court – he was bound to do so. Nevertheless, the interpretation which he followed was wrong and, so, the appeal must be allowed and his decision set aside.

 If Cloncurry does express the correct construction.

  1. [45]
    Should I be wrong in the construction I have placed upon the provisions under consideration, I will briefly deal with the appeal on the major basis advanced on appeal.
  1. [46]
    If, contrary to what I have held above, there is a capacity in the Regulator to extend time where an applicant has shown that there has been substantial compliance with the provisions of the Act or that special circumstances exist, then I am satisfied that the appellant has demonstrated that the Commissioner erred in applying those tests.
  1. [47]
    On 8 October 2012 Mrs Pearce was sent a letter from WorkCover rejecting her application. She was informed by telephone on 12 October 2012 of that decision. The letter which was sent to her was not opened by her until after the three month period had elapsed. There was evidence, which it was appropriate to accept, that Mrs Pearce was unwell during that period and that her family had been dealing with her mail. Mrs Pearce gave evidence that because she had been told that her application was unsuccessful she just assumed that that was the end of it. By not opening or reading the letter she did not receive the information contained within the letter that there was a review process available.
  1. [48]
    The evidence, though, drives one to the conclusion that her state of health did not vary dramatically in the period following the oral notice of the rejection of her application and throughout 2013. During that period she was able to make enquiries about the application for review and seek assistance from her solicitor. The evidence before the Commissioner did not support a conclusion that Mrs Pearce’s state of health was such as to render her incapable of making an application for review during the three month period.
  1. [49]
    Mrs Pearce did not explain why the letter from WorkCover was not opened while other mail to her was.
  1. [50]
    The history of the conduct of the matter by Mrs Pearce and her solicitors is a history of inactivity interspersed with some bursts of action. Rather than going immediately to the Regulator to seek an extension Mrs Pearce and her solicitors engaged in a search for more evidence. This was not a manifestation of any attempt to substantially comply with the provisions of the Act. The capacity to seek an extension of time within the three month period does not require an applicant for such an extension to demonstrate to the Regulator that the applicant has a particularly good case. All that need be shown is that special circumstances exist. It would be a question of fact in each case as to what circumstances might be special but the accumulation of new evidence would, ordinarily, not amount to a special circumstance.
  1. [51]
    The Commissioner overlooked, with respect, the conscious decision made by Mrs Pearce’s solicitor not to contact the review unit but to continue upon the task of gathering more evidence even as the limitation period receded in time.
  1. [52]
    The weight given to the work done by Mrs Pearce’s solicitor to obtain extra medical opinion was unjustified. The principles upon which the Commissioner has previously relied (but which I have held to be incorrect) do not allow a person to simply ignore a limitation period while building up a case.
  1. [53]
    The Commissioner erred in overlooking or in giving insufficient weight to Mrs Pearce’s conduct in the three months following the rejection of her application and the absence of any evidence which would have justified the dilatory conduct of Mrs Pearce and her solicitor. The finding by the Commissioner that there was sufficient activity is inconsistent with the periods of inactivity which are apparent on any examination of the chronology of this matter.
  1. [54]
    The applicant did not demonstrate either a substantial compliance or special circumstances.
  1. [55]
    The appeal is allowed. The appeal in matter WC/2014/83 is dismissed and the decision of the Regulator dated 25 February 2014 is affirmed.

Footnotes

[1]The relevant version of the Act is Reprint 5E.

[2]Exhibit 4.

[3](2004) 175 QGIG 978.

[4](C/2010/56) – Decision .

[5](2007) 185 QGIG 243.

[6]Ibid at 243.

[7][2006] QSC 362.

[8](2007) 185 QGIG 231.

[9](C/2010/16) – Decision No 2 .

[10](C/2010/56) – Decision .

[11](C/2012/31) – Decision .

[12](1989-1990) 169 CLR 245.

[13]With whom Brennan CJ and Deane J agreed.

[14]Ibid at 268-269.

[15](2010) 239 CLR 531.

[16][2015] ICQ 008.

[17](1989) 166 CLR 417 at 419-440.

[18](1998) 194 CLR 355.

[19](2006) 225 CLR 364.

[20]Workers Compensation Act 1987 (NSW).

[21](2003) 201 ALR 260.

[22](2008) 237 CLR 285.

[23](1984) 165 CLR 622.

[24]Ibid at 638 per Mason, Brennan, Deane and Dawson JJ.

[25]Q-COMP v Deng (C/2010/56) – Decision .

[26]This is consistent with the decision of Dutney J in Emerson v Coles Myer Ltd & Anor [2004] QSC 161.

Close

Editorial Notes

  • Published Case Name:

    Simon Blackwood (Workers' Compensation Regulator) v Michelle Pearce

  • Shortened Case Name:

    Workers' Compensation Regulator v Pearce

  • MNC:

    [2015] ICQ 12

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    28 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Meat Holdings v Q-COMP (2007) 185 QGIG 231
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 231
Cite 2 - (2007) 185 QGIG 231
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
2 citations
Jump To
Cite 1 - (2006) 225 CLR 364
Cite 2 - (2006) 225 CLR 364
Cloncurry Shire Council v Workers' Compensation Regulatory Authority[2007] 2 Qd R 434; [2006] QSC 362
2 citations
Jump To
Cite 1 - [2006] QSC 362
Cite 2 - [2006] QSC 362
Emerson v Coles Myer Ltd [2004] QSC 161
2 citations
Jump To
Cite 1 - [2004] QSC 161
Cite 2 - [2004] QSC 161
John v Federal Commissioner of Taxation (1989) 166 CLR 417
2 citations
Jump To
Cite 1 - (1989) 166 CLR 417
Cite 2 - (1989) 166 CLR 417
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
3 citations
Jump To
Cite 1 - (1984) 165 CLR 622
Cite 2 - (1984) 165 CLR 622
Cite 3 - (1984) 165 CLR 622
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
2 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285
2 citations
Jump To
Cite 1 - (2008) 237 CLR 285
Cite 2 - (2008) 237 CLR 285
Nguyen v Nguyen (1990) 169 C.L.R 245
3 citations
Jump To
Cite 1 - (1990) 169 C.L.R 245
Cite 2 - (1990) 169 C.L.R 245
Cite 3 - (1990) 169 C.L.R 245
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
Q-Comp v Baulch (2004) 175 QGIG 978
2 citations
Jump To
Cite 1 - (2004) 175 QGIG 978
Cite 2 - (2004) 175 QGIG 978
Saville v Q-Comp (2007) 185 QGIG 243
3 citations
Jump To
Cite 1 - (2007) 185 QGIG 243
Cite 2 - (2007) 185 QGIG 243
Cite 3 - (2007) 185 QGIG 243
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
2 citations
Jump To
Cite 1 - (2003) 201 ALR 260
Cite 2 - (2003) 201 ALR 260
Workers' Compensation Regulator v Toward [2015] ICQ 8
2 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8

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Case NameFull CitationFrequency
Adcock v Workers' Compensation Regulator [2025] ICQ 142 citations
Brisbane City Council v Gillow and Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 1242 citations
Devi v Workers Compensation Regulator [2016] QSC 311 5 citations
Eastern Plant Hire Queensland Pty Limited v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 793 citations
Fully Integrated Therapies Pty. Ltd. v Prior and Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 1372 citations
Grice v Workers' Compensation Regulator [2016] QIRC 596 citations
Keighran v Workers' Compensation Regulator [2016] QIRC 964 citations
Sharples v Workers' Compensation Regulator [2020] ICQ 202 citations
van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 1612 citations
1

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