Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. ICQ
  3. 2023
  4. Turay v Workers' Compensation Regulator - [2023] ICQ 13

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Turay v Workers' Compensation Regulator[2023] ICQ 13

Turay v Workers' Compensation Regulator[2023] ICQ 13

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Turay v Workers’ Compensation Regulator [2023] ICQ 13

PARTIES:

SUSAN BALLU TURAY

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO:

C/2023/4

PROCEEDING:

Appeal

DELIVERED ON:

16 June 2023

HEARING DATE:

24 May 2023

MEMBER:

Davis J, President

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – RIGHT OF APPEAL – SCOPE AND EFFECT OF APPEAL – where WorkCover made a decision adverse to the appellant – where the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act) provided for a right of review of that decision to the respondent – where the respondent affirmed the decision – where the WCR Act provided for an appeal to the Queensland Industrial Relations Commission (QIRC) from the decision of the respondent – where the appellant appealed to the QIRC – where the QIRC dismissed her appeal – where the appellant appealed to the Industrial Court of Queensland – where the WCR Act provided for the appeal to be “by way of rehearing” – where the Industrial Relations Act 2016 (IR Act) provided for appeals from the QIRC to the Industrial Court of Queensland – where the IR Act provided for appeals on grounds limited to errors of law or excess or want of jurisdiction – whether an appeal from the QIRC to the Industrial Court of Queensland against a decision made under the WCR Act is limited to errors of law or excess or want of jurisdiction

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where the appellant lodged a claim for workers’ compensation under the WCR Act – where the application was lodged out of time – where WorkCover had a discretion to waive the time limit – where the discretion arose if the appellant had reasonable cause for not lodging the application within time – where WorkCover did not waive the breach of the time limit – where the appellant sought review of the decision of the respondent – where the respondent upheld the decision of WorkCover – where the appellant appealed the respondent’s decision to the QIRC – where the QIRC heard the matter de novo – where the QIRC dismissed the appellant’s appeal – where the appellant appealed to the Industrial Court of Queensland – where the appeal was one by way of rehearing – whether the findings of fact by the QIRC were open and properly made – whether the inferences drawn by the QIRC were open and properly drawn – whether the discretion to find that there was no reasonable cause was infected by error

Acts Interpretation Act 1954, s 36

Electrical Safety and Other Legislation Amendment Act 2011

Electrical Safety and Other Legislation Amendment Bill 2011

Fair Work Act 2009 (Cth)

Industrial Relations Act 1999, s 332, s 341, s 345, s 346, s 347, s 348, s 349

Industrial Relations Act 2016, s 3, s 7, s 407, s 429, s 503, s 554, s 556, s 557, s 558, s 559, s 560, s 561, s 562, s 562A, s 562B, s 562C, s 563, s 564, s 565, s 566, s 567

Uniform Civil Procedure Rules 1999

Workers’ Compensation and Rehabilitation Act 2003, s 4, s 5, s 131, s 327, s 540, s 542, s 545, s 548, s 549, s 550, s 559, s 560A, s 561, s 562, s 563, s 564

Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2004

Workplace Health and Safety and Other Acts Amendment Act 2006

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, cited

Aldrich v Ross [2001] 2 Qd R 235, cited

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, cited

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, followed

Burton v Workers’ Compensation Regulator [2022] ICQ 017, not followed

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, cited

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited

Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, cited

Compass Group Education Hospitality Services Pty Ltd v Commissioner of State Revenue (CSR) (2021) 8 QR 1, cited

Fox v Percy (2003) 214 CLR 118, followed

Hetmanska v Q-COMP (2006) 183 QGIG 917; [2006] QIC 67, considered

House v The King (1936) 55 CLR 499, followed

K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, cited

Khan v Workers’ Compensation Regulator [2023] ICQ 002, not followed

Kirk v Industrial Court (NSW) (2010) 239 CLR 531, cited

Lee v Lee (2019) 266 CLR 129, followed

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, cited

New South Wales v The Commonwealth (2006) 229 CLR 1, cited

Norbis v Norbis (1986) 161 CLR 513, followed

Nutley v President, Industrial Court (2019) 1 QR 354, not followed

Nutley v Workers’ Compensation Regulator [2019] ICQ 002, not followed

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

Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689, cited

R v A2 (2019) 269 CLR 507, followed

Schlumberger Australia Pty Ltd v Workers' Compensation Regulator [2023] ICQ 007, cited

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306, followed

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, cited

Turay v Workers’ Compensation Regulator [2023] QIRC 001, related

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, cited

Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73, followed

Warren v Coombes (1979) 142 CLR 531, followed

Workers’ Compensation Regulator v Glass (2020) 4 QR 693, followed

COUNSEL:

The appellant appeared on her own behalf

B I McMillan of Counsel for the respondent

SOLICITORS:

The appellant appeared on her own behalf

Workers’ Compensation Regulator directly briefing

Mr McMillan of Counsel

  1. [1]
    The appellant, Susan Turay, appeals against a decision of the Queensland Industrial Relations Commission (QIRC).  That decision[1] dismissed Ms Turay’s appeal against a decision of the respondent, the Workers’ Compensation Regulator (the Regulator), to confirm a decision of WorkCover Queensland (WorkCover) not to waive the time limit for her to apply for workers’ compensation pursuant to the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act). 

Relevant statutory provisions

  1. [2]
    The object of the WCR Act is to create a workers’ compensation scheme.[2]  Those objects are achieved by an insurance system through which WorkCover is established as an insurer.[3]
  2. [3]
    By Chapter 7 of the WCR Act, the Regulator is established.  Its functions include regulating the scheme[4] and monitoring, relevantly here, WorkCover.[5]
  3. [4]
    Chapter 3 concerns compensation and Part 5 of Chapter 3 regulates the making of a compensation application.  The application is completed online.  Section 131 limits the time for making an application.  It provides:

“131 Time for applying

  1. (1)
    An application for compensation for an injury is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation for the injury arises.
  1. (2)
    If an application is lodged more than 20 business days after the entitlement to compensation arises, the extent of the insurer’s liability to pay compensation is limited to a period starting no earlier than 20 business days before the day on which the valid application is lodged.
  1. (3)
    Subsection (2) does not apply if death is, or results from, the injury.
  1. (4)
    An insurer must waive subsection (1) for a particular application if it is satisfied that special circumstances of a medical nature, decided by a medical assessment tribunal, exist.
  1. (5)
    Also, an insurer may waive subsection (1) for a particular application if—
  1. (a)
    it is satisfied that a doctor, nurse practitioner or dentist has assessed the injury as resulting in total or partial incapacity for work; and
  1. (b)
    the claimant lodged the application within 20 business days after the first assessment under paragraph (a).
  1. (6)
    An insurer may waive subsection (1) or (2) for a particular application if the insurer is satisfied that a claimant’s failure to lodge the application was due to—
  1. (a)
    mistake; or
  1. (b)
    the claimant’s absence from the State; or
  1. (c)
    a reasonable cause.”
  1. [5]
    Chapter 13 of the WCR Act vests power upon the Regulator to review various decisions of WorkCover.[6]
  2. [6]
    Ms Turay clearly lodged her application for compensation out of time.  WorkCover refused to waive the time requirement.  Section 540(1)(vii) specifies such a refusal as a decision which is reviewable by the Regulator under s 545 upon application under s 542.
  3. [7]
    In this case, the Regulator affirmed the decision of WorkCover not to waive the time limit.  By Part 3 of Chapter 13 of the WCR Act, an appeal may be lodged from such a decision of the Regulator to the QIRC.[7]  As already observed, the QIRC dismissed Ms Turay’s appeal.  By s 561 of the WCR Act, an appeal lies from the QIRC to this Court.  As will become apparent, there is contention as to the operation of the provisions providing for an appeal to this Court, and those provisions are later analysed.[8]

Background

  1. [8]
    The appellant was employed as a registered nurse until her employment was terminated on 19 January 2018.
  2. [9]
    On 14 November 2018, Dr Johanna Skinner, who is a general practitioner, provisionally diagnosed Ms Turay with adjustment disorder.  This, Ms Turay attributes as a work injury.
  3. [10]
    It is not contentious that:
  1. the right to compensation arose on 14 November 2018;
  2. the time for making an application for compensation therefore expired on 14 May 2019;
  3. an application for compensation was lodged on 16 September 2020, some 16 months beyond the time limited by s 131 of the WCR Act;
  4. WorkCover refused to waive the time limit;
  5. the Regulator affirmed WorkCover’s refusal.
  1. [11]
    Ms Turay filed an appeal to the QIRC which was dismissed.[9]
  2. [12]
    Ms Turay then filed an appeal to this Court against the QIRC’s decision.

The proceedings in the QIRC

  1. [13]
    The central issue before the QIRC was whether Ms Turay had shown “reasonable cause” for her failure to lodge the application within time.  Proof of reasonable cause satisfied a jurisdictional fact[10] which would enliven the discretion of WorkCover to waive the breach of the time limit.
  2. [14]
    Ms Turay’s case for a finding of reasonable cause was accurately described by the QIRC in these terms:

“[13]The Appellant’s statement of facts and contentions can be summarised as follows, that:

  1. (a)
    the Appellant was affected by post-traumatic stress disorder (‘PTSD’) and major depression and was too unwell to lodge the claim;
  1. (b)
    the mental distress and instability got worse over time making it difficult to concentrate or think properly;
  1. (c)
    the attempt to remove the restrictions placed on her nursing registration by the Australian Health Practitioners Regulation Agency (‘AHPRA’) was difficult and the process was stressful;
  1. (d)
    as a second language speaker, the Appellant’s English does not extend to the legal terms and she does not have knowledge of WorkCover laws; and
  1. (e)
    the Appellant was too unwell during the six month period to complete her master’s degree, with the degree not finished until July 2019 and graduated on 14 October 2019.”[11]
  1. [15]
    Therefore, the impact of Ms Turay’s mental health upon her ability to make the application within the statutorily limited time became a critical issue.
  2. [16]
    Mr Turay gave evidence herself before the QIRC and she called Dr Pidgeon, a general practitioner, and Dr Borges, a psychologist.  The Regulator called Dr Skinner, a general practitioner.  Dr Skinner opined that while Ms Turay suffered from an adjustment order, she did not have any cognitive difficulties which would have an impact upon her capacity to make the application.
  3. [17]
    Dr Pidgeon signed a letter[12] to the effect that Ms Turay’s failure to lodge the form was due to her mental health.  In evidence she recanted.[13]
  4. [18]
    Dr Borges opined that Ms Turay’s symptoms would have significantly impaired her ability to lodge the application.[14]
  5. [19]
    Ms Turay gave evidence consistently with her case as summarised in the QIRC judgment.[15]
  6. [20]
    The QIRC:
  1. found that Dr Pidgeon’s evidence did not support Ms Turay and in fact contradicted her case;[16]
  2. accepted Dr Skinner as a reliable witness and accepted her opinion;[17]
  3. put little weight on Dr Borges’ evidence as the Industrial Commissioner assessed Dr Borges as being partisan (as an advocate) in favour of Ms Turay;[18]
  4. held that Ms Turay’s mental health did not prevent her from making the application within time;[19] and
  5. concluded that Ms Turay had not demonstrated reasonable cause such as to enliven the jurisdiction to overturn the decision of the Regulator.[20]
  1. [21]
    In coming to her conclusions, the Industrial Commissioner took into account evidence other than the medical evidence.  In considering that evidence, the Industrial Commissioner held that during the period over which the application ought to have been lodged, Ms Turay had participated in various legal and administrative activities where she demonstrated abilities showing her as capable of filing the application.[21]

Appeal to this Court

  1. [22]
    Ms Turay’s grounds of appeal are:
  1. “1)
    Several Gps submissions were omitted to prevent ttheir (sic) honest statements and testimony After Dr Skinners assessments there was no follow up as the acclaimed owner of the wellness group, Rita Prasad tried to highjack for fear of ramification from the health tycoons, powers as AHPRA, Health federation etc. Rita Prasad wanted to maintain the solidarity across the big boss and health registration body.
  1. 2)
    Dr Pidgeon showed a conscious bias in favour to jeopardise my bid for compensation. Dr Pidgeon was negligent and showed lack of duty of care. She was opinionated through as a sign of disbelief as an intelligent woman crumbled with mental health issues.
  1. 3)
    My appearance was to cover up mental illness as was a public disgrace and a taboo.
  1. 4)
    The health care professionals can be advocates as researchers puts it while performing their duty of care. Dr Borges did not use any connotations that would confirm that she was advocating on my behalf
  1. 5)
    The treatment plan designed by Dr Skinner was not followed through. The health profession is a continuity of care (Briggs J, 2020). Dr Pidgeon did not continue her care. The treatment plan was withheld by Rita Prasad.
  1. 6)
    There was discrimination directed to Dr Borges. There were opened queries about her qualifications which did not apply to anyone or other medical practitioners.
  1. 7)
    The main treating clinicians were not called as an independent experts. Dr Borges did not concede. The research puts it that way. Dr Borges did not comment that she had limited knowledge. Why would you render that a Gps statement was unreliable? That was pure attack on the integrity of a professional.
  1. 8)
    Dr Skinners conclusion required me to stay aloof for the time being to prevent further exercebation of deepening mental health crisis.
  1. 9)
    I now require the panel to substantiate whether Dr Pidgeon was someone anyone could rely on: Please read the medical board of Australia. Good medical practice. A code of conduct for doctors in Australia, 2009. Avalable www.medicalboard.gov.au/codes and guidelines.
  1. 10)
    The panel and the commissioner closed off not to face my traumatic experiences and that was why emphasis where bungled on the laisser faire (sic) doctor and the timing of the filing. Reasonable causes were forwarded via clinical certifications from qualified practitioners and assessments. Previously, the time was waved and then overturned as the traumatic facts were read out. The legal team did not want to face the shame and bad impression Australia has presented to the minority, refugees. They are hunted by the truth. A human right violation had been committed by the failed system which was recently aired by news outlets, 2022-23. Psychological injuries prevented me from putting the application on time while QCAT runs were also a factor. I could not bear the cost that was why I self represented. I rely on hand outs, food bank and gifts from my son and friends. Imprisonment could be your option. I do not have money.”

Nature of the appeal

  1. [23]
    In a series of decisions,[22] it has been held that by operation of s 561 of the WCR Act and s 557 of the Industrial Relations Act 2016 (the 2016 IR Act), an appellant like Ms Turay is only entitled as of right to raise grounds of appeal of error of law or excess or want of jurisdiction.  In Schlumberger Australia Pty Ltd v Workers’ Compensation Regulator,[23] I expressed the view that those cases might need to be revisited,[24] although the point did not directly arise in that case.
  2. [24]
    Mr McMillan of counsel for the respondent submits that:
  1. the right of appeal is limited to errors of law or jurisdiction;[25]
  2. leave may be given to advance broader grounds;[26]
  3. no application has been made here for leave;
  4. leave may only be given where it is in the public interest to do so;[27]
  5. here, it is not in the public interest for leave to be given to Ms Turay to raise grounds of appeal beyond errors of law or jurisdiction;
  6. Ms Turay’s appeal does not raise matters of errors of law or jurisdiction and should be dismissed.
  1. [25]
    Therefore, the issue of the nature of the avenue of appeal is squarely raised.  Resolution of the issue depends upon how the WCR Act interacts with the 2016 IR Act.
  2. [26]
    The 2016 IR Act was enacted after the Work Choices case[28] and the enactment of the Fair Work Act 2009 (Cth).  The 2016 IR Act provides “a framework for cooperative industrial relations”[29] which applies primarily to employers and employees who are not within the National Scheme provided by the Fair Work Act 2009 (Cth).[30]Part of that framework is the establishment of a system of courts and tribunals being the Industrial Court of Queensland,[31] the QIRC[32] and the Industrial Magistrates Court.[33]
  3. [27]
    Appeals from the QIRC to the Court are provided for by Chapter 11, Part 6 of the 2016 IR Act.  Part 6 provides for various appeals.  Division 1 of Part 6 concerns appeals to the Court of Appeal.  Division 2 concerns appeals to this Court.  Section 561 of the WCR Act, which I analyse later,[34] provides for an appeal from the QIRC to this Court.  Therefore, Division 2, Chapter 11, Part 6 of the 2016 IR Act is the relevant one.
  4. [28]
    Division 2, Part 6 of Chapter 11 of the 2016 IR Act contains ss 556, 557, 558 and 559.  They provide:

“556Appeal from magistrate

A person aggrieved by a decision of a magistrate may appeal against the decision to the court.

557Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the commission under chapter 4, part 3, division 2.
  1. (4)
    If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  1. (5)
    In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.

558What court may do

  1. (1)
    On an appeal under section 556 or 557, the court may—
  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
    allow the appeal and amend the decision; or
  1. (d)
    allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.
  1. (2)
    Also, the court may direct an industrial magistrate to issue a warrant for the appellant’s arrest if—
  1. (a)
    under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and
  1. (b)
    the appellant was released from custody by a magistrate under the rules made under section 551; and
  1. (c)
    after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment.
  1. (3)
    The industrial magistrate must comply with the direction.
  1. (4)
    When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced.

559 President must hear and decide particular appeals from full bench

If an appeal is made under section 557 against a decision of the full bench—

  1. (a)
    the appeal must be heard and decided by the court constituted by the president; and
  1. (b)
    an interlocutory proceeding relating to the appeal may be heard and decided by the vice-president or a deputy president (court).”
  1. [29]
    Division 3, Part 6 of Chapter 11 of the 2016 IR Act concerns appeals from orders of the Industrial Registrar[35]and Division 4 concerns appeals to the QIRC.[36]
  2. [30]
    Division 5, Part 6 of Chapter 11[37] contains general provisions which apply to appeals provided by the Chapter.  They are:

“563Definition for div 5

In this division—

industrial tribunal means the Court of Appeal, court,[38] full bench or commission.

564 Time limit for appeal

  1. (1)
    An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
  1. (3)
    In this section—

appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—

  1. (a)
    if the decision is given at a hearing—the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar—the release of the decision; or
  1. (c)
    if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022; or
  1. (d)
    if, under another Act, the decision is given in another way—the decision is given in the other way.

565 When leave for appeal must be given

If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—

  1. (a)
    must give leave if it is satisfied it is in the public interest to do so; and
  1. (b)
    may not give leave other than under paragraph (a).

566 Stay of decision appealed against

  1. (1)
    On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending—
  1. (a)
    the determination of the appeal; or
  1. (b)
    a further order of the industrial tribunal.
  1. (2)
    This section does not apply to an appeal under the Workers’ Compensation and Rehabilitation Act 2003, chapter 13, part 3 against a decision to allow an application for compensation under that Act.

567 Nature of appeal

  1. (1)
    An appeal to an industrial tribunal, other than a public service appeal to the commission, is by way of re-hearing on the record.
  1. (2)
    However, the industrial tribunal may hear evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal.”
  1. [31]
    Chapter 13 of the WCR Act concerns reviews and appeals.  Part 3 concerns appeals.  Division 1 of Part 3 concerns appeals to the Industrial Magistrates Court and the QIRC.  Division 1A concerns appeals to this Court and contains ss 560A, 561, 562, 563 and 564. They provide:

“560A Application of div 1A

This division applies to the following decisions—

  1. (a)
    a decision of the industrial commission[39] under chapter 4, part 6;
  1. (b)
    a decision of an industrial magistrate or the industrial commission under division 1.

561 Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court’s decision is final.

562 Powers of industrial court

  1. (1)
    In deciding an appeal, the industrial court may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision.
  1. (2)
    If, on an appeal in relation to a decision mentioned in section 560A(a), the court acts under subsection (1)(b) or (c), the decision of the court is taken for this Act, other than this division, to be the decision of the industrial commission.
  1. (3)
    If, on an appeal in relation to a decision mentioned in section 560A(b), the court acts under subsection (1)(b) or (c), the decision of the court is taken for this Act, other than this division, to be the decision of the insurer.

563 Costs of appeal to industrial court

  1. (1)
    On an appeal, the industrial court may order a party to pay costs incurred by another party only if satisfied the party made the application vexatiously or without reasonable cause.
  1. (2)
    Costs of the order are to be in accordance with the Industrial Relations (Tribunals) Rules 2011, rule 70.

564 Recovery of costs

  1. (1)
    If the industrial court makes an order for costs, the amount ordered to be paid is a debt payable to the party in whose favour the order is made.
  1. (2)
    The order may be filed in the registry of a court having jurisdiction for the recovery of a debt of the amount.
  1. (3)
    On being filed, the order—
  1. (a)
    is taken to be an order properly made by the court; and
  1. (b)
    may be enforced as an order made by the court.”
  1. [32]
    The decision of the QIRC from which Ms Turay presently appeals to this Court is a decision made under Division 1A of Part 3 of Chapter 13.
  2. [33]
    It can be seen that s 567(1) of the 2016 IR Act and s 561(3) of the WCR Act describe the nature of an appeal from the QIRC to this Court as “an appeal by way of rehearing”.[40]  Ultimately, any appeal is a creature of the statute which creates the avenue of appeal[41] and the scope of the appeal will depend upon the proper construction of the statute.[42]
  3. [34]
    The term “appeal by way of rehearing” usually requires the appellate court to review the evidence itself and draw its own factual conclusions, recognising though the advantage of the primary court in seeing and hearing the witnesses give evidence.[43]  As usually understood, an “appeal by way of rehearing”, including as it does a factual review, is not one that is limited to errors of law or jurisdiction.
  4. [35]
    Section 557 of the 2016 IR Act specifically limits the grounds which can be raised as of right to errors of law or jurisdiction.[44]  Such grounds are narrower than are available on an appeal by way of rehearing as that term is generally understood.[45]
  5. [36]
    Section 561(2) of the WCR Act picks up and applies the 2016 IR Act provisions to appeals pursuant to the WCR Act.  There is arguably a tension between s 561(3) of the WCR Act, which provides appeals are “by way of rehearing”, and s 557(1) of the 2016 IR Act, which limits appeals as of right to those based on errors of law or jurisdiction.  There is also an internal tension in the 2016 IR Act between s 557(1) and s 567.
  6. [37]
    In Workers’ Compensation Regulator v Glass,[46] Sofronoff P, sitting alone in the Court of Appeal, heard an application to strike out a notice of appeal which sought to appeal a decision made under the WCR Act from this Court to the Court of Appeal.
  7. [38]
    Section 561(4) of the WCR Act prohibits appeals from this Court to the Court of Appeal, although judicial review must be open.[47]  In Glass, the appellant submitted that her avenue of appeal came via s 554 of the 2016 IR Act.
  8. [39]
    Section 554 of the 2016 IR Act is contained in Division 1, Part 6, Chapter 11 which concerns appeals from this Court and a Full Bench of the QIRC to the Court of Appeal.  Section 554 provides:

“554 Appeal from court or commission in certain circumstances

  1. (1)
    A person aggrieved by a decision of the court, or the full bench constituted by the president and 2 or more other members, may appeal to the Court of Appeal on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, a person aggrieved by a decision of the full bench constituted by the president and 2 or more other members may appeal against the decision to the Court of Appeal, with the Court of Appeal’s leave, on a ground other than—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (3)
    However, subsections (1) and (2) do not apply to a person aggrieved by a determination of the commission under chapter 4, part 3, division 2.
  1. (4)
    If a person may appeal a decision of the full bench under both subsections (1) and (2), the person may only appeal against the decision with the Court of Appeal’s leave on a ground mentioned in subsection (2).”
  1. [40]
    In striking out the notice of appeal, his Honour explained the relationship between the appeal provisions in both the 2016 IR Act and the WCR Act:
  1. “[13]
    The only reason for having s 561(2) Workers’ Compensation and Rehabilitation Act 2003 engage the provisions of the Industrial Relations Act 1999[48] was that the legislature wished to confer jurisdiction upon an existing tribunal to determine disputes arising under the workers’ compensation legislation. The workers’ compensation legislation invoked the provisions of the industrial relations legislation because it was that legislation that created a court, constituted it and made provision for procedure within it. However, each Act made provision for whether, how and to what extent there could be any appeal from decisions made under the two Acts. When the new Industrial Relations Act 2016 was passed, in this respect, nothing changed.
  1. [14]
    The subject matter of s 561(2) Workers’ Compensation and Rehabilitation Act 2003 is the ‘appeal’ that is referred to in it. The section therefore applies the Industrial Relations Act 2016 to the proceeding by which a decision of the industrial commission under Ch 4, Pt 6 Workers’ Compensation and Rehabilitation Act   2003 or a decision of an industrial magistrate or the industrial commission under Ch 13, Pt 3, Div 1 of that Act is challenged in the Industrial Court. Those are the ‘decisions’ mentioned in ss 560A and 561(1). Consequently, the provisions of the Industrial Relations Act 2016 that can be applied are those that apply to the ‘appeal’ to the Industrial Court. Once the ‘appeal’ has been concluded by a decision of the Industrial Court, there is no longer any ‘appeal’. The rights of the parties that supported the appeal have been merged in the decision. Section 561(4) Workers’ Compensation and Rehabilitation Act 2003 makes the resulting ‘decision’, which is the outcome of the ‘appeal’, final.
  1. [15]
    Section 554 Industrial Relations Act 2016 is not concerned with an ‘appeal’ from a decision referred to in ss 560A or 561(1) Workers’ Compensation and Rehabilitation Act 2003. It is concerned with ‘a decision of the court’. Consequently, it is not a provision that can apply by force of s  561(2) Workers’ Compensation and Rehabilitation Act 2003 which engages the provisions of the Industrial Relations Act 2016 only insofar as they affect ‘appeals’.”[49](emphasis added)
  1. [41]
    Where there is a general statutory power and a specific one which is subject to conditions, the specific power must be resorted to.[50]Therefore, resort could not be had by Ms Glass to s 554 of the 2016 IR Act in order to avoid the limitation in s 561(4) of the WCR Act.
  2. [42]
    The starting point in construing the various provisions is that the right of appeal against decisions of the QIRC made pursuant to the WCR Act comes via s 561 of the WCR Act, not via s 557 of the 2016 IR Act.
  3. [43]
    In Nutley v President of the Industrial Court of Queensland and Anor,[51] Bradley J heard an application for judicial review of a decision of Martin J, then President of the QIRC and of this Court.  Martin J held that s 561 of the WCR Act imported the limitations of s 557(1) of the 2016 IR Act so as to limit the grounds of appeal which are available as a right on an appeal against a decision made under the WCR Act to those of error or law or jurisdiction.
  4. [44]
    In Burton v Workers' Compensation Regulator[52] and Khan v Workers' Compensation Regulator[53] I held, consistently with Bradley J in Nutley, that ss 557(1) and 557(2) of the 2016 IR Act limited the grounds of appeal which could be amounted as a right under s 561 of the WCR Act.
  5. [45]
    Since deciding Burton and Khan, I have become aware of legislative history previously not brought to my attention.  That led me, in Schlumberger Australia Pty Ltd v Workers' Compensation Regulator,[54] to comment that the construction attributed to s 561 of the WCR Act in Burton and Khan may have to be revisited.[55]
  6. [46]
    In Nutley, Bradley J observed that the case for the applicant on review was that s 557(1) and (2) of the 2016 IR Act were inconsistent with s 561(3) of the WCR Act.  His Honour reasoned:
  1. “[20]
    There is no dispute that the appeal heard by his Honour was one brought to the Industrial Court by the applicant as a party aggrieved by the Commission’s decision and was expressly brought pursuant to s 561 of the WCR Act. That section provides:

561Appeal to industrial court

  1. (1)
    A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.
  1. (2)
    The Industrial Relations Act 2016 applies to the appeal.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.
  1. (4)
    The court’s decision is final.
  1. [21]
    Section 557(1) and (2) of the IR Act identify the grounds upon which an appeal by an aggrieved person may be made from a decision of the Commission.

557 Appeal from commission

  1. (1)
    The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. [22]
    It follows that an appeal is available under s 557(1) as of right on the ground of error of law or excess or want of jurisdiction. Under s 557(2), an appeal may be brought on a ground other than those grounds with the court’s leave.
  1. [23]
    The applicant’s case for judicial review is founded on the proposition that there is an inconsistency between s   561(3) of the WCR Act and ss 557(1) and (2) of the IR Act. If there is such an inconsistency, the applicant contends that the WCR Act provisions, being more specific to the particular appeal, ought to have applied and excluded the operation of the IR Act provisions to the extent of the inconsistency; so that, the applicant contends, his Honour was mistaken as to his jurisdiction in applying s   557(2) of the IR Act to exclude the applicant’s challenge to the Deputy President’s findings of fact.
  1. [24]
    In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, the High Court considered the position with respect to appeals to the Australian Industrial Relations Commission. Commencing at 203, the majority judgment made the following observations:
  1. [11]
    … The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.
  1. [12]
    It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.
  1. [13]
    If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
  1. [14]
    Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.
  1. [25]
    As the above extract indicates, in the usual terminology adopted in respect of appeals, the description of an appeal as ‘by way of rehearing’ is a description of the manner in which the appeal is to proceed both as to the evidence it is to consider and as to whether or not the court or tribunal considering the appeal accords a particular status to the correctness of the decision below. The description says nothing about the grounds upon which the appeal may be brought.
  1. [26]
    It follows that it is possible for both the relevant provisions in ss   561(2) and (3) of the WCR Act and those in ss   557(1) and 557(2) of the IR Act to operate consistently with each other, because the description of an appeal as ‘by way of rehearing’ is not inconsistent with the application of the IR Act to the appeal, and the specification of the available grounds of appeal as of right and by leave. The WCR Act provisions prescribe the nature of the appeal in terms of the material that is to be considered by the Industrial Court and the manner in which the Industrial Court is to approach the decision below. The IR Act provisions specify the grounds of appeal that are available to an appellant undertaking such an appeal — both as of right and with leave.” (emphasis added) (footnotes omitted)
  1. [47]
    His Honour drew a distinction between “the manner in which the appeal is to proceed” and the “grounds upon which the appeal may be brought”.  There will, in my view, often not be such a distinction, at least in practical terms.  The statutorily available “grounds” will limit the way the appeal is to proceed.  If the “grounds” are limited to errors of law or jurisdiction, then the primary judgment will prevail unless such an error is shown.  The “grounds” must therefore allege error of law or jurisdiction.  A ground which alleged an error of fact (other than an error of fact which showed error of law or jurisdiction) would be beyond jurisdiction to entertain.
  2. [48]
    However, a distinction between “grounds” and “the manner in which the appeal is to proceed” is evident internally within the 2016 IR Act.  Section 557(1) limits the grounds of appeal to errors of law or jurisdiction, but s 567 provides that the appeal is one “by way of rehearing”.  The term “by way of rehearing” cannot, in s 567, have its usual meaning as explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.[56]
  3. [49]
    As to the appellate court’s function on an appeal by way of rehearing, the High Court, in Fox v Percy,[57]observed:

“Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:

‘[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.’

As this Court there said, that approach was ‘not only sound in law, but beneficial in ... operation’”[58] (footnotes omitted)

  1. [50]
    In Lee v Lee,[59] Bell, Gageler, Nettle and Edelman JJ described the principles in this way:

“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’. Here, the trial judge’s findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. Notably, the trial judge’s finding that the driver was not wearing the seatbelt not only was contrary to each party’s case but, if correct, on the Court of Appeal’s analysis, would lead to the conclusion that there was no real prospect that the appellant was the driver. And the trial judge’s acceptance of the RACQ’s case, that the appellant had been pulled from the driver’s seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal’s analysis, unlikely.”[60] (footnotes omitted)

  1. [51]
    That description is of a function well beyond that of considering any error of law or jurisdiction.
  2. [52]
    Construing the 2016 IR Act as a whole, and giving meaning to all provisions,[61] s 567 provides that when the Court is hearing grounds of appeal limited to errors of law or jurisdiction,[62] the Court receives the record below and any further evidence by leave.  Receipt of the evidence is for the purpose of discerning error of law or jurisdiction, not for determining whether factual findings were soundly made, and not for determining whether inferences which were drawn were open.
  3. [53]
    That does not resolve the apparent conflict between s 557(1) of the 2016 IR Act and s 561(3) of the WCR Act.
  1. [54]
    The predecessor to the 2016 IR Act was the Industrial Relations Act 1999 (the 1999 IR Act).  Section 341 of the 1999 IR Act was the equivalent of s 557 of the 2016 IR Act.  Section 341 of the 1999 IR Act provided:

“341 Appeal from commission, magistrate or registrar

  1. (1)
    The Minister, or a person dissatisfied with a decision of the commission (other than a determination under chapter 6, division 1, subdivision 3 or a decision under section 273A) or registrar, may appeal against the decision to the court only on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. (2)
    A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.
  1. (3)
    The court may—
  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
    allow the appeal and amend the decision; or
  1. (d)
    allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.
  1. (4)
    Also, if—
  1. (a)
    under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and
  1. (b)
    the appellant was released from custody under the Industrial Relations (Tribunals) Rules 2011, rule 145; and
  1. (c)
    after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment;

the court may direct an industrial magistrate to issue a warrant for the appellant’s arrest.

  1. (5)
    The industrial magistrate must comply with the direction.
  1. (6)
    When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced.”
  1. [55]
    Section 341 limited appeals from the QIRC to this Court to errors of law or jurisdictional error without vesting jurisdiction to hear broader grounds by leave.
  1. [56]
    Section 561 of the WCR Act when originally enacted was :

“561 Appeal from industrial magistrate to Industrial Court

  1. (1)
    A party aggrieved by the industrial magistrate’s decision may appeal to the Industrial Court.
  1. (2)
    The appeal must be lodged as required under the Industrial Relations (Tribunals) Rules 2000.
  1. (3)
    The appeal is by way of rehearing on the evidence and proceedings before the magistrate, unless the court orders additional evidence be heard.
  1. (4)
    The court’s decision is final.”
  1. [57]
    Before the Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2004 (the 2004 Amendment Act), appeals went from the Regulator to the Industrial Magistrates Court.  That was changed by the 2004 Amendment Act providing for both appeals to the Industrial Magistrates Court and the QIRC.  Consequential amendments were then made to s 561 which provided for appeals from those decisions to this Court.  No longer was there reference to “an industrial magistrate’s decision”, but rather to the decision of the “appeal body”.  That included both the Industrial Magistrates Court and the QIRC. 
  2. [58]
    The WCR Act was amended again by the Workplace Health and Safety and Other Acts Amendment Act 2006.  For reasons that are unimportant, the term “appeal body” was abandoned and replaced in s 561 by the term “industrial magistrate or the industrial commission”.[63]  In 2011, the WCR Act was amended by the Electrical Safety and Other Legislation Amendment Act 2011 (the Electrical Safety Act). 
  3. [59]
    The Electrical Safety and Other Legislation Amendment Bill 2011 (the Electrical Safety Bill) was introduced in the House on 8 March 2011.  It contained clause 66 in these terms:

“Clause 66Amendment of s 561 (Appeal to industrial court)

Section 561(2) and (3)—

omit, insert—

  1. ‘(2)
    If the party is aggrieved by the industrial commission’s decision, the person may appeal only on the ground of—
  1. (a)
    error of law; or
  1. (b)
    excess, or want, of jurisdiction.
  1. ‘(3)
    The Industrial Relations Act 1999 applies to the appeal.’”
  1. [60]
    The purported amendment:
  1. would limit grounds of appeal against decisions made under the WCR Act from the QIRC to this Court to errors of law or jurisdiction.  That would be consistent with s 341(1) of the 1999 IR Act as it then stood;
  2. would not provide for other grounds by leave which would be consistent with s 341 of the 1999 IR Act but contrary to s 557(2) of the 2016 IR Act as later enacted; and
  3. would apply the 1999 IR Act to appeals under the WCR Act.
  1. [61]
    The Explanatory Note to the Electrical Safety Bill as introduced explained the Queensland Parliament’s reaction to the Work Choices case and the Fair Work Act 2009 and then said:

“A decision of the Industrial Court of Queensland (ICQ) (Uwe Arthur Willi Hetmanska v Q-COMP (C/2006/70) created uncertainty about the interaction of the appeals provisions in the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act) and the Industrial Relations Act 1999 (IR Act) with respect to Q-COMP appeals. It is necessary to clarify the appeals provisions to remove this uncertainty.”

  1. [62]
    Hetmanska v Q-COMP[64] is a 2006 decision of Hall P sitting in this Court.  It was decided under the WCR Act and the 1999 IR Act.
  2. [63]
    As already observed, s 341 of the 1999 IR Act is an equivalent to s 557 of the 2016 IR Act.  Section 341 sat in Chapter 9, which is an equivalent to Chapter 11 of the 2016 IR Act.  Like Chapter 11 of the 2016 IR Act, Chapter 9 was broken into divisions.  Section 341 is the only section in Division 2.  Division 1 concerned appeals to the Court of Appeal.  Division 3 concerned appeals to the Full Bench and Division 4 concerned appeals to the QIRC.
  3. [64]
    Division 5 of Chapter 9 of the 1999 IR Act was the equivalent of Division 5 of Part 6 of Chapter 11 of the 2016 IR Act.  Division 5 of Chapter 9 contained ss 345, 346, 347, 348 and 349 as follows:

“Division 5 General

345Definition for div 5

In this division—

industrial tribunal means the Court of Appeal, court, full bench or commission.

346Time limited for appeal

  1. (1)
    An appeal against a decision must be commenced, as required under the rules, within the appeal period.
  1. (2)
    However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be commenced within a longer period.
  1. (3)
    In this section—

appeal period, for an appeal against a decision, means the period within 21 days after –

  1. (a)
    if the decision is given at a hearing – the announcement of the decision at the hearing; or
  1. (b)
    if the decision is given through the registrar – the release of the decision; or
  1. (c)
    if, under another Act, the decision is given in another way – the decision is given in the other way.

347 Stay of decision appealed against

On an appeal, the industrial tribunal may order that the decision being appealed be wholly or partly stayed pending—

  1. (a)
    the determination of the appeal; or
  1. (b)
    a further order of the industrial tribunal.

348 Nature of appeal

  1. (1)
    An appeal to an industrial tribunal is by way of re-hearing on the record.
  1. (2)
    However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal.

349 Finality of decisions

  1. (1)
    This section applies to the following decisions—
  1. (a)
    a decision of the Court of Appeal under section 340;
  1. (b)
    a decision of the court under section 341 ;
  1. (c)
    a decision of the full bench under section 342;
  1. (d)
    a decision of the commission under section 343 or 344;
  1. (e)
    another decision of the court, the full bench, the commission, an Industrial Magistrates Court or the registrar.
  1. (2)
    The decision—
  1. (a)
    is final and conclusive; and
  1. (b)
    can not be impeached for informality or want of form; and
  1. (c)
    can not be appealed against, reviewed, quashed or invalidated in any court.
  1. (3)
    The industrial tribunal’s jurisdiction is exclusive of any court’s jurisdiction and an injunction or prerogative order can not be issued, granted or made in relation to proceedings in the court within its jurisdiction.
  1. (4)
    This section does not apply to a decision mentioned in subsection (1) to the extent that this Act or another Act provides for a right of appeal from the decision.
  1. (5)
    In this section—

industrial tribunal includes an Industrial Magistrates Court and the registrar.”

  1. [65]
    Mr Hetmanska appealed the decision of Q-COMP to the QIRC.  For various reasons, the decision was not given at the hearing.  Section 332 of the 1999 IR Act allowed for a reserved decision of the QIRC to be given through the Industrial Registrar rather than being announced in open court.  Section 346 provided that time for any appeal would run from the day the decision was either given in open court or given through the Industrial Registrar.  In Mr Hetmanska’s case, the decision was released by the Registrar.
  2. [66]
    Section 559 of the WCR Act[65] provided:

“559 Decision of appeal body

The appeal body must give—

  1. (a)
    the appeal body’s decision in a hearing in open court; and
  1. (b)
    a written copy of the decision to each party.”
  1. [67]
    Mr Hetmanska submitted that as there had been no pronouncement of the judgment in open court, time had not begun to run.  That, he said, was the effect of s 559 of the WCR Act.  However, the registrar had purported to issue the judgment pursuant to s 346 of the 1999 IR Act.  QCOMP submitted that time had run.
  2. [68]
    In the end, Hall P did not decide the issue, but the case explains why legislative clarification was required.
  3. [69]
    The Electrical Safety Bill was amended after it was read in the House a second time.  Clause 66 was altered so as to bring s 561 of the WCR Act to its present form as appears at paragraph [31] of these reasons, apart from the present reference to the 2016 IR Act, not the 1999 IR Act.  The effect of the amendment to clause 66 was that the limitations of grounds to errors of law or jurisdiction was removed, but the adoption of the 1999 IR Act provisions remained.
  4. [70]
    The Explanatory Memorandum to the amendment to the Electrical Safety Bill stated:

“Clause 14 omits part of clause 66 of the Bill. Clause 66 would have amended section 561 of the Workers’ Compensation and Rehabilitation Act 2003 with respect to appeals to the industrial court. The amendment to clause 561 would have limited the grounds upon which an appeal to the Industrial Court of Queensland could be made, namely error of law, or excess, or want, of jurisdiction. To remove doubt, the provision of clause 66 that provides that the Industrial Relations Act 1999 applies to the appeal is not being amended. This will have the effect that the appeal period will be the period within 21 days after the decision being appealed is given.” (emphasis added)

  1. [71]
    The reference in the Explanatory Memorandum, specifically to the appeal period, is understandable given that the genesis of clause 66 was Hetmanska v Q-COMP and that decision concerned application of the appeal period.
  2. [72]
    Subject to provisions in statutory interpretation legislation,[66] the construction exercise involves the objective determination of the intention of the legislature expressed through the actual words used in the text of the relevant provision,[67] but having regard to context and purpose.[68]
  3. [73]
    The principles were recently authoritatively restated in R v A2[69] in the following terms:
  1. “32
    The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  1. 33
    Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  1. 34
    This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.
  1. 35
    The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a ‘substantial miscarriage of justice’ within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.
  1. 36
    These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.
  1. 37
    None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular case, ‘if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.” (footnotes omitted)
  1. [74]
    In Nutley,[70] the exercise undertaken was to construe the relevant provisions of the WCR Act consistently with the relevant provisions of the 2016 IR Act.  However, it is the WCR Act which creates the right of appeal, not s 557 of the 2016 IR Act.[71]  By providing for a separate avenue of appeal, the legislature differentiated between appeals under the WCR Act from other appeals brought under the 2016 IR Act.  Logically then, there will be differences.  If differences were not intended, then there was no point in having any appeal provision in the WCR Act.  It would be sufficient to allow the 2016 IR Act provisions to operate and provide an avenue of appeal.
  2. [75]
    As explained in Glass,[72] the structure is that the WCR Act creates the right of appeal from decisions of the QIRC made under the WCR Act and then picks up the 2016 IR Act which provides the procedural provisions.  Therefore, the construction task is not to attempt to construe all the provisions of the two Acts consistently with each other but to identify the provisions of the WCR Act which provide the right of appeal.  Those provisions may well be consistent with the 2016 IR Act provisions but, if not, will prevail to the extent of any inconsistency.  This is a product of the legislative scheme rather than of application of the doctrine of generalia specialibus non derogant which only applies where there are inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation.[73]
  3. [76]
    Section 557 of the 2016 IR Act gives a right of appeal generally from decisions of the QIRC.  It does not provide an appeal against decisions made by the QIRC under the WCR Act.  Section 561 of the WCR Act does that.  None of the provisions of Division 2 of Part 6 of Chapter 11[74] applies to appeals under the WCR Act.  In particular:
  1. Section 556 of the 2016 IR Act:  Section 561(1) of the WCR Act provides an avenue of appeal from the Industrial Magistrates Court or the QIRC to this Court in relation to decisions made under the WCR Act.  Section 556 of the 2016 IR Act must only concern other appeals.
  2. Section 557 of the 2016 IR Act:  As already observed, s 561(1) of the WCR Act provides the avenue of appeal from the QIRC, not s 557 of the 2016 IR Act which provides for other appeals from the QIRC.
  3. Section 558 of the 2016 IR Act:  Section 562 of the WCR Act provides the powers of this Court upon an appeal from the QIRC on matters under the WCR Act.  Section 558 of the 2016 IR Act vests powers on this Court in relation to other appeals from the QIRC.
  4. Section 559 of the 2016 IR Act:  Section 559 of the 2016 IR Act has no application to appeals against decisions under the WCR Act because an appeal from the QIRC in a case under the WCR Act is an appeal under s 561 of the WCR Act, not s 557 of the IR Act.  Therefore, no “appeal” is made under s 557.[75]
  1. [77]
    Division 5 of Part 6 of Chapter 11[76] of the 2016 IR Act does apply, at least in part, to appeals under the WCR Act:
  1. Section 563 of the 2016 IR Act:  Section 563 of the 2016 IR Act is the definitions section.  This Court, being the court to which an appeal lies under s 561 of the WCR Act, is included in the definition of “industrial tribunal” in s 563 of the 2016 IR Act.
  2. Section 564 of the 2016 IR Act:  Section 564 of the 2016 IR Act limits the time for appeal.  Nothing in s 561 of the WCR Act speaks of a time limit for an appeal.  There is no reason why s 564 would not apply to appeals under the WCR Act.  This is confirmed by the extrinsic material to the Electrical Safety Amendment Act.[77]
  3. Section 565 of the 2016 IR Act:  Section 565 of the 2016 IR Act only applies to appeals under ss 554, 557 or 560 of the IR Act.  An appeal against the QIRC’s decision under the WCR Act is an appeal under s 561 of the WCR Act.[78]
  4. Section 566 of the 2016 IR Act:  Section 566 of the 2016 IR Act concerns stays of judgments pending appeal.  It is clearly intended that s 566 applies generally to appeals under the WCR Act.  Section 566(2) specifically accepts some appeals from its operation.
  5. Section 567 of the 2016 IR Act:  Section 567 of the 2016 IR Act provides the “nature of appeal”.  Section 561 of the WCR Act specifically provides for the nature of an appeal under the WCR Act and therefore, at least to the extent of any inconsistency, s 561 would prevail over s 567.  However, s 561 of the WCR Act and s 567 of the 2016 IR Act are equivalents.
  1. [78]
    Therefore, on a proper construction of s 561 of the WCR Act, Division 1 of Part 6 of Chapter 11 of the 2016 IR Act does not apply to appeals brought under s 561 of the WCR Act.  The purpose of s 557 of the 2016 IR Act is to grant a right of appeal.  With appeals under the WCR Act, the right of appeal is bestowed by s 561 of the WCR Act.  Section 561(2) of the WCR Act operates so as to apply the provisions of Division 5 of Chapter 11 of the 2016 IR Act to appeals launched under s 561(1) of the WCR Act.
  2. [79]
    For those reasons, I decline to follow Nutley v President, Industrial Court,[79] Burton v Workers’ Compensation Regulator,[80] Khan v Workers’ Compensation Regulator.[81]  Section 557 of the 2016 IR Act does not define the grounds of appeal available to an appellant from a decision of the QIRC under the WCR Act.
  3. [80]
    Once it is understood that it is s 561 of the WCR Act which grants the right of appeal, the next challenge is to determine the scope of that appeal.  The fact that the section provides for “an appeal by way of rehearing”, may not be decisive.  In Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd,[82] the statute provided that the appeal there was to be “dealt with by way of rehearing” but was found to create a right to a hearing de novo.  In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[83] it was said[84] that “There is … no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.[85]
  4. [81]
    In determining the nature of an appeal, various indicators to a proper construction have been identified.  These include whether the body appealed from is exercising a judicial or executive function, the nature of the powers available in exercise of the appellate power,[86] and whether reasons must be given by the original decision maker.[87]
  5. [82]
    The appeal from the Regulator to the QIRC is obviously a hearing de novo.  In this respect, see s 554 of the WCR Act which provides for the exchange of evidence before the hearing, s 556 which provides for additional medical evidence and s 553 which applies the disclosure rules under the Uniform Civil Procedure Rules 1999 to appeals under s 548.  What is contemplated is a full hearing on the merits before the QIRC. 
  6. [83]
    The fact that there is a full hearing on the merits before the QIRC, militates against the conclusion that the appeal to the Industrial Court is a hearing de novo.
  7. [84]
    There are no indications that the term “appeal by way of rehearing” in s 561 has anything but its usual meaning.  An appeal by way of rehearing is a fundamentally different appeal to one limited to an “error of law” or “excess or want of jurisdiction”.  The principles governing an appeal by way of rehearing are as explained at paragraphs [49] and [50] of these reasons.

The evidence before the Queensland Industrial Relations Commission

  1. [85]
    As earlier observed,[88] the relevant jurisdictional fact which Ms Turay had to establish before a discretion arose in WorkCover to waive time for lodging the claim, was “reasonable cause” for failing to lodge the claim within time.  The QIRC found against Ms Turay on that issue. 
  2. [86]
    Determination of the existence of the jurisdictional fact requires the application of a general standard to relevant circumstances.  It calls for judgment by the QIRC of what is “reasonable”.  The judgment then is one made in exercise of discretion.[89]  The principles in House v The King[90] are engaged.
  3. [87]
    The grounds of appeal and the arguments raised by Ms Turay all, one way or another, challenge the findings made that her mental health was not such as to hinder her from filing her claim within time.  That was a factual finding made upon a consideration of Ms Turay’s evidence and the expert evidence of the three doctors, Dr Pidgeon, Dr Skinner and Dr Borges.  That finding was the factual foundation for the exercise of discretion.  If it should not have been made, the exercise of discretion has miscarried.[91]
  4. [88]
    As part of an appeal by way of rehearing, this Court must assess that evidence for itself but having regard to the advantage enjoyed by the QIRC in seeing and hearing the witnesses give evidence.[92]
  5. [89]
    Ms Turay was not legally represented in the QIRC.  However, she gave her evidence without prompting from the Bench.[93]
  6. [90]
    Ms Turay explained various traumas experienced by her, including what she described as workplace bullying.  Her case is fairly summarised in this passage from her evidence:

“Please, your Honour, waive the time for me on the grounds of sanity. I have suffered so much beyond human comprehension. I have been a victim of workplace bullying and harassment, victimisation, wage rip off, hate, alienation, marginalisation, discrimination and injustice. As such I’m carrying the pain and trauma which are cause for concern. I hereby plead with you your conscience and compassion these grounds. I have gone through an all remarkable trauma, mental incapacitation and lack of representation. I’m kindly asking you to waive the time because the psychiatrist, the GP from World Wellness Group and psychologists are satisfied that I have been unwell mentally, and it has been confirmed in their summaries of statement. It was not deliberate or ignorance of the law. The caskets of event have brought about distractions.”[94]

  1. [91]
    In order to enliven the relevant jurisdictional fact, Ms Turay explained how she was debilitated over the relevant period.  That period was the day she was diagnosed by Dr Skinner, namely 14 November 2018, to the day she lodged the application for compensation, 16 September 2020.  Ms Turay’s evidence was very general and did not focus particularly on issues pertinent to the relevant period.  That focus arrived in her cross-examination. 
  2. [92]
    Counsel for the respondent sought to establish that during the relevant period Ms Turay had undertaken and completed various tasks that were equally or more demanding than completing the compensation claim.  From those lines of cross-examination, counsel sought to have the QIRC draw the inference that Ms Turay had capacity to complete the claim.

The Fair Work claim

  1. [93]
    Ms Turay worked as a nurse for Blue Care until she was stood down on 16 January 2018.[95]  On 25 January 2018, Ms Turay commenced a general protections claim with the Fair Work Commission.[96]
  2. [94]
    Ms Turay said that she did not have assistance from a lawyer in making the claim but did have lay assistance.  It was obvious that she prepared the document herself.  She said:  “I always go to women’s house and sit there and write and ask them to read and see if it is in accordance”.[97]
  3. [95]
    Ms Turay participated in a telephone conference at the Fair Work Commission on 27 February 2018.[98] She tried to organise legal representation but failed.[99] In March 2018, the Fair Work Commission claim settled.[100]

The professional complaints against Ms Turay

  1. [96]
    In February 2018, the Health Ombudsman advised Ms Turay that he had accepted a complaint about her professional behaviour.[101] Ms Turay made written submissions about why she should not be disciplined[102]and she dealt with that complaint through to about March 2019.[103]
  2. [97]
    In relation to that complaint, Ms Turay had legal advice funded by the Queensland Nurses and Midwives Union.[104] Ms Turay gave instructions to those solicitors[105] and ultimately she completed an application and lodged it with QCAT challenging the decision made against her.[106] That occurred on 29 March 2019.[107] Ms Turay prepared a submission with some assistance which she lodged on 26 April 2019 with QCAT.[108]
  3. [98]
    Ms Turay participated in a directions hearing in QCAT on 27 June 2019 accompanied, not by a lawyer, but by a friend.  She said she participated in the hearing herself[109] but then said she did not make any submissions.[110]  A final oral hearing occurred in QCAT where she represented herself, gave evidence and made submissions.[111]

Further training

  1. [99]
    In April 2019, Ms Turay was admitted to a program for a Graduate Certificate of Acute Care Nursing at Griffith University.[112]
  2. [100]
    Ms Turay did not complete the program because of ill health.[113]  However, she accepted that in order to gain admission to the course, she submitted an online application form.[114]
  3. [101]
    On 30 April and 1 May 2019, Ms Turay had discussions by email with a Dr Macintosh about further training which might be undertaken by her to allow her to return to nursing work.[115]  The matter was  not taken further because Ms Turay was not well enough.[116]  Approaches were also made by Ms Turay to the Mater Hospital in May and August 2019 where Ms Turay was attempting to upskill and obtain employment.[117]

Medical evidence

  1. [102]
    As earlier observed, the medical evidence came from Drs Pidgeon, Skinner and Borges.

Dr   Pidgeon

  1. [103]
    On 22 May 2019, Ms Turay contacted the World Wellness Group seeking a medical certificate for use in an application to Centrelink for benefits.  It seems that Ms Turay did not see Dr Pidgeon on that day, but the consultation was via telephone.  The notes[118] show:

“Non visit

Recorded by: Dr Crystal Pidgeon Visit date: 22/05/2019

Recorded on: 22/05/2019

registered nurse

was working in bluecare aged care

victim of workplace bullying

is exploring all avenues to ensure safe care of residents

this is causing personal stress and turmoil

tired and stressed

med cert form filled in for centrelink

Visit notes amended by Dr Crystal Pidgeon on 24/02/2021 at 05:41:58 PM

Visit Type changed from ‘Surgery’ to ‘Non visit’”

  1. [104]
    Dr Pidgeon gave evidence and confirmed that she completed the medical assessment form.  She accepted that the form contained a heading “Diagnosis.  Please list the main medical conditions which significantly impact on the patient’s capacity to work” and that she wrote the words “extreme stress due to workplace bullying”.[119]
  2. [105]
    Dr Pidgeon went on to explain that all information about Ms Turay’s capacity to work came from Ms Turay.[120]Dr Pidgeon then gave this evidence:

“All right. So what was the basis of your opinion that - at the time that you signed this certificate on the 22nd of May 2019, ‘Ms Turay had a medical condition which impacted on her capacity to work’?---It would have been what Susan was telling me.

All right?---And, to be honest, every consultation with Susan she presents very teary and distressed.

I see. So the first time that you had contact with her on the 22nd of May, you formed the view that she had a condition which impacted on her ability to work?---Yes, that’s what she was telling me.

Yes. While you didn’t conduct a mental state examination, are you able to express an opinion, having regard to your notes, as to whether or not, at that time, Ms Turay had capacity to commence an application for workers compensation? In terms of whether she had the ability, due to her mental state to do the things necessary to commence that process?---Let’s see. I mean, it’s my understanding to make a WorkCover application you just need to call them. And I guess she was able to make a phone call to make a doctor’s appointment to see a new doctor. So I guess - no, I can’t say that she didn’t have capacity - - -

I see?- - - - - - to make a WorkCover claim.

Now, we know from the evidence given by Ms Turay yesterday that the way that she eventually commenced her application for workers compensation was by completing an online form. And she told the Commission yesterday that she did that with some lay assistance. So not the assistance of a lawyer. And that process took her about an hour. Notwithstanding the fact that you observed her to be emotional and teary in your consultation on the 22nd of May, do you think that she was able to undertake that process of completing an online form?---Yes, I believe so.

Now, you saw her on a number of occasions after the 22nd of May, and those consultations are listed in chronological order in the patient health summary?---Mmm.”[121]

  1. [106]
    Dr Pidgeon was referred to various letters that she wrote supporting Ms Turay.  However, Dr Pidgeon accepted that she never conducted a formal mental state examination[122] and the letters were written based on what Ms Turay told her.[123]
  2. [107]
    Dr Pidgeon was asked:

“Now, if you accept for a moment for these - the purposes of this question, that she did conduct litigation on her own behalf in the Fair Work Commission, would that assist you in forming a view, albeit retrospectively I appreciate, as to whether or not Ms Turay would have had the ability to commence an application for workers compensation during that period? Yes. Look, in my experiences - I should probably just quote on the duty in the prisons usually - but when someone self-represents you need a high degree of organisation to do that. And I suspect it would be enough organisation to submit a WorkCover claim.

And while it might be stressful and cause a person to feel distress and even fatigue, that doesn’t affect capacity, does it?---No. I don’t believe so. They have capacity to represent themselves.”[124]

And later:

“And further to my earlier question about the Fair Work Commission proceedings, do you expect that a person who was able to conduct litigation in QCAT on their own behalf would have been able to take the necessary steps to apply for workers compensation?---Yes.”[125]

  1. [108]
    Specific attention was given to a letter dated 19 November 2020.[126]  In that letter, Dr Pidgeon said that Ms Turay had been unable to work in her profession as a nurse for the past three years.  However, in evidence-in-chief:

“Okay. Thank you. On the 19th, on page 33, on the 19th of the 11th 2020. Second paragraph:

Susan’s experience has caused her a tremendous amount of stress and she has been unable to work in her profession for the past three years. Susan is easily teary and has lost her sense of self.

And then the last sentence which says:

Susan feels that her ongoing suffering after the treatment she has received is more torture.

Do you want to explain on that?---Again, I was just typing what you told me, Susan. I can’t - there’s not much more to say.”[127]

And in cross-examination:

“Could I ask you now to turn to page 32, please. This is exhibit 17, Commissioner. In paragraph 2 of that letter, the third complete sentence:

Her experience has caused her a tremendous amount of stress and she has been unable to work in her profession for the past three years.

Now, you were asked about that sentence by Ms Turay earlier. And I think you said something to the effect of you just wrote what she had asked you to write?---Yes.

Should we take that sentence as an expression of your opinion that a medical condition was causing her to be unfit for work, or is it something other than that?---No, I think it is a sentence based on what Susan told me, not necessarily that I thought she couldn’t work.”[128]

  1. [109]
    On 16 June 2021, Dr Pidgeon drew a letter[129] at Ms Turay’s request.  The letter was in terms: “Susan[130] firmly believes that she was not capable of submitting an application sooner, due to her mental distress.”  The letter was not issued in those terms but was amended and issued on 23 June 2021[131] so as to read:  “Susan was not capable of submitting an application sooner, due to her mental distress”.
  2. [110]
    When Dr Pidgeon was cross-examined about the amendment to the letter, this exchange occurred:

“Is it fair to say, Doctor, that that change was made by you at Ms Turay’s request, to assist her, but not as a result of a change in your clinical opinion?---Yeah, absolutely.

And can we take it therefore that in between June - I’m sorry, in between the 16th of June and the 23rd of June, you weren’t aware of any change in Ms Turay’s mental state or capacity to commence proceedings for workers compensation?---No. She has always presented the same way.”[132]

Dr Skinner

  1. [111]
    Ms Turay called Dr Borges in her case, but in order to accommodate Dr Skinner’s convenience, she was called before Dr Borges.  Dr Skinner only consulted once with Ms Turay and that was on 14 November 2018.[133]  Dr Skinner diagnosed Ms Turay with an adjustment disorder[134] and prepared a mental health plan which involved a referral to a psychologist, Dr Annett.[135]
  2. [112]
    In order to complete a mental health plan, it is necessary for a doctor to undertake a mental state examination, which Dr Skinner did.[136]  In the course of the mental health examination, Dr Skinner:
  1. noticed no cognition issues;[137]
  2. observed that Ms Turay gave a “detailed, excellent … very articulate history”.[138]
  1. [113]
    Dr Skinner was not told by Ms Turay about the Fair Work Commission proceedings,[139] but this exchange occurred:

“If you take it from me that the Commission has evidence before it that all of those things, or at least rather, the Fair Work Commission proceedings and the request to Ahpra to remove conditions occurred before she consulted with you on the 14th of November 2018. Are you able to assist the Commission with any opinion as to whether those things would reflect a capacity to do what is necessary to commence a workers compensation application?---I guess when I saw Ms Turay she was really very distressed, and I understood that that distress was related to having been fairly recently dismissed on what she believed were unfair grounds. So I very much focused on her - the distress that she presented with, and it was quite a long consultation, probably longer than had been booked. In order - so my focus was to assist her with working through this - what I called an adjustment disorder. So there was no discussion or mention of any sort of workers compensation claim at that point, no.”[140]

  1. [114]
    Ms Turay cross-examined Dr Skinner.  The point of her cross-examination was to attempt to establish that the adjustment disorder restricted her ability to complete the application.  This exchange occurred:

“Thank you for that. And one more question. From your explanation, Dr Skinner, do you recall with all explanation about adjustment disorder, and with the state you saw me, as you said, upset, and with your explanation, do you think I was able to put an application earlier?---It’s a bit - I don’t think it actually came up at all in the consultation. I find when people - when people are very distressed, I generally ask them to delay making major decisions. So I tell them not to sell their house or to fill in major paperwork. It’s very important to deal with that distress, rather than to make major decisions. So if I’d been asked I would have suggested maybe having a session - a counselling session first - and doing that sort of thing when you were less distressed. That would be my usual advice to a patient who was presenting in the way that you presented.”[141]

Dr   Borges

  1. [115]
    Dr Borges is a registered psychologist in Australia holding a PhD from the University of Queensland in the area of domestic violence and trauma.[142]
  2. [116]
    Dr Borges wrote a number of letters in support of Ms Turay.  The terms of those letters were brought out in Dr Borges’ examination-in-chief.  They were the subject of cross-examination.
  3. [117]
    Dr Borges diagnosed Ms Turay with post-traumatic stress disorder (PTSD)[143] and concluded that she was a survivor of violence and trauma.[144]  The PTSD was considered by Dr Borges to be serious.[145]  The various letters written by Dr Borges for Ms Turay were tendered to the QIRC[146] and Ms Turay highlighted various passages in a letter of 9 April 2018.  In that letter, Dr Borges referred to some of Ms Turay’s experiences working with Blue Care and then observed:

“I strongly believe that Susan felt pressured and bullied to agree to terms that did not favor her. I also believe that Susan is a survivor of violence and trauma and she has refocused her life to her career. Therefore, any attack on her career is highly traumatic for her. It is my professional recommendation that Susan should be allowed a cool off period during these negotiations to be able to assess her options and give informed consent as she will be highly emotional in any situation that challenge her integrity at work.”[147] (emphasis added)

  1. [118]
    Dr Borges was cross-examined about that letter.  In the letter, it is said that she had known Ms Turay for over five years.  In cross-examination, Dr Borges explained that there was not a clinical relationship over the entirety of that period.  Dr Borges had contact with Ms Turay through the Women’s Community Aid Association.  Ms Turay became a patient of Dr Borges in 2019, but in 2018 she was only consulting Dr Borges “for debriefing”.[148]  No clinical notes were made by Dr Borges in relation to Ms Turay until 27 June 2019.[149]
  2. [119]
    Dr Borges could not recall the purpose for which the letter of 9 April 2018 was made.[150]  No mental health state examination of Ms Turay was performed by Dr Borges before the letter of 9 April 2018 was written.[151]
  3. [120]
    In the letter of 9 April 2018, there is reference to an “attack” on Ms Turay’s career.  Dr Borges was cross-examined about this:

“You describe - in the third sentence in that paragraph you make reference to an attack on her career being highly traumatic. What was the basis of your assessment that there had been an attack on her career at that time?---I don’t know if I knew there was any attack on her career. I’m just saying attack on her career would be highly traumatic, but at that moment Susan has described being distressed. She’s described being bullied and she is very attached to her professional identity and she’s very attached to her work.

That’s - - -?---So - - -

I’m sorry?---Yes.

I didn’t mean to cut you off?---Yes, please.

The reference to an attack on her career is fairly emotive language to be used by a professional in circumstances where you had no reason to believe that her career had been attacked, isn’t it?---I - I don’t understand the question. If this is strong language, I don’t know. It’s language. It delivers a message. It certainly matched the presentation of the person I was talking to and the little I know of her history.

Would you agree that this letter is a written form of you acting as an advocate for Ms Turay rather than as a clinician providing clinical services?---I disagree. I believe that advocate for your client is part of mental health professional practice. Actually that’s what we learn. That’s what is in your course. So advocate for your client’s rights is part of it [indistinct] part of it is to say something that is not true. So I’m just sharing what I know to be true about the case.”[152]

  1. [121]
    Dr Borges wrote a further letter dated 19 June 2019.  By this point, Ms Turay was Dr Borges’ patient.  The letter was written to assist Ms Turay in the investigation being conducted by the Health Practitioner Regulatory Agency.[153]  The letter contains this:

“I strongly believe that Susan is determined to be a worker of high professional standard. As I previously mentioned, ‘Susan felt pressured and bullied to agree to terms that did not favor her. I also believe that Susan is a survivor of violence and trauma and she has refocused her life to her career. Therefore, any attack on her career is highly traumatic for her. It is my professional recommendation that Susan should be allowed a cool off period during these negotiations to be able to assess her options and give informed consent as she will be highly emotional in any situation that challenge her integrity at work’. I believe Susan requires work recognition and has looked for social, educational and psychological support to overcome personal challenges and hold to her high work standards.”[154]

  1. [122]
    It also contains this:

“Susan has been a registered nurse for approximately 10 years. Susan took her termination to the Fair Work Commission and a confidential settlement was reached by both parties. Our client remains suspicious of the timing of this outcome with the subsequent complaint to AHPRA.”[155] (emphasis added)

  1. [123]
    In relation to the second passage quoted above, there was this cross-examination:

“Those are the words of Ms Turay’s solicitor, aren’t they?---Yeah, they are most likely words that I wrote down before I finalised the draft.

I see. So this is a document that has been contributed to by Ms Turay’s solicitor, is it?---No. No. No. No. So when - there was a request for the letter. There was information that I probably added to my letter and - and that’s it.

Do you deny that Ms Turay’s solicitor contributed to the drafting of this letter?---To the drafting, yes, I deny.

Is it your usual practice, Doctor, when referring to your assessment of your patient to refer to that patient as ‘our client’?---No. No. As I said, I most likely copied that sentence so I could go through that piece of information again when I finalised the draft.

Is the information that’s in this document, Dr Borges, information that you got from Ms Turay or from her solicitor or both?---It certainly is information that I got from Ms Turay. What most likely happened - let me see - now I need to go back to the notes. Okay. That’s clear now because my first handwritten notes are from a week after that. Right. Yes, that’s it. So that - that’s clear now. What happened is that I certainly put a draft together. I received some information from her lawyer and I had to check with her and as - you know, as things are becoming more way beyond a debriefing, I invited her in to discuss information with her.

Now, there’s no reference in this letter to you having conducted a mental state examination of Ms Turay, is there?---No. I think I just explained the letter was written before she became my client - before she became formally my client.”[156] (emphasis added)

  1. [124]
    Another letter was produced on 21 June 2019.  That was written to assist Ms Turay in the QCAT proceedings relating to her registration.  In relation to that letter, this exchange occurred:

“Take your time to have a look at that document, Dr Borges, but it appears when you have regard to what’s written in the last paragraph on page 55 particularly the sentence, ‘She requests now that QCAT take into consideration her situation,’ that this is a letter you wrote for Ms Turay’s assistance in the QCAT proceedings relating to her registration?---Okay.

Do you agree with that?---Could you repeat. I’m unsure really the question.

Did you write this letter - - -?---Yes.

- - - for the purpose of assisting Ms Turay in her QCAT proceedings relating to her nursing registration?---Yes.”[157]

  1. [125]
    The letter makes various observations about Ms Turay.  Some are expressed to be repeating Ms Turay’s statements, but some are clearly argumentative:

“I believe Ms. Turay strives for clinical excellence and works on her ongoing improvement in her area. I also believe Ms.   Turay has not been properly heard about any of these issues nor the outcomes were properly explained to her. She requests now that QCAT take into consideration her situation, seeking the removal of conditions in her AHPRA registration and to be properly financially compensated for her work.”[158] (emphasis added)

  1. [126]
    Even though Dr Borges made various notes recording the various disputes in which Ms Turay was involved, there is no note of a mental health examination being conducted, at least up to 27 June 2019.[159]
  2. [127]
    This exchange occurred in cross-examination:

“There is no record in either of those pages of notes made by you on the 27th of June 2019 to you conducting a mental state examination, is there?---There is no note here, yes.

And can we take it, therefore, that you did not conduct one?---No. The - the - the thing is we conduct a mental health - mental state examination every time the client comes to the room even to assess suicidality, to assess their ability to engage with therapy. She - she was probably functioning reasonably that day.

A mental state examination is a formal process, is it not, Doctor, where you ask a series of questions designed to assess, for example, the patient’s ability to orient themself in place and time, their ability to engage in complex cognition or even simple cognition, pressure of thought?---The mental state examination can go - it’s usually - it’s the observations of the patient, so observe the - you - you observe the patient, how they’re presenting, how they’re engaging, and what you cannot assess from observation, if there is a need, you engage in a more formal process that will usually lead to a clinical interview if you need something more formalised.

And you would agree with me that the process of a mental state examination and your findings of that examination must be recorded as a matter of good clinical practice?---No. No. You - you would - you would record things that are relevant, right. So you are assessing the client is - you know, the client is engaging. They have good eye contact. The client is present. The client is grounded. You are not going to write those things. You are writing things that are of substance, indeed. So if you had - if you had made any observation of difficulties with cognition, that’s something you would record?---Yes. Yes. If I had observed difficulty with cognition that day, I would have recorded.

If you had observed any difficulty in the patient orienting themselves in place and time, that’s something that you would record?---I would record, yes, yes.

If you observed any substantial or noticeable defects in memory, that’s something that you would record?---Yes, if it’s observed inside a session, I would record.

And these are all the things that would assist you to assess whether or not a person had capacity, for example, to sign legal documents?---Yes, yes, absolutely.

And there is no reference in your notes on the 27th of June 2019 to your observation of any of those types of difficulties in Ms Turay at that time, is there?---On that day, no.

Is there any reference in those notes to your other observations of her mental state on that day?---I - I understand that reading those notes it’s - it’s quite confusing, but what I observed is - and I made note of is her ongoing reference to the same person, Chantelle, as her support person. So I could see how she was really over - you know, really reliant on that - on that worker. And why I didn’t observe anything beyond that about her emotional needs or emotional dissociation, she did miss a few appointments afterwards.

So to answer my question, Doctor, there is no reference in those notes, is there, to any other observation you made of her mental state on that day?---Of her mental state on the day, no.”[160]

  1. [128]
    Dr Borges accepted that she wrote a letter on 10 December 2019 for Ms Turay supporting her QCAT application.[161]
  2. [129]
    Dr Borges wrote a letter of 10 March 2020 for Ms Turay which she accepted was to be used in the QCAT proceedings where her registration as a nurse would be considered.[162]  Dr Borges accepted that she was “in no position to judge someone’s capacity to operate as a nurse”[163] but accepted that it was “most likely”[164]that a nurse’s mental state affecting cognition would be “directly relevant to her ability to work as a registered nurse”.[165]  She did not mention Ms Turay’s mental state in the letter. 
  3. [130]
    This exchange then occurred:

“I’m sorry, Dr Borges, I don’t understand that evidence. My question to you was, you wouldn’t - surely, you would not support an application to have conditions on a nurse’s registration lifted if you thought that nurse who was your patient had mental health difficulties affecting her cognition, memory?---I would not be a character reference for someone presenting those - presenting those conditions, yes.

And is - - -?---How - how they manage her registration is - you know, I’m just sharing how the registration situation is impacting on her. How the registration is managed and even what were the findings they had to remove the registration, it’s a matter that Ahpra is better positioned to evaluate.

Well, Dr Borges, these letters are not independent expert opinions, are they?---No.

They are letters written by you to assist Ms Turay and for the purpose of supporting her in her application to have those conditions removed?---Yeah, her application to have that - - -

Yes? - - - - - - reviewed, yes.

And what I suggest to you, Dr Borges, is that you would not have written those letters if at the time you had any concerns about Ms Turay’s mental health such that she had difficulties with cognition or memory? No, and I’m disagreeing with you. A lot of people with impaired cognition are able to work limited amount of time, are able to work a few hours a week, are able to work on those - on those limitations. So what her PTSD - a lot of people with PTSD diagnosis are - are able to become functional. How functional she would be able to become is a secondary question. So would I be a character reference, no, but would I say to someone this process is affecting my client? Yes. It is the truth.

And when did you form the view that Ms Turay suffered from PTSD?---So from - from early on there were trauma symptoms present, but it was just when we went to a formal evaluation that it was - that we could actually fully call it PTSD, but there were - for a while she had this as a working diagnosis.

And as at the date that you wrote this letter on the 10th of March 2020 you hadn’t conducted a formal evaluation, had you? No, we had not in March 2020 - just one second, in March 2020, no. So there were a lot of symptoms that had been observed, but - and we were working with reducing symptoms and improving emotional regulation, but we hadn’t fully - we have the doctor referral then to - to match. I think we were working with - it’s still with the depression diagnosis. Just one second. I will be able to check that. But, yeah, all the diagnoses at that moment were provisional.”[166]

  1. [131]
    Dr Borges wrote letters in relation to Ms Turay’s claims for JobSeeker payments.  In the course of those letters, she said:  “Considering her current circumstances, I believe it will be very important for her to receive financial help at this moment, and I am convinced she is eligible as well” (emphasis added).[167]
  2. [132]
    This exchange then occurred:

“What was the - - -? Yes.

- - - basis of you saying that you were convinced that she was eligible, given you’ve just told us you didn’t know what the eligibility requirements were? Well, I wrote this based on the fact that she was in financial need, and she was legally a jobseeker. She had just applied for Disability Support Pension recently, so she was legally a jobseeker.

So why did you answer my question when I asked you if you knew what the eligibility requirements were, and you said no, you didn’t?---I didn’t know the specific eligibility. I only know that she’s legally a jobseeker. That’s all I know. I don’t know the specifics of the specific benefit, so I don’t even know if - yeah.

And yet you wrote in this - - -?---It was very specific.

And yet you wrote in this letter, ‘I am convinced she is eligible for that payment?---Yeah. Because she is legally a jobseeker. That is for the social worker in Centrelink to decide if she is or not.

Would you agree with me, Dr Borges, that this letter is an example of you advocating on behalf of Ms Turay?---Yes. Yes. Absolutely.”[168]

  1. [133]
    On 31 August 2020, Dr Borges wrote a letter concerning an article which appeared in AHPRA[169] and the Midwifery Board Newsletter.  That article named Ms Turay.  Dr Borges’ letter explained that Ms Turay had experienced distress which impacted upon her mental health and against that and other factors relevant to her mental health, Dr Borges said:  “I write this letter to request kindly the removal of such article taking into consideration Susan’s struggles and mental health”.
  2. [134]
    This exchange occurred about the letter:

“Going to the next document, on page 60, is a letter dated the 31st of August 2020?---Yes.

You can see from the con - the text of that letter - - -?---Yes.

- - - that it appears to relate to an article that had been published in a newsletter which - - -?---Yes.

- - - named Ms Turay in the second paragraph?---Yes.

And you’re writing that letter to request the removal of the article?---Yes.

Again, this is an example of you advocating on behalf of Ms Turay, isn’t it?---Yes. It is. And the - and the article was removed, and they apologised.”[170]

  1. [135]
    Dr Borges accepted that she was advocating on behalf of Ms Turay.  To my mind, this letter seems reasonable.  While Dr Borges is clearly attempting to  influence relevant persons to remove the letter from the public domain, she carefully explains why that should occur by reference to Ms Turay’s mental health struggles.
  2. [136]
    A formal psychological evaluation was written by Dr Borges on 21 September 2020.  Dr Borges diagnosed “PTSD and major depressive disorder.  My assessment indicates severe symptoms of PTSD combined with severe anxiety and depression”.  Dr Borges, under cross-examination, said she thought those diagnoses were likely by 2 April 2020.[171]  However, she accepted that notes of the consultation on 2 April 2020 show no attempt to use any diagnostic tool and no note that a major depressive disorder was diagnosed, or that PTSD was suffered.[172]
  3. [137]
    Dr Borges completed a medical certificate for use by Centrelink in relation to Ms Turay’s claim for benefits.[173]She completed the form so as to show a diagnosis of “major depressive disorder” with a date of onset of 20 December 2017.  This exchange occurred:

“- - - know - just wait for the question, please. You didn’t - wait - you didn’t know Ms Turay on the 27 - on the 20th of December 2017, did you?---Yes. I’ve known Ms Turay for many years in context with the organisation, but I agree with you. I cannot recall how I reached this - this date. This date is incorrect. I - I - it is - I’m - I’m absolutely ashamed of putting that date on. It should be 2018. Actually, it shouldn’t be any date. It should be exactly as post-traumatic stress disorder, as I could not confirm the date.

I see?---You are correct.”[174]

  1. [138]
    On 13 April 2021, Dr Borges wrote a letter in support of Ms Turay’s request that the Regulator waive the time limit for the making of an application.  The letter is in these terms:

“To Whom It May Concern

My name is Ana Borges and I write here as Ms. Susan Turay’s psychologist. She has experienced extreme distress impacting her overall mental health for the last 3 years, as explained in an evaluation I wrote alongside her submission to Workcover. She is currently struggling with Post traumatic Stress Disorder and Major Depression that heavily impact her functioning at time. Her mood and motivation are low often and she experiences intrusive memories and dissociation symptoms that if not extremely distressing, are enough to disturb her perception of time and place.

I write this letter to request kindly for Ms. Turay to be granted the right to have her documentation reviewed despite presenting it pass the deadline in consideration to her mental health. I also understand that Ms Turay has no practical help of family (she is a migrant), support workers, the union or lawyers making it very difficult for her to gather all documentation on time, alone while struggling with her mental health.

Please contact me if you have any further questions.”[175] (emphasis added)

  1. [139]
    Dr Borges accepted that she was advocating on behalf of Ms Turay in that letter.[176]  It is clear to me that Dr Borges based her request on matters beyond just Ms Turay’s mental health.
  2. [140]
    In cross-examination, counsel drew Dr Borges’ attention to two documents; one dated 21 May 2021 and one dated 22 May 2021.  The first is a draft which ultimately morphed into the second.  The letter was written to assist Ms Turay in convincing WorkCover to waive the time limit.
  3. [141]
    Paragraphs 2, 3 and 4 of the letter state:
  1. “2.
    I write here to explain that Ms. Turay has struggled since her experience of discrimination and firing at work. I have been informed that Ms. Turay’s accomplishments in late 2018/2019 have been assessed as adversarial to the idea that her mental health was so compromised that rendered her functionality low during that period, preventing her from applying for Workcover.
  1. 3.
    In late 2018 her mental health was already impacted by PTSD symptoms and her depression was so prevalent she could not pursuit the overseas - New Zealand - placement she had already planned to undertake for her Masters. She was able to finish her Masters degree only because she had only one unit outstanding (after starting the course in 2014) and she had extensions granted for her final assignments.
  1. 4.
    During that time and throughout early 2019, Ms. Turay was heavily supported by Women’s House (the organisation that supported her to find my private practice) to start legal procedures, such as her QCAT appeal and the application to remove conditions on her registration that I also contributed to. Ms. Turay was unable to lead any of those processes and required high levels of practical assistance to accomplish those things.”
  1. [142]
    Under cross-examination about this letter, Dr Borges accepted that she knew that in 2018 Ms Turay represented herself in proceedings in the Fair Work Commission[177] and that she made detailed written submissions to the Fair Work Commission.[178]  She also accepted that Ms Turay represented herself in the QCAT and was not assisted or represented by a lawyer.[179]  She accepted that Ms Turay addressed QCAT herself and submitted detailed written submissions.[180]  None of this was mentioned in the letter.

Consideration

  1. [143]
    The Industrial Commissioner directed herself to uncontroversial background facts[181] and the relevant provisions of the WCR Act.  She correctly directed herself that she was required to conduct a hearing de novo of the decision of WorkCover[182] not to waive the time limit for lodging the claim.[183]  After referring to the parties’ respective submissions, the Industrial Commissioner identified the relevant jurisdictional fact necessary to find before the discretion to waive the time limit arose.[184]  The Industrial Commissioner then correctly identified the issue, being whether Ms Turay had reasonable cause to fail to lodge the application by 14 May 2019,[185] and that issue turned on a consideration of Ms Turay’s mental health.[186]
  2. [144]
    The Industrial Commissioner analysed the evidence of the three doctors[187] concluding:
  1. “[64]
    I am satisfied that the weight of the medical evidence supports a conclusion that the Appellant had capacity during the limitation period and her symptoms did not prevent her from lodging the application during the limitation period.”[188]
  1. [145]
    Then the Industrial Commissioner turned to what she described as “Other evidence”.[189]  This is the evidence of the steps that Ms Turay took in commencing and conducting proceedings in QCAT and the Fair Work Commission and in making submissions to AHPRA, and in applying to institutions for further training and in obtaining a medical certificate to submit to Centrelink in May 2019.  Of that, the Industrial Commissioner observed:
  1. “[76]
    I accept the Respondent’s submission that the act of obtaining a medical certificate from Dr Pidgeon to submit to Centrelink on 22 May 2019 is materially the same as the process required to apply for workers’ compensation. I also accept the Appellant’s submission that that this medical certificate was sought because her mental health had not stabilised. It is clear that the Appellant was suffering from symptoms of mental illness, however, the actions required to arrange an appointment with a doctor, obtain a medical certificate and provide the document to Centrelink demonstrate that the Appellant was able to undertake a similar process to lodge a workers’ compensation application.”
  1. [146]
    The Industrial Commissioner then dealt with what she described as “Additional matters” which were submissions and evidence by Ms Turay as to her mental condition, concluding:
  1. “[82]
    I accept that the Appellant has suffered from symptoms of mental illness and stress throughout the limitation period. This is not unusual for workers seeking compensation for psychological injuries. However, the medical and factual evidence do not support a conclusion that the Appellant did not have capacity to lodge an application for workers’ compensation during the limitation period. There was no reasonable cause pursuant to s 131(6) of the Act for the Appellant’s failure to lodge the application within time.”
  1. [147]
    The Industrial Commissioner handled the medical evidence and the “Other evidence” separately.  This may have been an error, but one in favour of Ms Turay. 
  2. [148]
    The Industrial Commissioner was faced with conflicting medical evidence.  Drs Skinner and Pidgeon opined that Ms Turay was  not suffering from any mental deficits which would impair her from making the application.  Dr Borges was of a different view. 
  3. [149]
    To resolve the conflict between the doctors, and in ultimately rejecting Dr Borges and accepting Drs Skinner and Pidgeon, the Industrial Commissioner considered only the evidence of the three of them.  However, the “other evidence” was capable of corroborating the evidence of Drs Skinner and Pidgeon.  The “other evidence” showed that Ms Turay completed tasks at least as difficult as that of completing an electronic application form to lodge the claim.  This not only bolstered the evidence of Drs Skinner and Pidgeon, but undermined the evidence of Dr Borges.
  4. [150]
    The Industrial Commissioner rejected Dr Borges’ evidence on the basis that she was an advocate for Ms Turay.  In other words, her evidence was not an objective assessment based on the material available to her but was an opinion biased in favour of Ms Turay.
  5. [151]
    That is a finding of credit and reliability and should only be subject to appellate interference where the findings are glaringly improbable or contrary to compelling inferences in the case.[190]
  6. [152]
    There were significant problems with Dr Borges’ evidence.  As found by the Industrial Commissioner, Dr Borges was advocating for Ms Turay.  She said as much expressly. 
  7. [153]
    While Dr Borges was producing letters in support of Ms Turay from 9 April 2018, no formal psychological evaluation was written by Dr Borges until 21 September 2020.  Notwithstanding that, the letters written in 2018 and 2019 were written by Dr Borges in her capacity as psychologist and thereby purport to express opinions based upon a professional assessment of mental health.
  8. [154]
    The letter of 19 June 2019 is clearly such a letter.  However, not only is the letter not supported by a formal mental health examination, it incorporates passages contributed by Ms Turay’s solicitors.  Dr Borges’ partisan approach to Ms Turay is shown in the letter of 10 March 2020.  Dr Borges knew that the letter was to be used in QCAT proceedings where Ms Turay was attempting to protect her registration as a nurse and must have known that any deficits in Ms Turay’s cognitive abilities impacted adversely upon her ability to perform as a nurse.  She did not make that point in the letter even though her opinion was that Ms Turay’s cognitive abilities were restricted such that she could not complete an online form so as to apply to WorkCover.
  9. [155]
    The letter of 13 April 2021, which was written in support of convincing WorkCover to waive the time limit, opines that Ms Turay was unable to prosecute her QCAT appeal and the application to remove conditions on her registration without high levels of practical assistance.  However, Dr Borges well knew that Ms Turay had represented herself in the proceedings in the Fair Work Commission and in QCAT where she had not only addressed the Tribunal, but also prepared extensive written submissions. 
  10. [156]
    There were, therefore, serious issues with Dr Borges’ evidence which would justify rejection of her opinions.  Dr Borges was also faced with the conflicting evidence of Dr Pidgeon and Dr Skinner.
  11. [157]
    Although Dr Pidgeon obviously had enormous sympathy for Ms Turay, most of the letters she wrote for her were expressed as a statement of Ms Turay’s views, not her own medical opinion.  The exception is the letter of 23 June 2021 which was originally drawn as a record of an opinion of Ms Turay of her own condition and then changed to be expressed as an opinion of hers (Dr Pidgeon’s).
  12. [158]
    Dr Pidgeon explained that the amendment was made at Ms Turay’s request.  This evidence was accepted by the Industrial Commissioner, logically so.  There is nothing to suggest any animus by Dr Pidgeon against Ms Turay or any other reason why she might not give truthful evidence.  Dr Pidgeon ultimately gave evidence that there was no reason she could see why Ms Turay could not complete the application form.
  13. [159]
    Dr Skinner only saw Ms Turay once but conducted a mental health examination.  Her evidence supported that of Dr Pidgeon.  Dr Skinner noticed no cognition issues and commented that Ms Turay gave a detailed history.  She opined that she saw nothing indicating an inability to complete the form.
  14. [160]
    The claim form which was ultimately completed by Ms Turay was in evidence before the QIRC.[191]  It is not a complicated document.  Most of the form requires formal details:  the claimant’s name, date of birth, gender, residential address, postal address, telephone and email contact details, bank details and employer’s name and address.
  15. [161]
    The substantive part of the form requires details of the injury.  The information required is fairly general: date and time of injury, nature of it, where it happened, the date the employer was advised about the injury and details of treating doctors.  The document requires much less intellectual exertion and skill than the preparation and presentation of proceedings in the Fair Work Commission or QCAT.
  16. [162]
    Having reviewed the evidence, I am satisfied that:
  1. the Industrial Commissioner’s rejection of the evidence of Dr Borges was correct;
  2. the Industrial Commissioner’s acceptance of the evidence of Drs Skinner and Pidgeon was correct;
  3. the inference that the Industrial Commissioner drew that there were no mental deficiencies of Ms Turay which impaired her from lodging the claim form within time was an inference which was both reasonably open and properly drawn;
  4. the Industrial Commissioner’s discretionary finding that Ms Turay had not shown “reasonable cause” why the claim form was not lodged within time was correct.
  1. [163]
    In those circumstances, the appeal must be dismissed.
  2. [164]
    Order:

Appeal dismissed.

Footnotes

[1]Turay v Workers’ Compensation Regulator [2023] QIRC 001.

[2]Workers’ Compensation and Rehabilitation Act 2003, ss 4 and 5.

[3]Workers’ Compensation and Rehabilitation Act 2003, Chapter 8.

[4]Workers’ Compensation and Rehabilitation Act 2003 s 327(1)(a).

[5]Workers’ Compensation and Rehabilitation Act 2003 s 327(1)(b) and (c).

[6]Chapter 13, Part 2.

[7]Sections 548, 549 and 550.

[8]See paragraphs [23]-[84] of these reasons.

[9]Turay v Workers’ Compensation Regulator [2023] QIRC 001.

[10]Workers’ Compensation and Rehabilitation Act 2003, s 131(6)(c).

[11]Turay v Workers’ Compensation Regulator [2023] QIRC 001 at [13].

[12]23 June 2021.

[13]See paragraphs [109]-[110] of these reasons.

[14]The medical evidence is explained in paragraphs [102]-[142] of these reasons.

[15]See paragraph [14] of these reasons.

[16]Turay v Workers’ Compensation Regulator [2023] QIRC 001 at [46].

[17]At paragraph [63].

[18]At paragraphs [60]-[61].

[19]At paragraph [64].

[20]Turay v Workers’ Compensation Regulator [2023] QIRC 001 at [82].

[21]At paragraphs [65]-[76].

[22]Nutley v President, Industrial Court (2019) 1 QR 354, Nutley v Workers’ Compensation Regulator [2019] ICQ 002, Burton v Workers’ Compensation Regulator [2022] ICQ 017 and Khan v Workers’ Compensation Regulator [2023] ICQ 002.

[23][2023] ICQ 007.

[24]At [28]-[31].

[25]Industrial Relations Act 2016, s 557(1).

[26]Industrial Relations Act 2016, s 557(2).

[27]Industrial Relations Act 2016, s 565.

[28]New South Wales v The Commonwealth (2006) 229 CLR 1.

[29]Industrial Relations Act 2016, s 3.

[30]Industrial Relations Act 2016, s 7.

[31]Industrial Relations Act 2016, s 407.

[32]Industrial Relations Act 2016, s 429.

[33]Industrial Relations Act 2016, s 503.

[34]Paragraphs [31]-[83] of these reasons.

[35]Industrial Relations Act 2016, ss 560 and 561.

[36]Industrial Relations Act 2016, ss 562 to 562C.

[37]The provisions of Division 5 are ss 563, 564, 565, 566, 567. 

[38]The Industrial Court of Queensland.  Industrial Relations Act 2016, Schedule 5, Dictionary, definition of “court” and see s 407.

[39]A reference to the Queensland Industrial Relations Commission, Acts Interpretation Act 1954, s 36, Schedule 1, “industrial commission”.

[40]Section 567(1) of the Industrial Relations Act 2016 describes the nature of the appeal as an ‘appeal … by way of re-hearing on the record’ and s 561(3) of the Workers’ Compensation and Rehabilitation Act 2003 describes the nature of the appeal as an ‘appeal … by way of rehearing on the evidence’.  There is no material distinction.

[41]Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 108 and Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225.

[42]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621-622.

[43]Warren v Coombes (1979) 142 CLR 531 at 551, Fox v Percy (2003) 214 CLR 118 at [29] and Lee v Lee (2019) 266 CLR 129 at [55].

[44]Section 557(1).

[45]See generally Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 and Aldrich v Ross [2001] 2 Qd R 235.

[46](2020) 4 QR 693.

[47]Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [96] to [100].

[48]The predecessor to the Industrial Relations Act 2016.

[49]Workers’ Compensation Regulator v Glass (2020) 4 QR 693.

[50]Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [59].

[51](2019) 1 QR 354.

[52][2022] ICQ 017.

[53] [2023] ICQ 002.

[54][2023] ICQ 007.

[55]Schlumberger Australia Pty Ltd v Workers' Compensation Regulator [2023] ICQ 007 at [31].

[56](2000) 203 CLR 194 at [13].

[57](2003) 214 CLR 118.

[58]At [25] and followed in Lee v Lee (2019) 266 CLR 129.

[59](2019) 266 CLR 129.

[60]Lee v Lee (2019) 266 CLR 129 at [55].

[61]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

[62]Industrial Relations Act 2016, s 557(1).

[63]A reference to the Queensland Industrial Relations Commission.

[64](2006) 183 QGIG 917; [2006] QIC 67.

[65]As it was in 2006.

[66]In Queensland, the Acts Interpretation Act 1954.

[67]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27 at [47].

[68]K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312 and 315, followed in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [36].

[69](2019) 269 CLR 507.

[70]Nutley v President, Industrial Court (2019) 1 QR 354.

[71]Workers’ Compensation Regulator v Glass (2020) 4 QR 693 and Hetmanska v Q-COMP (2006) 183 QGIG 917; [2006] QIC 67.

[72]Workers’ Compensation Regulator v Glass (2020) 4 QR 693.

[73]Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689 at 692 and see also generally Compass Group Education Hospitality Services Pty Ltd v Commissioner of State Revenue (CSR) (2021) 8 QR 1.

[74]All of which appear in paragraph [28] of these reasons.

[75]Industrial Relations Act 2016, s 559.

[76]All of which appear in paragraph [30] of these reasons.

[77]Which appears at paragraph [61] of these reasons.

[78]Workers’ Compensation Regulator v Glass (2020) 4 QR 693.

[79](2019) 1 QR 354

[80][2022] ICQ 017.

[81][2023] ICQ 002.

[82](1976) 135 CLR 616.

[83](2000) 203 CLR 194.

[84]Gleeson CJ, Gaudron and Hayne JJ.

[85]At [11].

[86]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [11]-[14].

[87]For a detailed discussion of these principles, see the judgment of Thomas JA in Aldrich v Ross [2001] 2 Qd R 235 at [32]-[44].

[88]Paragraph [13] of these reasons.

[89]Norbis v Norbis (1986) 161 CLR 513 at 518.

[90](1936) 55 CLR 499.

[91]House v The King (1936) 55 CLR 499 at 505.

[92]Lee v Lee (2019) 266 CLR 129, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2008) 203 CLR 194, Warren v Coombes (1979) 142 CLR 531, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306.

[93]Apart from the prompt at transcript T 1-16, l 13.

[94]T 1-13, ll 29-39.

[95]T 1-30, ll 25-30.

[96]T 1-31, ll 25-30.  The document became exhibit 5.

[97]T 1-31, ll 35-40.

[98]T 1-32, ll 25-30.

[99]T 1-32, l 30 to T 1-33, l 25.

[100]T 1-33, ll 40-45.

[101]T-1-34, l 25.

[102]T 1-35, ll 20-26.

[103]T 1-36, l 27.

[104]T 1-35, ll 31-32.

[105]T 1-36, l 40.

[106]T 1-37, ll 5-10.

[107]See exhibits 7 and 8.

[108]Exhibit 9, pp 1-39, ll 1-25.

[109]T 1-39, l 40.

[110]T 1-39, ll 42-45.

[111]T 1-40, ll 1-35.

[112]T 1-41, ll 33-36.

[113]T 1-41, l 36.

[114]T 1-42, ll 35-40.

[115]Exhibit 11.

[116]T 1-43, l 30 to T 1-44, l 45

[117]T 1-45, l 1 to T 1-46, l 35. See also exhibit 12.

[118]Part of exhibit 22.

[119]T 2-13, ll 5-10.

[120]T 2-13, ll 20-30.

[121]T 2-13, l 22 to T 2-14, l 7.

[122]T 2-15, l 35.

[123]T 2-17, ll 30-35.

[124]T 2-16, l 42 to T 2-17, l 6.

[125]T 2-18, ll 38-41.

[126]Exhibit 18.

[127]T 2-8, ll 20-33.

[128]T 2-18, l 43 to T 19, l 7.

[129]Exhibit 21.

[130]A reference to Ms Turay.

[131]Exhibit 19.

[132]T 2-20, ll 23-29 and see generally T 2-19, ll 25-30.

[133]T 2-24, l 27.

[134]T 2-25, l 14.

[135]T 2-25, l 20.

[136]T 2-25, ll 16-18.

[137]T 2-25, ll 37-40.

[138]T 2-25, ll 45-47.

[139]T 2-26, ll 13-18.

[140]T 2-26, ll 26-39.

[141]T 2-29, ll 6-16.

[142]T 2-36, ll 3-8.

[143]T 2-38, ll 3-13.

[144]T 2-37, l 25.

[145]T 2-39, ll 30-35 and T 2-40, ll 35-40.

[146]They appear as exhibit 24.

[147]Exhibit 24.

[148]T 2-48, ll 15-35.

[149]T 2-48, l 43 to T 2-49, l 8.

[150]T 2-49, ll 42-47.

[151]T 2-50, ll 25-35.

[152]T 2-51, ll 1-26.

[153]T 2-52, l 40.

[154]Exhibit 24.

[155]Exhibit 24.

[156]T 2-54, ll 15-43.

[157]T 2-55, ll 14-25.

[158]Exhibit 24.

[159]T 2-57, l 35 to T 2-58, l 26.

[160]T 2-58, l 24 to T 2-59, l 28.

[161]T 2-59, ll 30-35.

[162]T 2-59, ll 40-45.

[163]T 2-60, ll 27-28.

[164]T 2-60, l 43.

[165]T 2-60, l 43.

[166]T 2-61, ll 1-42.

[167]T 3-6, ll 12-15.

[168]T 3-6, ll 17-37.

[169]Australian Health Practitioner Regulation Agency.

[170]T 3-7, ll 11-24.

[171]T 3-13, ll 4-10.

[172]T 3-13, ll 19-41.

[173]Dated 22 March 2021.

[174]T 3-18, l 44 to T 3-19, l 5.

[175]Exhibit 24.

[176]T 3-19, ll 43-45.

[177]T 3-22, l 42.

[178]T 3-23, ll 1-20.

[179]T 3-23, ll 20-35.

[180]T 3-23, ll 42-46.

[181]Turay v Workers’ Compensation Regulator [2023] QIRC 001 at [1]-[9].

[182]And the Regulator.

[183]Turay v Workers’ Compensation Regulator [2023] QIRC 001 at [12].

[184]Paragraph [23].

[185]Paragraphs [25]-[26].

[186]Paragraphs [27]-[29].

[187]Paragraphs [30]-[63].

[188]Turay v Workers’ Compensation Regulator [2023] QIRC 001.

[189]At paragraph [65].

[190]Fox v Percy (2003) 214 CLR 118 at [25]-[29].

[191]Exhibit 3.

Close

Editorial Notes

  • Published Case Name:

    Turay v Workers' Compensation Regulator

  • Shortened Case Name:

    Turay v Workers' Compensation Regulator

  • MNC:

    [2023] ICQ 13

  • Court:

    ICQ

  • Judge(s):

    Davis J, President

  • Date:

    16 Jun 2023

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
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Aldrich v Boulton[2001] 2 Qd R 235; [2000] QCA 501
3 citations
Jump To
Cite 1 - [2001] 2 Qd R 235
Cite 2 - [2001] 2 Qd R 235
Cite 3 - [2001] 2 Qd R 235
Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1
2 citations
Jump To
Cite 1 - (1932) 47 CLR 1
Cite 2 - (1932) 47 CLR 1
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
3 citations
Jump To
Cite 1 - (1976) 135 CLR 616
Cite 2 - (1976) 135 CLR 616
Cite 3 - (1976) 135 CLR 616
Burton v Workers' Compensation Regulator [2022] ICQ 17
4 citations
Jump To
Cite 1 - [2022] ICQ 17
Cite 2 - [2022] ICQ 17
Cite 3 - [2022] ICQ 17
Cite 4 - [2022] ICQ 17
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
2 citations
Jump To
Cite 1 - (1997) 187 CLR 384
Cite 2 - (1997) 187 CLR 384
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
5 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Cite 3 - (2000) 203 CLR 194
Cite 4 - (2000) 203 CLR 194
Cite 5 - (2000) 203 CLR 194
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2008) 203 CLR 194
1 citation
Jump To
Cite 1 - (2008) 203 CLR 194
Compass Group Education Hospitality Services Pty Ltd & Anor v Commissioner of State Revenue(2021) 8 QR 1; [2021] QCA 98
2 citations
Jump To
Cite 1 - (2021) 8 QR 1
Cite 2 - (2021) 8 QR 1
Fox v Percy (2003) 214 CLR 118
4 citations
Jump To
Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Cite 3 - (2003) 214 CLR 118
Cite 4 - (2003) 214 CLR 118
Hetmanska v Q-COMP (2006) 183 QGIG 917
3 citations
Jump To
Cite 1 - (2006) 183 QGIG 917
Cite 2 - (2006) 183 QGIG 917
Cite 3 - (2006) 183 QGIG 917
Hetmanska v Q-COMP [2006] QIC 67
3 citations
Jump To
Cite 1 - [2006] QIC 67
Cite 2 - [2006] QIC 67
Cite 3 - [2006] QIC 67
House v The King (1936) 55 CLR 499
3 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
2 citations
Jump To
Cite 1 - (1985) 157 CLR 309
Cite 2 - (1985) 157 CLR 309
Khan v Workers' Compensation Regulator [2023] ICQ 2
4 citations
Jump To
Cite 1 - [2023] ICQ 2
Cite 2 - [2023] ICQ 2
Cite 3 - [2023] ICQ 2
Cite 4 - [2023] ICQ 2
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
Lee v Lee (2019) 266 CLR 129
6 citations
Jump To
Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Cite 3 - (2019) 266 CLR 129
Cite 4 - (2019) 266 CLR 129
Cite 5 - (2019) 266 CLR 129
Cite 6 - (2019) 266 CLR 129
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
2 citations
Jump To
Cite 1 - (2006) 228 CLR 566
Cite 2 - (2006) 228 CLR 566
New South Wales v Commonwealth (2006) 229 CLR 1
2 citations
Jump To
Cite 1 - (2006) 229 CLR 1
Cite 2 - (2006) 229 CLR 1
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Nutley v President of the Industrial Court of Queensland(2019) 1 QR 354; [2019] QSC 167
5 citations
Jump To
Cite 1 - (2019) 1 QR 354
Cite 2 - (2019) 1 QR 354
Cite 3 - (2019) 1 QR 354
Cite 4 - (2019) 1 QR 354
Cite 5 - (2019) 1 QR 354
Nutley v Workers' Compensation Regulator [2019] ICQ 2
2 citations
Jump To
Cite 1 - [2019] ICQ 2
Cite 2 - [2019] ICQ 2
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
Purcell v Electricity Commission of New South Wales (1985) 59 ALJR 689
2 citations
Jump To
Cite 1 - (1985) 59 ALJR 689
Cite 2 - (1985) 59 ALJR 689
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Railways (New South Wales) v Cavanough (1935) 53 CLR 220
2 citations
Jump To
Cite 1 - (1935) 53 CLR 220
Cite 2 - (1935) 53 CLR 220
Schlumberger Australia Pty Ltd v Workers' Compensation Regulator [2023] ICQ 7
4 citations
Jump To
Cite 1 - [2023] ICQ 7
Cite 2 - [2023] ICQ 7
Cite 3 - [2023] ICQ 7
Cite 4 - [2023] ICQ 7
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306
2 citations
Jump To
Cite 1 - (1999) 73 ALJR 306
Cite 2 - (1999) 73 ALJR 306
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Turay v Workers' Compensation Regulator [2023] QIRC 1
9 citations
Jump To
Cite 1 - [2023] QIRC 1
Cite 2 - [2023] QIRC 1
Cite 3 - [2023] QIRC 1
Cite 4 - [2023] QIRC 1
Cite 5 - [2023] QIRC 1
Cite 6 - [2023] QIRC 1
Cite 7 - [2023] QIRC 1
Cite 8 - [2023] QIRC 1
Cite 9 - [2023] QIRC 1
Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281
2 citations
Jump To
Cite 1 - (1976) 2 NSWLR 281
Cite 2 - (1976) 2 NSWLR 281
Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 C.L.R., 73
2 citations
Jump To
Cite 1 - (1931) 46 C.L.R., 73
Cite 2 - (1931) 46 C.L.R., 73
Warren v Coombes (1979) 142 CLR 531
3 citations
Jump To
Cite 1 - (1979) 142 CLR 531
Cite 2 - (1979) 142 CLR 531
Cite 3 - (1979) 142 CLR 531
Workers' Compensation Regulator v Glass(2020) 4 QR 693; [2020] QCA 133
6 citations
Jump To
Cite 1 - (2020) 4 QR 693
Cite 2 - (2020) 4 QR 693
Cite 3 - (2020) 4 QR 693
Cite 4 - (2020) 4 QR 693
Cite 5 - (2020) 4 QR 693
Cite 6 - (2020) 4 QR 693

Cases Citing

Case NameFull CitationFrequency
Adcock v Workers' Compensation Regulator [2025] ICQ 142 citations
Duggan v Workers' Compensation Regulator [2024] ICQ 133 citations
Goodchild v State of Queensland (Queensland Health) [2023] ICQ 263 citations
Horton v State of Queensland (Department of Justice and Attorney-General) [2025] ICQ 72 citations
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 252 citations
National College of Australia v Workers' Compensation Regulator [2025] QIRC 952 citations
Neale v Workers' Compensation Regulator [2023] ICQ 172 citations
Praljak v Workers' Compensation Regulator [2023] ICQ 302 citations
Romanski v Stone [2025] ICQ 52 citations
Rooke v Workers' Compensation Regulator [2024] ICQ 212 citations
State of Queensland (Office of the Governor) v Workers' Compensation Regulator [2024] QIRC 2052 citations
State of Queensland (Office of the Governor) v Workers' Compensation Regulator [2025] QIRC 2102 citations
State of Queensland (Queensland Police Service) v Workers' Compensation Regulator & Neville Stretton [2023] ICQ 154 citations
Stratford North Pty Ltd v Workers' Compensation Regulator [2025] ICQ 44 citations
Turay v Workers' Compensation Regulator (No 2) [2023] ICQ 196 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.