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van der Berg v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 161

van der Berg v Simon Blackwood (Workers' Compensation Regulator)[2015] QIRC 161

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161

PARTIES:

van der Berg, Petrus

(Applicant)

v

Simon Blackwood (Workers' Compensation Regulator)

(Respondent)

CASE NO:

WC/2015/75

PROCEEDING:

Application for an extension of time

DELIVERED ON:

2 September 2015

HEARING DATES:

22 May 2015

23 July 2015

MEMBER:

Deputy President O'Connor

ORDERS :

  1. Application refused.

CATCHWORDS:

WORKERS' COMPENSATION - APPLICATION FOR AN EXTENSION OF TIME - Where the Appeals Unit of the Workers' Compensation Regulator confirmed WorkCover's decision to reject the worker's application for compensation - Where the worker was required under s 550 to lodge any appeal of that decision to the QIRC within 20 business days - Where the worker lodged the appeal 241 days out of time - whether the QIRC is vested with the power to waive the time limit in s 550(1)(a) of the Workers' Compensation and Rehabilitation Act 2003 - Application refused.

CASES:

Workers' Compensation and Rehabilitation Act 2003, ss 542, 549, 550, 557

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

Blackwood v Pearce [2015] ICQ 12

Carmody v WorkCover Queensland (1998) 157 QGIG 119

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

Eureka Street Pty Ltd v Q-Comp (2007) 184 QGIG 102

Federal Commissioner of Taxation v Salenger [1988] 81 ALR 25

Hansen v Q-Comp C/201/16

McQuade and Hayes v WorkCover Queensland [2000] QIC 56; (2000) 165 QGIG 126

Paul Taylor v Q-Comp (WC/2008/26)

Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166

Q-Comp v Deng (C/201/56) - Decision < http://www.qirc.qld.gov.au

Q-Comp v Sargeant (C/2012/31) - Decision < http://www.qirc.qld.gov.au

Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers Appointed) (1996) 151 QGIG 1010, 1011

Ricky Smith v Q-Comp (WC/2012/19).

Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353

Steven Pearce v Q-COMP (C/2010/64) - Decision < http://www.qirc.qld.gov.au

APPEARANCES:

Mrs C. van der Berg, representative of the Applicant.

Mr J.W. Merrell, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator).

Decision

  1. [1]
    Petrus van der Berg (Applicant) was employed as a boilermaker by Key Solutions Group Equipment Holdings Pty Ltd in Mackay.
  1. [2]
    On 22 July 2013, the Applicant lodged an application for workers' compensation with WorkCover Queensland (WorkCover) for bilateral contact dermatitis as a result of the Applicant's exposure to chemicals in the workplace.
  1. [3]
    WorkCover accepted the application for compensation on 16 August 2013.
  1. [4]
    The employer lodged an application for review with Simon Blackwood (Workers' Compensation Regulator) (Regulator) on 30 August 2013.
  1. [5]
    On 3 October 2013, the Regulator set aside the decision of WorkCover and instructed it to obtain additional information and make a fresh decision.
  1. [6]
    WorkCover rejected the application for compensation on the basis that the Applicant had not suffered an injury within the meaning of s 32 of the Act.
  1. [7]
    On 23 January 2014, the Applicant applied to the Regulator to review the second WorkCover decision and the Regulator confirmed WorkCover's decision to reject the Applicant's claim for compensation.   
  1. [8]
    On 25 January 2015, the Applicant applied for a waiver of the time limit set out in s 550(1)(a) of the Act and further sought a second review of the decision of WorkCover.
  1. [9]
    Section 550 of the Act provides:

"Section 550  Procedure for appeal

  1. (1)
    The appeal must be made—
  1. (a)
    if the appeal is about a review decision—within 20 business days after the appellant receives the notice of the review decision; or
  1. (b)
    if the appeal is about a non-reviewable decision—within 20 business days after the appellant receives the notice of the decision stating the reasons for the decision.
  1. (2)
    For subsection (1)(b), if the notice of the decision did not state the reasons for the decision, the appellant must ask the respondent for the reasons for the decision within 20 business days after receiving the notice.
  1. (3)
    For subsections (1) and (2), the appellant may, within the periods mentioned in the subsections, ask the respondent to allow further time to appeal.
  1. (4)
    The appeal may be started only by filing a written notice of appeal with the appeal body.

(4A)  If the appeal body is the industrial commission, the notice of appeal must be filed in the industrial registry."

  1. [10]
    It is not in dispute that the Applicant's application to appeal should have be lodged on or before 9 April 2014.  The appeal notice is therefore 241 days out of time.

Does the Commission have power to waive the time limit under s 550(1)(a) of the Act?

  1. [11]
    On 28 April 2015, Martin J delivered the decision of Blackwood v Pearce[1] (Pearce No. 2).  That case involved an application by Ms Michelle Pearce for compensation claiming an injury described as "inhalation and exposure to glutaraldehyde".  Her application was rejected by WorkCover.  Ms Pearce applied for a review in accordance with s 541 of the Act.  An application for review of decision must, in accordance with s 542(1) of the Act, be made within three months after the person applying for the review receives written notice of the decision.  Ms Pearce should have made her application for review by 8 January 2013.  However, she did not make application for a review until 13 February 2014, some 13 months after the expiry of the review period.
  1. [12]
    Martin J held that the regulator has no power to extend time except in accordance with s 542.  Nor was the Commission given a power to waive compliance with the respective time limit in circumstances where there had been substantial compliance or special circumstances.  The law as exposed by Hall P in Q-Comp v Deng[2] was not correct and ought not to be followed.
  1. [13]
    Section 542 provides:

"Section 542 Applying for review

  1. (1)
    An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision or the failure to make a decision and the reasons for the decision or failure, unless subsection (4) applies.
  1. (2)
    For subsection (1), the applicant may, within the 3 months mentioned in the subsection, ask the Regulator to allow further time to apply for review.
  1. (3)
    The Regulator may grant the extension if it is satisfied that special circumstances exist."
  1. [14]
    Section 549 provides:

"Section 549  Who may appeal

  1. (1)
    A claimant, worker or employer aggrieved by the decision (the appellant) may appeal to an appeal body against the decision of the Regulator or the insurer (the respondent).
  1. (2)
    An insurer aggrieved by a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi) may appeal to an appeal body against the decision of the Regulator.
  1. (3)
    If the appellant is an employer—
  1. (a)
    the claimant or worker may, if the claimant or worker wishes, be a party to the appeal; and
  1. (b)
    an insurer may, if the insurer wishes, be a party to the appeal if the appeal is against a decision of the Regulator to confirm, vary or set aside a decision of the insurer mentioned in section 540(1)(a)(i) to (vi).
  1. (4)
    If the appellant is WorkCover, an employer may, if the employer wishes, be a party to the appeal."
  1. [15]
    Prior to Pearce No 2, it was accepted that the non-compliance with the statutory time limit in s 542(1) could be waived where the applicant could demonstrate substantial compliance or other special circumstance.[3]
  1. [16]
    In Cloncurry Shire Council v Workers' Compensation Regulatory Authority & Anor[4] A Lyons J wrote:

"[20]It is clear that the starting point as to the correct interpretation of s. 542 of the WCRA is the High Court decision in Project Blue Sky previously referred to.  This decision makes it clear that what is required is for the Court to ascertain the intention of Parliament.  As Brennan C.J. held: 'When the validity of a purported exercise of a statutory power is in question, the intention of the Parliament determines the scope of a power as well as the consequences of non-compliance with a provision prescribing what must be done or what must occur before a power may be exercised.'

[21]Counsel for the applicant has submitted that the words of the Explanatory Memorandum of the previous Act should be determinative of the issue of the intention of the Legislature.  The applicant submits that the period of three months is immutable as the Explanatory Memorandum makes it clear that the intention of the legislature in relation to this section was to provide for the timely resolution of disputes.

[22]It is important to look at ch. 13 of the WCRA and consider its purpose.  The chapter obviously deals with Reviews and Appeals as the chapter heading indicates.  It is also clear that decisions of a self-insurer such as the applicant are covered by the chapter (s. 540(1)(b)(ii) of the WCRA).  Section 541 of the WCRA gives a claimant, a worker or an employer a right to apply for a review if they are aggrieved by the decision or failure to make a decision.  Importantly that section itself does not contain any conditions or qualifications on the right to review.  There is no condition precedent contained within the section itself. Section 540(5) of the WCRA then provides that such a decision may only be reviewed by Q-Comp.

[23]Section 542 of the WCRA then sets up a methodology as to how to apply for a review.  Is the methodology intended to be a condition precedent to the exercise of power as the applicant submits?

[24]Whilst it is clear that the timely resolution of disputes is the object of this section it must be remembered that the Act has as its main aim the establishment of a workers' compensation scheme whose aim is to provide benefits for workers who sustain injuries in their employment as well as their dependants and to encourage improved health and safety performance by employers.  The Act is clearly what is commonly described as 'beneficial legislation' and s. 108 of the WCRA gives an entitlement to compensation when it provides '[c]ompensation is payable under this Act for an injury sustained by a worker'.  Counsel for the applicant is essentially arguing that the provisions of WCRA in relation to the time periods operating for review of decisions by a self-insurer should be given their strict interpretation and any failure to comply must be fatal to the claim.

[25]In this regard however I consider that the decision in Project Blue Sky clearly states the approach that the court should take in determining this question as follows:

'The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole".  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".  Thus, the process of construction must always begin by examining the context of the provision that is being construed.

A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other".  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.'

[26]I do not consider that it is necessarily inconsistent to allow for the timely resolution of disputes and to still allow Q-Comp to consider applications for review outside the period allowed for review.  To give the section the intention sought by the applicant would mean that non-compliance with this time limitation would bring to an end the ability of a worker to seek workers' compensation in all possible circumstances.  As counsel for the first respondent has pointed out this would cover situations where a worker in a coma has not complied with the strict time constraints.

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

[28]I am not satisfied that non-compliance with the method of applying for a review was intended by the legislature to affect the ambit of the power such that non-compliance is fatal to the existence of the power."[5]

  1. [17]
    The Industrial Court has applied or followed Cloncurry in a number of decisions including Australian Meat Holdings v Q-Comp[6], Hansen v Q-Comp[7], Q-Comp v Deng and Q-Comp v Sargeant[8].
  1. [18]
    In Q-Comp v Deng, Hall P wrote

"[5]The Respondent appealed against Q-COMP's decision to the Industrial Magistrate at Southport.  The appeal was successful.  The outcome was unsurprising.  The law has developed since the decision of this Court in Q-COMP v Baulch.  Substantial compliance is no longer the sole justification for not insisting upon the three month time limit.  It is the effect of the decision of the Supreme Court in Cloncurry Shire Council v Workers' Compensation Regulatory Authority and the subsequent decisions of this Court in Australian Meat Holdings Pty Ltd v Q COMP and Hansen v Q-COMP, that non-compliance with the time limit may be waived on the grounds of 'substantial compliance or other special circumstances'.  Whilst it must be conceded that 'special circumstance' has not formed an element of the ratio decidendi of a decided case, and that the content of 'special circumstances' is yet to be settled, the course of authority does not support disposition of the matter on the basis developed by Q-COMP's letter of 18 November 2009."[9]  (citations omitted)

  1. [19]
    His Honour went on to note:

"[10] In my view, it is tolerably clear that the threshold issue which arises when Q-COMP is confronted with an Application for Review which is out of time is whether there is a proper basis for waiving or excusing the non compliance.  I can understand that the apparent strength of an applicant's underlying case is not irrelevant to that assessment.  To excuse non compliance to review an Application for Review which is doomed to failure would be wrong.  An Application for Review raising issues of moment (if one puts aside the factual uncertainties) requires serious consideration.  However, the serious consideration is of the issue whether a non compliant Application for Review should be acted upon.  The critical matters will be the circumstances, extent and explanation for the non-compliance.  The underlying merit of the Application for Compensation cannot provide the 'special circumstance' to justify pressing on, notwithstanding the non-compliance in seeking a Review.  Section 542 must be read as a whole.  A potential application for a Review seeking an extension of time prior to the expiry of the three months pursuant to the express terms of s. 542(3) must show that 'special circumstances exist' to warrant the extension.  It would be wrong to rely on construction of the Act to grant a hearing on broader grounds to an applicant who has failed to comply with the three month time limit at s. 542(1).  There is the additional consideration that the approach taken at first instance, potentially burdens Q-COMP with determining whether a Review which would succeed, should not be conducted for non-compliance.  To find such a legislative outcome in the absence of express words is a step too far.  The 'special circumstance' referred to in the authorities pertains to the non-compliance in respect of which waiver or excusal is sought; not to whether the fruits of victory should be snatched from an applicant's grasp."[10]

  1. [20]
    In Pearce No 2, Martin J was called on to consider to what extent the Act's categorisation as "beneficial" legislation affected the construction of s 542 of the Act.  He wrote:

"[38]I regret that I find that I cannot agree with the interpretation arrived at in Cloncurry.

[39]While it is correct to categorise the Act as beneficial or remedial legislation, the proper construction is not, by virtue of that unrestrained.  It was said in Khoury v Government Insurance Office (NSW):

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

[40]There is a discretion given to the Regulator to accept an application out of time but 'the actual language employed' shows it is clearly confined.  There must have been a request under s 542(2) and there must be special circumstances.  The Regulator is given a confined power to extend the time in which an application may be made but the construction adopted in Cloncurry ignores the restrictions on that power.

[41]The issue has been confused by the consideration of whether an out of time application is invalid. The true issue is not whether an application made out of time is invalid but whether the Regulator has any power other than that set out in s 542(2) and (3). The Regulator does not.

[42]In the cases that have followed Cloncurry further glosses have been put on s 542.  In addition to the unwarranted creation of a new power to extend time, that 'power' has been made subject to a restriction - that there must have been substantial compliance or other special circumstance.  There is no legislative basis for either accretion.

[43]It follows, then, that the Regulator has no power to extend time except in accordance with s 542."[11]

  1. [21]
    Steven Pearce v Q-COMP[12](Pearce No. 1) was a case involving a decision of Q-Comp rejecting a claim for benefits under the Act by Mr Steven Pearce.  Mr Pearce had a right to appeal but there was a time limit under s 550(1)(a) of the Act.  Mr Pearce was 244 days out of time.  Hall  P wrote:

"[3]The Commission dealt with the matter on the basis that the Commission had power to extend time.  The earlier decision in Paul Taylor v Q-COMP and the decision of this Court in James McQuade and Jeffrey Hayes v WorkCover Queensland, are based on the distinction between mandatory and directory legislation.  A decade later and in light of the authorities upon the comparable time limit at s. 542(1) of the Act (which authorities are conveniently gathered together in Q-COMP v Aqueen Teng Deng), it is appropriate to abandon the language of 'extension of time' and to assert no more that, the time limit at s. 550(1)(a) of the Act may be waived on the grounds of substantial compliance or special circumstance.

[4]In some cases the test at [3] and the traditional 'extension of time' tests will yield different results.  The apparent strength of a potential appellant's underlying case is not necessarily decisive of the question whether non-compliance with the time limit should be waived or excused.  However, that consideration is of no moment here. The Commission was satisfied that the underlying case was weak. It would be wrong to go behind the Legislature's assessment that justice will best be served if a time limit of 20 business days is observed, is insisted upon and to hear a case, which in all likelihood, will fail."[13]

  1. [22]
    Over time, the interpretation of s 550 of the Act has been infected with the same reasoning as was used in s 542 of the Act.  The right under s 550(1)(a) of the Act is confined by reference to a time limit in which to appeal.  Section 550 of the Act does not confer a discretion on the Commission to waive compliance.  Section 550(3) makes that abundantly clear where it provides "the appellant may, within the periods mentioned in subsections, ask the respondent to allow further time to appeal".
  1. [23]
    Like s 542(3) of the Act, it is the regulator who is vested with the discretion to waive time and not the Commission.  In my view, nothing within s 550 grants the Commission the power to waive the time limit.  It is the "Respondent" - the Workers' Compensation Regulator that is vested with the power to waive compliance and, only in circumstances where the appellant has asked for an extension within the statutory time limit.
  1. [24]
    For the reasons advanced above, I am of the opinion that there is no power vested in the Commission to waive compliance with the time limit contained in s 550(1)(a) of the Act in circumstances where there has been substantial compliance or other special circumstances.  There is not legislative basis for such an interpretation. 
  1. [25]
    Notwithstanding my conclusion, I nevertheless feel constrained to follow the decision of Hall P in Steven Pearce v Q-Comp.
  1. [26]
    In coming to that view, I have reference to Proctor v Jetway Aviation Pty Ltd[14] where Moffitt P wrote:

"The obligation of every court loyally to follow the decisions of any court superior to it has been often stated.  At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory.  However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent.  He is as much bound by the law of precedent and the law so pronounced as he is by any other law.  The law provides its own rules to admit of flexibility.  These rules, which are part of the binding rule of precedent, permit departure from prior erroneous decisions, but only in prescribed circumstances.  The law binding on all does not include any right of a court to depart from a decision of a superior court and hence one binding upon it upon some basis, such as that some matter is considered to have been overlooked by a superior court or for some other reason it appears to be wrong.  It does not permit it to disregard a binding decision of an appellate court on some view based on the reasoning of judges in a decision of an ultimate appellate court which does not overrule the binding decision…"[15]

  1. [27]
    French J said in Federal Commissioner of Taxation v Salenger[16] at page 34:

"I should add, with the greatest respect to the tribunal, that it is difficult to see how it is open to a senior member to form the view that a decision of the Supreme Court of a State which is on the very point before the tribunal is incorrect and not to be followed.  In the special case of conflicting decisions of superior courts, the tribunal may have to decide which to follow, but that occasion does not arise here.  Ordinarily, senior members of the tribunal should apply the law as stated by the judges of this court or by judges of the Supreme Courts of the States."[17]

Can s 557 of the Act be used to permit an extension of time in which an appeal may be brought under s 550 of the Act?

  1. [28]
    Section 557 relevantly provides as follows:  

"Section 557   Correcting defects in proceedings

  (1)  For the proper hearing of an appeal, the appeal body may order—

   (a)anything necessary be supplied; or

   (b)defects or errors be corrected.

  1. (2)
    The appeal body may make the order at any time before or after the start of the hearing.

  (3) The order may be made on conditions.

  (4) Costs of the order are in the appeal body's discretion, except to the extent provided under a regulation.

  (5) All parties concerned must comply with the order."

  1. [29]
    The Commission has from time to time determined that s 557 of the Act permits an extension of time within which to make an appeal under s 550 of the Act.
  1. [30]
    In Eureka Street Pty Ltd v Q-Comp[18], an application was made for an extension of time in which to appeal the decision of WorkCover Queensland given on 15 August 2006.  The appeal was filed on 1 November 2006.  Applying McQuade and Hayes v WorkCover Queensland[19], Edwards C held that s 505 of the WorkCover Queensland Act 1996 (the equivalent of s 557 of the Act) vested the Commission with a discretion to extend time within which to appeal.
  1. [31]
    Again in Paul Taylor v Q-Comp[20], the Commission took the view, in reliance on McQuade and Hayes v WorkCover Queensland, that the Commission had the power to extend time for filing an appeal against a decision of the Review Unit of Q-COMP.
  1. [32]
    McQuade was a case which involved s 499(6) of the WorkCover Queensland Act 1996.  That section provided that the appellant must, within 14 days after filing the notice of appeal, serve a copy of the notice on, if the appeal is about a review decision, the review unit of WorkCover Queensland.  Each of the appellants failed to comply with s 499(6) of the Act. Hall P wrote:

"In those circumstances, I go to s. 499.  It is plain that the legislative intention is not clear.  Unlike s. 104 of the Workers’ Compensation Act 1990 the provisions of this section are not apparently mandatory.  By subsection (3) the time limited by subsection (1) may be extended by consent of WorkCover Queensland.  By subsection (7) breach of subsection (5) may be corrected.  On one view of it, all of that goes around in a circle.  The implication could be that subsection (6) was seen by the legislature as more stringent than subsections (1) and (5). It could be that there is an indication that the legislature thought a relaxation provision related to subsection (6) was unnecessary because subsection (6) was not mandatory.  However, on another view of it, the various relaxations are suggestive of procedure rather than jurisdiction.  So also of course, is the section heading which by s. 35C of the Acts Interpretation Act 1954 is to be treated as part of the Act.  I accept the submission on behalf of the respondent that s. 505 of the WorkCover Queensland Act 1996 is not expressed in a language one would expect where the intent was to grant a power to extend time.  But the presence or absence of a power to grant an extension of time is not decisive.  A conclusion that subsection (6) is directory rather than mandatory does not mean that subsection (6) does not need to be complied with.  The conclusion that subsection (6) is directory only still requires compliance in substance, compare Scurr v Brisbane City Council (1973) 133 CLR 242 at 255.  One can understand why a legislature would support a directory provision with a power to extend time.  Exercise of a discretion to extend time is a more ruly exercise than testing for substantial performance.

The matter as I say is not clear, but after some vacillation, I have come to the conclusion that s. 499 of the WorkCover Queensland Act 1996 is directory.

It is common ground that on such a view s. 505 vests power to extend time."[21]

  1. [33]
    McQuade is not, in my view, authority for the proposition that s 557 of the Act permits an extension of time in which to appeal under s 550 of the Act. In McQuade, an appeal was filed in the Industrial Magistrates Court within time as required by s 499(1) of the WorkCover Queensland Act 1996.  However, the appeals were not served on the review unit of WorkCover Queensland as required by s 499(6).  Section 505 of the WorkCover Queensland Act 1996 was relied upon to correct the defect.
  1. [34]
    I cannot, with respect, accept the reasoning previously adopted by the Commission in using s 557 of the Act as a means of extending time under s 550.  Section 557 of the Act confers a power on the appeal body to correct a defect or error in proceedings. 
  1. [35]
    The Commission is only given a discretion in relation to a "proceeding" properly before it.  Section 557 does not confer a discretion on the Commission to waive compliance or extend the time limit in s 550 of the Act.

Matters affecting the exercise of the Commission's discretion to waive the time limits set out in s 550(1)(a) of the Act.

  1. [36]
    In light of my reasons above, I will proceed on the basis that the Commission is vested with the discretion to waive the time limit in s 550(1)(a) of the Act.
  1. [37]
    The questions for the Commission to determine is whether the Applicant has substantially complied with s 550(1)(a) of the Act; or, if that is not the case whether special circumstances exist such that the time limit in s 550(1)(a) of the Act may be waived by the Commission.
  1. [38]
    It is apparent from the material before the Commission that there has been no substantial compliance with s 550(1)(a) of the Act.  The applicant made the appeal 241 days out of time.
  1. [39]
    The factors affecting of the exercise of the Commissions discretion were cited in Ricky Smith v Q-Comp[22] where Fisher C applied the reasoning of de Jersey P (as he then was) in Carmody v WorkCover Queensland[23] as follows:
  • the extent of the delay;
  • the explanation of the delay;
  • the prejudice to the applicant;
  • the prejudice to the respondent;
  • enthusiasm for prosecuting the appeal; and
  • the merits of the appeal.

Extent of the delay

  1. [40]
    The delay was, on any reading of the material before the Commission, extensive.  Indeed, it was 241 days out of time.

 Explanation for the delay

  1. [41]
    The reasons for the delay as contained in paragraph 1 of the application can be summarised as follows:
  • the Applicant's dyslexia caused him to believe that the second review decision appeared to be made in accordance with the Act, however in the entire context of his claim file, the contrary can be proved;
  • the 20 day time limit lapsed before the applicant received a copy of his file from the Regulator;
  • the second review decision was wrong, based upon the specialist medical advice;
  • the Applicant was "busy" undertaking his investigations and sought legal advice on various aspects of the claim but due to the complexity of the matter was unable to find a lawyer with the expertise to assist;
  • the Applicant continued to contact WorkCover Queensland and the Regulator, complaining about injustices and seeking information about how they could be corrected;
  • the Regulator never gave the applicant information about the correct procedures to be followed to make a complaint;
  • the Applicant misunderstood the procedure to appeal and sent the appeal in the wrong forms to the Regulator and not the Commission;
  • Mrs Catherina van der Berg, the Applicant's agent, was employed and had a full-time study load; and
  • the Applicant claims that the Regulator lost the appeal form and rendered no assistance to her in her attempt to lodge an appeal.
  1. [42]
    On 14 March 2014, the Regulator forwarded a copy of the Reasons for Decision of the second review to the Applicant.  The Reasons for Decision made it clear that the Applicant had 20 business days from the date of receipt of the decision to lodge an appeal.
  1. [43]
    An email forwarded to the Applicant on 14 July 2014 stated:

"Further to my phone call to you this morning, and my offer to send you an email explaining the process of submission of your Notice of Appeal to the Queensland Industrial Relations Commission (QIRC).

You had 20 business days to lodge a Notice of Appeal after receipt of your Reasons for Decision from the Review Unit of the Workers' Compensation Regulator as per the email sent to you on 10 March 2014. This means your appeal is not out of time.

For further information regarding lodging your notice of appeal with the QIRC and requesting an extension, please phone …. Or email QIRC …"

  1. [44]
    In cross-examination, the following exchange took place:

"All right.  And to just conclude on that particular point, on the 10th of March 2014, you knew and your husband knew that there - you had 20 business days to appeal to this Commission against the second decision of my client?  ---Yes."[24]

  1. [45]
    Notwithstanding the advice from the Regulator and the acknowledgement that the applicant was aware of the 20 day time limit, the Applicant took no steps to lodge an appeal until 25 March 2015.
  1. [46]
    Further, in cross-examination the following exchange took place:

"I'm being as fair as I possibly can to you.  My proposition to you is this.  After you received Ms Hayes' email on the 14th of July 2014, which you admitted indicated that your husband had to apply for an extension of time, you sat on your hands, that is you and your - you, on behalf of your husband, and your husband sat on your hands and did nothing about apply for an extension of time until the 24th of March 2015.  That's correct, isn't it?  ‑‑‑No.  I actually disagree with that but we ‑ ‑ ‑

Okay?  ‑‑‑We've done a lot of things.  We've put in so many complaints, it's not even funny."[25]

  1. [47]
    The evidence suggests that the applicant was capable of making a series of complaints to the Regulator but was not capable of filing an appeal within the 20 day time period. Moreover, there is no evidence before the Commission which would suggest that the Applicant was not capable through illness or otherwise incapacitated of making an appeal within the statutory time limit.

Prejudice to the Applicant

  1. [48]
    The Regulator concedes that there would be prejudice to the Applicant if the Commission did not waive the time limit in s 550(1)(a) of the Act.

Prejudice to the Regulator

  1. [49]
    There is no prejudice to the Regulator if the time limit is not waived.

Enthusiasm for prosecuting the appeal

  1. [50]
    It cannot be said on the evidence before the Commission that the Applicant has shown an enthusiasm for the prosecution of his appeal.

 Merits of the case

  1. [51]
    The Regulator submitted that as far as the merits of the appeal can be discerned in the present application, it was argued that the Applicant did not have a strong case.  In support of that submission, the Regulator made reference to the review decision and, in particular, the letter of Dr Noakes dated 28 October 2013.  In that letter Dr Noakes states:

"This a dermatitis related to mechanical and environmental factors, such as heat, friction, dirt, dust, repeated washing, use of detergents etc.  This condition would normally be expected to settle once barrier function of the hand is re-established, which general y (sic) occurs within four to six months.

Having said that, hand dermatitis is a poorly understood condition.  There is, no doubt, a group of people who proceed from initial irritant dermatitis to chronic hand dermatitis.  As Petrus ceased work three months ago and continues to have problems, he may well be in the latter category.

Nonetheless, I would be reluctant to diagnose this without a six-month period to ensure that his hands to not normalise once barrier function is re-established.  If they persist beyond that, this is presumably a chronic dermatitis.  It is likely to have been precipitated by the initial irritant contact dermatitis but maintenance is through immunological mechanisms.  If control cannot be maintained with topical corticosteroids, he may need systemic immune suppression."[26]

  1. [52]
    In Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers Appointed)[27], Chief Industrial Commissioner Hall (as his Honour then was) stated:

"…  I continue to adhere to my observation in Breust (at 779) that the strengths and weaknesses of the applicant's substantive case will not always emerge, and add that in my view it would be inappropriate to permit the hearing of an application for extension of time to develop into a preview of the trial in order that a view might be formed of the Applicant's prospects of success.  In my view, in the ordinary case, an application for extension of time should be a short matter dealt with expeditiously.  A conclusion that an applicant could not in any event succeed will usually flow from formation of a view that there is an obstacle which no amount of evidence will overcome, e.g. a conclusion that the respondent was not the employer or that the applicant was not an employee."[28]

  1. [53]
    In Savage v Woolworths (Queensland) Pty Ltd[29], Hall P reinforced that observation and stressed that in assessing the prospects of success in an application to extend time the merits or lack thereof must be clear cut.
  1. [54]
    Whilst the Applicant's case that his dermatitis is work related is not strong, in the absence of a proper consideration of all of the evidence, I feel constrained in my ability to form a clear view as to the prospects of success.  

 Conclusion

  1. [55]
    I am satisfied on the material before the Commission that the Applicant has not demonstrated a substantial compliance or special circumstances.  Accordingly, the application for an extension of time should be refused.

Orders:

  1. [56]
    I make the following orders:
  1. Application refused.

Footnotes

[1] Blackwood v Pearce [2015] ICQ 12.

[2] Q-Comp v Deng (C/201/56) - Decision < http://www.qirc.qld.gov.au.

[3] Hansen v Q-Comp (C/2010/16) - Report on Decision

[4] Cloncurry Shire Council v Workers' Compensation Regulatory Authority & Anor [2006] QSC 362.

[5] Cloncurry Shire Council v Workers' Compensation Regulatory Authority & Anor [2006] QSC 362.

[6]  Australian Meat Holdings v Q-Comp (2007) 185 QGIG 231.

[7]  Hansen v Q-Comp (C/201/16) - Decision No 2 < http://www.qirc.qld.gov.au.

[8]  Q-Comp v Sargeant (C/2012/31) - Decision < http://www.qirc.qld.gov.au.

[9] Q-Comp v Deng (C/201/56) - Decision < http://www.qirc.qld.gov.au.

[10] Ibid.

[11] Ibid.

[12] Steven Pearce v Q-COMP (C/2010/64).

[13] Steven Pearce v Q-COMP (C/2010/64).

[14] Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166.

[15] Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166.

[16] Federal Commissioner of Taxation v Salenger [1988] 81 ALR 25.

[17] Ibid.

[18] Eureka Street Pty Ltd v Q-Comp (2007) 184 QGIG 102.

[19] McQuade and Hayes v WorkCover Queensland [2000] QIC 56; (2000) 165 QGIG 126.

[20] Paul Taylor v Q-Comp (WC/2008/26).

[21] McQuade and Hayes v WorkCover Queensland [2000] QIC 56; (2000) 165 QGIG 126, 128.

[22]  Ricky Smith v Q-Comp (WC/2012/19).

[23]  Carmody v WorkCover Queensland (1998) 157 QGIG 119.

[24] T1-9, Ll. 24-46.

[25] T1-12 Ll. 20-29.

[26] Exhibit 2.

[27] Ray Johnson v Discovery Bay Developments Pty Ltd (Receivers and Managers Appointed) (1996) 151 QGIG 1010.

[28] Ibid, 1011.

[29] Savage v Woolworths (Queensland) Pty Ltd (1999) 162 QGIG 353.

Close

Editorial Notes

  • Published Case Name:

    van der Berg v Simon Blackwood (Workers' Compensation Regulator)

  • Shortened Case Name:

    van der Berg v Simon Blackwood (Workers' Compensation Regulator)

  • MNC:

    [2015] QIRC 161

  • Court:

    QIRC

  • Judge(s):

    Member Deputy President O'Connor

  • Date:

    02 Sep 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Meat Holdings v Q-COMP (2007) 185 QGIG 231
2 citations
Jump To
Cite 1 - (2007) 185 QGIG 231
Cite 2 - (2007) 185 QGIG 231
Carmody v WorkCover Queensland (1998) 157 QGIG 119
2 citations
Jump To
Cite 1 - (1998) 157 QGIG 119
Cite 2 - (1998) 157 QGIG 119
Cloncurry Shire Council v Workers' Compensation Regulatory Authority[2007] 2 Qd R 434; [2006] QSC 362
3 citations
Jump To
Cite 1 - [2006] QSC 362
Cite 2 - [2006] QSC 362
Cite 3 - [2006] QSC 362
Eureka Street Pty Ltd v Q-Comp (2007) 184 QGIG 102
2 citations
Jump To
Cite 1 - (2007) 184 QGIG 102
Cite 2 - (2007) 184 QGIG 102
FCT v Salenger (1988) 81 ALR 25
2 citations
Jump To
Cite 1 - (1988) 81 ALR 25
Cite 2 - (1988) 81 ALR 25
Johnson v Discovery Bay Developments Pty Ltd (rec and mgr apt) (1996) 151 QGIG 1010
2 citations
Jump To
Cite 1 - (1996) 151 QGIG 1010
Cite 2 - (1996) 151 QGIG 1010
Mc Quade and Hayes v WorkCover Queensland [2000] QIC 56
3 citations
Jump To
Cite 1 - [2000] QIC 56
Cite 2 - [2000] QIC 56
Cite 3 - [2000] QIC 56
McQuade and Hayes v WorkCover Queensland (2000) 165 QGIG 126
3 citations
Jump To
Cite 1 - (2000) 165 QGIG 126
Cite 2 - (2000) 165 QGIG 126
Cite 3 - (2000) 165 QGIG 126
Proctor v Jetway Aviation Pty Ltd (1984) 1 NSWLR 166
3 citations
Jump To
Cite 1 - (1984) 1 NSWLR 166
Cite 2 - (1984) 1 NSWLR 166
Cite 3 - (1984) 1 NSWLR 166
Savage v Woolworths (Qld) Pty Ltd (1999) 162 QGIG 353
2 citations
Jump To
Cite 1 - (1999) 162 QGIG 353
Cite 2 - (1999) 162 QGIG 353
Scurr v Brisbane City Council (1973) 133 C.L.R 242
1 citation
Jump To
Cite 1 - (1973) 133 C.L.R 242
Workers' Compensation Regulator v Pearce [2015] ICQ 12
2 citations
Jump To
Cite 1 - [2015] ICQ 12
Cite 2 - [2015] ICQ 12

Cases Citing

Case NameFull CitationFrequency
Eastern Plant Hire Queensland Pty Limited v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 793 citations
Grice v Workers' Compensation Regulator [2016] QIRC 593 citations
Keighran v Workers' Compensation Regulator [2016] QIRC 963 citations
Richardson v Workers' Compensation Regulator [2016] QIRC 22 citations
van der Berg v WorkCover Queensland [2021] QSC 281 citation
1

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