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Murray v Workers' Compensation Regulator[2016] QIRC 81

Murray v Workers' Compensation Regulator[2016] QIRC 81

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Murray v Workers' Compensation Regulator [2016] QIRC 081

PARTIES: 

Murray, Brian

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2015/295

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

2 August 2016

HEARING DATES:

18 May 2016

13 June 2016 (Respondent's submissions)

4 July 2016 (Appellant's submissions)

HEARD AT:

Brisbane

MEMBER:

Industrial Commissioner Thompson

ORDERS:

  1. The Appeal is upheld.
  2. The decision of the Regulator is set aside.
  3. The Commission replaces the decision with a new decision waiving the time limit.
  4. The Regulator is to pay the Appellant's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – Decision of Workers' Compensation Regulator – Appellant bears onus of proof – Standard of proof – Balance of probabilities – Witness evidence – Time for applying – Employment arrangement – Worker's compensation history – Whether failure to lodge within six month period due to reasonable cause – Solicitor's handling of claim significantly less than competent and as such caused prejudice to the Appellant – Authorities – Reasonable cause – Section 131(5)(c) has been enlivened – Section 131(1) is waived – Decision of the Regulator to confirm the decision of the Insurer not to waive the time for applying is set aside and replaced with a new decision waiving the time limit – Appeal upheld – Regulator is to pay the Appellant's costs of and incidental to this Appeal or failing agreement to be the subject of a further application to the Commission.

CASES:

Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 131, s 141

State of Queensland (Queensland Health) v Q‑COMP and Coyne (2003) 172 QGIG 1447

SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision http://www.qirc.qld.gov.au

Simon Blackwood (Workers' Compensation Regulator) v  Toward [2015] ICQ 8

Quinlivan v Portland Harbour Trust [1963] VR 25

Black v City of South Melbourne [1963] VR 34

ANZ Banking Group v Q-Comp (2004) 175 QGIG 1125

Sophron v The Nominal Defendant [1957] HCA 27

Katter v Melhem [2015] NSWCA 213

Cook v Q-COMP (2008) 187 QGIG 220

Mayne Group Limited v Q-COMP Unreported, Industrial Magistrates Court, Brisbane, Gordon IM 13 February 2004

Churchill v Q-COMP (2009) 190 QGIG 247

Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195

Viles v Commonwealth of Australia [2004] QSC 404

Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187

Rankine v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 142

Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123

Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304

Perdis v Nominal Defendant [2003] QCA 555

Brown v Nominal Defendant [1972] 2 NSWLR 207

Elliott AND Q-COMP (WC/2010/124) - Decision http://www.qirc.qld.gov.au

Miller v Nominal Defendant 2003] QCA 558

APPEARANCES:

Mr T. Pincus, Counsel, instructed by Slater and Gordon for the Appellant.

Mr P. O'Neill, Counsel directly instructed by the Workers' Compensation Regulator, the Respondent.

Decision

  1. [1]
    On 26 November 2015 Brian Murray (Appellant) lodged a Notice of Appeal with the Industrial Registrar pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (WCRA) against a decision of the Workers' Compensation Regulator (the Regulator) dated 16 November 2015.
  1. [2]
    The Regulator's decision was to confirm the decision of the Insurer (WorkCover) not to waive the time for applying for compensation in accordance with ss 131 and 141 of the WCRA.

Relevant Legislation

  1. [3]
    The Legislation pertinent to this Appeal is ss 131 and 141 of the WCRA:

"131 Time for applying

  1. (1)
    An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
  2. (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.
  3. (3)
    Subsection (2) does not apply if death is, or results from, the injury.
  4. (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.
  5. (5)
    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."

"141 Time from which compensation payable

  1. (1)
    The entitlement to compensation for an injury arises on the day the worker is assessed by -
  1. (a)
    a doctor; or
  1. (b)
    if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or
  1. (c)
    if the injury is an oral injury and the worker attends a dentist - the dentist.
  1. (2)
    However, any entitlement to weekly payment of compensation starts on -
  1. (a)
    if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on the day the worker stops work because of the injury - the day after the worker stops work because of the injury; or
  1. (b)
    if a doctor, nurse practitioner or dentist assesses the injury as resulting in total or partial incapacity for work on a day later than the day the worker stops work because of the injury - the day the doctor, nurse practitioner or dentist assesses the injury.
  1. (3)
    Subsections (1) and (2) are not intended to limit any availability for compensation for the day of injury provided for under part 8.
  1. (4)
    Subsection (2) is subject to section 131(2)."

Standard of Proof

  1. [4]
    The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [5]
    In the course of the proceedings, evidence was provided by three witnesses.
  1. [6]
    The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.

Witness Lists

  1. [7]
    The witnesses for the Appellant were:
  •   Ryan Birch (Birch);
  •   Holly Nia Nia (Nia Nia); and
  •  the Appellant.
  1. [8]
    The Regulator called no witness evidence.

Appellant

Birch

  1. [9]
    Birch, a solicitor, had previously been in the employ of the law firm Trilby Misso who later became Slater and Gordon but no longer worked for either firm.  Both firms were said to specialise in personal injuries and workers' compensation type litigation.
  1. [10]
    Birch's first involvement with the claim subject of the Appeal to the Commission was on 14 May 2014 when the claim was allocated to him by two senior lawyers.  At the time he was in the public liability team and his first focus was to protect the limitation period which was one month from the date of instructions and required him to identify possible defendants so as to issue a Notice of Claim on any proper defendants.
  1. [11]
    Birch's usual practice when dealing with clients in the course of his employment as a solicitor was to contact them as soon as possible to discuss the matter, to build rapport and identify any issues involved.  A file note was recorded which contains details from that exchange.
  1. [12]
    On 22 May 2014 he attended upon the Appellant with a file note making reference to matters including:
  • date of accident - 8 May 2014;
  • type of injury - "distal fracture of the femur, a fractured fibula with shattered bone fragments and the fracture exte";
  • client agreement;
  • disclosure notice; and
  • time limit to serve Notice of Claim (30 days).

The file note made no reference to a possible workers' compensation claim or any dates for bringing such a claim.

  1. [13]
    A public liability claim was lodged through a Notice of Claim (Part 1) under the Personal Injuries Proceedings Act 2002 (PIPA) which identified the defendant as David Newbery (Newbery) who had been a friend of the Appellant.  The basis of the claim related to an injury occurring on a property under the occupier's control.
  1. [14]
    Following the lodgement of the claim there was no subsequent involvement by Birch as he had been transferred to the workers' compensation team.
  1. [15]
    Under cross-examination Birch confirmed that in May 2014 he had been an admitted solicitor for two years having worked solely in the areas of personal injury and worker's compensation.  The file relevant to these proceedings was not the subject of a formal handover when he passed it on in July 2014 and he was not aware at the time who had assumed responsibility for the file.  He had one further involvement with the file in August 2015 when Nia Nia (who had carriage of the file at that time) was on leave [Transcript p. 1-9].  The file had originally come to him through a "grey area" which usually occurred when the client care team was unsure which section should look after a particular claim [Transcript p. 1-10].
  1. [16]
    Birch in his first meeting with the Appellant informed him of concerns about the work in question being a "cash job" and possible Australian Taxation Office (ATO) consequences.  The role of a solicitor included making a client aware of all risks associated with a claim and identifying what regime a claim should be bought under.  The "cash job" being a term used loosely as in a job of employment [Transcript p. 1-11].  At the time of his involvement he believed Newbery had been paying his client for the "cash job".  In dealing with the file he had not identified any other specific type of insurance that may have been applicable instead of public liability insurance [Transcript p. 1-12].
  1. [17]
    The Appellant in the file note (22 May 2014) recorded:

"I advised as discussed in our telephone conversation the claim has many issues that we will have to overcome during the course of the claim such as identifying an[d] Insurer particularly for the employer or subsidiary insurer for the landowner or tenant".

The service of the Notice of Claim under the PIPA was a way of identifying the identity of any employer [Transcript p. 1-13].

  1. [18]
    Birch accepted he was aware that the Appellant was doing general labouring work, being paid cash in the form of a lump sum amount although there was no contract which explicitly set an hourly rate for the work.  The Appellant had not provided any tools or equipment for the task.  Birch did not from his perspective believe Newbery was an employer [Transcript p. 1-14].  Birch conceded he had recorded in the file note references to the possible early closure of the file if they were unable to identify an insurer and further recorded the following in the file note:

"If we are able to establish the employer is negligent, we then look to establishing quantum which is his loss that results from the injury".  [Transcript p. 1-16]

  1. [19]
    The purpose of lodging a public liability claim was that it enabled the discovery of information that would ultimately allow a claim to proceed under the pre-litigation [Transcript p. 1-16].  When information was discovered that a claim could be brought under the workers' compensation regime he was no longer involved with the file.  Birch accepted that on the information available to him as at 22 May 2014 he was aware the Appellant was working as a labourer and that was not his usual trade [Transcript p. 1-17].  On the proposition that the information available as at 22 May 2014 was sufficient to have lodged a worker's compensation claim, Birch's evidence was:

"Well, we still had six months from the date of the accident to do - to do that, so it didn't have to be done immediately.  What had to be done immediately though, was a public liability claim because you only have one month to make the claim." [Transcript p. 1-18]

Nia Nia

  1. [20]
    Nia Nia was formerly a solicitor with Trilby Misso who later became Slater and Gordon with both firms specialising in personal injuries and workers' compensation matters.  In respect of the claim subject of these proceeding she became involved at some stage in 2014 when the file was transferred across.  At the time of her initial involvement there had been a Notice of Claim lodged under the PIPA against the occupier.
  1. [21]
    On 19 August 2014 correspondence was forwarded to Nia Nia from the law firm Minter Ellison acting on behalf of ASNU Holdings Pty Ltd (ASNU) which in essence advised that the Appellant had been hired by ASNU and not Newbery personally and the proper person for the purposes of s 10 of the PIPA was ASNU with a request to amend the Notice of Claim Part 1 and 2 to reflect this position.  The correspondence stated "Pursuant to s 12 of PIPA our client is otherwise satisfied that your client's notice of claim served on 12 June 2014 complies with PIPA".  It was also noted that under s 11 of PIPA there was no admission of liability.
  1. [22]
    On 3 September 2014 correspondence in response to Minter Ellison (19 August 2014) confirmed the compliance with s 9 of the PIPA.
  1. [23]
    Minter Ellison forwarded further correspondence to Trilby Misso (addressed to Nia Nia) on 8 September 2014 which included the following passages:

"Initially it seemed to us that this claim was appropriate for progression under the Personal Injuries Proceedings Act 2002 (PIPA).  However, on closer review, it seems that it may be more appropriate for progression through the Workers Compensation and Rehabilitation Act 2003 (WCRA) process.

In our view, the determinative factor as to which Act applies will be whether or not general labouring work is incidental to your client's usual trade or business.  This is because Schedule 2 Part 1 Section3 of the WCRA extends the definition of employee to certain contractors, who are performing work that is not incident to their usual trade or business.

We would be grateful if you would confirm the scope of your client's usual trade or business, and whether or not it includes general labouring work."

Nia Nia understood the solicitor's letter was indicating they believed the Appellant was a worker and were seeking clarity regarding his usual trade or business.

  1. [24]
    On 15 October 2014 Nia Nia contacted the Appellant by telephone at which time she queried his usual scope of business/trade and whether it included general labouring work.  The advice received was that he had a small business sharpening and selling hairdressing scissors and knives which provided him with his main income with work undertaken as a traffic controller accounting for the other 25 per cent of his income.  The Appellant was said to have understood that the reason for the query was that the other side believed the claim should be handled as a workers' compensation claim.  Nia Nia advised she would keep him updated as to their response.
  1. [25]
    Nia Nia was not completely sure whether the work in question was part of his usual trade or business and did not at the time express any view to the Appellant as to what the correct position was nor did she look at the definitions of "worker" in the WCRA.  Correspondence was forwarded to Minter Ellison by Nia Nia on 15 October 2014 in which she stated "I am instructed that my client's primary trade/business includes sharpening and selling hairdressing scissors and knives".  Nia Nia's view remained that the claim was a public liability claim.
  1. [26]
    Minter Ellison by way of electronic correspondence on 20 October 2014 acknowledged the information provided in terms of the Appellant's primary trade or business however suggesting that their questions had not been properly answered and requested that "Further to that issue, please confirm whether the work your client performed as a traffic controller was done under his business CAN or alternatively, if he was employed".
  1. [27]
    On 4 November 2014 Nia Nia responded confirming that the Appellant's business did not include general labouring work and when he performed work as a traffic controller he was employed.  At the time of forwarding the response Nia Nia was not aware that the limitation period under the WCRA expired in November 2014.
  1. [28]
    Correspondence was sent from Minter Ellison to Trilby Misso (Nia Nia) on 8 April 2015 regarding the incident involving the Appellant on 8 May 2014 in which they stated the following:

"We refer to our previous correspondence in this matter, particularly our correspondence foreshadowing that this claim may be more appropriate for progression through the Workers Compensation and Rehabilitation Act 2003 (WCRA) process.

As you know, our view is that the determinate factor will be whether or not general labouring work is incident to your client's usual trade or business.  This is because Schedule 2 Part 1 Section 3 of the WCR extends the definition of employee to certain contractors, who are performing work that is not incident to their usual trade or business.

You have confirmed that the scope of your client's usual trade or business is sharpening and selling hairdressing scissors and knives.  This scope does not include general labouring work.  On our reading of the WCRA, therefore, your client is a 'worker' under Schedule 2 of the WCRA and your client's claim should therefore be advanced under that process.

We are therefore instructed to hold this file in abeyance pending confirmation that the claimant has been determined a 'worker' under the WCRA, at which time we will close our file."

  1. [29]
    On receipt of this correspondence Nia Nia was prompted to seek advice from Counsel on 21 April 2015 and after having appraised Counsel of the particulars of the situation and of the possibility of lodging a statutory claim with WorkCover to see if they would accept him as a "worker" Counsel replied by email stating "it can't hurt".
  1. [30]
    Contact was made with the Appellant by Nia Nia on 27 April 2015 where he was informed of the conversation with Counsel and of the possible lodgement of a claim for workers' compensation albeit if it determined him to not be a "worker" then his PIPA claim would remain.  Almost an hour after that conversation the Appellant called Nia Nia making enquiries about how to submit a claim for workers' compensation.
  1. [31]
    Nia Nia had never suggested to the Appellant prior to 27 April 2015 that he should lodge a claim for workers' compensation or mentioned anything to him regarding the timing of lodgement for a workers' compensation claim.
  1. [32]
    Under cross-examination Nia Nia confirmed that at July 2014 she had been admitted as a solicitor for just over a year and had mainly worked in the area of public liability with some experience in workers' compensation when employed as a secretary/paralegal [Transcript p. 1-24].  The structure of the public liability section featured a practice group leader who was an experienced solicitor and was the same in the workers' compensation section.  When she received the Appellant's file in or about July 2014 she reviewed the file including the reading of file notes contained in the file [Transcript p. 1-25].  Nia Nia accepted that on receipt of the file she adopted the course that had been set in place by Birch and whilst she could not recall if she had contacted the Appellant at that time gave evidence that to have done so would have been her usual practice [Transcript p. 1-26].  The failure to have recorded a file note of that conversation could lead to interpretation that includes no such call being made or a number of calls were made and no file note kept by Nia Nia.  At the time Nia Nia was said to have carriage of around 100 files [Transcript p. 1-27].
  1. [33]
    With regards to correspondence (dated 19 August 2014) from Minter Ellison it was accepted that the advice was that the PIPA action had been taken against the wrong person (Newbery) instead of his business entity [Transcript p. 1-27].  It was conceded that a prudent solicitor receiving that correspondence would have in their mind considered they were dealing with an employment scenario but that did not occur to Nia Nia at the time [Transcript p. 1-28].  Material in the file identifying a lengthy list of previous workers' compensation claims had not caught her attention at the time and she had never confirmed those claims with the Appellant [Transcript p. 1-30].
  1. [34]
    On receiving correspondence from Minter Ellison on 8 September 2014 that suggested a preliminary view the Appellant's claim was one for workers' compensation she could not remember seeking advice from the practice group manager but sought instructions from the client, continuing to hold the view it was a public liability claim [Transcript p. 1-31].  Nia Nia was unsure why it had taken her five weeks to contact the Appellant about his scope of work following the correspondence of 8 September 2014 and at the time had no awareness of limitation periods for workers' compensation claims [Transcript p. 1-32].  At that time she made no effort to check the legislation or obtain advice from a more experienced person in the firm.  It was only after receipt of the Minter Ellison correspondence of 8 April 2015 that steps were taken by her to advise the Appellant it was in fact a workers' compensation claim [Transcript p. 1-34].

Murray

  1. [35]
    Murray gave evidence of his previous employment history which included a range of occupations and tasks identified as:
  •   Slicer - at a meatworks;
  •   forklift driver;
  •   traffic controller;
  •   venetian blind installer; and
  •   factory worker - explosives factory.
  1. [36]
    It was his employment in the meat industry that consumed the largest portion of work activities being around 30 years with the work of a slicer described as:
  •   very dangerous;
  •   extremely strenuous; and
  •   physical.

When he first started in the industry there were few safety rules in place or safety equipment supplied and during that period he suffered quite a few injures as a result of the nature of the work.

  1. [37]
    In May 2014 he suffered an injury in a forklift accident and shortly afterwards engaged Trilby Misso (now Slater and Gordon) in an attempt to be compensated for his injury.  The Appellant had no idea (at the time) what compensation was available to him and had only the advice from the solicitor that if the person he was working for had a public liability policy they would pursue a public liability claim.
  1. [38]
    The Appellant relied on Slater and Gordon to pursue the public liability claim and to do whatever was necessary to achieve compensation for him.  There was no initial advice regarding a possible workers' compensation claim or any mention of there being a time limit for lodging such a claim.  He had never considered the possibility of pursuing a workers' compensation claim on the basis that he:
  •  was not officially employed;
  •  was being paid cash for the work; and
  •  did not know whether there was a company involved and if so the name of the company.
  1. [39]
    Under cross-examination the Appellant gave evidence that he had undertaken previous work for Newbery on four to five occasions over a two to three year period and was paid in cash for that work.  At the same point of time he was running his current business and on occasions working as a traffic controller [Transcript p. 1-37].  The work involving traffic control had rendered him a casual employee according to his evidence [Transcript p. 1-38].
  1. [40]
    With regards to the arrangement with Newbery he was assisting in the unloading or loading of air-conditioning parts for which there was no formal agreement in terms of what he would be paid other than he would receive a lump sum at the end of each day worked.  Work had been offered through Newbery's son whom was an acquaintance of the Appellant [Transcript p. 1-38].
  1. [41]
    Contact had been made with Trilby Misso on 12 May 2014 by the Appellant's partner (he was in hospital at the time) and there was a subsequent visit by Birch to his residence on 22 May 2014 where a number of matters were raised that included:
  •   implications from the cash job with the prospect of a government department or ATO taking criminal proceedings against him;
  •   identifying an insurer, particularly for the employer; and
  •   previous injuries in the course of employment.

A client agreement was also signed in the course of the meeting [Transcript p. 1-39].

  1. [42]
    The Appellant's previous workers' compensation history was raised at the meeting with Birch with Murray accepting there had been "close" to 20 workers' compensation claims during his working life.  A notice of claim under PIPA was prepared with acknowledgement that the Appellant had signed the document [Transcript p. 1-40].  There was evidence given regarding the various workers' compensation claims for a period from 1977 to 2012 with Murray conceding he was aware of the process for making a claim and of the process utilised by WorkCover in accepting or rejecting a claim [Transcript pp. 1-42 to 1-43].
  1. [43]
    The arrangement with Newbery did not include:
  • providing a quote; and
  • providing a tax invoice.

The Appellant did not accept this arrangement was the same scenario as to when he was undertaking his traffic control duties because he was "helping a friend for cash" but if the arrangement made him an employee, then he was an employee.  Prior to April 2015 he had made no inquiry as to whether Newbery had a workers' compensation policy [Transcript p. 1-44].  Birch had provided advice that unless they were able to identify an insurer it would not be financially viable to pursue a claim.

  1. [44]
    The Appellant was aware (at the time) of the change regarding his firm of solicitors and was also aware that Birch had ceased to have carriage of his matter with it being passed on to Nia Nia.  He had no recall of regular contact with Nia Nia once she had taken control of his file [Transcript p. 1-44].  He recalled being advised by her that solicitors acting for Newbery's company had suggested he could be a worker and therefore his claim could be a workers' compensation claim but was unable to attest that happened in or around September/October 2014 [Transcript p. 1-45].  The Appellant was aware he as the client of having to provide instructions to the solicitor but went on to state "I think it works two ways, the instructions from the solicitor to me because I am relying on their advice" [Transcript p. 1-45].  He did not dispute there was a conversation with Nia Nia on 15 October 2014 where she requested information about his usual scope of business and whether it included general labouring work.  His response included:
  •   his main income was his business sharpening and selling hairdresser scissors;
  •   25 per cent of his income was from working as a traffic controller; and
  •   he undertook some night-time unloading of freight for a friend for which his business invoiced that person, which was different than the Newbery arrangement [Transcript p. 1-46].

The Appellant had limited recall of any communication with Nia Nia after October 2014 about the workers' compensation claim.

  1. [45]
    In re-examination he confirmed that in the case of his previous claims for workers' compensation there had not been discussion with anyone as to whether they were claims under the WCRA or some other mechanism for receiving compensation.  Prior to 2015 he had never been required to consider what was "the test" under the WCRA as to who was a worker.  In 2014 when dealing with Nia Nia he presumed she would do whatever necessary to work out his position and provide advice to him.

Submissions

Regulator

  1. [46]
    The submission included a detailed chronology commencing with the date of the Appellant's injury on 8 May 2014 and concluding with the lodgement of the Notice of Appeal on 26 November 2015.  Included in the chronology was significant references to the various communications between the Appellant and his legal representatives as well as communications between his legal representatives and solicitors acting on Newberry's behalf in the matter.  Amongst the content of the chronology it was noted:
  •   8 September 2014 - Minter Ellison in correspondence to Trilby Misso proposed that it be more appropriate for the matter to be processed under the WCRA;
  •   15 October 2014 - Nia Nia in a telephone conversation with the Appellant requests the scope of his business as a result of Minter Ellison's belief the claim ought to be handled under the WCRA;
  •   8 November 2014 - six month time limit to lodge WCRA claim expires;
  •   4 May 2015 - Appellant lodges application for workers' compensation; and
  •   30 June 2015 - WorkCover rejects the claim for compensation.

Onus of Proof

  1. [47]
    The Appellant bears onus of proof on the balance of probabilities.  See:
  •  State of Queensland (Queensland Health) v Q-COMP and Coyne[1]; and
  •  SPE Pty Ltd v Q-COMP and Fuller[2].

Relevant Legislation

  1. [48]
    The legislation applicable in respect of this matter was identified as:
  •  s 131 Time for applying; and
  •  s 141 Time from which compensation is payable.

Issues for Determination

  1. [49]
    The only issue for determination is whether the application for compensation was lodged out of time and whether the Appellant falls within one of the provisions of s 131(5) of the WCRA.
  1. [50]
    There appears to be no dispute between the parties that:
  •   for the purposes of s 141(1) of the WCRA the Appellant was medically assessed on 8 May 2014;
  •   in accordance with the decision in Simon Blackwood (Workers' Compensation Regulator) v Toward[3] the relevant assessment for the purposes of s 141 of the WCRA the time commenced to run on 8 May 2014;
  •   the application for compensation had to be lodged on or before 8 November 2014; and
  •   the application for compensation was lodged on 4 May 2015 and therefore out of time.
  1. [51]
    In terms of the application of s 131(5) of the WCRA the parties agree that neither mistake nor the Appellant being out of the State were issues with the only issue being whether the Appellant can establish that his failure to lodge the application within time was due to reasonable cause.

Summary of Respondent's Contentions

  1. [52]
    The Appellant had failed to establish that his failure to lodge the application for compensation was due to reasonable cause with the evidence indicating he was an experienced claimant for workers' compensation benefits in the course of his working life, in excess of twenty claims overall with the last five being made between 2009 and 2012.
  1. [53]
    The only matter raised as concerning reasonable cause was the fact the Appellant had retained solicitors to act on his behalf and thereafter relied upon his solicitor's advice to protect his interest.
  1. [54]
    The position of the Appellant that he relied upon his solicitor's advice does not in these circumstances constitute reasonable cause because both the Appellant and his solicitors were placed on notice prior to the expiry of the limitation period that the claim was most likely a workers' compensation claim.  The failure of both to take action following receipt of the advice from Minter Ellison could not be seen as having acted reasonably and in the context of the Appellant's workers' compensation claims history he personally should have taken some action.

History and Background

  1. [55]
    In identifying the history from the time the Appellant sustained an injury to his left lower leg on 8 May 2014 when crushed by a pallet on a forklift the submission touched on issues that included:
  •  Appellant was working as a general labourer at the time of the injury, being paid cash in hand;
  •  his employment status at that time was generally self-employed in the business of selling and sharpening scissors and other hairdressing equipment as well as part-time work as a traffic controller;
  •  there was no evidence that the Appellant usually conducted a business as a general labourer;
  •  the Appellant engaged solicitors on 12 May 2014 informing them of:
  • his usual business activities;
  • worked part-time as a traffic controller;
  • occasionally partook in cash jobs; and
  • engaged in a cash labouring job at the time of the injury;
  •  initial legal advice was regarding personal injuries limitation periods and the process of a public liability claim;
  •  on 8 June 2014 Minter Ellison corresponded with the Appellant's solicitors indicating that any claim may be governed by the WCRA and sought further particulars;
  •  on 15 October 2014 Minter Ellison were provided with the following information from the Appellant's solicitors:

"I am instructed that my client's primary trade/business includes sharpening and selling hairdressing scissors and knives.";

  •  on 20 October 2014 and 4 November 2014 there was an exchange of emails between the solicitors regarding which litigation applied;
  •  no workers' compensation application was lodged prior to the six month period expiring which expired on 8 November 2015;
  •  8 April 2015 Minter Ellison wrote to the Appellant's solicitors asserting that the claim should be made under the workers' compensation regime; and
  •  4 May 2015 the Appellant lodged an application for workers' compensation.

Summary of Evidence

  1. [56]
    The submission addressed the evidence of the witnesses in the proceedings referencing both in-chief and cross-examination aspects of Birch, Nia Nia and Murray's evidence.  A number of salient points were made that included:

Birch

  • initial phone conversation with the Appellant, no mention of a possible workers' compensation claim, referred to it as a public liability claim;
  • it is open that a workers' compensation claim was not pursued on the mistaken belief there was no workers' compensation policy in place;
  • it ultimately took one phone call from Murray to Newberry to establish that there was a workers' compensation policy in place however this call did not occur until 24 April 2015;
  • Birch at the commencement of his involvement acknowledged he had some experience in the field of workers' compensation law;
  • Birch was aware of the circumstances regarding the employment arrangements from the outset which should have been apparent to any competent solicitor that the Appellant was an employee; and
  • Birch confirmed he had the knowledge that even if an employer did not have a workers' compensation policy WorkCover would still process the claim.

Nia Nia

  • confirmed taking carriage of the Appellant's matter from Birch;
  • confirmed correspondence from Minter Ellison of 8 September 2014 was to determine whether the Appellant was a worker at the time of the accident;
  • confirmed she was not aware of the test under the WCRA to determine whether the Appellant was a worker and did not look at that legislation but simply formed the conclusion the matter was a public liability claim;
  • Nia Nia confirmed she had available to her a Practice Group Leader for advice and consultation;
  • Nia Nia accepted Birch's conclusion that the Appellant's claim was a public liability matter without conducting her own review of the file;
  • Nia Nia after receiving correspondence from Minter Ellison (dated 8 September 2014) sought instructions without making an effort to investigate the consequences of those instructions or whether the assertions made by Minter Ellison were correct;
  • Nia Nia had made no effort to educate herself on the appropriate test under the workers' compensation legalisation or seek other advice until receiving Minter Ellison's advice on 8 April 2015; and
  • Nia Nia's evidence was supported by documents relating to her exchanges with Minter Ellison regarding the employment circumstances relevant to the Appellant claim.
  • Note:  a striking feature of this case is that two solicitors have simply acted on the assumption made by others that the claim was a public liability claim without having given an independent thought to what was the actual appropriate legislative regime.

Murray

  • Murray confirmed engaging solicitors to pursue his claim relying on them to do whatever was necessary to finalise his compensation claim;
  • Murray could not recall the issue of workers' compensation being raised prior to April/May 2015 although Nia Nia's file note in October 2014 noted it had been raised with him;
  • confirmed he had sustained a lot of injuries whilst working in the meat industry;
  • Murray had not envisaged making a workers' compensation claim because he did not think he was officially employed;
  • the employment arrangement with Newberry was loose which required the supply of his labour constituting an informal employment contract;
  • confirmed his workers' compensation history and his awareness of the process that WorkCover adopted in accepting or rejecting a claim; and
  • the lack of recall by Murray regarding a number of the exchanges with Nia Nia and of information disclosed regarding that communication was said to have cast some doubt of the veracity of the Appellant's case.

Relevant Authorities

Reasonable Cause

  1. [57]
    A reasonable excuse is one "which a reasonable man would regard as sufficient excuse consistent with reasonable standard of conduct the kind of thing which might be to give notice by reasonable means" see Quinlivan v Portland Harbour Trust[4] (Quinlivan).
  1. [58]
    A number of other authorities were relied upon which included:
  •  Black v City of South Melbourne[5] (Black) which held:

"The next question is whether there was 'reasonable cause' for the failure to give notice.  The inquiry here appears to be of a much wider kind justifying a more liberal attitude.  The expression 'reasonable cause' appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable."

  •  ANZ Banking Group v Q-Comp[6] where Hall P noted:

"As to the finding of 'reasonable cause' it seems to me that too much should not be made of the reasonable mind.  The limitation period and the power to waive the limitation period are to operate in circumstances in which workers suffering physical, psychiatric and psychological injuries are seeking to claim benefits.  It will frustrate the purpose of the Act if a failure to meet the time limit attributable to the very 'injury' complained of is to be denied pardon because a reasonable person who (of course) would not be suffering from the 'injury', would have met the time limit."

  1. [59]
    In relation to the contention of the Appellant that he had trusted the carriage of his claim to competent solicitors and should not be held responsible for any delay caused by the actions of his solicitors, there are authorities that provide some support for this proposition and strong authorities to the contrary.
  1. [60]
    In the matter of Sophron v The Nominal Defendant (Sophron)[7] it was confirmed by the High Court of Australia that there was no general principle that a court should not visit the sins of a dilatory lawyer upon their client with the majority judgement going no further than to note that the responsibility of the solicitor and the blamelessness of the client was a material consideration and that every case must be determined on its own facts and no fixed formula should be applied.
  1. [61]
    In Katter v Melhem[8] (Katter) the New South Sales Court of Appeal noted:

"The personal blamelessness of a solicitor's client for delay having occurred is not in itself a sufficient reason why a failure to bring or conduct proceedings timeously should be excused.  However that the applicant for an extension of time has not been personally responsible for the time slipping by is a relevant factor to take into account in an application for extension of time and also in the somewhat analogous case of an application to dismiss a proceeding for want of prosecution."

  1. [62]
    Other authorities relied upon included:
  •   Cook v Q-COMP[9];
  •   Mayne Group Limited v Q-COMP[10];
  •   Churchill v Q-COMP[11];
  •   Daily Examiner Pty Ltd v Mundine; Brown v Mundine[12] (Mundine);
  •   Viles v Commonwealth of Australia (Viles)[13];
  • Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator)[14] (Tanna);
  • Rankine v Simon Blackwood (Workers' Compensation Regulator)[15] (Rankine);
  • Keir v Simon Blackwood (Workers' Compensation Regulator)[16] (Keir); and
  • Keioskie v Workers' Compensation Board of Queensland[17].
  1. [63]
    In the cases of Tanna and Rankine there was an involvement of Slater and Gordon as the plaintiff's legal representative in applications relating to extensions of time with both matters heard before the QIRC.
  1. [64]
    In Tanna the Commission found that reasonable cause had been established however it was submitted by the Regulator that as Tanna had done everything within his power to progress his application by returning a signed application to his solicitors that decision can be distinguished from the present case.
  1. [65]
    With regard to Rankine it could also be distinguished from the present case as there had been a signed application for compensation provided to the solicitors within the time for lodging an appeal and it was the negligence of the solicitors to not lodge the application within time.
  1. [66]
    The Appellant whilst not viewed as a sophisticated claimant was clearly an experienced workers' compensation claimant who on his own admission was aware of how the workers' compensation process operated.

Submission

  1. [67]
    The only basis put forward by the Appellant to establish reasonable cause for the failure to lodge the application for compensation within time was the negligence of Trilby Misso/Slater and Gordon.  There was heavy reliance by him on the decision of the Court of Appeal in Perdis v Nominal Defendant[18] (Perdis) which was a different matter in that:
  •  the extent of the delay was only seven days;
  •  it dealt with a very different statutory provision (s 37 of the Motor Accident Insurance Act 1994); and
  •  the Appellant in that matter had done all that was reasonably required of her.
  1. [68]
    In Perdis, Davies JA noted:

"It may be necessary to qualify that general proposition where, after a claimant has entrusted the matter to his or her solicitor, there is something which would cause a reasonable person in the position of the claimant to make further inquiry or take other steps but it is unnecessary to consider any such qualification here for the claimant here did all that could reasonably have been expected of her."

  1. [69]
    In a similar vein, Williams JA had noted:

"The question will always be whether or not the claimant had 'reasonable excuse' for the failure to comply with the statutory requirement. It may not always be sufficient simply to say that a solicitor was engaged during the relevant period.  Where the solicitor appears to have knowledge of the relevant law, and gives specific advice (though incorrect) to the claimant, it would be difficult to conclude that the claimant acted unreasonably in relying on that advice.  If it was obvious to a reasonable person in the position of the claimant that the solicitor retained was not acting appropriately, then it may well be that it would not be sufficient for the claimant to explain away the failure to comply with the statutory requirement by saying a solicitor was retained."

  1. [70]
    The present case falls very much into the type of exception identified by Davies and Williams JA due to the Appellant's misunderstanding of the circumstances regarding the employment scenario which appeared to infect his solicitors approach to the case from the outset.  The Appellant did however in the view of the Regulator clearly understand the distinction between operating under his business compared to working as an employee and his failure to recognise the legal nature of the relationship with Newberry does not constitute either a mistake or reasonable cause for the purpose of s 131 of the WCRA.
  1. [71]
    The Regulator concedes that:
  •   the Appellant retained what ostensibly appeared to be competent solicitors to act on his behalf; and
  •   there had been gross negligence in the manner in which the claim was handled by Birch and in particular Nia Nia.
  1. [72]
    There was no plausible explanation for the failures of Birch and Nia Nia to recognise from the outset it should have been brought under the workers' compensation regime.  Nia Nia's negligence was further compounded by the fact she was put on notice by the correspondence from Minter Ellison of 8 September 2014 which occurred in the six month limitation period.
  1. [73]
    The Appellant had failed to provide Nia Nia with instructions to investigate and determine whether he was a worker and as a consequence falls within the exception noted by Davies and Williams JA in the Perdis case.
  1. [74]
    Given the clear negligence of Slater and Gordon the Appellant is not left without a remedy if the appeal is dismissed because he as a viable cause of action against them.  See Brown v Nominal Defendant[19].

Regulator's Conclusion

  1. [75]
    The Appeal should be dismissed and the decision of the Review Unit (dated 16 November 2015) be confirmed.
  1. [76]
    The Regulator seeks costs of defending the Appeal.

Appellant

Introduction

  1. [77]
    The only question in these proceedings is whether the Appellant had a reasonable excuse for failing to lodge an application for compensation under the WCRA within the six months prescribed by s 131(1) of the Act.
  1. [78]
    The basic facts were said to be uncontroversial in that:
  • the Appellant suffered an injury on 8 May 2014 and was assessed by a doctor on that day which started the time period running for the purposes of s 131(1) of the WCRA;
  • Appellant engaged Trilby Misso, subsequently absorbed by Slater and Gordon on or about 12 May 2014 in respect of seeking compensation or damages for the injury;
  • Slater and Gordon lodged a notice of claim under PIPA on 8 June 2014;
  • 8 September 2014 Minter Ellison (Newberry's solicitors) corresponded with Slater and Gordon suggesting the WCRA may be the appropriate way to proceed rather than PIPA and sought information relevant to determining the correct position;
  • 8 November 2014 was the expiry date under s 131(1) of the WCRA with no application for compensation being lodged at that time;
  • 8 April 2015 - Minter Ellison advised Slater and Gordon that the Appellant's claim should be under the WCRA;
  • 4 May 2015 and application for workers' compensation was lodged by the Appellant;
  • application for compensation rejected on the basis of being outside the six month period under s 131 of the WCRA - 30 June 2015; and
  • Regulator confirmed the decision of the Insurer - 16 November 2015.
  1. [79]
    The Appellant in challenging the decision of the Regulator contends he had reasonable excuse as the term is understood on the authorities because:
  • in sufficient time he reasonably entrusted Slater and Gordon to do whatever was necessary to advance his claim and was let down; and
  • nothing occurred which would have caused a reasonable person to do anything in respect of pursuing compensation other than to continue to rely on his solicitors.

Legal Framework

  1. [80]
    The relevant sections of the WCRA were identified as:
  • s 108(1) - provides for compensation payable;
  • s 11 - defines a "worker";
  • Schedule 2, part 1 - s 3 relevantly defines a worker as including:

"contractor…if…the contractor makes a contract with someone else for the performance of work that is not incident to a trade or business regularly carried on by the contractor, individually or by way of a partnership"; and

  • s 131 relevantly provides:

"(1) An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.

…

  1. (5)
    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. (c)
    a reasonable cause."

Principles

  1. [81]
    The relevant principles, as to the identification of a reasonable cause were said to arise from the following authorities:
  • Quinlivan v Portland Harbour Trust[20] - the word "reasonable" in this context refers to:

"a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man";

  • Elliott AND Q-COMP[21]:

"…whether the claimant can show an act or omission which was reasonable in the circumstances and which operated to prevent him/her from filing the application within the prescribed time or something which might delay a reasonable person in filing the application".

  • Miller v Nominal Defendant[22] - in which Davies JA maintained on the question of reasonableness it was to be considered objectively but having regard to the claimant's personal characteristics such as age, intelligence and education;
  • Perdis v Nominal Defendant[23] - related to the circumstances of a client's subjective belief in the solicitor's competence, with the question being the objective reasonableness in the applicant's circumstances of his/her leaving the conduct of the matter to the solicitor.  The qualifications mentioned in Perdis to the general position cannot have been intended to mean that anything which justifies any enquiry by a claimant of their solicitor, or taking any other steps, will displace the reasonableness of the initial trusting of the solicitor.  It had to be obvious to the client that the solicitor retained was not acting appropriately.

McKenzie J on the existence of possible cause action by an applicant against a solicitor for the failure to meet a time limit stated in Perdis it was "not relevant to deciding the question of whether, in a particular case, a reasonable excuse for the delay has been given".

Regulator's approach

  1. [82]
    The Regulator sought to avoid the authorities relied upon by the Appellant by attempting to distinguish them by reference to other authorities therefore raising doubt which in the view of the Appellant was without basis.
  1. [83]
    The Perdis line of authorities was relied upon by the Appellant for its statements of principle and the reliance by the Regulator that Perdis dealt with a very different statutory provision (s 47 of the Motor Accident Insurance Act 1994) was questioned in that there was a required notice period within three months after an accident or otherwise "a reasonable excuse for the delay must be given".  The concept of reasonable cause in Quinlivan and Black was said to be the equivalent to "due to reasonable cause" in the WCRA and it was therefore plain that Quinlivan/Black/Perdis principles applied.
  1. [84]
    The submission addressed the reliance by the Regulator on the following authorities:
  • Sophron v The Nominal Defendant[24];
  • Viles v Commonwealth of Australia[25];
  • Daily Examiner Pty Ltd v Mundine; Brown v Mundine[26]; and
  • Katter v Melhem[27].
  1. [85]
    Alternate positions raised by the Appellant included the following:
  • Sophron - involves question of "sufficient" rather than "reasonable" cause - nothing in Sophron contradicts Perdis;
  • Viles - this was an application for leave after years of delay and was not a case involving a specific statutory threshold, required to be met before a discretion arises, as now under consideration.  The primary consideration of McMurdo J in refusing leave related to a fair trial when events had occurred some 18 years previously;
  • Mundine - whilst the Court had a general discretion to extend time in this matter that legislation was in no way similar to the provisions of s 131(5)(c) of the WCRA.  In Mundine there was one relevant factor missing in the exercise of discretion being the presence or absence of a satisfactory explanation for the delay.  The Court said the responsibility for missing the deadline should be sheeted home to the lawyers but noted it was not an "impenetrable bar" to refusing an extension.  As with Sophron and Viles there is nothing in Mundine to contradict Perdis in its application to this Appeal; and
  • Katter - did not involve the consideration of a specific statutory threshold but was concerned with the general exercise of a discretion to extend time.  This decision says nothing about the questions of principle considered in, and established by, Perdis.
  1. [86]
    The other decision relied upon by the Regulator that necessitates some attention was Keir which was a case similar to that of Sophron and Mundine.  In upholding a previous decision not granting leave to proceed with an appeal after a lengthy delay, it was held that Dr Keir was highly intelligent, highly qualified and specifically aware of the applicable time limit but failed to act on the inaction of her solicitor.  The circumstances come within the exception to the general rule recognised in Perdis.  Nothing in Keir contradicts Perdis however if it did the decision in Perdis in the Court of Appeal would prevail.

Conclusion on Authorities

  1. [87]
    Perdis was said to represent the law in Queensland as to the principles applicable on this Appeal for determining whether the Appellant had "reasonable cause" for the delay and whether anything subsequently occurred which negatived that reasonable cause.  There is no basis to distinguish Perdis in this case.

The Facts

  1. [88]
    The submission indicated the evidence before the proceedings had established certain matters in addition to the uncontroversial background.  The matters established included:
  • Appellant's schooling and employment history which showed he could not be considered a person of sophistication in legal matters;
  • substantial workers' compensation claims which was unsurprising given the nature of his work, all of which arose out of formal employment arrangements without any questions arising about some other regime other than the WCRA;
  • Appellant injured in the course of undertaking a casual "cash job" for a friend but did not think at the time he was an "employee" that could pursue workers' compensation;
  • Slater and Gordon was a large national firm with expertise in personal injury and workers' compensation claims whom the Appellant engaged very quickly after his injury for the purposes of attempting to seek compensation that may have been available to him;
  • Appellant relied on Slater and Gordon to do whatever was necessary however they failed to lodge a compensation claim under the WCRA within the prescribed time;
  • Appellant had in sufficient time entrusted Slater and Gordon to advance any claim for compensation he had which was obviously reasonable in the circumstances;
  • applying Perdis in terms of the general rule it must be found that the Appellant had a reasonable cause unless something has been shown to have happened which displaced the reasonableness of the Appellant continuing to rely on the firm;
  • there was no basis to conclude that the Appellant's prior workers' compensation claims history gave him any additional capacity to determine that his claim for compensation should be made under the WCRA rather than the PIPA or otherwise protect himself from Slater and Gordon letting him down;
  • the evidence is clear that Slater and Gordon let the Appellant down by not determining he had a claim under the WCRA by failing to consider questions raised by Minter Ellison;
  • there was no basis for a finding that the Appellant had been placed on notice by either Birch or Nia Nia that prior to the expiry of the limitation period the claim was "most likely" a workers' compensation claim;
  • Nia Nia in her carriage of the Appellant's claim had:
  • not mentioned to the Appellant about the limitation period under the WCRA as she had not considered she was dealing with an employment scenario;
  • not taken any steps to review the WCRA upon receiving advice from Minter Ellison on 8 September 2014 about the possibility of it being a matter dealt with under the WCRA;
  • not acted at the time on further advice from Minter Ellison on 8 April 2015 to form a view about the WCRA other than to seek some advice from Counsel who suggested lodging a claim under WCRA "can't hurt"; and
  • not advised the Appellant until 27 April 2015 to lodge a claim under the WCRA.
  1. [89]
    When the claim was first lodged Minter Ellison initially accepted it as a PIPA claim and only tentatively raised the question of the WCRA in September 2014, with the Appellant having not been informed about any limitation period for the WCRA it was understandably and reasonable for him to continue to rely on his solicitors to do what was required.

Appellant's Conclusion

  1. [90]
    The Appellant in light of the applicable legal principles had failed to lodge his application for the purposes of s 131(5) of the WCRA due to reasonable cause, having continued to rely on Slater and Gordon to protect and advance his interest.  The firm had not done so.
  1. [91]
    There is a discretion available as to whether or not to waive the time limit under s 131 of the WCRA once a reasonable cause has been established and in this case the Regulator had not advanced argument for not exercising of the discretion in favour of the Appellant.
  1. [92]
    The Commission should conclude that the failure to lodge the compensation application within time was due to reasonable cause and the time limit in s 131(1) of the Act should be waived therefore setting aside the Regulator's decision and substituting another decision.

Conclusion

  1. [93]
    The matter for determination is a discrete point as to whether the application for workers' compensation lodged by the Appellant (on 4 May 2015) beyond the six month time period prescribed at s 131(1) of the WCRA is able to be found as valid and enforceable pursuant to s 131(5) of the WCRA.
  1. [94]
    It was not of contest that:
  • on 8 May 2014 the Appellant suffered an injury to his lower left leg as a result of pallets on a forklift hitting him and having the effect of crushing his leg;
  • a Notice of Claim for Damages pursuant to PIPA was lodged by the Appellant against the occupier of the premises on 8 June 2014;
  • on 4 May 2015 the Appellant lodged a claim for workers' compensation; and
  • on 30 June 2015 WorkCover advised the Appellant his application for compensation had been rejected on the basis it had been lodged outside the six month period prescribed by s 131 of the Act.

Legislation

  1. [95]
    The legislation relevant to the Appeal is s 131 of the WCRA:

"131 Time for applying

  1. (1)
    An application for compensation is valid and enforceable only if the application is lodged by the claimant within 6 months after the entitlement to compensation arises.
  2. (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.
  3. (3)
    Subsection (2) does not apply if death is, or results from, the injury.
  4. (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.
  5. (5)
    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. [96]
    In particular, the more pertinent section for consideration in this matter is s 131(5) an exercise of discretion to waive subsections (1) and (2) of an application for compensation if it is able to be established that the failure to lodge an application was due to :
  • a mistake;
  • the Appellant's absence from the State; or
  • a reasonable cause.

In the course of the proceedings there has been no reliance placed upon the grounds in s 131(5) other than reasonable cause, so effectively the options of mistake or absence from the State are not subject to the consideration of the Commission in determining the outcome of the Appeal.

  1. [97]
    Additionally s 141 of the WCRA is also of relevance to the extent that an entitlement for compensation for an injury arises on the day a worker is assessed by:

"(a) a doctor; or

  1. (b)
    if the injury is a minor injury - a nurse practitioner acting in accordance with the workers' compensation certificate protocol; or
  1. (c)
    if the injury is an oral injury and the worker attends a dentist - the dentist."

Employment Arrangement

  1. [98]
    The Appellant's employment history spanned more than 30 years in which he had undertaken work in a number of occupations that are reasonably described as "Blue Collar" endeavours.  These included roles such as:
  • forklift driver;
  • meatworker - slicer;
  • venetian blind installer;
  • factory worker; and
  • traffic controller.
  1. [99]
    At the time of injury on 8 May 2014 the Appellant was a small business operator specialising in the sale and sharpening of hairdressing scissors, additionally he also undertook part-time work as a traffic controller to supplement his income.  Whilst engaged as a traffic controller, on the evidence, he was for all intents and purposes a casual employee in the true sense.
  1. [100]
    For the work he was performing on 8 May 2014 he had reached an oral agreement to assist Newberry to move air-conditioning parts with the arrangement being limited to him receiving a "cash" lump sum at the end of the day.  The Appellant had undertaken other work with Newberry on four or five occasions over the past two to three years and had been remunerated in a similar fashion.  Having regard for that arrangement I accept the evidence of the Appellant that immediately following the injury he had not considered the possibility of making a claim for workers' compensation due to a lack of understanding of how the arrangement he had entered into related to his status being of an employee.  The work undertaken on 8 May 2014 was clearly outside the scope of work he performed in the conduct of his usual business selling and sharpening hairdressing equipment and the arrangement did not deliver an outcome in the same terms of the casual employment in the area of traffic control where he was the subject of the deduction of income tax in accordance with ATO guidelines leaving no doubt as to his status for that work.

Workers' Compensation History

  1. [101]
    On the face, the evidence regarding the Appellant's workers' compensation history confirms that he was a claimant of considerable experience having amassed in the vicinity of twenty plus claims over the period of his working life between 1977 and 2012.  The Appellant conceded in the course of cross-examination he had an awareness of the process for making a claim and the process relied upon by WorkCover to accept or reject a claim.
  1. [102]
    Given the nature of the Appellant's employment I do not necessarily conclude that the number of claims made over a 35 year period were in fact excessive when one takes into account his employment as a slicer in the meat industry whereby it was not uncommon for him to experience cuts to the hands and arms that were not serious but nevertheless required a formal claim to be lodged by the injured worker.  There was no evidence that the Appellant had experienced any issues with regards to the lodgement of any of his previous claims nor was there evidence presented that at the time he was anything other than an employee, so that his circumstances on or around 8 May 2014 were entirely different to what he had previously experienced.
  1. [103]
    The evidence regarding the Appellant's schooling, work history and general life activities do not paint him as a person of some sophistication who would be expected to have a reasonable understanding of the legal ramifications real or otherwise regarding his circumstances immediately following the injury suffered by him on 8 May 2014.

Solicitors

  1. [104]
    The engagement of legal representation by the Appellant in the immediate aftermath of the injury suffered on 8 May 2014 is evidence of a timely reaction to his circumstances.  The internal mechanisms of the firm saw the matter allocated to Birch who at the time was assigned to the public liability section and he responded appropriately in attending upon the Appellant on 22 May 2014 for the purposes of formalising an arrangement to act for him and familiarising himself with the circumstances relating to the issues going forward.  In the course of the initial discussions between Birch and the Appellant the evidence confirmed an absence of dialogue around the possibility of a workers' compensation claim and it is factual that on 8 June 2014 Birch caused a Notice of Claim to be lodged under PIPA on the Appellant's behalf.  The allocation of the Appellant's claim to Birch had been made by two senior lawyers and the lodgement of the public liability claim was also the end of Birch's involvement as he was transferred out of that section which necessitated the Appellant's claim being passed on to Nia Nia.  There was no formal handover if the file as such and apart from an involvement in August of 2014 whilst Nia Nia was on leave Birch had no further role in the claim.
  1. [105]
    On examination the evidence reveals that Birch had been advised at the outset by the Appellant of the arrangement he had entered into with Newberry to undertake labouring work for a "cash" payment which should have been sufficient to trigger at least consideration of other aspects beyond simply the public liability component.  The failure of Birch to conduct appropriate inquiries beyond those undertaken by him particularly as he had addressed the possible ATO ramifications for the Appellant of the "cash arrangement", can only reasonably be seen as flawed, with proper investigation likely to have revealed quite early in the peace that workers' compensation legalisation was a consideration for the carriage of the claim going forward.
  1. [106]
    The involvement of Nia Nia commenced after the Notice of Claim had been lodged under PIPA and on 19 August 2014 correspondence was forwarded to her by Minter Ellison in relation to a defect in the PIPA application regarding the correct identity of the respondent for the purposes of s 10 of the PIPA.  A request was made without admission of liability for the Notice of Claim to be amended to reflect ASNU Holdings Pty Ltd rather than Newberry as the Respondent.  Minter Ellison had in the correspondence further stated "Pursuant to section12 of PIPA our client is otherwise satisfied that your client's notice of claim served on 12 June 2014 complies with PIPA."
  1. [107]
    The next significant involvement of Nia Nia related to her response to correspondence from Minter Ellison (8 September 2014) in which they suggested that on closer review of the PIPA claim that the matter may be more appropriately progressed through the WCRA and requested confirmation regarding the scope of the Appellant's usual trade.  In evidence Nia Nia acknowledged understanding of the Minter Ellison suggestion about workers' compensation and initiated contact with the Appellant on 15 October 2014 some 28 business days after receipt of the Minter Ellison correspondence.  When considering the issue of time limitations and with the "clock ticking" it was blatantly tardy on her behalf to take such time to contact the Appellant on a critical component of his claim.  Nia Nia remained of a view that it remained a public liability claim and took no steps to make inquiries to the contrary.
  1. [108]
    On 20 October 2014 Nia Nia was again the subject of correspondence from Minter Ellison in which dissatisfaction was expressed with regards to her responses to the previous enquiry and she subsequently replied to that email on 4 November 2014 some 11 business days later which acts as a further example of her tardiness particularly as the workers' compensation time limit effectively expired on 8 November 2014.
  1. [109]
    Some five months after the lodgement date had expired (on 8 April 2015) Minter Ellison advised Nia Nia they had reached a view that the Appellant's claim should proceed under the WCRA as he was a "worker" for the purposes of that Act.  On 21 April 2015 Nia Nia sought an opinion from Counsel as to whether the Appellant's claim should be under the PIPA or the WCRA and in doing so provided the following commentary to Counsel:

"I am a bit unclear as to whether he would fall under the WCRA?  Are you able to shed some light on this when you get a chance?  He was paid cash in hand for the job and has only does it a couple of times within the space of a year or so.  Didn't pay any tax etc.  The non-payment of tax doesn't mean that he isn't a worker and if you are hurt on your first day, that doesn't mean you are not a worker either…".

Nia Nia went on to state that "But prima facie he could well have been a worker".

  1. [110]
    All the information provided to Counsel by Nia Nia on 21 April 2015 was material that had been available and known by the law firm from the initial meeting with the Appellant and Birch on 22 May 2014 and for that information to only be the subject of enquiry some 11 months after if first came to the attention of the solicitor with carriage of the case is beyond comprehension.
  1. [111]
    On the issue of Nia Nia's ongoing tardiness in the handling of the claims it is noted that:
  • from receipt of correspondence from Minter Ellison on 8 April 2015 it took Nia Nia nine business days to initiate contact with Counsel for the purposes of seeking an opinion; and
  • on receiving advice from Counsel on 21 April 2015 that it could not hurt to lodge a claim under the WCRA it took her four business days to contact the Appellant with that advice.
  1. [112]
    On 27 April 2015 Nia Nia verbally informed the Appellant to lodge a workers' compensation claim, additionally drawing his attention to the fact that he may be required to explain why he had taken such a long period of time to lodge the application.
  1. [113]
    The evidence before the proceedings is sufficient to establish that the handling of the Appellant's claim from the outset and in particular the period for which Nia Nia had carriage of the file was in the view of the Commission significantly less than competent and as such caused a prejudice to the Appellant in a manner that should not be reasonably expected when a client engages a legal representative of the standing of Trilby Misso/Slater and Gordon.
  1. [114]
    It may be argued that the significant case load of both Birch and Nia Nia, coupled with their limited experience (at that time) as solicitors may be mitigating factors however each had access to senior lawyers within the firm from whom they could obtain advice and/or assistance and both chose not to exercise that option.

Authorities

  1. [115]
    The reliance of the parties in proceedings of this nature on cases from this and other jurisdictions often being superior Courts to that of the Commission are done so in the circumstances that the case in question must always stand on its own facts and circumstances and that often the authorities cited relate to similar but not necessarily the same circumstances.
  1. [116]
    The Regulator quite correctly submitted the following observation at paragraph 65:

"In relation to this contention, the starting point is that there are authorities that provide some support of the Appellant's argument there is also strong authority to the contrary."

The comment was in relation to the trust of the Appellant's seemingly being that as he had entrusted the carriage of his claim to competent solicitors he should not be held responsible for any delay caused by their actions.

  1. [117]
    The authorities cited by the Regulator included:
  • Quinlivan v Portland Harbour Trust[28];
  • Black v City of South Melbourne[29];
  • ANZ Banking Group v Q-Comp[30];
  • Churchill v Q-COMP[31];
  •   Sophron v The Nominal Defendant[32];
  • Daily Examiner Pty Ltd v Mundine; Brown v Mundine[33];
  • Katter v Melhem[34];
  •   Viles v Commonwealth of Australia[35];
  •   Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator)[36];
  • Rankine v Simon Blackwood (Workers' Compensation Regulator)[37];
  •   Keir v Simon Blackwood (Workers' Compensation Regulator)[38]; and
  •   Keioskie v Workers' Compensation Board of Queensland[39].
  1. [118]
    To some extent each of those authorities dealt with issues relating to the issue of reasonable cause to varying degrees.  Examples of this include:
  •   Black - some act or omission which operated to prevent the giving of notice;
  •   Churchill - Appellant had under estimated long-term effects of the injury;
  •   Sophron - no general principle that the negligence or dilatory conduct of a solicitor can never be ascribed to the client. Every case must be determined on its own facts;
  •   Katter - personal blamelessness of a solicitor's client for delay is not in itself sufficient reason why a failure to conduct proceedings should be excused. However that an applicant for an extension of time had not been personally responsible for time not being met was a relevant factor to be taken into account;
  •   Viles - the plaintiff in that case had been made aware of the various delays making it not the fault simply of his lawyer; and
  •   Keir - was found herself not to be blameless and was not incapable of making her own enquiries because Dr Keir was no ordinary litigant and her solicitor no ordinary solicitor.
  1. [119]
    The Appellant in terms of reasonable cause relied on the following authorities:
  • Quinlivan v Portland Harbour Trust[40];
  • Black v City of South Melbourne[41];
  • Elliott AND Q-COMP[42];
  • Miller v Nominal Defendant[43]; and
  • Perdis v Nominal Defendant[44].
  1. [120]
    The Appellant made the following argument at paragraphs 10(d) and (e) of their submission:

"(d) In the context of assessing reasonable cause, the general position is that an applicant is not to be identified with his/her solicitor – instead, it is a reasonable excuse for an applicant to have 'in sufficient time… entrusted the matter to a person who was reasonably believed to be [or was "apparently"] competent to do whatever was necessary', but who did not do so: Quinlivan at 30-31; Black at 38-39; Perdis v Nominal Defendant (2003) 2 Qd R 64 at [12] (Davies JA) and [37]-[38] (Mackenzie J). In case there is any doubt, Perdis cannot be taken to establish that the applicant must positively prove a subjective belief in the solicitor's competence; the question must be the objective reasonableness in the applicant's circumstances of his/her leaving the conduct of the matter to the solicitor.

  1. (e)
    The well-established general position stated at (d) above may be qualified if, after the matter is entrusted to the solicitor, something happens 'which would cause a reasonable person in the position of the claimant to make further inquiry or take other steps' to protect his/her own interests or the claimant fails to respond to requests by the solicitor 'to take appropriate steps or provide information for the purpose of enabling the claim to be advanced': Perdis at [13] (Davies JA) and [37] (Mackenzie J)."
  1. [121]
    Further in Perdis in agreeing with Davies JA, Williams JA had stated "obvious that the solicitor retained was not acting appropriately.
  1. [122]
    On consideration of all the authorities I have noted their relevance or otherwise to the arguments presented by both the Appellant and the Regulator finding that of all the authorities Perdis had been the most helpful in establishing reasonable cause principles in play and to be relied upon in the circumstances of this Appeal.

Reasonable Cause

  1. [123]
    The Appellant was not a person that could be easily described as "sophisticated" in terms of his knowledge of workplace law or more importantly workers' compensation legislation requirements despite having made a number of claims previously that were apparently without incident.  In this case the matter was clouded by doubts regarding his "status" as an employee or otherwise and his prompt engagement of legal representation following the injury sustained on 8 May 2014 was all that could reasonably be asked of him in the circumstances.
  1. [124]
    The Appellant was entitled to hold reasonable expectations that his interests would be properly represented by a firm/s that are well known practitioners in the area of workers' compensation however it is evident he was let down in the handling of his case with there being little doubt of professional negligence at the hands of both solicitors involved in the process.  The Regulator in submissions conceded quite properly that there had been gross negligence in the manner in which Birch and more particularly Nia Nia had handled the Appellant's claim and there was an absence of any plausible explanation for their failure to recognise from the outset that the claim should be a workers' compensation claim.  Nia Nia as the solicitor with final carriage of the claim had her level of negligence compounded by the fact Minter Ellison had put her on notice on 8 September 2014 that it may have been a workers' compensation claim and she chose to take no proactive steps in this regard.  It was their failings alone that lead to the eventual application for workers' compensation being lodged some 178 days beyond the time prescribed at s 131 of the WCRA.  Particularly concerning is the fact that Minter Ellison had "red flagged" the likelihood of the Appellant being an employee with the six month limit.
  1. [125]
    I am satisfied the Appellant has established that the delay in lodging the application for workers' compensation was reasonable cause.

Finding

  1. [126]
    On consideration of the evidence, material and submissions before the proceedings I find based on the requisite standard of proof that s 131(5)(c) of the WCRA has been enlivened and therefore in accordance with that provision, subsection (1) of s 131 of the WCRA is waived.
  1. [127]
    The decision of the Regulator (dated 16 November 2015) to confirm the decision of the Insurer not to waive the time for applying for compensation pursuant to ss 131 and 141 of the WCRA be set aside and replaced with a new decision waiving the time limit.
  1. [128]
    The Appeal is upheld.
  1. [129]
    The Regulator is to pay the Appellant's costs of and incidental to this Appeal to be agreed or failing agreement to be the subject of a further application to the Commission.
  1. [130]
    I order accordingly.

Footnotes

[1] State of Queensland (Queensland Health) v Q-COMP and Coyne (2003) 172 QGIG 1447

[2] SPE Pty Ltd AND Q-COMP and Gary Clifford Fuller (C/2010/19) - Decision

[3] Simon Blackwood (Workers' Compensation Regulator) v  Toward [2015] ICQ 8

[4] Quinlivan v Portland Harbour Trust [1963] VR 25

[5] Black v City of South Melbourne [1963] VR 34

[6] ANZ Banking Group v Q-Comp (2004) 175 QGIG 1125

[7] Sophron v The Nominal Defendant [1957] HCA 27

[8] Katter v Melhem [2015] NSWCA 213

[9] Cook v Q-COMP (2008) 187 QGIG 220

[10] Mayne Group Limited v Q-COMP Unreported, Industrial Magistrates Court, Brisbane, Gordon IM 13 February 2004

[11] Churchill v Q-COMP (2009) 190 QGIG 247

[12] Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195

[13] Viles v Commonwealth of Australia [2004] QSC 404

[14] Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187

[15] Rankine v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 142

[16] Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123

[17] Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304

[18] Perdis v Nominal Defendant [2003] QCA 555

[19] Brown v Nominal Defendant [1972] 2 NSWLR 207

[20] Quinlivan v Portland Harbour Trust [1963] VR 25

[21] Elliott AND Q-COMP (WC/2010/124) - Decision

[22] Miller v Nominal Defendant [2003] QCA 558

[23] Perdis v Nominal Defendant [2003] QCA 555

[24] Sophron v The Nominal Defendant [1957] HCA 27

[25] Viles v Commonwealth of Australia [2004] QSC 404

[26] Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195

[27] Katter v Melhem [2015] NSWCA 213

[28] Quinlivan v Portland Harbour Trust [1963] VR 25

[29] Black v City of South Melbourne [1963] VR 34

[30] ANZ Banking Group v Q-Comp (2004) 175 QGIG 1125

[31] Churchill v Q-COMP (2009) 190 QGIG 247

[32] Sophron v The Nominal Defendant [1957] HCA 27

[33] Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2012] NSWCA 195

[34] Katter v Melhem [2015] NSWCA 213

[35] Viles v Commonwealth of Australia [2004] QSC 404

[36] Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187

[37] Rankine v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 142

[38] Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123

[39] Keioskie v Workers' Compensation Board of Queensland [1992] QCA 304

[40] Quinlivan v Portland Harbour Trust [1963] VR 25

[41] Black v City of South Melbourne [1963] VR 34

[42] Elliott AND Q-COMP (WC/2010/124) - Decision

[43] Miller v Nominal Defendant [2003] QCA 558

[44] Perdis v Nominal Defendant [2003] QCA 555

Close

Editorial Notes

  • Published Case Name:

    Murray v Workers' Compensation Regulator

  • Shortened Case Name:

    Murray v Workers' Compensation Regulator

  • MNC:

    [2016] QIRC 81

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    02 Aug 2016

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
ANZ Banking Group v Q-COMP (2004) 175 QGIG 1125
3 citations
Jump To
Cite 1 - (2004) 175 QGIG 1125
Cite 2 - (2004) 175 QGIG 1125
Cite 3 - (2004) 175 QGIG 1125
Black v City of South Melbourne (1963) VR 34
4 citations
Jump To
Cite 1 - (1963) VR 34
Cite 2 - (1963) VR 34
Cite 3 - (1963) VR 34
Cite 4 - (1963) VR 34
Brown v Nominal Defendant [1972] 2 NSWLR 207
2 citations
Jump To
Cite 1 - [1972] 2 NSWLR 207
Cite 2 - [1972] 2 NSWLR 207
Churchill v Q-COMP (2009) 190 QGIG 247
3 citations
Jump To
Cite 1 - (2009) 190 QGIG 247
Cite 2 - (2009) 190 QGIG 247
Cite 3 - (2009) 190 QGIG 247
Cook v Q-COMP (2008) 187 QGIG 220
2 citations
Jump To
Cite 1 - (2008) 187 QGIG 220
Cite 2 - (2008) 187 QGIG 220
Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195
4 citations
Jump To
Cite 1 - [2012] NSWCA 195
Cite 2 - [2012] NSWCA 195
Cite 3 - [2012] NSWCA 195
Cite 4 - [2012] NSWCA 195
Katter v Melhem [2015] NSWCA 213
4 citations
Jump To
Cite 1 - [2015] NSWCA 213
Cite 2 - [2015] NSWCA 213
Cite 3 - [2015] NSWCA 213
Cite 4 - [2015] NSWCA 213
Keioskie v C B Baker Brisbane Pty Ltd [1992] QCA 304
3 citations
Jump To
Cite 1 - [1992] QCA 304
Cite 2 - [1992] QCA 304
Cite 3 - [1992] QCA 304
Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123
3 citations
Jump To
Cite 1 - [2014] QIRC 123
Cite 2 - [2014] QIRC 123
Cite 3 - [2014] QIRC 123
Miller v Nominal Defendant[2005] 1 Qd R 135; [2003] QCA 558
2 citations
Jump To
Cite 1 - [2003] QCA 558
Cite 2 - [2003] QCA 558
Perdis v Nominal Defendant[2004] 2 Qd R 64; [2003] QCA 555
4 citations
Jump To
Cite 1 - [2003] QCA 555
Cite 2 - [2003] QCA 555
Cite 3 - [2003] QCA 555
Cite 4 - [2003] QCA 555
Perdis v Nominal Defendant (2003) 2 Qd R 64
1 citation
Jump To
Cite 1 - (2003) 2 Qd R 64
Quinlivan v Portland Harbour Trust (1963) VR 25
5 citations
Jump To
Cite 1 - (1963) VR 25
Cite 2 - (1963) VR 25
Cite 3 - (1963) VR 25
Cite 4 - (1963) VR 25
Cite 5 - (1963) VR 25
Rankine v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 142
3 citations
Jump To
Cite 1 - [2015] QIRC 142
Cite 2 - [2015] QIRC 142
Cite 3 - [2015] QIRC 142
Sophron v The Nominal Defendant [1957] HCA 27
4 citations
Jump To
Cite 1 - [1957] HCA 27
Cite 2 - [1957] HCA 27
Cite 3 - [1957] HCA 27
Cite 4 - [1957] HCA 27
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187
3 citations
Jump To
Cite 1 - [2014] QIRC 187
Cite 2 - [2014] QIRC 187
Cite 3 - [2014] QIRC 187
Vlies v Commonwealth of Australia [2004] QSC 404
4 citations
Jump To
Cite 1 - [2004] QSC 404
Cite 2 - [2004] QSC 404
Cite 3 - [2004] QSC 404
Cite 4 - [2004] QSC 404
Workers' Compensation Regulator v Toward [2015] ICQ 8
2 citations
Jump To
Cite 1 - [2015] ICQ 8
Cite 2 - [2015] ICQ 8

Cases Citing

Case NameFull CitationFrequency
Green v Workers' Compensation Regulator [2019] ICQ 32 citations
Nuttall v Workers' Compensation Regulator [2017] QIRC 692 citations
1

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