Keighran v Workers' Compensation Regulator
[2016] QIRC 96
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- Unreported Judgment
- Keighran v Workers' Compensation Regulator[2016] QIRC 96
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Keighran v Workers' Compensation Regulator[2016] QIRC 96
Keighran v Workers' Compensation Regulator[2016] QIRC 96
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Keighran v Workers' Compensation Regulator [2016] QIRC 096 |
PARTIES: | Keighran, Glen (applicant) v Workers' Compensation Regulator (respondent) |
CASE NO: | WC/2016/2 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 5 September 2016 |
HEARING DATES: | 3 March and 23 August 2016 |
HEARD AT: | Brisbane |
MEMBER: ORDER: | Deputy President Kaufman
|
CATCHWORDS: | WORKERS' COMPENSATION – APPLICATION FOR AN EXTENSION OF TIME – Where decision of the Workers' Compensation Regulator was re-sent to the applicant – Where the appeal was not made in accordance with s 550 of the Workers' Compensation and Rehabilitation Act 2003 – Where the appeal was lodged approximately 130 days out of time - Whether the Commission has power to extend time limit – Application refused. Workers' Compensation and Rehabilitation Act 2003, s 542, s 550 |
CASES: | Grice v Workers' Compensation Regulator [2016] QIRC 059 Proctor v Jekyll Aviation Ltd [1984] 1 NSWLR 166 Simon Blackwood (Workers' Compensation Regulator) v Michelle Pearce [2015] ICQ 012 Steven Pearce v Q-COMP (C/2010/64) van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161 |
APPEARANCES: | Mr J. Merrell, Counsel instructed directly by the Workers' Compensation Regulator. Mr G. Keighran, representing himself. |
Ex Tempore Reasons for Decision
- [1]On 3 March and 23 August 2016 I heard an application for an extension of time in relation to an appeal against a Review Decision of the Workers' Compensation Regulator ('the respondent') to reject an application for compensation made by Mr Glen Keighran ('the applicant') to WorkCover on 28 August 2014. That application was rejected by WorkCover on 3 February 2015. On 13 February 2015 the applicant made an application for review of WorkCover's decision. WorkCover's decision was confirmed by the respondent on 31 March 2015. That Review Decision was sent to the applicant by email on 13 April 2015.
- [2]The applicant sought an extension of time beyond the statutory 20 day limit for the filing of his appeal to the Commission. The focus of these proceedings was whether the Commission had jurisdiction to extend time in light of section 550 of the Workers' Compensation and Rehabilitation Act 2003 ('the Act'). A secondary issue was whether time should be extended were there was jurisdiction to do so.
- [3]The affidavit of the Appeals Officer from the Workers' Compensation Regulator who has carriage of this application, and its related appeal, outlines the history of this matter. I have adapted that affidavit in setting out the following background.
Background
- [4]On or about 28 August 2014, the applicant made a claim for workers' compensation. On 3 February 2015, WorkCover Queensland made the decision to reject the applicant's claim. On 13 February 2015, the applicant lodged an application for review of WorkCover's decision. On 31 March 2015, the Review Unit of the Respondent made the decision to confirm WorkCover's decision to reject the claim. The Review Decision was sent to the applicant by email on 13 April 2015. The applicant asserts that he did not receive the 13 April email.
- [5]On 23 June 2015, the applicant sought an update from the respondent and on 24 June 2015 the applicant was again sent the Review Decision by email. On 16 October 2015, the applicant sent an email to the respondent requesting further time to appeal the review decision. The respondent responded on the same date and suggested that the applicant contact the Queensland Industrial Relations Commission ('the Commission')[1].
- [6]On 23 October 2015, the applicant sent an email to the respondent again requesting further time to appeal and the respondent responded on the same date advising the applicant that he needed to apply for an extension of time to file his appeal with the Commission.
- [7]On 5 January 2016, the applicant filed his Notice of Appeal and an Application to Extend Time for Lodging an Appeal.
- [8]On 6 January 2016, the respondent sent an email to the applicant requesting that he provide reasons for the late lodgment of his appeal. On 13 January 2016, the applicant provided reasons for the delay.
- [9]The respondent considered the information received from the applicant and made the decision not allow further time to appeal. The respondent advised the applicant of this decision by way of letter dated 15 January 2016. The respondent received the applicant's submissions in relation to whether the Commission had jurisdiction to extend time for the appeal, and if so, why the Commission should extend time, on 14 April 2016.
Extension of Time Application
- [10]I considered the submission filed by the parties, and at the request of the appellant I listed the matter for hearing. The following paragraphs comprise a slightly edited transcript of my ex tempore reasons for decision delivered directly to Mr Keighran on 25 August 2016:
- [11]I have obviously had an opportunity to consider all the material and nothing significantly more has been added today. I feel very sympathetic towards you, Mr Keighran. You are obviously in a terrible situation with the matter involving your children but I cannot have regard to matters that are not relevant to what I have to decide. It is as simple as this: I do not have the power to extend time. You have seen the submissions of Mr Merrell about the various judgments. The most recent judgment of the Industrial Court was that of the current President, Justice Martin, in Michelle Pearce[2].
- [12]And with respect to his Honour, his judgment is correct, in my view. The law, as it is, does not allow this Commission to extend time. The only way that time can be extended under the legislation as it applied, having regard to the time at which your claim was made, is that you had to ask the Regulator within the twenty day time limit to extend time. And you did not do that. Even when, subsequently, you did, they did not extend time. The Act[3] has been amended but even now, despite the decision of the President in Michelle Pearce,[4] after the amendments, it is still up to the Regulator, although, not constrained by the 20 days, to extend time for the making of an appeal.
- [13]It is clear to me that the Commission does not have the jurisdiction to allow an extension of time. In my respectful opinion, the judgment of the President is clearly correct. Now, Deputy President O'Connor, in his decision,[5] which has been referred to and I assume you have read, analyzed the decision of President Hall[6] and came to the same conclusion as did Justice Martin, and as did Vice President Linnane in Grice.[7] They have all come to the conclusion that there is no power in the Commission to extend time. I do not feel constrained to follow the decision of President Hall in the earlier Pearce[8] decision, for reasons slightly different to those of Vice President Linnane, although I do not necessarily disagree with them.
- [14]Deputy President O'Connor, in Van der Berg[9], referred to the principles dealing with how you have to follow decisions of superior courts. And he cited from Proctor v Jekyll Aviation:
"And there is an obligation of a court to loyally follow decisions of any court superior. And the reason for that is that we need certainty in the law. But where there are conflicting decisions of superior courts, the Tribunal may decide which to follow[10]."
Mr Merrell, in his earlier submissions, submitted that I am constrained to follow the earlier Pearce[11]. I do not agree with him because, in my view, Justice Martin in the more recent Pearce[12] properly enunciated the law, albeit in relation to a different section of the Act[13]. But the applicable principles were apposite to both sections. The law as he enunciated it, which, as I have said, I consider to be correct, in my view, applies to both the sections of the Act that Justice Martin was dealing with and the sections with which I am dealing.
- [15]It seems to me that there are now two conflicting decisions on the principles of law that are applicable and, as in my view and in the view of Deputy President O'Connor and Vice President Linnane and Justice Martin, the correct interpretation of the law is that there is no discretion to allow an appeal out of time in this Commission, I am able to follow the decision which I consider to be correct.
- [16]That is my ruling. I do not have that discretion. I cannot give you leave to appeal out of time. And I must say, just dealing with the situation if I am wrong about that, dealing with the merit of your application, whilst I am very sympathetic towards you, I do not think you meet the test in any event. I do not think there were special circumstances. Many such matters where people suffer from a psychological injury and find that they have difficulty in functioning and seek to appeal out of time come before the Commission. Your reasons for the delay insofar as they arise from, not identical circumstances, but circumstances that have some analogy to those confronting many people who have suffered a psychiatric or psychological injury, do not constitute special circumstances.
- [17]Then there is the question of the substantial delay and I have indicated to you some views about the length of that delay and I take your point that you were dealing with the Regulator and there was some uncertainty. But there is still another two month period, after you were told what you could do, that you still did not do anything, after an already long delay. So having regard to that, I would not be inclined to extend time. I take your point about the merits of the case. The evidence of Dr Nielsen, so far as it goes, does not help you but I would not place too much weight on that. But nevertheless, having regard to the old principles, which I do not think apply because I do not have the discretion, I would be unlikely to extend the time for making the appeal.
- [18]But that really does not arise because I just do not have that power. Now, the reason I decided to give you my decision and the reasons straight away is so that you can get on with the matters that are most important to you and you know where you stand. I extend my heartfelt sympathies to you, but I am afraid I cannot help you. So we will have to adjourn.
Footnotes
[1] There is no evidence to indicate that any attempt was made by the applicant to contact the Queensland Industrial Relations Commission or the Industrial Registry.
[2] Simon Blackwood (Workers' Compensation Regulator) v Michelle Pearce [2015] ICQ 012
[3] Workers' Compensation and Rehabilitation Act 2003
[4] Simon Blackwood (Workers' Compensation Regulator) v Michelle Pearce [2015] ICQ 012
[5] Van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161
[6] Steven Pearce v Q-COMP (C/2010/64)
[7] Grice v Workers' Compensation Regulator [2016] QIRC 059
[8] Steven Pearce v Q-COMP (C/2010/64)
[9] Van der Berg v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 161, [26]-[27]
[10] Proctor v Jekyll Aviation Ltd [1984] 1 NSWLR 166
[11] Steven Pearce v Q-COMP (C/2010/64)
[12] Simon Blackwood (Workers' Compensation Regulator) v Michelle Pearce [2015] ICQ 012
[13] Workers' Compensation and Rehabilitation Act 2003, s 542