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- Unreported Judgment
Lowis v Workers' Compensation Regulator QSC 5
SUPREME COURT OF QUEENSLAND
Lowis v Workers’ Compensation Regulator  QSC 5
SHANNON WILLIAM LOWIS
WORKERS’ COMPENSATION REGULATOR
No s 50 of 2017
Supreme Court at Mackay
17 January 2019
31 October 2018
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – where the applicant claims to have suffered psychological stress and health issues as a result of workplace sexual harassment – whether the respondent erred in considering the exercise of a discretion to grant an extension of time – whether the respondents’ breached any rule of natural justice – whether the respondents’ took into account any irrelevant considerations – whether the respondents’ took into account relevant considerations - whether the respondents made any jurisdictional error
Judicial Review Act 1991 (Qld), s 20, s 23(b)
Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 11, s 48, s 131(5), s 134(2), s 541, s 550(3), s 542
Bond & Anor v Queensland Department of Justice and Attorney-General (Workers’ Compensation Regulator)  QSC 252
Carmody v WorkCover Queensland (1998) 157 QGIG 119
South Australia v O'Shea (1987) 163 CLR 378 Burragubba & Ors v Minister for Natural Resources and Mines & Anor  QCA 179
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
The applicant appeared for himself
C M Hartigan for the respondent
The applicant appeared for himself
Crown Solicitor for the respondent
- On 6 October 2017, the applicant, Mr Lowis, filed an application for a statutory order of review pursuant to s 20 of the Judicial Review Act 1991 (Qld). Application was made to review the decision of the respondent (“Regulator”) made on 12 September 2017 to refuse to grant Mr Lowis an extension of time to lodge an appeal pursuant to s 550(3) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the review decision”).
- In order to understand Mr Lowis’ application, it is necessary to set out the factual background. Mr Lowis is a registered civil engineer. Mr Lowis was in a domestic relationship with Ms Inez Danielle Nixon from in or about 2012 to August 2016. Mr Lowis and Ms Nixon have two children. Ms Nixon was employed as a permanent part-time cook in Mackay.
- Mr Lowis and Ms Nixon separated in August 2016 and in August 2016, Ms Nixon filed for bankruptcy as a result of “this matter”.
- By a written contract entitled “Personal Services Consultancy Agreement” between North Queensland Bulk Ports Corporation Limited (“NQBP”) and Hardcastle Engineering and Project Services, Shannon Lowis, the contractor provided engineering services to NQBP from 4 April 2014 to 9 October 2014 at the rate of $1,000 per day. The contract provided that “the services are being undertaken personally by Shannon Lowis unless otherwise authorised in writing by the principle”. It is apparent that the contract was extended, however, the documentation concerning the extension of the contract was not provided.
- Originally it appeared to be somewhat of a mystery as to who or what Hardcastle Engineering and Project Services were. Certainly, it was not a company, and although the contract which has been provided was to be signed by Mr Lowis, it was not in fact signed. Ms Nixon, by her affidavit filed 7 March 2018 says that she did not and has never had any dealings in any way shape or form with NQBP and had nothing to do with the work performed by Mr Lowis at NQBP. Ms Nixon says that the ABN referred to was her own ABN and that “I now understand that in the act of providing my ABN I was deemed as the employer in certain statutes and the applicant was deemed as my worker.”
- Early in the morning of 22 March 2015, Mr Lowis received a sexually explicit text message from a female employee of NQBP. As Mr Lowis’ mobile phone had been left on the kitchen bench, the text was read by Ms Nixon. Mr Lowis reports that this occurrence had “immediate negative consequences for … my marriage”. Mr Lowis complained to NQBP management and the female employee, three days later, on 25 March 2015, provided an emailed apology. Despite making that apology, on 27 April 2015 the same female employee sent a further sexually explicit email to Mr Lowis, causing Mr Lowis more distress.
- Additionally on 27 April 2015, a letter was hand delivered and placed upon Mr Lowis’ desk at NQBP. The letter contained further sexually explicit material, in which the same female employee harassed Mr Lowis. Mr Lowis told his partner Ms Nixon of the further harassment when he returned home on the afternoon of 27 April 2015. On Friday 1 May 2015, Mr Lowis lodged a formal complaint with NQBP concerning the harassment and inaction by local management to prevent the harassment. On Friday 1 May 2015, the contract with NQBP expired and was not renewed.
- On 4 May 2015, Mr Lowis was admitted to the cardiac care unit of the Mackay Base Hospital in a critical condition with heart failure. On 19 June 2015, Mr Lowis lodged a claim with WorkCover Queensland for physical and psychological injury. On 17 September 2015, the female employee who had harassed Mr Lowis wrote a letter of apology regretting her erroneous judgment and retracting all comments made.
Mr Lowis’ Applications
- The first application for compensation made by Mr Lowis was an application made electronically on 15 June 2015. It attached, as required, a Workers’ Compensation Medical Certificate completed on 12 June 2015. The medical certificate provided a diagnosis of tachycardiomyopathy caused by high stress levels, a workplace incident, sexual harassment and poor sleep. The application for compensation nominated NQBP as the employer. That application was rejected.
- The second application for compensation lodged by Mr Lowis to WorkCover was a hand written application dated 6 July 2015 for injuries described as psychological stress and health issues said to have been sustained on 22 March 2015 as a result of workplace sexual harassment.
Ms Nixon’s Application
- On 6 July 2015, Ms Nixon also lodged a handwritten application for workers’ compensation for an injury described as psychological stress and health issues said to be sustained on 22 March 2015 as a result of “workplace sexual harassment to my employee, who was also my partner, Shannon Lowis, occurring over a period of time at NQBP workplace.”
- On 20 July 2015, WorkCover rejected Ms Nixon’s application as they did not consider that Ms Nixon was a worker within the meaning of s 11 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA").
- On 20 July 2015, Ms Nixon applied to the Regulator for review of the decision and the Regulator confirmed the decision of WorkCover to reject the application as Ms Nixon was not a worker under s 11 of the WCRA.
- In its decision of 9 September 2015, the Regulator confirmed that an ABN search conducted showed that Ms Nixon was the sole trader of ABN 52 596 854 693 with the trading name of Hardcastle Engineering and Project Services. The ABN search also recorded that the ABN was cancelled on 31 July 2015.
- A difficulty for Ms Nixon is that as employer, she had not paid for compulsory workers’ compensation insurance for Mr Lowis. By email of 27 November 2015, WorkCover pointed out to Ms Nixon that any employer that failed to meet its obligations to insure pursuant to s 48 of the WCRA had committed an offence punishable by up to 275 penalty units, further pointing out:
“What this essentially means is should Shannon’s claim be accepted, as the employer you may be liable for 100% of the claim costs, and potentially an additional penalty of 50% of those costs. Ultimately the decision to proceed with the claim is Shannon’s decision as the worker, given our conversation yesterday, I felt obliged to ensure you are aware of the potential financial impact.”
A “New” Claim by Mr Lowis
- The email of 27 November 2015 was prompted by an email from Mr Lowis to WorkCover on 26 November 2015 attaching the medicolegal report of Dr Graham Futter of 2 November 2015 and the letter of apology signed by the female harasser dated 17 December 2015. Mr Lowis simply asked WorkCover to “please find further relevant information attached for consideration within my claim”.
- Having received Mr Lowis’ further material indicating Mr Lowis wished to proceed with his WorkCover application, a WorkCover representative contacted Ms Nixon explaining the difficulties that she faced, namely a potential fine for failing to apply for workers’ compensation insurance in respect of her “husband”, Mr Lowis, and paying for that policy, as well as the additional costs, which Ms Nixon would be liable for should the application succeed.
- It is by this method and on 26 November 2016, WorkCover registered as a new claim the claim made by Mr Lowis “which he originally lodged on 19 June 2015 but with the exception that he no longer nominated NQBP as his employer, but rather nominated his de facto wife, Inez Danielle Nixon, as his employer.”
- It is implicit in WorkCover’s registering of a new claim on 26 November 2015 that it waived the ordinary 6 month time limitation provided by s 131(5) of the WCRA. That is, WorkCover were satisfied that there was reasonable cause to extend the time period.
- On 16 December 2015, WorkCover rejected Mr Lowis’ claim on the basis that he was not a worker within s 11 of the WCRA. The decision of 16 December 2015 records:
“Multiple requests have been made for you to provide evidence of your employment in the form of payslips, Notices of Assessment from the Australian Taxation Office, or evidence of superannuation payment from your alleged employer. To date you have not provided said evidence sufficient to satisfy WorkCover Queensland that you are a worker for Hardcastle Project Services.”
- By letter of 16 December 2015, WorkCover, as is required, informed Mr Lowis of his appeal that “any application from you must be made within 3 months of receiving this letter.”
- On 22 February 2016, Mr Lowis applied to the Regulator for review of the WorkCover decision and having provided a PAYG Payment Summary signed and dated 1 October 2015 for the 2014/2015 year, nominated the payor as Hardcastle Engineering and Project Services. The Regulator set aside the decision of WorkCover to reject the application for compensation and substituted a new decision that Mr Lowis was a worker.
- WorkCover then reconsidered Mr Lowis’ application, but by letter of 21 June 2016, rejected the application on the basis that Mr Lowis “did not sustain a psychological or psychiatric injury as defined in s 32(1)(b)” of the WCRA.
- Again WorkCover specifically advised Mr Lowis that he had a right to apply for review to the Regulator and that “any application for review must be made within 3 months of receiving this letter”.
- Mr Lowis did, within the 3 month time limitation period set by s 542 of the WCRA, apply to the Regulator for review of the WorkCover decision to reject his claim.
- On 23 November 2016, the Regulator provided a comprehensive 11-page “Reasons for Decision”, culminating in the rejection of Mr Lowis’ claim. The reasons of the Regulator, however, significantly differed from the reasons of WorkCover Queensland. The Regulator accepted that:
- (a)Mr Lowis did suffer from a personal injury of a psychiatric nature;
- (b)The injury arose out of the employment; and
- (c)The employment was the major contributing factor of the injury.
- However, the Regulator found pursuant to s 32(5)(a) of the WCRA that the injury arose out of “reasonable management action taken in a reasonable way by Hardcastle in connection with your employment”.
- On Page 11 of the decision, the Regulator stated under the heading “Appeal Rights”:
“ If either party disagrees with this decision, then either party may appeal to the Queensland Industrial Relations Commission in Brisbane. Either party has 20 business days from the date of receipt of this decision in which to lodge an appeal. A copy of the notice lodged with the commission must also be served to the Regulator within 10 business days.”
- There was also a website referred to with more information about the appeals process. Mr Lowis says that he received the Regulator’s decision dated 23 November 2016 on either 24 or 25 November 2016.
- On 12 December 2016, WorkCover again wrote to Mr Lowis rejecting his application in respect of the stated diagnosis of “tachycardiomyopathy” as it was a secondary condition related to the original injury. Again, WorkCover informed Mr Lowis of his appeal rights, that is, an appeal to the Regulator pursuant to s 542 of the WCRA.
- Mr Lowis then made application for review with respect to the tachycardiomyopathy decision of 12 December 2016 by appropriately lodging an application for review with the Regulator on 27 March 2017.
- By letter of 24 April 2017 the Regulator rejected the application for review because the application was brought outside of the three month time frame period required by s 542 of the WCRA. Again Mr Lowis was advised of his appeal rights, namely, in this instance that he may apply to the Supreme Court for judicial review, and again a website was referred to with respect to the judicial review process. That has not occurred.
The Employer Appeal
- On the 20th business day after receipt of the review decision of 23 November 2016, that is on 21 December 2016, Ms Nixon, trading as Hardcastle Engineering and Project Services lodged an appeal to the Industrial Commission alleging that the decision of WorkCover, as affirmed by the Regulator, in the employer’s favour to reject Mr Lowis’ claim was wrong and ought to be reversed. Although Ms Nixon, as employer, lodged a review application seeking an order that Mr Lowis’ application be allowed, Mr Lowis did not lodge a similar application with the Queensland Industrial Relations Commission (“QIRC”).
- As a result of Ms Nixon lodging that appeal, a precedent letter was forwarded to Mr Lowis by email on 23 December 2016 informing Mr Lowis that:
- A notice of appeal has been filed in the QIRC by Ms Nixon;
- “In effect, this means your employer has appealed the decision to accept your claim for compensation…”; and
- Mr Lowis may wish to exercise a right to become a party to the appeal.
- Despite multiple rejections of his claims and his wife’s claim, and the provision of detailed reasons as to why Mr Lowis’ claim has failed, Mr Lowis alleges that when he received the email of 23 December 2016, he believed that his claim had then been accepted. Mr Lowis is a tertiary qualified and clearly intelligent man, and ordinarily such an assertion would be difficult to accept, however, Mr Lowis was at that time, as diagnosed by Dr Futter, labouring under a psychological difficulty.
- On 6 February 2017, Mr Lowis emailed WorkCover thanking them for accepting his claim. The very next day, 7 February 2017, WorkCover having realised the error in its standard letter, emailed Mr Lowis informing him of the error in the letter and that in fact his application had not been allowed. WorkCover apologised for any confusion created by their former standard precedent letter. It is apparent that it is WorkCover’s experience that employers appeal when a worker’s application succeeds, not when the worker’s claim is dismissed, hence the standard letter. In that same letter of 6 February 2017 (Exhibit 1, Document 26) Mr Lowis said, “I confirm that I seek to exercise my right to become a party to this appeal and assist the Regulator to defend its decision of my accepted claim” (my emphasis).
- The prompt response in the email of 7 February 2017 not only apologises for the administrative error in the inclusion of the word “accept”, which should have read “reject”, but also advises Mr Lowis “In relation to joining as a party to the appeal, you will need to make that enquiry directly with the Registry of the Qld Industrial Relations Commission.”
- On 22 February 2017, the QIRC, through Deputy President O'Connor, held a directions hearing in respect of Ms Nixon’s appeal. Mr Lowis was not present. Mr Lowis had not filed an application to be joined as a party and Mr Lowis does not depose to making any contact with the QIRC in order to make such an application, as he was advised to do.
- A second conference occurred before Commissioner Roney in the QIRC on 31 May 2017, culminating with Ms Nixon signing a request to discontinue the application (Exhibit 1, Document 28). This was made in the usual form on the condition that each party bear its own costs.
- Apart from counsel appearing for the Regulator, both Ms Nixon and Mr Lowis appeared before Commissioner Roney. The Commissioner expressly asked Ms Nixon as to whether she objected to Mr Lowis joining in her application and Ms Nixon informed the Commissioner that she would not. Ms Nixon told Commissioner Roney:
“I’m not comfortable with accepting the decision that I took reasonable management action when I have taken none. And hindsight’s a lovely thing. In hindsight, I would have removed Mr Lowis from the workplace after his letter for reasonable steps [indistinct] but that as [sic] been and gone, and Mr Lowis has suffered incredibly. And it has been a workplace [indistinct] and I believe that if I can get some legal representation that they will be able to prove it.”
- There was then discussion concerning Mr Lowis’ prospects of success in an “other” action. Commissioner Roney told Ms Nixon that she wondered whether the action “in Fair Work is going to be a better opportunity for success for you than this one. You can’t fight on every front.”
- The Commissioner then made reference to the lapse of WorkCover insurance, the potential fines, and liabilities that may be visited upon Ms Nixon should Mr Lowis succeed. There was then a break in the proceedings where the Commissioner spoke to Ms Nixon before the proceedings resumed with Mr Lowis present by telephone. At the resumption of proceedings, Commissioner Roney informed Mr Lowis that:
“We’ve just been talking to Ms Nixon, and she has decided to discontinue her application […] It’s a really a matter for her. But I think, in the end, it was a decision based upon the fact that there are proceedings in the Fair Work Commission that are proceeding, in relation to which you’re a party. And the matters are similar, and I believe it’s thought that the prospects in that application may be better than this one […] So that means that there will be no further proceedings of this topic in the Commission.”
- The Commissioner then said to Mr Lowis “Is there anything you want to ask?” Mr Lowis replied:
“Well, maybe I’ll just clarify, your Honour. I wasn’t – I didn’t appeal the matter in the first instance. This is the findings of the Regulator in relation to the psychological [indistinct] I didn’t appeal that for very good reason – that I agreed with four of the five decisions that the
Regulator made. […] And my intention to join this appeal is basically just to protect those four decisions made. I can’t do a lot about the reasonable management decision that the Regulator made. But the other ones that the Regulator made, basically confirming that I sustained an injury, that the injury arose out of management action, it occurred at work
– they’re all very important, I guess, steps or bricks in the wall” (my emphasis).
- The Commissioner then reflected that whilst those “steps or bricks in the wall” were not binding in the Federal Court, they will be of interest to the Federal Court.
- As can be observed from the above exchange, it is recorded in the transcript that Commissioner Roney had been extremely polite to Mr Lowis. On 8 June 2017, Mr Lowis wrote to the Industrial Relations Commissioner asking for reasons why “the worker was excluded from the conference without reason […] The worker objects to the discontinuance under R68(4) and hereby provides its written notice within the allowable 14 day timeframe.”
- On the following day, 9 June 2017, Commissioner Roney wrote to Mr Lowis stating that Ms Nixon’s matter had been discontinued and offered “in the interests of natural justice and transparency” to convene a conference with Ms Nixon, the Regulator and Mr Lowis to consider the objection to discontinuance.
- That conference occurred on Wednesday 28 June 2017. On the further case conference on 28 June 2017, Mr Lowis confirmed again that he had made a forensic decision not to appeal the decision of 23 November 2016. Mr Lowis, in extensive submissions, explained:
“Now Mr Gray just mentioned that I had an opportunity to appeal that decision; on the grounds of appealing that decision, I was explained by the Regulator that I would lose all my other rights – the rights being – was the decisions made by the Regulator. They used a term called “de novo” – that if I appealed the decision, that I would lose those decisions – I’d have to prove them all over again. That didn’t seem reasonable to me; I mean, four out of five ain’t bad …”
- It was during the case conference on 28 June 2017 that Mr Lowis applied orally to be a party to Ms Nixon’s appeal. His application, however, was refused by Commissioner Roney, with the Commissioner finding:
“In all material I’ve looked at, I consider that the worker’s prospects of being joined as a third party would have been poor, noting the substantial objection taken by the Regulator and the force that that objection carries. The notice of discontinuance was executed by the parties to this dispute in good faith and after due consideration and conference. I have stayed the issue of the notice to allow the worker to be heard. That stay is an administrative process only. I have now heard from the worker. His objections to the process that has gone forth, I find to be misconceived
and of no effect at law. I consider I am obliged by legislation to order the notice of discontinuance to issue…”
- Mr Lowis then lodged a series of complaint letters before, on 9 August 2017, lodging an appeal against the decision of the Regulator of 23 November 2016. By letter of 9 August 2017, Mr Lowis wrote to the Regulator informing the Regulator that Mr Lowis intended to lodge an out of time notice of appeal with the QIRC against the decision of 23 November 2016. By letter of 14 August 2017 the Regulator, acknowledging the application, advised Mr Lowis that “the Appeals Unit will consider your grounds for requesting an extension and will make a determination in the near future.”
- By letter of 15 August 2017 the Regulator informed Mr Lowis of s 550(3) of the WCRA, that is, the ability of the appellant to ask a respondent to allow further time to appeal. The Regulator then specifically added in its letter of 15 August 2017:
“In order to determine whether or not to grant an extension to lodge your notice of appeal, the Regulator will consider:
- The extent of the delay
- The reason for the delay
- Details of steps taken to support your grounds of appeal
- Details of steps taken to progress your appeal
- The merits of the appeal
- Any other special circumstances that may exist to support that your appeal should proceed.”
- Mr Lowis provide an 18-page letter of reply dated 24 August 2017. On the sixth page of that letter, Mr Lowis sets out the six matters that he was asked to consider by the Regulator and provided his detailed responses in the last six pages of the letter.
- By letter of 12 September 2017, the Regulator declined Mr Lowis’ request for further time to appeal. It is this last decision to decline Mr Lowis’ request to allow further time to appeal of 12 September 2017 which is the subject of the application for judicial review.
- The application filed 7 October 2017 asserts:
“1.The Respondents decision is erroneous.
- The Applicants right to appeal has been diminished by the Respondents ‘errors’.
- The proceedings have subsequently been discontinued without the Applicant being given an opportunity to participate in the proceedings.”
- The grounds are specified to be:
“1. The Respondent made ‘errors’ which affected the Applicants rights to appeal the Respondents decision and those ‘errors’ breached the rules of natural justice.
- The Respondent does not have the jurisdiction to determine whether or not the Applicant can become a party to the employer proceeding [sic] and its objection breached the rules of natural justice and was contrary to law.
- Further, or alternatively, the Respondents decision was affected by jurisdictional error as the Respondent failed to exercise the jurisdiction to make a decision.
- A breach of the rules of natural justice happened in relation to the making of the decision, or failure to make a decision
- The Respondent [sic] jurisdictional duty is limited to a ‘review of papers’. The Respondent overstepped its jurisdictional duty, contrary to law when it instructed workcover to assess the ‘physical injury’ out- of-time according to the Act.
- The Respondent [sic] is otherwise contrary to law.”
- It is not possible to confidently correlate any of the bases or grounds of the application filed by Mr Lowis with any proper basis for judicial review pursuant to ss 20, 23 or 24 of the Judicial Review Act 1991 (Qld). Despite a specific request for further and better particulars of the application for statutory order of review, Mr Lowis filed a 6-page, 44- paragraph response to the request for further and better particulars which does not provide assistance. At the hearing on 16 November 2017, Mr Lowis was further asked for his oral submissions in respect of the applicable provisions of the Judicial Review Act 1991 (Qld), and Mr Lowis could not assist. Mr Lowis did articulate several general complaints.
- Mr Lowis complained that some of the WorkCover decisions were made outside of the statutory timeframes, being a specific reference to s 134(2) which requires WorkCover to make a decision on an original application within 20 days, and s 541 which requires the Regulator to make a review decision within 25 days.
- It is correct, as Mr Lowis points out that the decisions of 19 April 2016, and the review decision of 23 November 2016 were made outside of those statutory time frames. Mr Lowis could not, however, suggest that caused him any prejudice.
- Mr Lowis was directed to the decision of Daubney J in Bond & Anor v Queensland Department of Justice and Attorney-General (Workers’ Compensation Regulator)  QSC 252, in particular from paragraphs  to  where Daubney J concluded at :
“…I do not consider it could be said that it was the purpose of this legislation that a decision made by the Regulator under s 545(1) outside the 25 business day period should be regarded as invalid.”
- Mr Lowis then confirmed that he did not wish to argue that any of the decisions of WorkCover Queensland nor the Regulator were made invalid because they were made late.
- Mr Lowis then complained that he was misled by the email of 23 December 2016 into considering that his application had been accepted, and that was the reason that he had not appealed. Mr Lowis, however, conceded that by letter of 7 February 2017 he was disabused of any suggestion that his appeal had succeeded. Mr Lowis complained that Ms Nixon’s appeal ought not to have been dismissed and he ought to have been allowed to become a party to that appeal process before the QIRC, however, Mr Lowis also acknowledged that he was not appealing those matters.
- Mr Lowis’ repetitive complaint was that the decision of the Regulator was erroneous and wrong because Ms Nixon had confirmed that she did not undertake reasonable management action.
- In Carmody v WorkCover Queensland (1998) 157 QGIG 119, the Industrial Court, in considering the exercise of a discretion to grant an extension of time, identified the relevant factors as:
- The extent of the delay;
- The explanation for the delay;
- The enthusiasms for prosecuting the appeal;
- The merits of the appeal; and
- Any other special circumstances supporting the grant of an extension of time.
- In respect of items 1 and 2, the extent and explanation for the delay, this is the subject of the second and third pages of the Regulator’s decision of 12 December 2017. The Regulator noted the extent of the delay, that from the time which the appeal was required to be lodged, that is, 20 business days from the date of the appeal pursuant to s 550(1), being on or about 21 December 2016, i.e. the date Ms Nixon lodged her appeal. The delay was a period of approximately seven and a half months from 21 December 2016 to 9 August 2017. The delay itself of some seven and a half months must be considered with reference to the time limitation period set forth in the WCRA and the stated objectives of the WCRA set out in s 5 of the Act.
- The WCRA prescribes shortening periods of time with respect to applications, i.e. 6 months from the time of the injury to lodge an application (s 131), 3 months from the date of decision to seek a review decision (s 542), and 20 days from the date of receipt of decision to appeal to the Industrial Commissioner (s 550).
- A delay therefore of some seven and a half months is of itself quite a long delay in terms of a 20 day timeframe period set out in s 550.
- The time delay is a relevant consideration and is expressly taken into account by the Regulator.
- The reason for delay (Mr Lowis’ oft-repeated argument that he was misled by the correspondence of 23 December 2016) from 23 December 2016 until 7 February 2017 was taken into account as a valid explanation for the period of delay between 21 December 2016 and 7 February 2017 but not, as the Regulator said, for the further period of “more than 6 months that elapsed between this error being clarified on 7 February 2017 and you seeking an extension of time to file a notice of appeal on 9 August 2017.”
- Therefore, of the first two factors, extent and reason for delay, the Regulator’s decision was not erroneous, was not made in breach of any rule of natural justice, did not take into account any irrelevant considerations and took into account only relevant considerations.
- Insofar as Mr Lowis suggests that there was any breach of natural justice or failure to take into proper consideration the error of the letter of 23 December 2016, it cannot be accepted that this was a reasonable basis for the delay in lodging an appeal when, as Mr Lowis said on two occasions in the QIRC (Paragraphs  and  above) he deliberately did not lodge an appeal. Furthermore, Mr Lowis did not apply at any relevant time, despite being advised of his ability to do so prior to 28 June 2017, to be a party to Ms Nixon’s appeal. As Mr Lowis explained to the QIRC, he deliberately chose not to appeal as he wished to preserve four out of the five points in his favour.
- With regard to the enthusiasm for prosecuting the appeal, the Regulator expressly set out Mr Lowis’ conscious decision not to appeal. In those circumstances then, it cannot be said that the Regulator took into account any irrelevant consideration or failed to take into account relevant considerations in determining whether Mr Lowis had taken reasonable steps to progress his appeal; in short, Mr Lowis deliberately did not.
- With respect to the merits of the appeal, the only argument advanced by Mr Lowis was:
“Previous case law directs that it is for the applicant to demonstrate why the timeframe should be extended and to do that the applicant must ‘at least’ show reasonable prospects of success. Commissioner Roney of the QIRC is recorded as stating to the ‘deemed’ employer Ms Nixon during the hearing on 31 May 2017 that the matter (appeal WorkCover/2016/247) has “good prospects”. Under the same argument, the worker also has “good prospects”.”
“Relevant, the Regulator decision is nonsense. This is an injury matter and Ms Nixon did nothing to cause the workers injury. To date, the Regulator s 32(5) decision has not been properly heard by a relevant jurisdiction. The matter on appeal was “questionably” discontinued before it was “properly” challenged.”
- As to the only argument concerning merits advanced, the Regulator on p 4 of its decision rejected the argument, pointing out that the Commissioner did not suggest that Ms Nixon’s application had reasonable prospects, but rather suggested that Ms Nixon’s application for the “other action in Fair Work” had a better opportunity for success.
- It may be suggested that the failure to take into account Ms Nixon’s evidence was a failure of the type specified in s 23(b) of the Judicial Review Act 1991 (Qld), that is, a failure to take into account a relevant consideration in exercising a power. As this was not pressed by Mr Lowis as a matter in relation to the merits, it was not the subject of any comment in the Regulator’s decision.
- Ms Nixon’s evidence was, however, carefully considered in the review decision of 23 November 2016 where the author of the WorkCover decision, Ms Walker, wrote after setting out all of the salient facts:
“In assessing whether the actions of Hardcastle regarding the situation to which you were exposed in the course of the performance of your duties at NQBP, I have taken into account the submissions of Ms Nixon that the approach by Hardcastle to NQBP was discussed between Ms Nixon and yourself. I consider the factual reality of your relationship with Ms Nixon and that you were the only employee of Hardcastle lends support to the proposition that such a discussion occurred. I take into account actions by Hardcastle which included the following:
- A proposal by Hardcastle that you be moved to an alternative work place and the provision of options to NQBP as to that course of action
- The lodging of a formal complaint with NQBP regarding the conduct of Ms [deleted] despite the potential consequences of loss of contract
- Discussions with yourself as to the preferred course of action.
As to the proposition that Hardcastle should have removed you from the work place, I do not consider that a failure to undertake this course of action detracts from the otherwise reasonable management action taken by Hardcastle. I come to this conclusion for the following reasons:
- The fact that the course of action adopted by Hardcastle was discussed between yourself and Ms Nixon
- The absence of evidence that the conduct of Ms [deleted] would necessarily continue or that your psychiatric decomposition was inevitable as a result of that conduct.
In all the circumstances I consider the actions of Hardcastle involved an assessment of the situation to which you were exposed and an appropriate reaction to that exposure.
I conclude that the above actions by Hardcastle were reasonable management action taken in a reasonable way.”
- The findings of Ms Walker as set out above are in accordance with the evidence of Ms Nixon in the QIRC; that is with the benefit of hindsight, perhaps things ought to have been done differently.
- Mr Lowis pressed an argument that there was substantial merit in the appeal because the psychiatrist, Dr Futter, in his report of 25 August 2016 repeated that there was a “failure of management to provide a work environment free of sexual harassment and the failure of management to intervene and stop ongoing sexual harassment…”
- Mr Lowis argued as the expert psychiatric evidence of failure of management was unopposed, it ought to have been accepted the consequence that there was a high degree of merit in his application. Mr Lowis’ argument in this regard was not pressed at all as any part of a reason to provide an extension under s 550(3); that is, it was not referred to at all in his request of 25 August 2017.
- Mason CJ in South Australia v O'Shea (1987) 163 CLR 378 at 389 said of the requirements of natural justice:
“The hearing before the recommending body provides a sufficient opportunity for a party to present his case so that the decision-making process, viewed in its entirety, entails procedural fairness. If the decision- maker intends to take account of some new matter, not appearing in the report of the recommending body, and the party has had no opportunity of dealing with it, the decision-maker should give him that opportunity: Peko-Wallsend.”
- In terms of the present application with respect to the raising of an argument concerning a breach of natural justice, the relevant test is whether the Regulator provided a sufficient opportunity for Mr Lowis to present his case and that the decision making process viewed in its entirety entailed procedural fairness. It can be observed that by the letter of 15 August 2017 the Regulator directed Mr Lowis to the six relevant factors referred to in Carmody (supra). Mr Lowis then provided his detailed 18-page response, omitting with respect to the merits application his principle arguments concerning failure of the Regulator to accept Dr Futter’s opinion and the failure of the Regulator to accept Ms Nixon’s evidence that she had not acted reasonably because she did nothing.
- It cannot be suggested that the duty of natural justice required the Regulator to act, as it were, as devil’s advocate, prompting Mr Lowis to run any further arguments or repeating arguments that had already been made. As McMurdo JA said in Burragubba & Ors v Minister for Natural Resources and Mines & Anor, the content of the duty to act with procedural fairness, whilst being subject to the legislative background, does not ordinarily bind a decision maker to ask an interested party for a submission which that party could have properly made within the statutory decision making forum. As McMurdo JA said, an obligation to act fairly did not require a decision maker to call upon an aggrieved party to re-make arguments it had previously made to an earlier tribunal. It is inimical to a concept of natural justice to criticise a decision maker for failing to consider a matter that was not raised by an applicant as a matter to be considered which is what, in effect, Mr Lowis seeks to do.
- Dr Futter’s opinion with respect to failure of management was specifically referred to by Ms Walker in her reasons for decision of 23 November 2016. The medical opinion of the psychiatrist Dr Futter was accepted by Ms Walker as providing a proper basis for the acceptance that Mr Lowis had in fact suffered a psychiatric injury, that it arose out of the employment, and that the employment was a major contributing factor. It is quite apparent, however, that Ms Walker did not take Dr Futter’s opinion directly into account in determining whether the management action of Ms Nixon on behalf of Hardcastle was reasonable management action taken in a reasonable way.
- There are a number of difficulties, however, in suggesting that the failure to take Dr Futter’s opinion into account (on the issue of reasonable management action) affected the merit of Mr Lowis’ application. The first is in the quote from Dr Futter’s second report of 25 August 2016 where Dr Futter expressly refers to the failure of management action with respect to the actions of employees of the NQBP, and not the failure of management or unreasonable management action on behalf of the employer, Ms Nixon. The second is Dr Futter, despite being an extremely experienced psychiatrist, has not provided a résumé, and so there is an absence of evidence to suggest that Dr Futter has any particular expertise in the proper assessment of prospective or retrospective management action. In particular, Dr Futter has not recorded any information in either report as to what Ms Nixon, the employer, did or did not do with respect to the allegations of sexual harassment.
- Furthermore, any expert in providing an opinion for evidence is bound to provide their reasoning process in order for the expert evidence to be properly considered by a decider of the question of fact. No doubt had a management expert provided evidence as to what was or what was not appropriate management action in the factual circumstances that occurred, including adequate reasoning for that opinion, then it would have been an error of significance not to take into account that management opinion. Similarly, if the management expert then ventured into a diagnosis of a psychiatric condition and/or provided evidence as to the cause of the psychiatric condition, the decision making tribunal would have been justified in either not admitting that part of the opinion at all, or placing little weight upon it. It has not been demonstrated that the decision maker Ms Walker has fallen into error in failing to accept Dr Futter’s opinions concerning the management action of persons not employed by the relevant employer.
- With respect to other special circumstances, Mr Lowis repeated his arguments regarding failure by the Regulator to adhere to all statutory time limits and that Mr Lowis continued to be misled by the letter of 23 December 2016, both of which have been found to be of no effect.
- Mr Lowis has not demonstrated that the Regulator has breached any rule of natural justice or has made any jurisdictional error, or has he established any other grounds for judicial review pursuant to s 20 of the Judicial Review Act 1991 (Qld).
- The application is dismissed.
 Ex 1, Doc 29 at pp 881 – 882.
 Ex 1, Doc 29 at p 882.
 Ex 1, Doc 33, T1-11.
 Ex 1, Doc 12.
 Ex 1, Doc 13.
 Ex 1, Doc 14.
 Ex 1, Doc 15.
 Ex 1, Doc 16.
 Annexure A hereto.
 Annexure B hereto.
 Albeit pursuant to the now-repealed s 346 of the Workplace Relations Act 1997.
 Ex 1, Doc 16.
 Ex 1, Doc 15 at p 746 under the heading “Demonstrated prospects for success”.
 Ex 1, Doc 6 at pp 39 – 40.
 Ex 1, Doc 15.
 Ex 1, Doc 14.
 Ex 1, Doc 15.
 Burragubba & Ors v Minister for Natural Resources and Mines & Anor  QCA 179 at .
 Burragubba & Ors v Minister for Natural Resources and Mines & Anor  QCA 179 at .
 Ex 1, Doc 7 at p 506.
 Ex 1, Doc 7 at pp 507 – 509.
 See the reasoning of Heydon J in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588.
- Published Case Name:
Lowis v Workers' Compensation Regulator
- Shortened Case Name:
Lowis v Workers' Compensation Regulator
 QSC 5
17 Jan 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 5||17 Jan 2019||Application for statutory order of review refused: Crow J.|