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van der Berg v WorkCover Queensland[2021] QSC 28

van der Berg v WorkCover Queensland[2021] QSC 28

SUPREME COURT OF QUEENSLAND

CITATION:

van der Berg v WorkCover Queensland & another [2021] QSC 28

PARTIES:

PETRUS STEFANUS VAN DER BERG

(applicant)

v

WORKCOVER QUEENSLAND

(first respondent)

WORKERS’ COMPENSATION REGULATOR 

(Previously QCOMP)

(second respondent)

FILE NO/S:

BS 10250 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED EX

TEMPORE ON:

11 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

11 February 2021

JUDGE:

Bond J

ORDER:

  1. The application for a statutory order of review filed by the applicant on 22 September 2020 be dismissed pursuant to s 48 of the Judicial Review Act 1991 (Qld).
  2. The applicant should pay the costs of the first and second respondents to be assessed. 

CATCHWORDS:

ADMINISTRATIVE LAW JUDICIAL REVIEW POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – OTHER ORDERS – where the applicant seeks a statutory order of review of the respondents’ decision to refuse the applicant’s claim for compensation – where the respondents’ seek a summary dismissal of the application pursuant to the Judicial Review Act 1991 (Qld) – whether the applicant is a person aggrieved by the decision – where there was significant delay in bringing the application – where the matters in issue were considered and decided in previous proceedings

Judicial Review Act 1991 (Qld), s 13, s 20(2), 26, 48

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 108, Chapter 13, s 546A

Deloitte Touche Tohmatsu v Australian Securities Commission [1995] 128 ALR 318, cited

Deng v Q-Comp [2011] QSC 191, cited

Lowis v Queensland Industrial Relations Commission [2019] QSC 277, cited

Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld [2014] Qd R 592; [2014] QSC 196, cited 

PB v WorkCover Queensland [2020] QCA 278, cited

Perry v Director of Public Prosecutions [1985] 6 FCR 578, cited Van Der Berg v Key Solutions [2020] QSC 262, cited

COUNSEL:

The applicant appeared on his own behalf

S J Deves for the first respondent

M A Eade for the second respondent

SOLICITORS:

The applicant appeared on his own behalf with C M van der Berg assisting

Hall & Wilcox for the first respondent 

Crown Solicitor for the second respondent

HIS HONOUR:   By way of an application for a statutory order of review pursuant to the Judicial Review Act 1991 (Qld) (JR Act), the applicant seeks to have this court review a decision of the first respondent (WorkCover) made on 5 November 2013 to reject the applicant’s application for compensation pursuant to s 546(A) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act), and a decision of the second respondent (the Regulator) on 10 March 2014 to affirm the decision of WorkCover pursuant to s 545 of the Act.  The application was filed on 22 September 2020.

I have before me applications by WorkCover and the Regulator for summary dismissal of the application pursuant to ss 12, 13 or 48 of the JR Act.  Those applications were filed on 19 October 2020.  It is sufficient for the disposition of the applications to say that WorkCover and the Regulator have presented an overwhelming case for summary dismissal pursuant to s 48.  It is unnecessary to consider the other possible ways by which summary dismissal could have been justified.

It is appropriate, first, to summarise the applicable legislative scheme and then to identify the steps which have been taken pursuant to it.  The summary of the applicable legislative scheme which follows is taken from the written submissions of the Regulator, which I adopt as sufficient for present purposes.  

Section 108 of the Act provides that compensation is payable for an 'injury' sustained by a 'worker'.  Each of those terms is relevantly defined in the Act, that is:

  1. (a)
    an 'injury' is defined in s 32 as (inter alia) an injury, or an aggravation of a disease or medical condition, if the employment is a significant contributing factor to the injury or its aggravation; and
  2. (b)
    a worker is defined in s 11 as (inter alia) a person who works under a contract and is an employee for the purpose of assessment for PAYG withholding. 

The initial lodgement of an application for compensation is governed by Chapter 3, Part 5 of the Act.  By ss 131 and 132, a worker is required to lodge an application for compensation to WorkCover in the approved form within six months after the entitlement to compensation for the injury arises.  That application is to be 'allowed' or 'rejected' in the first instance by WorkCover within 20 days after the day the application was made.  The decision must be notified to the applicant. 

Chapter 13 of the Act prescribes a comprehensive process for reviews and appeals.  For present purposes, its key components (as in force at the relevant times) comprise the following:

  1. (a)
    first, by s 538(1)(a), before WorkCover can decide to reject an application for compensation, there must be an internal review undertaken of the proposed decision by someone in a more senior position than the decision-maker;
  2. (b)
    second, by s 541, a claimant, worker or employer aggrieved by a decision of WorkCover can apply for a review of that decision to the Regulator.  Sections 542 to 547 govern how any application for review is to be made and determined, namely:
    1. any such application must be made within three months of receipt of the written notice of the decision and written reasons for the decision (unless, within that time, the applicant asks for a further time to apply for review or the Regulator extends time) (s 542(1) to (3));
    2. any such application is to be made in the approved form to the Regulator and must state the grounds upon which review is sought together with any relevant document the applicant wants considered in the review (s 542(5));
    3. the applicant may appear for him or herself or be represented by another and may appear in person or by another form of communication (s 543); and 
    4. the Regulator must review the original decision and decide whether to confirm, vary or set aside the decision. If the Regulator decides to set aside the decision, the Regulator is empowered to substitute a new decision or remit the matter to WorkCover with any directions considered appropriate (s 545);
  3. (c)
    third, by ss 548 to 549, a claimant, worker or employee aggrieved by a decision of the Regulator in relation to an application for compensation may appeal to the Queensland Industrial Relation Commission (QIRC).  Sections 550 to 560 prescribe the procedure for the appeal, in particular:
    1. the appeal to the QIRC must be made within 20 business days after the appellant receives the notice of the review decision unless the appellant asks for further time to appeal within that time period (s 550);
    2. a party may only be legally represented with the agreement of the parties, or the QIRC’s leave (s 552B); 
    3. Chapter 7, Part 2 and Chapter 9, Part 4 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), together with the Industrial Relations (Tribunals) Rules 2011 apply to an appeal to the QIRC (s 553);
    4. each party must exchange evidence of any relevant document the party wants to adduce as evidence at the hearing at least 10 business days before the hearing (s 554);
    5. the QIRC can order the worker undergo a medical examination at any time before or after the start of the hearing (s 556); and
  1. (vi)
    the QIRC may confirm, vary or set aside the decision under review (the latter either with a substitution of a new decision, or by remittal to the original decision-maker with those directions considered appropriate) (s 558);
  1. (d)
    fourth, a party aggrieved by a decision of the QIRC may appeal to the Industrial Court pursuant to s 561.  Any such appeal:
    1. is governed by the Industrial Relations Act 1999 (Qld) (which provides, by s 346, that any appeal must be commenced within 21 days after the decision is made unless the Industrial Court permitted a longer period);
    2. is by way of rehearing on the evidence before the QIRC unless the Industrial Court orders additional evidence to be heard and as to which the Industrial Court may:
      1. confirm the decision of the QIRC;
      2. vary the decision of the QIRC; or
      3. set aside the decision of the QIRC and substitute another decision; and
  1. is final.

Finally, notwithstanding the finality prescribed by s 561(4) of the Act to the decision of the Industrial Court, one may challenge the Industrial Court's decision to this Court by way of judicial review under Part 5 of the JR Act if infected with jurisdictional error.  Any decision of this Court can be appealed to the Court of Appeal under Chapter 18 of the UCPR.

As to the relevant chronology of the steps which were taken pursuant to that legislative scheme, I set out the following summary.  

The applicant applied for compensation on 22 July 2013 pursuant to s 132 of the Act.  That application was accepted by WorkCover on 19 August 2013.  However, shortly thereafter on 30 August 2013, the applicant’s employer applied to the Regulator pursuant to s 541 of the Act for a review of WorkCover’s acceptance of the applicant’s claim to compensation.  

That application was successful, and on 3 October 2013, pursuant to ss 545(1)(d) and 545(1)(A)(b) of the Act, WorkCover’s acceptance was set aside and the matter referred back to WorkCover with directions to obtain medical records, a statement of the applicant and a further medical report.

Section 546(A) of the Act regulates what WorkCover was then required to do.   Upon their reconsideration of the applicant’s claim, WorkCover refused the application for compensation on 5 November 2013.  That decision of WorkCover is that which is sought to be reviewed (the First Decision).    

The First Decision was then confirmed by the Regulator on 10 March 2014 pursuant to s 545 upon the applicant’s application for review.  That is the decision of the Regulator sought to be reviewed by the applicant’s application pursuant to the JR Act (the Second Decision).

On 25 January 2015, some 214 days after the 20 business-day time period within which the applicant had to appeal from the decision of the Regulator, the applicant applied for an extension of time to appeal the Second Decision.  That application was made to the QIRC.  The Deputy President dismissed the application on 2 September 2015 – see van der Berg v Simon Blackwood (Workers’ Compensation Regulator) [2015] QIRC 161 – on the grounds that the Deputy President was not satisfied that the applicant had substantially complied with s 550(1)(a), nor that special circumstances existed justifying the application for extension of time.  

It was common ground that no steps were taken to exercise a right of appeal to the Industrial Court from the decision of the Deputy President.  There was no appeal to that body within time.  

It is not clear what otherwise happened in the period between the decision to dismiss the application for the extension of time, which took place on 2 September 2015, and the next steps taken by the applicant.  It appears that in 2019, the applicant obtained legal representation.  

On 28 July 2020, the applicant instituted proceedings in the Supreme Court of Queensland seeking:

  1. an order pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) extending the time period in which to bring an action for damages for personal injury;
  2. a declaration that he had suffered an injury within the meaning of s 32 of the Act; and
  3. a declaration that he was entitled to an assessment of permanent impairment under the Act.

The proceedings were heard by Crow J on 17 August 2020.  

On 26 August 2020, Crow J dismissed the application (see Van Der Berg v Key Solutions [2020] QSC 262), finding that: 

  1. (a)
    the regime of the Act was not sufficiently clear to lead to a conclusion that the Supreme Court's jurisdiction to order declaratory relief was ousted: [6]-[15];
  2. (b)
    the applicant had not demonstrated special reason for intervention by the Supreme Court to circumvent the regime of the Act and order the declaratory relief sought and, in particular, after noting that the applicant did not appeal the QIRC decision to the Industrial Court pursuant to s 561 of the Act, his Honour made the following observations:

It is unnecessary to speculate whether, had the applicant appealed within time to the QIRC, or at all to the Industrial Court, that he would have succeeded. What is plain is that the [Act] is comprehensive in its provisions to deal with the rights of an injured worker to compensation and statute has as “intersecting web of reviews and appeals” concerning the granting of rights or privileges which are dependent entirely upon statute such that the general rule referred to by Walsh J in Forster v Jododex is engaged.  It is important that the special procedures laid down by the [Act] should be allowed to take their course and ought not to be displaced by the making of declaratory orders concerning the respective rights of parties under the statute, unless, as Walsh J said in Forster v Jododex there is a “special reason for intervention”.

This case is not one in which there is some special reason for intervention. Parliament has set out a detailed path in a comprehensive manner to determine the rights of injured workers under the [Act].  Its path is, as I have outlined above, the decision of the insurer, an internal review, a review by the authority, then an appeal to the Industrial Relations Commission, and further appeal to the Industrial Court.

On 22 September 2020, two things happened:

  1. (a)
    the applicant appealed the decision of Crow J; and
  2. (b)
    the applicant filed the present application for a statutory order of review.  

The appeal from that decision of Crow J was listed for hearing on 8 February 2021.  It is common ground that it was heard on that day and the Court of Appeal reserved its decision and has not yet published its decision.

The orders sought by the application filed on 22 September 2020, which seeks to invoke the jurisdiction under the JR Act, were:  

  1. Leave by this court to bring this application despite being outside the prescribed time limits, having regard to the main purpose of the Workers Compensation and Rehabilitation Act as outlined in s 5(2)(a) and the insurer’s obligation to treat injured workers fairly as outlined in s 5(4). 
  2. Allow Mr van der Berg to be assisted by his wife Catherina van der Berg during the proceedings. 
  3. An order that the decision van der Berg v Key Solutions Anor [2020] QSC 262, including any cost orders be stayed pending a determination of this application. 
  4. Struck out the decisions of WorkCover dated 5 February 2013 and the Regulator dated 10 March 2014 of WorkCover claim number S13AW081002. 
  5. An order that a fresh decision has to be made using only fresh medical information from Dr Adib and those medical repo11s obtained legally; alternatively medical information has to be reviewed by a medical tribunal to determine relevance.
  6. Alternatively we seek pursuant to s 31 of the Limitations of Actions Act 1974, the period of limitation for the action in respect of personal injury suffered by the Applicant over a period of time between 25 June 2012 to 27 June 2013 during the course of his employment be extended up to and including 60 days from the date upon which the Applicant complies with s 295 of the Workers’ Compensation and Rehabilitation Act 2003. 
  7. A declaration that the Applicant suffered an injury within the meaning of s 32 of the Workers’ Compensation and Rehabilitation Act 2003. 
  8. A declaration that the Applicant is entitled to an assessment of permanent impairment under Chapter 2, Part 10 of the Workers’ Compensation Rehabilitation Act 2003. 
  9. The Respondent pay the Applicant’s costs of this application on a standard basis, including those of the proceedings van der Berg v Key Solutions Anor [2020] QSC 262. 
  10. Such further or other orders as the Court considers appropriate. 

The applicant relies on the entirety of s 20(2) of the JR Act.  Some of the flavour of how that is sought to be advanced can be discerned from paragraphs 1 to 7 of the grounds identified in the application filed 22 September 2020 as follows.

  1. Failure of WorkCover to provide procedural fairness.  WorkCover failed to include Mr van der Berg in the correspondence with his employer when they advised Benzocaine exposure to be the cause of Mr van der Berg' s dermatitis.  In this instance WorkCover misinterpreted the specialist report regarding Benzocaine which resulted with the employer receiving false and misleading information and Mr van der Berg being unaware of this fact that led to a review of the decision. Benzocaine is a local anaesthetic and as a metal worker Mr van der Berg would have no exposure to Benzocaine at work.
  2. Directions issued to WorkCover by the Regulator were not complied with. WorkCover failed to comply with the directions of 3 October 2013 to collect relevant medical records – Instead WorkCover breached Privacy and collected medical records using common law provisions.  Additionally, WorkCover failed to obtain information form the employer in relation not the duties at his workplace and the chemicals and materials he is exposed to at Key Solutions Group. 
  3. The collection of medical records under common law provisions and used for the assessment of a statutory claim is an improper exercise of power that resulted in irrelevant information being taken into consideration. 
  4. After the decision was returned to WorkCover, the same officer rejected the decision.  No internal review took place prior to declining Mr van der Berg’s application.
  5. The decisions of both WorkCover and the Regulator was contrary to law as Dr Noakes’ written opinions were misunderstood, and the wrong statutory test was applied as outlined by his honour in van der Berg v Key Solutions Anor [2020] QSC 262. 
  6. Mr van der Berg’s employer provided false and misleading information during the review process that there were no products in the workplace that would cause or aggravate his condition, however fail to provide a copy of their Hazardous Chemical Register in support of their claims.  A Work Health and Safety Inspection in 2019 found numerous chemicals that could contribute to an injury of dermatitis. 
  7. In van der Berg v Key Solutions Anor [2020] QSC 262 [47] his honour found that despite the employers admissions of causal connection, and the consistent unopposed opinion of Dr Noakes supporting the application for compensation, the review officer concluded that “there is no definitive evidence to demonstrate there is a causal connection between Mr van der Berg’s bilateral dermatitis and his employment…”  This clearly indicates that there is no evidence to support the decision to decline Mr van der Berg’s claim.   

It certainly seems that the applicant’s claim under the Act was poorly administered.  In this regard, reference should be had to the decision of the Court of Appeal in PB v WorkCover Queensland [2020] QCA 278 and to the decision of Crow J in Van Der Berg v Key Solutions, in particular at paragraphs 44 and 45.  McMurdo JA wrote the judgment of the Court of Appeal and Fraser and Philippides JJA agreed with his Honour’s reasons.  It is notable that there is some reason to doubt whether some of the poor aspects of administration of the claim mattered.  But in any event, that is not the present point.  The present point is whether the application should be summarily dismissed.  

I think it suffices to consider an exercise of jurisdiction under s 48 of the JR Act.  That section is in these terms:  

48 Power of the court to stay or dismiss applications in certain circumstances

  1. (1)
    The court may stay or dismiss an application under section 20, 21, 22 or 43 or a claim for relief in such an application, if the court considers that–
  1. (a)
    it would be appropriate–
  1. (i)
    for proceedings in relation to the application or claim to be continued; or 
  2. (ii)
    to grant the application or claim; or 
  1. (b)
    no reasonable basis for the application or claim is disclosed; or
  1. (c)
    the application or claim is frivolous or vexatious; or
  1. (d)
    the application or claim is an abuse of the process of the court.
  1. (2)
    A power of the court under this section—
    1. must be exercised by order; and
    2. may be exercised at any time in the relevant proceeding but, in relation to the power to dismiss an application, the court must try to ensure that any exercise of the power happens at the earliest appropriate time.
  2. (3)
    The court may make an order under this section—
    1. of its own motion; or
    2. on an application by a party to the proceeding.
  3. (4)
    The court may receive evidence on the hearing of an  application for an order under this section.
  4. (5)
    An appeal may be brought from an order under this section only with the leave of the Court of Appeal.  

I find that it would be inappropriate for proceedings in relation to the application to be continued.  There are a number of bases upon which I form that view.  They overlap and interrelate.  

The first basis is essentially the consideration identified in s 13 of the JR Act, namely that it is plain that there are provisions made by a law under which the applicant is entitled to seek a review of these decisions in the manner referred to in s 13(b).  As to this, it is evident that the legislative scheme that I have summarised earlier in these reasons makes that provision.  The applicant was entitled to seek: a review of the decision of WorkCover by going to the Regulator; a review of the decision of the Regulator by going to the QIRC; and a review of the decision of the QIRC by going to the Industrial Court.  That the legislative regime should be so regarded has been recognised by decisions of this court: see Deng v Q-Comp [2011] QSC 191, a decision of Lyons J and Lowis v Queensland Industrial Relations Commission [2019] QSC 277, a decision of Crow J.  

The bottom line here is that the applicant’s application seeking to invoke the judicial review jurisdiction appears to me to be nothing other than wanting to have a second bite of essentially the same cherry.  Indeed, given the decision of Crow J preceded the filing of this application, the application could be regarded as essentially a third bite of that same cherry.  Anything of which the applicant seeks to persuade me about the maladministration of the progress of his claim could have been raised at the appropriate stages of the processes provided for in the scheme under the Act.  Indeed, if any attack on the decision was based upon fresh and recently identified evidence, then it might be that an application for an extension of time to appeal to the Industrial Court might have some prospects.

The second consideration to which I advert is that subsequent events have overtaken each of the impugned decisions such that the applicant cannot, because of the steps that it took in the implementation of the processes of review under the scheme, now be regarded as a person aggrieved of those decisions.  This factor has been recognised in other decisions: see for example, Perry v Director of Public Prosecutions [1985] 6 FCR 578; Deloitte Touche Tohmatsu v Australian Securities Commission [1995] 128 ALR 318 and Mid Brisbane River Irrigators Inc v The Treasurer and Minister for Trade of the State of Qld [2014] QSC 196.

The third consideration is that the circumstances of delay evident in the brief recitation of chronology that I have set out earlier in these reasons are such that the applicant’s application for extension of time is hopeless.  Section 26 of the JR Act sets out the timeframe within which any application pursuant to this Act in relation to any of the decisions should have been brought.  The delay in relation to bringing an application in respect of the First Decision is almost seven years, and the delay in respect of the Second Decision is almost six and a-half years.

On any view, that extent of delay is extraordinary.  The submissions of the Regulator sufficiently for present purposes identified the considerations which inform the evaluation of the factor of delay in the present circumstances.  They were as follows (footnotes omitted):  

  1. The relevant (non-exhaustive) principles as to whether a Court ought exercise its discretion to hear and determine a late application for a statutory order of review were distilled by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen. They are – in summary – as follows:
    1. (a)
      the existence of a satisfactory explanation;
    2. (b)
      notions of what is fair and equitable in the circumstances;
    3. (c)
      whether any prejudice would be occasioned to the Regulator;
    4. (d)
      the public interest; and
    5. (e)
      where a view is possible, the merits of the substantial application for review.
  2. To those factors should be added: 
    1. (a)
      the extent of the delay; 
    2. (b)
      the effect on the applicant if the application was refused; and
    3. (c)
      the seriousness of the consequences of any error to the applicant. 

The high point of the explanation presented by the applicant appeared in the affidavit of the applicant sworn 10 February 2021 and filed on that day.  I set out, in particular, paragraphs 1 to 17 of that affidavit.  

  1. It will not be in the interest of justice to reject my claim as it was suggested by Mr Bruce Watson, who acted on the instructions of the WorkCover Board of Directors who ultimately suggested we follow this path of applying for Judicial Review. 
  2. I therefore find it extremely unfair that the same party who suggested I follow this path are now requesting that this Court use its power to dismiss my application, which I believe is an abuse of power. 
  3. It is not in the interest of justice to dismiss this claim as the information provided to me by WorkCover contained more than one legal pathway in order to deal with the matters that I was aggrieved with. 
  4. Whilst the reviews and appeals were one pathway, in this case, another very relevant pathway was in relation to the breach of my privacy.  
  5. A matter I pursued not only before the Information Commissioner but also before QCAT, QCAT Appeal Tribunal and finally, the Court of Appeal.  I also believed that s 178(a)(ii) of the Information Privacy Act would have enabled the Court of Appeal to order WorkCover to review their decisions in accordance with law to compensate me for the fact that WorkCover breached my medical privacy. 
  6. Unfortunately, the Court of Appeal did not consider the effects of the breach of privacy in relation to my WorkCover claim. 
  7. As a result of the combination of my disability and the fact that I suffered from Depression it was not possible to work through an estimate 1400 pages which I received late from QCOMP, to comply with the time limits. 
  8. WorkCover claim that I never offered a reason for delay and this is not true.  Some of the reasons I have provided is in fact within the decision of Member Cranwell and others have simply just been ignored even though it formed part of Form 2 that was lodged within the registry that I have now attached to this affidavit together with all the other evidence that explained my delay.
  9. I was supposed to lodge and Appeal by 7 April 2014 but I only received the file on or after the 11th of April 2014 which already exceed the time in order for me to Appeal. 
  10. My reasonable expectation was that QCOMP should treat me fairly and either have advised me that I needed to apply for an extension of time with them or provided me with an extension of time on the basis that they are unable to provide me with the documents I requested before the time will pass in order for me to Appeal. 
  11. I do not appreciate the fact that whilst QCOMP have themselves not complied with the time limits in the Act on two occasions – First, the review of the decision was late as the decision was required to be made on 3 March 2014 but were not made before 6 March 2014.  They also did not request my consent for being late as required.  The second was when I requested a copy of my claim file.  By law I should have received this file on 7 April 2014 but did not receive it until on or after 11 April 2014.  Now QCOMP want to penalise me for the one occasion that I have made a mistake. 
  12. It was not only unfair for QCOMP to be late with providing me with the information, it was also unfair that I was not provided with the correct information on how to apply for Appeal or to suggest a Judicial review at that time. 
  13. If this court takes into consideration that WorkCover and QCOMP have not complied with their statutory obligations, then it should be considered Special circumstances that will allow the proceeding to continue. 
  14. The pathways of reviews and Appeals that was suggested always brought me back where the same information that was in breach of my privacy was considered.  Unless there was a determination that the information was unlawful, there was nothing I could do to stop the use of this unlawful information. 
  15. In my view this only occurred through the final decision of the Court of Appeal on 8 December 2020 where the collection of my medical records was found to have been unlawful.  Now I can bring this evidence to this court to show that WorkCover and the Regulator have not complied with their Statutory obligations by their abuse of power. 
  16. I have lost all trust in the Appeals and Reviews that was suggested as no-one was interested to look at the merits of my claim or the breach of privacy that occurred.  For this reason, I only continued with the breach of privacy matter that was suggested to me by the Regulator to resolve the privacy complaint first. 
  17. If only someone wanted to listen to me and correct their mistakes, I may have still had some trust, but I have to be honest that I have no trust whatsoever in either WorkCover or the Regulator or anything they say as can be proven by their suggestion to do a Judicial review and to then apply to the Court to dismiss my application. 

The explanation is inadequate.  There is a hint of an explanation as to things happening in 2013 and 2014 that might have explained some aspects of the delay which occurred in the steps which were actually taken under the legislative regime.  But that does not touch at all upon the gap between when the Deputy President rejected the application to the QIRC and 22 September 2020.  There is some suggestion that an individual on behalf of WorkCover may, at some unspecified time, and some unspecified occasion, have suggested that the applicant follow the path of applying for a judicial review.  Given that I do not know when in the chronology of events that happened, I do not see that as contributing to the explanation at all.  Although it is not clear, it may be that the applicant’s loss of faith in the process of review provided for under the Act is the true explanation for the number of years that the applicant permitted to pass.  I cannot make that finding because the explanation in the affidavit is not clear enough.  But even if it is, that is not an adequate explanation to justify an extension of time.  It is certainly not an adequate explanation to reduce in significance how the consideration of delay plays into my formation of view under s 48 of the JR Act.

The fourth point is that insofar as the application for a statutory order of review seeks to raise the same matters agitated before Crow J, which have also apparently been agitated before the Court of Appeal, it is plainly an abuse of process to raise them in a judicial review application.  

The fifth consideration is that the applicant seeks to agitate matters, which in my view, are inappropriate for a judicial review application: see, in particular, the claim for a stay in the third order sought, the claim for an order under s 31 of the Limitations of Actions Act 1974 (Qld) in the sixth order sought, and the claim that somehow, I should make an order affecting the costs of the application of the case before Crow J mentioned in the ninth order sought.

In truth, the only argument advanced by the applicant to the contrary of my formation of the view that it is inappropriate that this application should continue was to identify the procedural errors adverted to in the application itself, and in particular, those errors regarding how material was obtained, which were touched upon by the Court of Appeal decision of PB v WorkCover Queensland and the decision of Crow J in Van Der Berg v Key Solutions.  But the applicant was unable to identify anything which could not have been dealt with under the review processes applied under the legislative scheme.  The points which the applicant did raise were not sufficiently compelling to dissuade me of forming the view that I have expressed.  

The result is that for the foregoing reasons, I order that the application for a statutory order of review filed by the applicant on 22 September 2020 be dismissed pursuant to s 48 of the JR Act.

I’ll hear the parties on costs.

HIS HONOUR:   Costs should follow the event.  The applicant should pay the costs of WorkCover and the Regulator to be assessed.  

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Editorial Notes

  • Published Case Name:

    van der Berg v WorkCover Queensland & another

  • Shortened Case Name:

    van der Berg v WorkCover Queensland

  • MNC:

    [2021] QSC 28

  • Court:

    QSC

  • Judge(s):

    Bond J

  • Date:

    11 Feb 2021

Appeal Status

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