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Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator[2022] QSC 250

Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator[2022] QSC 250

SUPREME COURT OF QUEENSLAND

CITATION:

Australian Post-Tensioning Pty Ltd v Workers’ Compensation Regulator [2022] QSC 250

PARTIES:

AUSTRALIAN POST-TENSIONING PTY LTD ACN 145 72 386

(applicant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

BS 3199/21

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

23 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 January 2022

JUDGE:

Brown J

ORDER:

The Orders of the Court are:

  1. A declaration that the respondent erred in law in making the decision of 18 February 2021.
  2. The decision of 18 February 2021 be set aside.
  3. The application for an extension of time requested on 28 January 2021 pursuant to s 550(3) of the WCR Act be remitted back to the respondent to be decided according to law.
  4. A declaration that the respondent erred in law in making the decision of 22 April 2021.
  5. The decision of 22 April 2021 be set aside.
  6. The request for an extension of time made on 7 April 2021 pursuant to s 542(3) of the WCR Act be remitted back to the respondent to be decided according to law.
  7. The matter be relisted on a date to be fixed to hear submissions as to costs and any further submissions in relation to any relief to be granted in relation to the decision of the respondent made on 25 March 2021.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – GENERALLY – where the respondent regulator undertook a WorkCover Industry Classification review of the applicant’s Workers’ Compensation Insurance Policy which resulted in the applicant’s WorkCover Industry Classification being changed – where the applicant applied for a review of the decision – where the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the WCR Act) provides a timeframe of 20 business days to appeal the decision to the Industrial Magistrates Court – where the applicant requested an extension of time for the making of the appeal ten months after the original decision – where the request was refused – where the applicant made a further  request for an extension of time for the making of the appeal which was also refused – where WorkCover issued a premium notice to the applicant – where the applicant also requested an extension of time to review that premium notice which was refused – where the applicant applies for a statutory order of review pursuant to s 20 of the Judicial Review Act 1991 (Qld) in respect of the three decisions – whether in respect of the first decision the respondent erred in law by misconstruing and misapplying s 550(3) of the WCR Act – whether the respondent required the existence of special circumstances in order to exercise its discretion under s 550(3) of the WCR Act – whether the respondent failed to provide the applicant with procedural fairness by failing to advise the applicant of an adverse conclusion which is said not to have been obviously open on the material – whether the exercise of a discretionary power had been exercised in accordance with the rule or policy without regard to the merits of the applicant’s case – whether the respondent had failed to take relevant considerations into account – whether the decision was otherwise contrary to law insofar as it is said to be legally unreasonable, illogical or irrational – whether in respect of the second decision the decision-maker failed to take into account additional evidentiary material – whether in respect of the third decision the respondent erred in finding there were no special circumstances and/or failed to take into account relevant considerations – whether the decision was otherwise contrary to law insofar as it is said to be legally unreasonable, illogical or irrational

BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94, cited

Carmody v WorkCover Queensland (1998) 157 QGIG 119, considered

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194; [2000] HCA 47, considered

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; (1994) 127 ALR 699; (1994), cited

Devi v Workers Compensation Regulator [2016] QSC 311, considered

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344; [1984] FCA 186, cited

Lowis v Workers’ Compensation Regulator [2019] QSC 5, considered

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, cited

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1, considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, considered

Pryszlak v Workers’ Compensation Regulator [2017] QSC 286, considered

Ross Palmer Holdings Pty Ltd v Commissioner of Taxation (2003) 52 ATR 805; [2003] FCA 508, cited

Workers’ Compensation Regulator v Pryszlak [2019] 2 Qd R 58; [2018] QCA 157, considered

Acts Interpretation Act 1954 (Qld) s 24AA

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11

Judicial Review Act 1991 (Qld) s 20

Workers’ Compensation and Rehabilitation Act 2003 (Qld) ss 5, 54, 328, 541, 542, 545, 546, 549, 550

COUNSEL:

A Harding for the applicant

F Chen for the respondent

SOLICITORS:

Colin Biggers & Paisley for the applicant

Crown Law for the respondent

  1. [1]
    Australian Post-Tensioning Pty Ltd (the applicant) applies for a statutory order of review pursuant to s 20 of the Judicial Review Act 1991 (Qld) (JR Act), in respect of three decisions of the Worker’s Compensation Regulator (the respondent). 

Background

  1. [2]
    On 2 July 2019 the respondent advised the applicant that it would be undertaking a WorkCover Industry Classification (WIC) review of the applicant’s Workers’ Compensation Insurance Policy (WIP).  As a result of a change of the WIC which applied to the applicant, the applicant applied for a review.  That review resulted in the applicant’s WIC classification being changed to WIC 322413 – Structural Steel Erection Services.  The applicant applied for a review of the decision pursuant to s 542(3) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).  The applicant applied for a review of that decision.
  2. [3]
    On 14 February 2020 the respondent, via its delegate, affirmed the decision of WorkCover to set the premium payable in accordance with s 54 of the WCR Act (the 2019 premium decision). 
  3. [4]
    Notwithstanding the provision under the WCR Act to appeal the decision to the Industrial Magistrates Court within 20 business days of the date of the receipt of the decision, the applicant did not seek to appeal the 2019 premium decision until 25 January 2021.  A request to extend time for the making of the appeal under s 550(3) of the WCR Act was made on 28 January 2021 some ten months after the original decision. That was refused by the respondent on 18 February 2021 (the first decision). The applicant sought to judicially review the first decision on 18 March 2021 by way of a statutory order of review pursuant to the JR Act.
  4. [5]
    A further request for an extension to appeal the 2019 premium decision was made on 12 March 2021, which was refused by the respondent on 25 March 2021 (the second decision).
  5. [6]
    On 8 July 2020, WorkCover issued a premium notice to the applicant for the 2020/2021 premium year (the 2020 premium decision).  On 7 April 2021 the applicant requested an extension of time to review that decision pursuant to s 542(3) of the WCR Act.  That was refused by the respondent on 22 April 2021 (the third decision).
  6. [7]
    The applicant sought to amend the statutory order for review on 20 May 2021 to seek judicial review of the second and third decisions.
  7. [8]
    It was conceded by the respondent that all three decisions made by the respondent were decisions reviewable under the JR Act. It is also accepted by the respondent that the applicant is adversely affected by the decisions and a person aggrieved by the decisions for the purposes of the JR Act.
  8. [9]
    As to the first decision, the Court must determine whether:
    1. (a)
      The respondent erred in law by misconstruing and misapplying s 550(3) of the WCR Act, by in effect construing it as if the discretion to grant an extension was only enlivened if the applicant established special circumstances;
    2. (b)
      The respondent failed to provide the applicant with procedural fairness by failing to advise the applicant of an adverse conclusion which is said not to have been obviously open on the material;
    3. (c)
      The exercise of a discretionary power had been exercised in accordance with a rule or policy without regard to the merits of the applicant’s case.  This is essentially the same argument as is raised in sub-paragraph (a) and to the extent it is required to be considered will be considered with sub-paragraph (a);
    4. (d)
      The respondent had failed to take relevant considerations into account, said to be the lack of any real detriment caused to the respondent by the delay in appealing, whereas without access to merits review there was no avenue for the applicant to test the correctness of the respondent’s decision; and
    5. (e)
      The decision was otherwise contrary to law insofar as it is said to be legally unreasonable, illogical or irrational.  In this respect the applicant agreed that this was tied to the argument as to natural justice. It, therefore, will be considered in relation to sub-paragraph (b).
  9. [10]
    As to the second decision, the Court must determine whether:
    1. (a)
      The decision-maker failed to take into account additional evidentiary material which was a relevant consideration in determining whether or not to grant the extension of time. 
  10. [11]
    As to the third decision, the Court must determine whether:
    1. (a)
      The decision-maker erred in finding there were no special circumstances because the applicant had made a conscious decision it later regretted not to apply for review;
    2. (b)
      The decision-maker failed to take into account the explanation of delay, the lack of detriment to the respondent as a result of the passage of time and otherwise failed to have regard to considerations including the length of delay in applying for review, the merits of the review and other circumstances that were relevant; and
    3. (c)
      The decision was otherwise contrary to law insofar as it is said to be legally unreasonable, illogical or irrational.

Relevant legislative provisions

  1. [12]
    Section 54 of the WCR Act provides:

“54 Setting of premium

  1. (1)
    WorkCover must set the premium payable under a policy.
  1. (2)
    The premium payable for the policy for a period of insurance must be assessed according to the method (the method) and at the rate (the rate) specified by WorkCover by gazette notice.

…

  1. (9)
    If an employer is aggrieved by WorkCover’s decision, the employer may have the decision reviewed under chapter 13.
  1. (10)
    In this section—

employer’s premium rate means the premium rate calculated for the employer by using a formula that takes into account the number and cost of claims made against the employer’s policy during previous financial years.

relevant industry rate, in relation to an employer, means the industry or business classification rate applying to the industry or business classification—

  1. (a)
    stated in the gazette notice under subsection (2) for the employer’s industry or business; or 
  1. (b)
    as decided by WorkCover under subsection (3)—for the industry or business that most closely describes the employer’s industry or business.”
  1. [13]
    Section 54(2) refers to the gazette notice which sets out the method and the rate to be used in assessing the premium payable. The relevant gazette notice for the 2019/2020 premium year was published on 21 June 2019 – WorkCover Queensland Notice (No. 1) of 2019 (the 2019 Notice). Part 2 of this Notice sets out the method for calculation of premiums for all employers.[1]
  2. [14]
    Part 9 of the 2019 Notice is relevant to how a WIC is allocated to an employer’s policy. Sections 19 to 21 provide that:

“19 Application of this part

  1. 19.1
    This part is to be read with the national industry classifications prescribed under the Australian and New Zealand Standard Industrial Classification (ANZSIC) 2006.

20 One WIC per policy

  1. 20.1
    Except as provided under Sections 22 to 26, WorkCover will allocate only one WIC to an employer’s policy.

21 WIC determined by business activity

  1. 21.1
    Except as provided under Sections 22 to 26, WorkCover will allocate the WIC it considers corresponds to or most closely describes, the employer’s predominant business activity.
  1. 21.2
    Without limiting Section 21.1, in determining the WIC that corresponds to or most closely describes the employer’s predominant business activity, WorkCover will have regard to the following matters:
  1. a)
    the nature of the goods and services supplied by the employer;
  1. b)
    the proportion of the employer’s total sales and revenue attributable to each business activity undertaken by it and the goods and services supplied by that business activity;
  1. c)
    the proportion of the employer’s overall operating costs attributable to each business activity undertaken by it;
  1. d)
    the amount of the payments or estimated payments made by the employer attributable to each business activity undertaken by it to persons, regardless of whether those persons are workers of the employer or not. These payments include those made to persons engaged through an arrangement with another entity whereby the persons’ labour or services are provided to the employer by a separate service entity, a labour hire employer or a group training organisation;
  1. e)
    the business activity or activities the employer holds itself out as performing or being ready, willing and able to perform those activities;
  1. f)
    the ANZSIC Top-down method; and
  1. g)
    any other matter that WorkCover considers relevant.”
  1. [15]
    The reference to the “ANZSIC Top-down method” in s 21.2(f) of the 2019 Notice is a reference to the hierarchical structure of the Australian and New Zealand Standard Industrial Classification (ANZSIC) 2006.
  2. [16]
    Part 2 of Chapter 13 of the WCR Act concerns the respondent’s review of decisions. Section 540 of the Act provides, relevantly:

“Application of pt 2

  1. (1)
    This part applies to the following—
  1. (a)
    a decision by WorkCover—
  1. (i)
    not to give an exemption from insuring under this Act under section 49; or
  1. (ii)
    to set the premium payable under a policy under section 54 …”;
  1. [17]
    Section 541 of the WCR Act provides:

“Who may apply for review

A claimant, worker or an employer aggrieved by a decision or the failure to make a decision may apply for review.”

  1. [18]
    Section 542 of the WCR Act provides, relevantly:

“Applying for review

  1. (1)
    An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision or the failure to make a decision and the reasons for the decision or failure, unless subsection (4) applies.
  1. (2)
    For subsection (1), the applicant may, at any time but not more than once, ask the Regulator to allow further time to apply for review.
  1. (3)
    The Regulator may grant the extension if it is satisfied that special circumstances exist.”

(emphasis added)

  1. [19]
    Section 545 of the WCR Act provides:

“Review of decision or failure to make a decision

  1. (1)
    The Regulator must, within 25 business days after receiving the application, review the decision and decide (the review decision) to—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the decision-maker with the directions the Regulator considers appropriate.”
  1. [20]
    Section 546(1) of the WCR Act provides:

“Notice of review decision

  1. (1)
    Within 10 business days after making a review decision, the Regulator must give the applicant and the decision-maker written notice of the review decision.”
  1. [21]
    Section 549(1) of the WCR Act provides:

“Who may appeal

  1. (1)
    A claimant, worker or employer aggrieved by the decision (the appellant) may appeal to an appeal body against the decision of the Regulator or the insurer (the respondent); …”
  1. [22]
    Section 550 of the WCR Act provides, relevantly:

“Procedure for appeal

  1. (1)
    The appeal must be made—
  1. (a)
    if the appeal is about a review decision—within 20 business days after the appellant receives the notice of the review decision; or
  1. (b)
    if the appeal is about a non-reviewable decision—within 20 business days after the appellant receives the notice of the decision stating the reasons for the decision.
  1. (2)
    For subsection (1)(b), if the notice of the decision did not state the reasons for the decision, the appellant must ask the respondent for the reasons for the decision within 20 business days after receiving the notice.
  1. (3)
    However, the appellant may ask the respondent to allow further time to appeal.”

(emphasis added)

The first decision

  1. [23]
    In reaching its decision not to extend the time for an appeal under s 550(3), the decision-maker stated, amongst other things, that:

“Decision

I have considered section 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act), along with the information you have provided, the relevant case law and legislation.  I do not consider that your client has either substantially complied with the timeframe to lodge its appeal or demonstrated special circumstances to warrant an extension of the timeframe to lodge a notice of appeal.

Reasons for decision

Under section 550(1) of the Act, an appeal, about a review decision, must be made within 20 business days after the appellant receives notice of the review decision. Your client’s notice of appeal was filed on 25 January 2021, more than ten months beyond the period of time allowed for it to lodge a notice of appeal.

Under section 550(3) of the Act, an appellant may ask the respondent, the Regulator, to allow further time to appeal. The Regulator may grant the extension if satisfied that the appellant has substantially complied with the requirements to appeal or that special circumstances exist.

…

I do not consider your client’s explanation for the delay constitutes special circumstances to warrant extending the timeframe to file its notice of appeal. For financial reasons, upon receipt of the review decision, your client made a conscious decision not to appeal to an Industrial Magistrate.

…

…I do not consider that conscious decisions, later regretted, amount to special circumstances to warrant waiving the statutory time limit in which to appeal the review decision.

…

In considering the information as a whole, and noting particularly that:

  • your client was aware of the timeframe to lodge an appeal
  • the delay in lodgement is significant
  • your client has shown limited enthusiasm for pursing an appeal

the Regulator is not persuaded that on balance, you have established that there are special circumstances to enliven its discretion to allow further time to lodge a notice of appeal pursuant to section 550(3) of the Act.”

(footnotes omitted)

Error of law/exercising discretionary power in accordance with a rule or policy

  1. [24]
    The applicant contends that the respondent:
    1. (a)
      Erred in law by construing the discretion to grant an extension as only enlivened under s 550(3) of the WCR Act if the applicant establishes that there are special circumstances when the respondent’s discretion is not so constrained by s 550(3) of the WCR Act, nor in its statutory context can it be construed so as to be enlivened only where there are special circumstances to justify the grant; or
    2. (b)
      Erred in law by adopting a rule or policy that the discretion to grant an extension will only be enlivened if the applicant for an extension establishes that there are special circumstances which justify such a grant of an extension, which does not accord with the broad discretion provided for in s 550(3) of the WCR Act.
  2. [25]
    As was recognised by the majority of the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors[2] the notion of “discretion” encompasses a number of different legal concepts.  There are those discretions which refer to a decision-making process in which there is no single consideration or combination of considerations which is necessarily determinative of the result. Where that is the case, the relevant considerations in the exercise of the discretion are only confined by the subject matter and object of the legislation in question. In contrast, a discretion may be a narrow one which can only be exercised to make a particular decision where the decision-maker forms a particular opinion or value judgment. 
  3. [26]
    The discretion in s 550(3) of the WCR Act is broadly expressed without any specific criteria. In the present case, the applicant, correctly in my view, characterises the discretion under s 550(3) as a broad discretion which on the proper construction of the provision is not only enlivened where there are special circumstances which exist justifying the extension, unlike the discretion under s 542(3) which is expressly so constrained.  The applicant therefore contends the considerations that are relevant to the exercise of the discretion broadly accord with those outlined by Wilson J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs[3] in the context of s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).
  4. [27]
    The respondent accepts that if its decision made “special circumstances” the threshold test for granting an extension under s 550(3) of the WCR Act, the respondent would have been in error.  However, it contends that the existence of special circumstances is a relevant consideration for a decision-maker to take into account in the exercise of the discretion. The respondent submits that it is plain from the reasons that the decision-maker’s reference to “special circumstances” was identifying it as one of the circumstances relevant to the waiver of a statutory time limit and that the respondent did not confine itself to those circumstances but took into account a number of considerations. That, according to the respondent, demonstrates that there was no error of law nor was any rule or policy applied in making the decision.
  5. [28]
    The respondent referred to the decision of Lowis v Workers’ Compensation Regulator[4] (Lowis).  In Lowis Crow J, in the context of a judicial review application asserting errors by a decision-maker in refusing to extend time for an appeal, referred to the factors identified by the Queensland Industrial Court in Carmody v WorkCover Queensland[5] (Carmody) relevant to the exercise of a broadly stated discretion under s 346 of the Workplace Relations Act 1997 (Qld)[6] as also being relevant to the exercise of the discretion under s 550(3) of the Act, namely:
    1. (a)
      The extent of the delay;
    2. (b)
      The explanation for the delay;
    3. (c)
      The enthusiasm for prosecuting the appeal;
    4. (d)
      The merits of the appeal; and
    5. (e)
      Any other special circumstances supporting the grant of an extension of time.
  6. [29]
    The above list omits any reference to prejudice suffered by the parties. It is evident from the decision of De Jersey J (as he then was) in Carmody that prejudice to the decision-maker if time were extended and to the applicant if it was not, was also a relevant consideration, but it was not raised by the facts in that case.[7] Nor does it appear to have been raised in Lowis. Given the request is to extend time out of the prescribed period, if the facts raised any prejudice as a result of the grant or denial of the extension of time, that would in my view be a relevant consideration to a decision under s 550(3) of the WCR Act. That is a matter which has been the subject of an additional ground of review, and I will consider it further in that context.
  7. [30]
    The respondent contends the reference to special circumstances was used in a similar way to “circumstances sufficiently special to warrant” referred to by De Jersey J in Carmody where he stated that:[8]

“I exercised the analogous discretion under the Industrial Relations Act 1990 in Canaway because, as I there put it, the circumstances were, ‘sufficiently special to warrant my invoking the discretion under Section 90.’. Formulations in words like that are not particularly helpful of course, but judicial officers tend to use them from time to time for a particular purpose and that is to indicate that those sorts of discretions are not routinely exercised to help people out of difficulties. Were that to be done the importance to the system of adherence to procedural requirements could be diminished unduly.”

  1. [31]
    The applicant accepts that the existence of special circumstances is a relevant factor for a decision-maker to take into account in the exercise of the discretion but contends that the way the decision-maker approached the exercise of its discretion was on the basis that unless there were special circumstances the decision-maker had no discretion to extend the time for the appeal, thus treating the discretion as constrained by the existence of special circumstances.
  2. [32]
    Thus, in relation to this ground of review raised in the present application, the real question is whether the decision-maker required the existence of special circumstances in order to exercise its discretion under s 550(3) of the WCR Act. That requires the Court to examine the reasons given for the decision in the letter of 18 February 2021.
  3. [33]
    The Court must be cautious when interpreting reasons of a decision-maker to avoid adopting an overly pedantic or legalistic approach. As was said by the majority of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[9]:

“…the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

  1. [34]
    Bearing that in mind, I turn to the terms of the decision of 18 February 2021. There are a number of references to “special circumstances” in the letter, including:
    1. (a)
      “I do not consider that your client has either substantially complied with the timeframe to lodge its appeal or demonstrated special circumstances to warrant an extension of the timeframe to lodge a notice of appeal”;
    2. (b)
      “Under section 550(3) of the Act, an appellant may ask the respondent, the Regulator, to allow further time to appeal. The Regulator may grant the extension if satisfied that the appellant has substantially complied with the requirements to appeal or that special circumstances exist”;
    3. (c)
      Under the heading “The Explanation for the Delay”, having considered the explanation given and submissions made: “I do not consider your client’s explanation for the delay constitutes special circumstances to warrant extending the timeframe to file its notice of appeal. For financial reasons, upon receipt of the review decision, your client made a conscious decision not to appeal to an Industrial Magistrate”;
    4. (d)
      Under the heading “The Explanation for the Delay”, after discussing the information provided about the applicant re-examining the situation when its premium came up for renewal: “I am satisfied that your client was aware of its appeal rights and chose alternative courses of action at the expense of exercising its appeal rights. I do not consider that conscious decisions, later regretted, amount to special circumstances to warrant waiving the statutory time limit in which to appeal the review decision”;
    5. (e)
      Under the heading “The merits of the appeal” the decision-maker stated: “When an application for an extension of time is not the occasion for merits review, if an evidently meritorious claim exists, then that will bear upon the question whether other relevant circumstances taken together with the merits would constitute special circumstances.” The decision-maker noted the links provided by the applicant to show what was involved in “structural steel erecion (sic) works” and “the typical in-situ post-tensioned slab construction method” as well as the relevant risks to employees carrying out structural steel erection works not present or less likely to be present for post-tensioning and reinforcement works. The decision-maker stated that the videos did not demonstrate that the applicant had a meritorious claim and set out the reasons for that view, concluding that the decision-maker was not satisfied that the applicant demonstrated that its claim was meritorious; and
    6. (f)
      Under the heading of “Other special circumstances” (emphasis added) the decision-maker referred to the applicant submitting that its business was at risk if the decision was not set aside.  The decision-maker stated that while the financial impact on the business and future implications it may have were acknowledged, that had to be weighed against the purpose of the WIC and the balance it sort to achieve, concluding that “I do not consider these factors constitute special circumstances to warrant waiving the timeframe to appeal the review decision”.
  2. [35]
    Under the heading “Enthusiasm for prosecuting the appeal”, after summarising the reasons the applicant provided in support of the statement that it was “particularly enthusiastic to prosecute its appeal” the decision-maker concluded that the applicant had shown limited enthusiasm for prosecuting the appeal. There was no specific reference to “special circumstances”.
  3. [36]
    However, under the heading “Summary” was a conclusion that:

“In considering the information as a whole, and noting particularly that:

  • your client was aware of the timeframe to lodge an appeal
  • the delay in lodgement is significant
  • your client has shown limited enthusiasm for pursing (sic) an appeal

the Regulator is not persuaded that on balance, you have established that there are special circumstances to enliven its discretion to allow further time to lodge a notice of appeal pursuant to section 550(3) of the Act.”

(emphasis added)

  1. [37]
    In my view, the applicant’s contention is correct.  I find that the decision-maker did adopt “special circumstances” as a threshold criterion required to be met to enliven the discretion, not just as one of the considerations.  While the respondent’s Counsel put the alternative construction as strongly as it could be put, even adopting the most beneficial reading of the reasons of the respondent, it is evident from the terms of the reasons including the reference to “Other special circumstances” and the terms of the introduction and summary to the letter, that the decision-maker treated special circumstances as the threshold that had to be satisfied by the applicant before the discretion of the respondent was enlivened. While the decision-maker considered the submissions made by reference to the five matters outlined in its letter that it considered relevant, it did so by considering whether any of those matters were circumstances that could constitute special circumstances. Even though reference was not made to “special circumstances” in the discussion of enthusiasm for prosecuting the appeal, the decision-maker returned to it as one of the factors which did not persuade them that there were special circumstances to enliven the discretion under s 550(3) of the WCR Act in the summary. That further demonstrates that the decision-maker required such a threshold to be met before considering the discretion could be exercised to grant an extension of time.
  2. [38]
    I am therefore satisfied that the respondent did apply “special circumstances” as a criterion that had to be met before it could exercise its discretion to extend time and not merely refer to it as a relevant consideration. In doing so the respondent sought to impose an additional statutory requirement for the granting of an extension that was not explicitly nor implicitly a statutory requirement for the exercise of the discretion, notwithstanding the existence of such special circumstances is a matter to which the decision-maker could properly have regard in making its decision as one of the considerations.  The fact that it was not the statutory intention to impose such a criterion is supported by explicit reference being made to the requirement that the threshold of “special circumstances” be met in other sections of the Act including whether to grant an extension of time for an application for review under s 542(3) after the time for making such an application had expired.
  3. [39]
    While it is unnecessary to consider the alternative basis of review given the above finding, I do not find there is any evidence of the application of a rule or policy on behalf of the respondent.  The respondent did consider the merits of the case in reaching the decision not to grant the extension but applied a threshold test not found in the WCR Act. This alternative ground is not made out.
  4. [40]
    Given my finding I will only briefly touch upon the other grounds.

Denial of natural justice

  1. [41]
    The applicant contends there was a denial of natural justice insofar as there was inconsistent reasoning between the decision made in respect of its 2019 premium decision and the first decision in relation to the exclusion in “Class 3224 Structural Steel Erection Services” with respect to the construction of buildings.  It submits that in failing to notify the applicant of the different approach to reasoning by the decision-maker the applicant was denied procedural fairness. 
  2. [42]
    The respondent contends that there was no such denial of procedural fairness as it had identified the matters which it would consider in its decision and invited submissions and information to be provided by the applicant prior to the making of the decision.
  3. [43]
    In Minister for Immigration and Citizenship v SZGUR[10] French CJ and Kiefel J stated:

“Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power.  The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material.  However, a decision-maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.”

  1. [44]
    By the 2019 premium decision, the respondent had determined that Class 3224, the description for which included steel fixing services and steel reinforcing services for concrete structures, most closely corresponded to the applicant’s predominant business activity. In its reasons the respondent had noted that if structural steel and erection services was work involved in the construction of buildings then it was excluded from the class description “Class 3224 Structural Steel Erection Services” under the Australian and New Zealand Standard Industrial Classification (ANZSIC) 2006. The decision-maker stated that: “[i]n relation to the exclusions detailed in the class description I do not consider that this applies as [the applicant] is not involved in the construction of buildings as whole, rather they are a specialised construction service.”  In the submission made to the respondent seeking the extension of time to appeal, the applicant provided three videos said to involve “structural steel erection works” and three videos said to show the typical in-situ post-tensioned slab construction method. Based on those videos the applicant submitted that the videos showed that post-tensioning and reinforcement installation works were entirely different from steel erection works. The applicant further submitted that it has an arguable case that its predominant business activity involves “building installation services” and the closest description of its work was ANZSIC’s “Class 3239 Other Building Installation Services”. In its decision, the respondent did not accept the videos demonstrated what the applicant asserted they did, nor that the applicant had a meritorious claim. The respondent stated amongst other things:

“In this regard, I note that the first three videos depict work involved in the construction of buildings. I am not satisifed (sic) that this type of work falls under the WIC 3224 Structural Steel Erection Services, as page 215 of the Australian and New Zealand Standard Industial (sic) Classfication (sic) (ANZSIC) specifically excludes the constuction (sic) of buildings (which incorporate structural steel components), as this work is included in the appropriate classes of Subdivision 30 Building Construction.”

  1. [45]
    The respondent concluded:

“After carefully considering your submissions, I do not consider that the primary activities listed for class 3239 involve or closely describe your client’s predominant business activity and consider that two of the primary activities listed for class 3224 correspond to those activities. I am not satisfied that you have demonstrated that your client’s claim is meritorious.”

  1. [46]
    The applicant contends the respondent failed to put the applicant on notice as to a critical issue in adopting a different reasoning process. Specifically, the applicant refers to the changing of the position previously taken between the 2019 premium decision and the first decision. The applicant contends in simple terms that the original decision did not suggest the applicant constructed entire buildings whereas the first decision by inference found that the applicant did construct buildings. It also complains the respondent had not taken up offers to visit the site or informed the applicant that the respondent would be proceeding to make the decision premised on a finding that the decision-maker was not satisfied that the videos provided by the applicant demonstrated a meritorious claim.
  2. [47]
    I do not accept the applicant’s contentions because:
    1. (a)
      I do not consider on a proper reading of the two decisions that the reasoning is necessarily inconsistent, given that the first decision is addressing the videos provided by the applicant and in the 2019 premium decision, the decision-maker was addressing the fact that it did not consider that the applicant was engaged in the construction of buildings as whole.
    2. (b)
      To the extent there is a difference in reasoning as to the application of the exclusion in Class 3224 between the two decisions I do not consider it was as to a critical issue. Each decision was a separate decision and the reasoning process adopted may differ. The critical issue was how the applicant’s predominant business activity should be classified. In both decisions it was not accepted that the predominant activity of the applicant was properly characterised as construction of buildings (which incorporate structural steel components) under Class 3020 but was most appropriately characterised as being within Class 3224. It was a step in the reasoning process responding to the submissions made and did not relate to any issue critical to the decision. A decision-maker is not required to expose its reasoning process.  The decision was open on the submissions made by the applicant and the material put before the respondent, given the videos to which the respondent was referring which sought to draw a contrast between structural steel erection works and post tensioning and reinforcement installation works, and the characterisation of the works. 
    3. (c)
      The decision-maker was not obliged to carry out an on-site inspection. Nothing has been pointed to by the applicant as suggesting that was a relevant consideration it was obliged to consider in determining an extension under s 550(3) of the WCR Act. Given the decision is whether to extend time for an appeal and not reconsideration of the original decision, there is nothing to suggest that the decision-maker would be required to carry out such an inspection or give reasons why it did not choose to do so.
    4. (d)
      The applicant had invited the respondent to review the videos and made submissions as to what the videos characterised in the context of submitting that they showed the applicant had a meritorious claim. The respondent did consider them but did not accept that characterisation. It was evident on the applicant’s own invitation it was a matter which the respondent was going to consider. The applicant’s complaint seeks to have the respondent expose its thought processes and provisional decision, which the decision-maker in this context was not obliged to do before making its decision.
  3. [48]
    Nor does the different reasoning in the first decision in this regard expose reasoning which is illogical and irrational or legally unreasonable,[11] because it differs from the 2019 premium decision for the reasons set out above. In the present case the reasoning process in reaching the decision that the respondent was not satisfied that the applicant had demonstrated its claim was meritorious is set out, addressing the evidence provided and submissions made. The finding does not constitute an illogical or irrational finding as part of reaching the final decision.
  4. [49]
    Further, as to the suggestion that the respondent had failed to consider the “justice of the case” in all of the circumstances in determining whether the extension should be granted, particularly the importance of employers not being required to pay a substantially higher premium than that required by the WCR Act, the requirement imposed upon the applicant to pay a higher premium was plainly a matter considered by the respondent under “Other special circumstances”, as was the purpose of the workers’ compensation scheme and the balance sought to be achieved between the workers and employers. This is in contrast to the case of Ross Palmer Holdings Pty Ltd v Commissioner of Taxation[12] where Justice Spender found that the purpose of the Act had not been considered at all in determining whether the extension should have been granted.[13]
  5. [50]
    I do not find that there is a breach of the rules of natural justice by the respondent nor that the decision is illogical or irrational on the basis of the apparent inconsistency of reasoning.

Failure to take relevant considerations into account

  1. [51]
    The applicant complains that the respondent did not take into account two relevant considerations, namely:
    1. (a)
      The lack of any relevant detriment caused by the delay in appealing; and
    2. (b)
      The fact that without access to merit’s review there is no avenue to test the respondent’s decision in relation to the WIC classification and whether the applicant is paying a higher premium than contemplated by the WCR Act.
  2. [52]
    Accepting for the purpose of this decision that these considerations are relevant considerations, the reasonable inference from the decision as a whole is both matters were considered.
  3. [53]
    The applicant contends that the respondent misconceived the relevance of prejudice or lack thereof in failing to consider the issue by reference to its importance to the operation of the workers’ compensation scheme and the respondent’s function to regulate the scheme, particularly to ensure that an employer does not pay a substantially higher premium under the policy issued to it than s 54 of the WCR Act contemplates is payable.  It contends that the respondent wrongly relied on the extent of the delay and the explanation for the delay.
  4. [54]
    The applicant’s approach is misconceived insofar as it suggests that in order to take into account a relevant consideration it must be couched in certain terms. The reasonable inference is that these matters were in fact considered by the respondent. Further, when considered as a whole I do not consider that the decision shows the respondent wrongly relied on the extent of delay and the explanation as operating to exclude a favourable decision when there was no detriment to the respondent or the workers’ compensation scheme from the delay.
  5. [55]
    Where an extension of time is sought to appeal outside of the time limits imposed by the WCR Act, the extent of delay and the explanation for it would be relevant to consider although not definitive. The objects of the WCR Act, particularly those outlined in s 5(4) were specifically referred to by the respondent. The consequence of not granting an extension for review is obviously that the applicant cannot appeal the premium decision so as to challenge its correctness. The decision-maker noted the submission that the applicant’s appeal concerned its predominant business activity, and that the delay would cause no prejudice to the respondent. The fact that there was no prejudice to the respondent was specifically taken into account.
  6. [56]
    Nor was the respondent’s decision limited in the way contended for by the applicant, namely, that the consideration of delay was by reference to the time limitation set forth in the WCR Act where the respondent concluded that “the delay must be considered with reference to the time limitation period set forth in the Act and the stated objectives in section 5 of the Act.”  The decision-maker’s considerations were broader, including stating that:

“Section 5(4) of the Act relevantly sets out that it is intended that the scheme should maintain a balance between providing fair and appropriate benefits for injured workers or dependents and persons other than workers and ensuring reasonable cost levels for employers. While the Regulator may not suffer any prejudice testing the evidence because of the delay, I consider the delay of 10 and a half months to be significant when compared to the 20 business day timeframe.”

  1. [57]
    The respondent’s decision accurately summarised the matters presented on behalf of the applicant in its submission.  It was the respondent, not the applicant, who made reference to s 5(4) of the WCR Act demonstrating that it was a matter which it considered in the context of delay. The acknowledgement of s 5(4) of the WCR Act demonstrates it was taken into account as a relevant consideration.
  2. [58]
    Section 5(4) of the WCR Act was again referred to under “Other special circumstances” where the respondent acknowledged the financial impact of the decision and the implications it may have for the future. In the applicant’s request for an extension, it contended that the correct characterisation would lead to a lower premium being imposed upon it. That was taken into account by the decision-maker when considering the limits of the appeal.
  3. [59]
    While there was no express reference to the onus on the applicant to establish its appeal and therefore any prejudice from delay falling upon it, one would reasonably infer from the fact the applicant is seeking an extension of the appeal and the applicant’s contentions as to the merits of the appeal right that the respondent was aware that the onus would lie on the applicant.
  4. [60]
    In any event, even if the onus was not considered, there was no evidence of prejudice falling upon the applicant as a result of the delay, nor was it a matter raised by the applicant.  The submission of the applicant acknowledged there was a conscious decision not to appeal, albeit without appreciating the impact of the change of premium as a result of the 2019 premium decision and then subsequently explored other avenues of redress before seeking legal advice.

The second decision

  1. [61]
    The applicant and respondent agreed that if the Court found the first decision should be set aside, this decision should also be set aside.  I will address it briefly.  The applicant again requested the respondent to grant an extension under s 550(3) of the WCR Act to appeal the decision of 14 February 2020 on 12 March 2021, notwithstanding the refusal to grant the extension on 18 February 2021. The letter stated that the matters relied upon in support of their client’s request were the matters set out in the 28 January 2021 letter, the matters set out in their client’s notice of appeal filed 25 January 2021 and “the matters set out below”. In the last respect, the applicant sought to provide further evidence as to the work it performed, contending that the respondent should have informed the applicant that it did not agree that the videos showed that the applicant had a meritorious claim. The letter reiterated the contentions that had been raised in the letter of 28 January 2021 and stated that the applicant intended to provide a further video showing works which were undertaken by the applicant’s employees at projects which the applicant was working on, by 15 March 2021. The letter then took issue with the statement in the respondent’s letter of 18 February 2021 that “constuction (sic) of buildings (which incorporates structural steel components) as this work is included in the appropriate classes of Subdivision 30 Building Construction”, and the inconsistency of the respondent’s approach and the fact that the applicant’s original contention was that WIC-302016 Non-residential Building Construction was applicable to their client’s business was consistent with the statement in the first decision.
  2. [62]
    The video was not provided and what was ultimately provided on 16 March 2021 was a PowerPoint presentation with a short video of each step in the applicant’s work.
  3. [63]
    On 24 March 2021, the applicant’s lawyers asked whether the respondent had made a decision as to whether it was prepared to make a fresh decision.
  4. [64]
    On 25 March 2021 the respondent responded via email stating:

“I refer to your email correspondence dated 24 March 2021 and correspondence from your office dated 12 March 2021.”

  1. [65]
    The email then referred to the history of the matter and in particular, the matters that would be considered in determining whether to grant an extension in an email of 29 January 2021.  The decision refers to the respondent having invited the applicant to provide any further information by 5 February 2021.  The decision-maker stated:

“In circumstances where you have provided detailed submissions, were advised of the information the respondent would consider in making its determination, were offered the opportunity to provide further information prior to a determination being made and the respondent made a decision in respect of s 550(3) of the Workers’ Compensation and Rehabilitation Act 2003 of 18 February 2021, the respondent will not make a further decision.”

  1. [66]
    The applicant contends that there was no bar to the respondent making a fresh decision and relies upon s 24AA of the Acts Interpretation Act 1954 (Qld) and s 328 of the WCR Act in that regard. It contends that the respondent failed to take into account a relevant consideration in failing to consider the fresh evidentiary material that was supplied and outlined in the letter of 12 March 2021 and email of 16 March 2021.
  2. [67]
    The respondent does not dispute it has the power to make a fresh decision under s 550(3) of the WCR Act, notwithstanding that it has already made a decision. I therefore proceed on the basis the respondent had such a power.
  3. [68]
    The respondent contends that it determined to not re-exercise the power which did not give rise to any error. It submits however that the further evidentiary material was relevant only to the relevant considerations being the merits of the appeal and every piece of evidence did not have to be the subject of reasons. The respondent contends that in any event, it did not fail to take into account a relevant consideration by not taking into account the further evidentiary material as although it was relevant, it was not a relevant consideration which satisfied the test in Peko-Wallsend[14] and which it was mandatory for the decision-maker to have regard.  In oral submissions the respondent submitted that it was to be inferred that it had had regard to the additional material that had been provided, but it was not required to address individual pieces of evidence. 
  4. [69]
    The question is whether having considered the merits of the appeal previously, the respondent was obliged in its reasons to address the merits of the appeal again by the applicant seeking to raise additional evidence. 
  5. [70]
    The additional evidence provided by the applicant was addressing the same issue in relation to the merits of the appeal, namely, to demonstrate that post-tensioning work is entirely different to steel erection work and has less safety risks. The applicant had previously provided some photos as to aspects of what it did in the January 2021 submission but sought to add to that by providing a PowerPoint presentation of what it did. In essence the additional evidence appeared to be directed to what the respondent had identified as lacking in the evidence provided in connection with the merits of the appeal in its decision of 28 January 2021.
  6. [71]
    While the email of the respondent only referred to the email correspondence of 24 March 2021 and correspondence dated 12 March 2021, it did not refer to the email of 16 March 2021. However, that email was a part of the email chain behind the respondent’s response of 25 March 2021.
  7. [72]
    Section 24AA of the Acts Interpretation Act 1954 (Qld) provides a power to a decision-maker to reverse or alter a previous exercise of power.  A decision-maker is not however obliged to exercise that power and it does not provide a right to have a power re-exercised. It is a matter which is plainly a discretion of the decision-maker.
  8. [73]
    The applicant contends that the decision-maker was obliged to consider the additional evidence provided by it on 16 March 2021 and the additional submissions made. It contends that given the respondent agreed they can make a fresh decision, they were obliged to consider it.  I cannot agree. The applicant’s argument fails to consider the fact that there is a threshold question whereby even though the respondent has the power to make a fresh decision, s 24AA does not oblige the decision-maker to do so and the decision-maker must first consider whether it will exercise that power. Had the respondent considered that the additional submissions and evidence provided were sufficient to cause it to consider whether it should re-exercise the power to extend the time for appeal, it would have been obliged to consider that further evidence as part of re-exercising its discretion in considering the merits of the appeal and provide reasons for its decision.
  9. [74]
    The substance of what the applicant wished the respondent to consider was set out in the letter of 12 March 2021 as follows: “We intend to provide you with a further video on Monday 15 March 2021. We are instructed that the video will show the works being undertaken by our client’s employees at projects our client is currently working on.” The PowerPoint presentation provided on 16 March 2021 was in a different form to that contemplated in the letter of 12 March 2021 but reflected in substance what had been indicated would be contained in the video.
  10. [75]
    The email of 25 March 2021 makes clear that the respondent considered the letter of 12 March 2021 but determined that it would not make a further decision. It was not obliged to consider the PowerPoint presentation in making that determination. Although the email of 16 March 2021 and PowerPoint were not referred to in the email, that email only provided the PowerPoint which in substance was foreshadowed by the letter of 12 March 2021. That the decision-maker was aware of the PowerPoint may be inferred by the fact that the email of 16 March 2021 was part of the email chain behind the respondent’s response of 25 March 2021. I do not infer the decision-maker however reviewed the PowerPoint given its reasons omit any reference to it having done so.  I find however that it was open for the respondent in the circumstances to consider the further submissions were not sufficient to cause it to reconsider the exercise of its power and not have to address or review that PowerPoint in determining not to make a fresh decision.
  11. [76]
    This ground is not established.

The third decision

  1. [77]
    On 8 July 2020, WorkCover issued the 2020 premium decision.
  2. [78]
    On 7 April 2021, the applicant applied for a review in relation to the 2020 premium decision.
  3. [79]
    Pursuant to s 542 of the WCR Act, the application for review “must be made within 3 months after the person applying for the review...receives written notice of the decision…”. An applicant may apply for an extension of time at any time but not more than once.[15]
  4. [80]
    Section 542(3) of the WCR Act provides that the regulator may grant the extension if it is satisfied that special circumstances exist.
  5. [81]
    The applicant contends that the respondent further erred in making its third decision contained in its letter of 22 April 2021. The decision was responding to a request on 7 April 2021 to grant an extension for lodging the application for review beyond the three-month timeframe under s 542(3) of the WCR Act. The applicant contends that the respondent in effect determined that where there was a conscious decision not to pursue a review which was later regretted, special circumstances could not be established.  In doing so it contends that the respondent adopted a rule or policy to that effect.
  6. [82]
    The applicant in its letter of 7 April 2021 identified four special circumstances that existed, namely:
    1. (a)
      The explanation for the delay;
    2. (b)
      No prejudice suffered by WorkCover as a result of the delay;
    3. (c)
      The impact on the applicant of WorkCover’s decision; and
    4. (d)
      Why Workcover’s premium calculation is wrong and should be changed.
  7. [83]
    On 13 April 2021 the Workers’ Compensation Regulatory Services Review and Appeals Unit sent an email to the applicant’s solicitors which stated, inter alia, that:

“To assist us in this determination please now provide us with the reasons for your client’s application for review being lodged more than three months since the insurer made it’s (sic) decision. This should include information such as

  • when your client received the decision
  • any reasons or personal circumstances for the delay in lodging the review application
  • evidence that your client took positive and timely steps to pursue the application for review within the…
  • reasons why the gathering of particular information was necessary to support the review application
  • medical opinion or evidence that supports any special circumstances of a medical nature impacting or...
  • any information including evidence which supports that your client’s application for compensation or…
  • any other reason why you contend that the application for review should proceed.”
  1. [84]
    The email of 13 April 2021 attached a document titled “Deciding a request for an extension of time to lodge an application for review”. The document sets out “WCRS’s policy on requests”.
  2. [85]
    On 14 April 2021 the applicant’s solicitors provided a further letter in response to the email highlighting reasons why the 2020 premium decision and their client’s application could not be considered in isolation, referring to the appeal process that had been instigated in relation to the 2019 premium decision and the steps taken to pursue all avenues available in that regard.
  3. [86]
    The respondent’s letter of 22 April 2021 refusing the extension of time stated that the decision-maker had determined that the applicant had not demonstrated special circumstances to warrant the exercise of the discretion to extend the time for lodging an application for review.  It stated:

“In considering whether or not special circumstances exist to grant an extension, the Workers’ Compensation Regulatory Services will consider the reasons for the delay, including any steps taken to progress the review and the basis for those steps, the length of the delay in applying for review, the merits of the review and any other circumstances you consider are relevant to my decision.”

  1. [87]
    After setting out the special circumstances detailed by the applicant, it further stated 

“Whilst there is no apparent prejudice to any party to the review proceeding, your client has made a conscious decision to pursue a review of the premium decision and not to pursue a review of the subsequent notice issued in July 2020, well after WorkCover’s initial premium decision was determined and reviewed. Given the review concerning the premium decision was lodged within the legislative timeframe, it is clear your client was sufficiently aware of the review rights available to them upon issue of the premium notice in July 2020 and the timeframe in which to pursue a review.

You have provided no evidence suggesting that there was anything stopping or barring your client seeking review of the premium notice other than the conscious decision to pursue a review and appeal of the initiating decision regarding the premium rather than this review.

Decisions of the Industrial Court of Queensland in Hansen, Pearce and Sargeant support the conclusion that a ‘conscious decision later regretted’ does not constitute special circumstances sufficient to warrant an extension of the timeframe for review.

Therefore, based on the information available in the WorkCover claim file, provided in support of your review application and in response to the Workers’ Compensation Regulatory Services’ request for further information, I do not consider that you have provided sufficient evidence to demonstrate special circumstances which would warrant an extension of the timeframe to apply for review.”

(footnotes omitted)

  1. [88]
    The applicant contends that the respondent truncated the discretion and did so in a way which was not consistent with the terms of the legislation, by treating a finding of a conscious decision not to apply for a review later regretted, as necessitating a conclusion that special circumstances do not exist.  That was, according to the applicant, supported by the decision-maker’s reference to three cases as if they established legal principle and the fact that the following paragraph began with “Therefore”.
  2. [89]
    According to the applicant, the decision-maker deprived themselves of the opportunity of considering whether the justice of the case required further time to be given so that the applicant would not be subjected to paying a substantially higher premium.
  3. [90]
    The applicant further contends that the respondent failed to take into account the fact that the onus was on the applicant to show that the premium calculation was wrong, so if there was any detriment caused to the party by the delay it was borne by the applicant.
  4. [91]
    In the alternative the applicant contends that the decision was legally unreasonable, irrational and illogical.
  5. [92]
    The respondent however contends that the respondent placed significant weight on the period of delay and the explanation for it, as was open for it to do, and did not limit itself by a rule or policy. A deliberate choice not to appeal was a relevant consideration in determining whether to grant the extension. 
  6. [93]
    The respondent contends that it had identified the considerations raised by the applicant in its submissions but determined to place weight upon the period of delay and the explanation for the delay, which was matter for the decision-maker in determining whether there were special circumstances.  According to the respondent, as the decision-maker found the threshold of special circumstances was not satisfied it was not necessary for the respondent to consider the merits of the appeal.
  7. [94]
    The exercise of the discretion in s 542(3) of the WCR Act requires a decision-maker to be first satisfied that there are special circumstances.  This is in contrast to the broad discretion contained in s 550(3) of the WCR Act, or that which was considered in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment.[16] However the “special circumstances” are not further confined by the terms of the WCR Act.
  8. [95]
    In Devi v Workers Compensation Regulator[17] (Devi) Boddice J stated:

“A proper reading of s 543(3) of the Act, (sic) in the context of the nature and scope of the legislative scheme, supports a conclusion that the respondent must first determine whether special circumstances exist. If the respondent is satisfied such special circumstances exist, the respondent has a discretion as to whether or not it grants an extension of time. It is not bound to grant an extension of time in the event the respondent is satisfied special circumstances have been shown. The legislation permits the respondent to decide that the circumstances, while special, do not warrant an extension.

…

A consideration of whether “special circumstances” exist such as to permit an extension of time pursuant to s 543 (sic) will depend on an assessment of the facts of the relevant case. Depending on those individual circumstances all, or none, of the factors set out in Carmody, may be relevant.”

  1. [96]
    The fact that s 542(3) of the WCR Act involves a two-stage process was agreed with by McMeekin J in Pryszlak v Workers’ Compensation Regulator (Pryszlak).[18] Given the reference to “may” in s 542(3) of the WCR Act I consider that that construction of the section is correct.
  2. [97]
    The letter of the 22 April 2021 set out that two stage process as the approach adopted by the decision-maker under s 542(3) of the WCR Act.
  3. [98]
    The three-month time limit in s 542(3) of the WCR Act is a relevant consideration insofar as the evident purpose of the three-month limit is to strike a balance between permitting an applicant time to consider a decision and finality.[19]  Thus the reason someone has not made an application and what they have done during that three-month period is of relevance.
  4. [99]
    In Devi, Boddice J observed that the purpose of the power to extend time is to alleviate the potential injustice that could result from strict enforcement of the time limit.[20] It does not exist to provide for a person to revisit a decision not to review which they later regret.[21] 
  5. [100]
    The fact that a person may have made a decision not to review and subsequently changed their mind is a relevant consideration as to whether “special circumstances” exist, however it is not determinative and does not preclude the fact that other circumstances may be raised which may favour a finding of special circumstances.
  6. [101]
    It is evident from a review of the reasons that the decision-maker gave significant weight to the fact that there was evidence that the applicant was aware of the timeframe for seeking a review and determined to pursue other routes for redress in relation to the 2019 premium decision than pursuing an appeal. However, the considerations of the decision-maker were not confined to that consideration. The decision-maker also stated that they acted on the basis that there was no apparent prejudice to any party to the review proceeding, which had been one of the matters identified by the applicant.
  7. [102]
    I do not accept the applicant’s contention that the reference to the cases and the fact that there was a conscious decision not to pursue the review substituted a different test for special circumstances. They were referred to in the context that they supported a “conclusion that a ‘conscious decision later regretted’ does not constitute a “special circumstance”, not that it excludes the fact that other circumstances could still constitute special circumstances. While the subsequent paragraph begins with “Therefore”, it then refers to information available in the WorkCover claim file and provided by the applicant in reaching the conclusion that “I do not consider that you have provided sufficient evidence to demonstrate special circumstances which would warrant an extension of the timeframe to apply for review”, suggesting a broader review of the circumstances that may be relevant. The paragraph preceding the reference to cases had also referred to the absence of evidence suggesting there was anything stopping or barring the applicant from seeking a review.
  8. [103]
    The broader consideration is also consistent with the paragraph under the heading “Reasons for decision” which states:

“In considering whether or not special circumstances exist to grant an extension, the Workers’ Compensation Regulatory Services will consider the reasons for the delay, including any steps taken to progress the review and the basis for those steps, the length of the delay in applying for review, the merits of the review and any other circumstances you consider are relevant to my decision.”

  1. [104]
    In those circumstances the reference to the conscious decision not to seek a review did not demonstrate the application of a rule or policy or the substitution of an alternative test from that provided for in s 542(3), as opposed to giving that consideration significant weight in determining whether there were special circumstances.  While the applicant placed its decision not to pursue the review earlier in context, it was open to the decision-maker to infer that the decision not to pursue the review was the result of a conscious decision, albeit a part of an overall strategy, and that was not a consideration which favoured the finding that special circumstances existed.
  2. [105]
    I do not find that the applicant has established that the respondent applied any rule or policy in reaching its decision that special circumstances did not exist.

Relevant considerations

  1. [106]
    The applicant contends that the respondent failed to have regard to the fact that the onus was on the applicant to show why the assessment of the premium payable was wrong so any detriment to any party caused by the delay would have been caused to the applicant, however, that was not a matter raised by the applicant itself.  Nor did the decision-maker act on the basis of any prejudice being in existence.
  2. [107]
    In the present case, the applicant did not identify any specific prejudice and the respondent had identified there was no apparent prejudice to any party to the review proceedings.
  3. [108]
    I do not consider the question of onus is in this context a relevant consideration within the meaning of Peko-Wallsend[22] which the decision-maker would be bound to take into account in determining whether they could be satisfied there were special circumstances. The relevant consideration in the context of an extension of time may be any circumstances of prejudice that would be suffered by the applicant if the extension was not granted or to the respondent if it were granted.  Onus might be raised in the context of prejudice, but it was not in the present case.
  4. [109]
    The applicant further complains that the respondent did not consider the merits of the review and any other circumstances the applicant considered relevant to the decision. The respondent had outlined the circumstances detailed by the applicant in its letter of 14 April 2021 as special circumstances but did not include any specific reference to the arguments outlined by the applicant as to why the premium calculation was wrong. While the merits of the decision were adverted to as being one of the circumstances raised by the applicant in its letter as a special circumstance, it was not a matter a subject of any discussion by the decision-maker, although it was earlier identified as a relevant circumstance to take into account. The respondent submits that consistent with the decision of Devi, the merits of any review was relevant to whether the discretion should be exercised to grant an extension once the threshold of “special circumstances” to enliven the discretion was met. Given special circumstances were not found, the merits of the appeal did not need to be considered, together with other Carmody factors. It contends that the merits of the appeal did not need to be taken into account by the decision-maker.
  5. [110]
    This is consistent with Devi, where Boddice J found that in the context of the determination of whether there were special circumstances, they were not in any event considerations which would be mandatory considerations which a decision-maker would be bound to consider:[23]

“The prospects of success of any review of WorkCover’s decision is not a circumstance that affected the applicant’s ability to comply with the three month timeframe. Similarly, prejudice, either to the applicant or WorkCover, were not circumstances that affected the applicant’s ability to prepare her review. Having regard to the particular circumstances of the applicant’s case, those considerations were not relevant to the respondent’s decision.”

  1. [111]
    His Honour further found that the Carmody factors were not factors the respondent must take into account in determining whether or not “special circumstances” exist.
  2. [112]
    McMeekin J in Pryszlak however disagreed with his Honour in this respect, noting that “[t]he legislation in terms does not say that the only circumstances that may be considered in determining “special circumstances” are those that explain or justify the delay”[24] and considered that “any circumstance that bears on the justice of the case is relevant and the issue is for the decision-maker is whether all those circumstances, taken as whole, amount to “special circumstances” justifying the extension sought.”[25] 
  3. [113]
    The WCR Act prescribes the test which is to be applied, namely, whether there are special circumstances. I accept those circumstances are not confined by s 542(3) of the WCR Act. That accords with the reasoning of the Court of Appeal in Workers’ Compensation Regulator v Pryszlak[26] (Pryszlack CA). Surprisingly I was not referred to that decision by either party.
  4. [114]
    President Sofronoff delivered the principal judgment with which the other members of the Court agreed. His Honour considered references to “special circumstances” in the WCR Act, including s 542(3) the WCR Act. In considering s 542(3) of the WCR Act and the reference to “special circumstances” his Honour stated:[27] 

“In all other instances, including s 542, the scope of the expression is not expressly confined and, accordingly, whether any circumstance that arises for consideration is “special” or not will depend entirely upon the purpose for which the discretion is to be exercised.

Section 5 of the Act describes the scheme of the Act in terms which s 4 states are the main objects of the Act. Section 5(2) provides that some of the “main provisions of the scheme” are those that provide for compensation.

Section 5(4)(b) states that it is intended that the scheme should “ensure that injured workers are treated fairly by insurers”. The term “fairly” will mean different things in different contexts but, in the context of an administrative decision maker who is obliged to perform a statutory duty to consider an application, s 5(4) connotes that the decision will be made fairly according to law. Like any provision for an extension of time, the purpose of s 542 is to strike a balance between an applicant’s entitlement and the benefits of finality. The power to extend time exists to prevent injustice in a particular case that might be caused by the enforcement of a general time limit. It is an instance of the general policy of the law to ensure that mandatory statutory provisions are not applied blindly so as to cause injustice in an individual case.

Consequently, the meaning of “special circumstances” will be informed by its purpose but also by other provisions that depend upon it. In the case of s 542 the large factor will always be the explanation for the failure to make the application within time. However, the merits of the claim for compensation are also obviously relevant for if a claim has little merit, there can hardly be any likely injustice in refusing an extension of time. On the other hand, while an application for an extension of time is not the occasion for a merits review, if an evidently meritorious claim exists, then that will bear upon the question whether other relevant circumstances taken together with the merits would constitute special circumstances…”

  1. [115]
    Although unlike Pryszlak, the subject of the present decision does not concern compensation to an injured worker, s 542 provides for an application for review of a broad range of decisions including the decision as to the premium payable under a policy. The objects of the WCR Act in s 5(4)(a) of the Act include the maintaining of a balance between ensuring reasonable cost levels for employers. Consistent with the decision of the Court of Appeal in Pryszlak CA, given “special circumstances” are not confined, the merits of the review as to the classification of the applicant’s business is a relevant consideration in determining whether there were special circumstances in the context of an extension of time, as it was a matter raised by the applicant as one of the special circumstances. The respondent did not contend that the merits of the review was considered but rather it was not necessary and only had to be considered at the second stage of the decision which was not required.  That is, the reasons reflect that the merits of the review were not considered. Consistent with the decision of the Court of Appeal in Pryszlack CA, it is a relevant consideration which should have been taken into account by the respondent in determining whether there are “special circumstances” warranting an extension of time, whatever weight it may be accorded by the decision-maker.
  2. [116]
    The decision-maker therefore erred in not considering the merits of the applicant’s review. The ground of a failure to take account of a relevant consideration is established.
  3. [117]
    It is unnecessary to consider the other matters said to be relevant considerations or whether the decision was legally unreasonable, irrational or unjustifiable.

Conclusion

  1. [118]
    The applicant has succeeded in establishing that the respondent erred in law in exercising the discretion under s 550(3) of the WCR Act in relation to the first decision. That decision should be set aside, and the matter remitted back to the decision-maker to be determined according to law.
  2. [119]
    Given there was no further decision made at the time of the second decision I do not consider that any relief needs to be granted in relation to that decision, notwithstanding the applicant and respondent considered it should be set aside as a result of the first decision being set aside. I will provide for the parties to address the Court further as to whether such relief is necessary when they address the question of costs.
  3. [120]
    The third decision should be set aside on the basis that the respondent erred in law in failing to take account of a relevant consideration. It should be remitted back to the decision-maker to be determined according to law.

Orders

  1. [121]
    The orders of the Court should be:
  1. A declaration that the respondent erred in law in making the decision of 18 February 2021.
  2. The decision of 18 February 2021 be set aside.
  3. The application for an extension of time requested on 28 January 2021 pursuant to s 550(3) of the WCR Act be remitted back to the respondent to be decided according to law.
  4. A declaration that the respondent erred in law in making the decision of 22 April 2021.
  5. The decision of 22 April 2021 be set aside.
  6. The request for an extension of time made on 7 April 2021 pursuant to s 542(3) of the WCR Act be remitted back to the respondent to be decided according to law.
  7. The matter be relisted on a date to be fixed to hear submissions as to costs and any further submissions in relation to any relief to be granted in relation to the decision of the respondent made on 25 March 2021.

Footnotes

[1]The relevant gazette notice for the 2020/2021 premium year was published on 26 June 2020 – WorkCover Queensland Notice (No. 1) of 2020 (the 2020 Notice). Part 2 of this Notice sets out the method for calculation of premiums for all employers.

[2](2000) 203 CLR 194 at [19].

[3](1984) 3 FCR 344 at 348-349.

[4][2019] QSC 5.

[5](1998) 157 QGIG 119 at [6], which are not dissimilar to the general guideline to the exercise of the Court’s discretion outlined by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349 in s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which provides no criteria by which the Court’s discretion to extend time for an application to be reviewed.

[6]Now repealed.

[7]At 119.

[8]At 119.

[9](1996) 185 CLR 259 at 272.

[10](2011) 241 CLR 594 at [9]; see also Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.

[11]As discussed in BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420; [2020] FCAFC 94 at [129] – [164].

[12](2003) 52 ATR 805.

[13]At [46].

[14]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend).

[15]See WCR Act s 542(2).

[16](1984) 3 FCR 344 at 348-349.

[17][2016] QSC 311 at [23], [27].

[18][2017] QSC 286 at [34]. His Honour did not agree with the degree to way in which “special circumstances” was confined which I will address below.

[19]Devi at [30].

[20]At [29].

[21]At [29].

[22](1986) 162 CLR 24.

[23][2016] QSC 311 at [34].

[24]At [25].

[25]At [26], s 542(3) of the WCR Act was relevantly in the same form: See [8].

[26][2019] 2 Qd R 58.

[27]At [48] – [51].

Close

Editorial Notes

  • Published Case Name:

    Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator

  • Shortened Case Name:

    Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator

  • MNC:

    [2022] QSC 250

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    23 Nov 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699
1 citation
Jump To
Cite 1 - (1994) 127 ALR 699
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 277 FCR 420
2 citations
Jump To
Cite 1 - (2020) 277 FCR 420
Cite 2 - (2020) 277 FCR 420
BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94
2 citations
Jump To
Cite 1 - [2020] FCAFC 94
Cite 2 - [2020] FCAFC 94
Carmody v WorkCover Queensland (1998) 157 QGIG 119
2 citations
Jump To
Cite 1 - (1998) 157 QGIG 119
Cite 2 - (1998) 157 QGIG 119
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
2 citations
Jump To
Cite 1 - (2000) 203 CLR 194
Cite 2 - (2000) 203 CLR 194
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47
1 citation
Jump To
Cite 1 - [2000] HCA 47
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
2 citations
Jump To
Cite 1 - (1994) 49 FCR 576
Cite 2 - (1994) 49 FCR 576
Devi v Workers Compensation Regulator [2016] QSC 311
4 citations
Jump To
Cite 1 - [2016] QSC 311
Cite 2 - [2016] QSC 311
Cite 3 - [2016] QSC 311
Cite 4 - [2016] QSC 311
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
4 citations
Jump To
Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
Cite 3 - (1984) 3 FCR 344
Cite 4 - (1984) 3 FCR 344
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186
1 citation
Jump To
Cite 1 - [1984] FCA 186
Lowis v Workers' Compensation Regulator [2019] QSC 5
2 citations
Jump To
Cite 1 - [2019] QSC 5
Cite 2 - [2019] QSC 5
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
3 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Cite 3 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
1 citation
Jump To
Cite 1 - [1986] HCA 40
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
2 citations
Jump To
Cite 1 - (2011) 241 CLR 594
Cite 2 - (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1
1 citation
Jump To
Cite 1 - [2011] HCA 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
2 citations
Jump To
Cite 1 - (1996) 185 CLR 259
Cite 2 - (1996) 185 CLR 259
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
1 citation
Jump To
Cite 1 - [1996] HCA 6
Pryszlak v Workers' Compensation Regulator [2017] QSC 286
2 citations
Jump To
Cite 1 - [2017] QSC 286
Cite 2 - [2017] QSC 286
Ross Palmer Holdings Pty Ltd v Commissioner of Taxation (2003) 52 ATR 805
2 citations
Jump To
Cite 1 - (2003) 52 ATR 805
Cite 2 - (2003) 52 ATR 805
Ross Palmer Holdings Pty Ltd v Commissioner of Taxation [2003] FCA 508
1 citation
Jump To
Cite 1 - [2003] FCA 508
Workers' Compensation Regulator v Pryszlak[2019] 2 Qd R 58; [2018] QCA 157
3 citations
Jump To
Cite 1 - [2018] QCA 157
Cite 2 - [2019] 2 Qd R 58
Cite 3 - [2019] 2 Qd R 58

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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