The applicant sought review of the respondent’s decision to refuse an extension of time to apply for a review of a WorkCover decision denying him compensation. In doing so, his Honour considered the parameters of “special circumstances” in s 542(3) of the Workers’ Compensation and Rehabilitation Act 2003. His Honour rejected previous authority that the relevant “special” circumstances must relate to the explanations for the delay. He preferred the view that any circumstance that bears on the justice of the case is relevant and the key issue for the decision maker is whether all those circumstances, taken as a whole, amount to “special circumstances” warranting the extension sought.
23 November 2017
Here, the applicant sought review of the respondent’s decision to refuse an extension of the time within which he could apply for a review of a WorkCover decision to refuse his application for workers’ compensation. . This decision is particularly useful in that his Honour considered the parameters of “special circumstances” in s 542(3) of the Workers’ Compensation and Rehabilitation Act 2003.
By way of brief background, the applicant had injured his hand. His claim for workers’ compensation had been declined primarily on the basis that WorkCover was not satisfied that his “work was a significant contributing factor causing his injury”. In its letter of advice to the applicant rejecting the claim, WorkCover indicated that any application for review would need to be made within three months of his date of receipt of the letter. That advice was confirmed via a telephone call. . The applicant sought a review some fifteen months late. .
The review decision
The review decision noted that the applicant:
- Had been made aware of the three-month time limit for review;
- Felt he had no option but to accept the outcome of his application to WorkCover and did not seek any professional advice in relation to same;
- Had made few steps to progress his application and did not understand the implications of the decision and the review rights;
- Was unaware that WorkCover would not obtain any medical records nor that he needed to provide additional information about the nature and cause of his injury. .
Ultimately, the respondent decided there were no special circumstances which would warrant an extension of the timeframe for the applicant to apply for review. .The applicant challenged that finding. .
The explanation for the delay
The applicant attributed his delay to the matters raised above, and the fact that he had formed the view that “because the decision maker had all relevant material there was simply no point to a challenge”. . He was described as a man lacking in sophistication, intellectually “incompetent” and suffering from illiteracy. .
McMeekin J rejected the approach endorsed in Devi v Workers Compensation Regulator  QSC 311 (that the relevant “special” circumstances must relate to the explanations of the delay). . In his Honour’s view, such a proposition is at odds with the intention of the legislation, which does not specify that the only circumstances that may be considered in determining “special circumstances” are those that explain or justify the delay. He noted:
“If that was the intention then it could easily have been said. Obviously, those matters that explain the delay will be both relevant and capable of amounting to special circumstances but there is no warrant that I can see in the legislation to so restrict the enquiry.” .
Further, he observed that applying that approach could make factors such as the prejudice to parties, or lack of prejudice, and the merits of the review obsolete. He preferred the view that any circumstance that bears on the justice of the case is relevant and the key issue for the decision maker is whether all those circumstances, taken as a whole, amount to “special circumstances” warranting the extension sought. . He also stressed that the decision maker ought not disregard the interests of justice in reviewing whether or not the circumstances were “special”. .
Lastly, he confirmed that the enquiry process is two-fold, incorporating an initial finding that there were (or were not) special circumstances and then a consideration as to whether the discretion should be exercised, with reference to the question “is it in the interests of justice that time be extended”. , .
Deficiencies in the reasons
Whilst clarifying that it was not His Honour’s role to decide whether there were special circumstances but rather to be satisfied that the decision maker went about his or her task in accordance with the law. . His Honour nonetheless summarised the special circumstances that may have been relied upon. . His Honour concluded that “the applicant has demonstrated that the decision maker proceeded under an error of law in that she has not adopted the two-stage process that would have required her to first identify each of the circumstances said to be collectively “special”, then determined whether collectively they had that character, and, if so satisfied, then determined whether collectively they justified an extension being granted”. .
A de Jersey