In this matter, the Court of Appeal considered the meaning of “special circumstances” in s 542(3) of the Workers’ Compensation and Rehabilitation Act 2003, which conditions the exercise of the discretion to grant an extension of time to bring an application for review of a decision by the Workers Compensation Regulator. The Court of Appeal held that the fact that the respondent had been denied natural justice by the Regulator did raise circumstances that were capable of being regarded as “special” within the meaning of s 542 of the Act.
Sofronoff P and Fraser and PhilippidesJJA
6 July 2018
The respondent to this appeal claimed to have injured his thumb at work and made an application under the Workers’ Compensation and Rehabilitation Act 2003 for compensation. . His application was rejected. . Although there was a right of review, the respondent applied for review after the three month period, within which an application had to be made, had expired. . The respondent subsequently sought an extension from the Workers’ Compensation Regulator on the basis that “special circumstances” existed, but this was refused. . Before McMeekin J in the Supreme Court, the respondent had, successfully, sought a review of that decision. . McMeekin J set aside the decision and remitted the application to the decision-maker. . The Regulator appealed. .
The issue in the appeal concerned the meaning of “special circumstances” in s 542(3) of the Workers’ Compensation and Rehabilitation Act 2000, which provides that “[t]he Regulator may grant the extension if it is satisfied that special circumstances exist”. .
Sofronoff P, with whom Fraser and Philippides JA agreed, explained that in s 542, as in other instances in the Act, the scope of the expression “special circumstances” is not confined, and accordingly, whether any circumstance is “special” will depend upon the purpose for which the discretion is to be exercised. . In the context of s 542, the “large factor will always be the explanation for the failure to make the application within time”. . His Honour added that the “merits of the claim for compensation are also obviously relevant”. . However, the President cautioned that “[i]t is not possible nor desirable, by some word formula, to do that which the legislature has declined to do in s 542 … namely to define the scope of the expression”. .
In this case, his Honour considered that the respondent’s application “did raise circumstances that were capable of being regarded as special”. . In particular, the respondent had been denied procedural fairness. . This failure meant that the decision sought to be reviewed was not a decision at all. . His Honour stated:
“That the decision maker, whose decision is the subject of the application for an extension of time, has not actually performed the statutory duty imposed upon her is, undoubtedly, a special circumstance within the meaning of s 542 because one of the objects of the Act is that workers should be treated fairly.” .
Further, as McMeekin J had observed in the court below, the decision maker had failed to consider the merits of the claim. . Sofronoff P agreed with McMeekin J that the failure to consider the merits of the respondent’s claim involved a failure to consider a relevant matter and also vitiated the decision. .
The appeal was dismissed. .