Augustynski v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 207

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Augustynski v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 207
PARTIES:	Augustynski, Stephan (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2014/252
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	5 December 2014
HEARING DATES:	27 and 28 November 2014
MEMBER:	Industrial Commissioner Neate
ORDERS :	1. The Appeal is dismissed. 2. The decision of the Regulator dated 16 July 2014 is confirmed. 3. The Appellant is to pay the Respondent's cost of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
CATCHWORDS:	WORKERS' COMPENSATION - Application for compensation lodged two years after date of entitlement to compensation for injury arose - whether time limit for lodgement should be waived - whether failure to lodge was due to mistake or a reasonable cause - appellant bears onus of proof
CASES:	Workers' Compensation and Rehabilitation Act 2003 ss 32, 131, 141 Appo v Q-COMP (2003) 174 QGIG 1120 Armstrong v Local Government WorkCare [2014] ICQ 7 Black v City of South Melbourne [1963] VR 34 Blackwood v Egan [2014] ICQ 020 Church v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 158 Glen Churchill v QComp [2009] 190 QGIG 247 Latoudis v Casey (1990) 170 CLR 534 Quinlivan v Portland Harbour Trust [1963] VR 25 R v Workers' Compensation Board of Queensland ex parte Heffernan (1979) Qd R 563 State of Queensland (State Library of Queensland) v Simon Blackwood (Workers' Compensation Commissioner) [2014] QIRC 126 Susan Marshall v Q-COMP (WC/2011/386) - Decision < Wiley v Q-COMP (Unreported, Townsville Magistrates Court, Acting Industrial Magistrate Bice, 30 May 2003) WorkCover Queensland v Downey [2001] QIC 76
APPEARANCES:	Mr S. Augustynski, in person Mr J. Wiltshire, counsel instructed directly by the Workers' Compensation Regulator Mr C. Mossman of M+K Lawyers for the Intervener

Decision

Stephan John Augustynski ("the Appellant") has appealed to the Queensland Industrial Relations Commission ("the Commission") against a decision by the Workers' Compensation Regulator ("the Respondent") confirming a decision of WorkCover Queensland not to waive the time for applying for compensation in accordance with s 131 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
The appeal concerns one issue: whether the Appellant should be allowed to make an application for compensation more than six months after the entitlement to compensation arose. It is not about whether that application should succeed. As the Appellant stated in his final submission, the case is "all about timeframe, not the problems." The issue will be resolved by deciding whether the Appellant's failure to lodge the application was due to mistake, or his absence from the State, or a reasonable cause (see s 131(5) of the Act).

Procedural matters

The appeal is a hearing de novo. The task for the Commission is not to decide whether the reasons given by WorkCover or the Respondent for rejecting the application for compensation were wrong. Rather, the Commission has to decide whether the time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] QIRC 207
Decision Date: 5 December 2014

CaseChat Overview and Summary

The case of Augustynski v Simon Blackwood (Workers' Compensation Regulator) involved the appellant, who was seeking compensation for a work-related injury under the Workers' Compensation Act. The dispute centred on whether the time limit for lodging the compensation application should be waived, and if the delay was due to a mistake or reasonable cause. The court had to decide if the appellant, who was self-represented, had satisfied the legal requirements for waiving the time limit, particularly in light of the statutory provisions and the burden of proof resting on him.

The legal issues primarily revolved around the interpretation of s 131(5) of the Workers' Compensation Act, which outlines the conditions under which the time limit for lodgement of a compensation claim can be waived. The court had to examine whether the appellant's delay in lodging the application met any of the specified conditions in s 131(5). Additionally, the court considered the onus of proof on the appellant to demonstrate that the delay was due to a mistake or reasonable cause.

The court concluded that the appellant had not provided sufficient evidence to meet any of the conditions in s 131(5) that would warrant a waiver of the time limit for lodgement. The appellant's failure to provide a compelling explanation for the delay, coupled with the absence of any submission on the exercise of discretion, led the court to dismiss the appeal. The decision to confirm the Regulator's decision dated 16 July 2014 was upheld, and the appellant was ordered to pay the costs of the Respondent. This decision underscores the importance of meeting procedural requirements and the consequences for self-represented parties who fail to navigate the complexities of legal proceedings effectively.

Orders

Orders of the court

1. The Appeal is dismissed.

2. The decision of the Regulator dated 16 July 2014 is confirmed.

3. The Appellant is to pay the Respondent's cost of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I note, without deciding, that had I found in favour of the Appellant in relation to one or more of the conditions in s 131(5), he would have had to satisfy me to exercise the discretion despite those submissions of the Respondent and Quest. The Appellant made no submission in relation to the exercise of that discretion.Conclusion Having regard to the evidence and the applicable law, I have concluded that the appeal should be dismissed and the decision of the Respondent dated 16 July 2014 should be confirmed. The Respondent submitted that the Appellant should pay the Respondent's costs. I can see no reason not to make that order. As noted earlier, Quest was granted leave to appear in these proceedings subject to certain conditions including that, until further order, Quest was not at liberty to seek costs from the Appellant at the completion of any hearing of the appeal. Quest proceeded on that basis and has not sought any order to vary the order made on 21 October 2014. It is apparent from statements made by the Appellant during the hearing that the result described above would come as no surprise to him. Indeed, he seemed to expect it. This case illustrates some of the difficulties, risks and costs of litigation pursued by self-represented parties. For various reasons, not entirely attributable to the Appellant, a case that could have been heard in one day was spread over two days. The appeal was dismissed and the Appellant will have to pay the costs of the Respondent (although not the costs of Quest). Even if the Appellant had succeeded in relation to this appeal, the Respondent and Quest indicated that at least one other potentially significant obstacle (in the form of s 32(5) of the Act) would have been placed in the way of him obtaining compensation. Consequently, the futility of bringing these proceedings is highlighted not by the result but by the fact that, even if the Appellant had succeeded in having the requirement of s 131(1) waived, there was no guarantee that his application for compensation would have been successful. Put colloquially, even if he had won the battle he might have lost the war. If, as may well be the case, these issues were brought to the Appellant's attention by the representatives of the parties and an Industrial Commissioner at a pre-hearing conference then the Appellant should have appreciated the risks of proceeding to a hearing and, perhaps, decided to discontinue the appeal. In that context, it is appropriate to make two observations about the award of costs in this case and similar proceedings. First, the costs order is not and must not be characterised as some sort of penalty imposed on the Appellant. Rather, as numerous judicial decisions (including a recent decision of the President of the Industrial Court)[12] make clear, costs have a compensatory function. They are awarded to indemnify the successful party against the expense to which they have been put because of the legal proceedings.[13] An award of costs is not designed or intended to be used as any form of disapproval or punishment. Nonetheless, an order for costs against an unsuccessful appellant will often have significant financial implications for them.[12] Blackwood v Egan [2014] ICQ 020.[13] See e.g. Latoudis v Casey (1990) 170 CLR 534, 543 (Mason CJ), 563 (Toohey J), 567 (McHugh J).

Ratio Decidendi

Legal Principle Established

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