Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator

Link copied
Case Copied 55 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Australian Post-Tensioning Pty Ltd v Workers' Compensation R... and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] QSC 250
Decision Date

CaseChat Overview and Summary

In the case of Australian Post-Tensioning Pty Ltd v Workers' Compensation Regulator, the applicant, Australian Post-Tensioning, sought judicial review of three decisions made by the respondent, the Workers' Compensation Regulator. The first decision involved a refusal to extend the time for reviewing a WorkCover Industry Classification decision. The second decision was a refusal to extend the time to review a premium notice issued by WorkCover. The third decision was also a refusal to extend the time for reviewing a premium notice. The applicant argued that the respondent had erred in law by misconstruing the relevant sections of the Workers' Compensation and Rehabilitation Act 2003 (Qld), failed to provide procedural fairness, and did not consider relevant factors in making its decisions.

The court was required to determine if the respondent had erred in law by misconstruing and misapplying the relevant sections of the Act, failed to provide procedural fairness, and did not take into account relevant considerations in making its decisions. The court also had to decide if the respondent's decisions were legally unreasonable, illogical, or irrational. The applicant argued that the respondent's decisions were flawed due to the failure to consider the lack of detriment caused by the delay in appealing and the lack of access to merits review.

The court found that the respondent did not breach the rules of natural justice and that the decisions were not illogical or irrational. The court held that the respondent had considered the relevant factors in making its decisions and that the applicant's complaints were misconceived. The court concluded that the respondent had not failed to take into account relevant considerations and that the decisions were not contrary to law.

The orders of the court were to declare that the respondent had erred in law in making the decisions of 18 February 2021 and 22 April 2021, set aside those decisions, and remit the applications for extensions of time back to the respondent to be decided according to law. The court also ordered the matter to be relisted 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.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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). The applicant sought to amend the statutory order for review on 20 May 2021 to seek judicial review of the second and third decisions. 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. As to the first decision, the Court must determine whether:(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;(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;(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);(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(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). As to the second decision, the Court must determine whether:(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. As to the third decision, the Court must determine whether:(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;(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(c)The decision was otherwise contrary to law insofar as it is said to be legally unreasonable, illogical or irrational.Relevant legislative provisions

Ratio Decidendi

Legal Principle Established

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 The applicant complains that the respondent did not take into account two relevant considerations, namely:(a)The lack of any relevant detriment caused by the delay in appealing; and (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. 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. 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. 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. 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. 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.”