Del Bono v Workers' Compensation Regulator (No. 2) - [2023] QIRC 183

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Del Bono v Workers' Compensation Regulator (No. 2) [2023] QIRC 183
PARTIES:	Del Bono, Marco (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2023/19
PROCEEDING:	Application in an existing proceeding
DELIVERED ON:	15 June 2023
HEARING DATE:	29 May 2023
MEMBER: HEARD AT:	Dwyer IC Brisbane
ORDER:	*1. The parties are to present their cases on the basis that the compensation claim is governed by s 39A of the Workers' Compensation and Rehabilitation Act 2003* (Qld) as in force on 26 May 2020. 2. The matter be listed for mention on a date to be advised to be programmed for expedited hearing.**
CATCHWORDS:	WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – Appeal by Appellant against review decision of the Respondent – Review decision that Appellant did not have a terminal condition by virtue of s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – Appellant contends that Regulator is applying the incorrect version of s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) - Appellant seeks an order that the parties present their cases on the basis that the compensation claim is governed by s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as in force on 26 May 2020 – application opposed by the Respondent – meaning of the term 'sustained' as it is used in s 732 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) – whether the same meaning prescribed in s 36A(4) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ought to be applied throughout the statute – parties to present their cases on the basis that the compensation claim is governed by s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as in force on 26 May 2020
LEGISLATION: CASES:	Workers' Compensation and Rehabilitation Act 2003 (Qld) ss 32, 36A, 39A, 128A, 128B, 131, 732, 745 Workers' Compensation and Rehabilitation and Other Acts Amendment Act 2005 (Qld) Sch, s 14 Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2019 (Qld) ss 36, 77 Explanatory Notes, Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2019 (Qld) 9 Armstrong v Local Government Workcare [2014] ICQ 7 Bartosek v Workers’ Compensation Regulator [2022] QIRC 192 Del Bono v Workers' Compensation Regulator [2022] QIRC 453 R v A2 [2019] HCA 35; 269 CLR 507; 93 ALJR 1106; 373 ALR 214; 277 A Crim R 539 Registrar of Titles (W.A.) v Franzon [1975] HCA 41; (1975) 132 CLR 611 Wicks v Workers' Compensation Regulator (No.2) [2021] QIRC 112
APPEARANCES:	Mr M. Black, Counsel instructed by Maurice Blackburn Lawyers for the Appellant Mr S. McLeod KC, directly instructed by the Workers' Compensation Regulator

Reasons for Decision

Introduction

Mr Marco Del Bono appeals a decision of the Workers' Compensation Regulator ('the Regulator') dated 25 January 2023.
The decision, which is in two parts, firstly sets aside a decision of XtraCare, insurer for Glencore Queensland Limited ('Glencore') that Mr Del Bono does…

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: [2023] QIRC 183
Decision Date: 15 June 2023

CaseChat Overview and Summary

The case of Del Bono v Workers' Compensation Regulator (No. 2) concerns an appeal by the appellant against a review decision made by the respondent. The appellant argues that the review decision, which concluded that he did not have a terminal condition under section 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld), was incorrect. The appellant contends that the regulator is applying the wrong version of section 39A of the Act. The appellant requests that the parties present their cases based on the interpretation that the compensation claim is governed by section 39A of the Act as it stood on 26 May 2020. The respondent opposes this application. The case also raises the issue of the meaning of the term 'sustained' as used in section 732 of the Act, and whether the same meaning prescribed in section 36A(4) of the Act should be applied throughout the statute.

The court was required to determine whether the appellant's compensation claim should be governed by section 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as it stood on 26 May 2020. The court also needed to decide whether the same meaning of the term 'sustained' as prescribed in section 36A(4) of the Act should be applied in section 732 of the Act. The court considered the arguments presented by both parties and determined that the matter should proceed on the basis that the compensation claim is governed by section 39A of the Act as it stood on 26 May 2020. The court found that the appellant's interpretation of the relevant sections of the Act was correct.

The court ordered that the parties present their cases on the basis that the compensation claim is governed by section 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as it stood on 26 May 2020. The court also ordered that the matter be listed for mention on a date to be advised to be programmed for expedited hearing. This decision provides clarity on the interpretation of section 39A of the Act and ensures that the appellant's compensation claim is assessed according to the correct version of the statute. The court's decision will have implications for similar cases involving the interpretation of the Workers' Compensation and Rehabilitation Act 2003 (Qld).

Orders

Orders of the court

1. The parties are to present their cases on the basis that the compensation claim is governed by s 39A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) as in force on 26 May 2020.

2. The matter be listed for mention on a date to be advised to be programmed for expedited hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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