Devi v Workers Compensation Regulator

Case [2016] QSC 311

SUPREME COURT OF QUEENSLAND

CITATION:

Devi v Workers Compensation Regulator [2016] QSC 311

PARTIES:

GAYATRI DEVI

(applicant)

v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NO/S:

SC No 5854 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 December 2016

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2016

JUDGE:

Boddice J

ORDER:

1.   The application for statutory order of review is dismissed. 

2.   I will hear the parties as to costs. 

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant applied to the respondent for an extension of time – where the respondent has a statutory power to grant an extension of time if “special circumstances” exist – where the respondent refused that application – where the applicant applies to this Court for a statutory order of review of the respondent’s decision to refuse her an extension of time – where the applicant submits the respondent took into account considerations irrelevant to whether “special circumstances” existed – whether the respondent took into account irrelevant considerations

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant applies to this Court for a statutory order of review of the respondent’s decision to refuse her an extension of time – where the applicant submits the respondent failed to take into account considerations relevant to whether “special circumstances” existed – whether the respondent failed to take into account relevant considerations

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OTHER CASES – where the applicant applies to this Court for a statutory order of review of the respondent’s decision to refuse her an extension of time – where the applicant submits the respondent, in reaching its decision, exercised a discretionary power in accordance with a rule or policy without regard to the merit of the case – whether the respondent had regard to the merits of the case in reaching its decision

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant applies to this Court for a statutory order of review of the respondent’s decision to refuse her an extension of time – where the applicant submits the respondent’s decision involved an error of law by failing to apply the correct statutory test – whether the respondent’s decision involved an error of law

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 542

Blackwood v Pearce[2015] ICQ 12, considered
Carmody v WorkCover Queensland (1998) 157 QGIG 119, cited
Cloncurry Shire Council v Workers’ Compensation Regulatory Authority [2006] QSC 362, cited

COUNSEL:

P Rashleigh for the applicant

C Hartigan for the respondent

SOLICITORS:

Queensland Compensation Lawyers for the applicant

Crown Law for the respondent

  1. By application, filed 14 June 2016, the applicant applies, pursuant to s 20 of the Judicial Review Act 1991 (Qld) (“JR Act”), for a statutory order of review of a decision made by the respondent to refuse her…

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Devi v Workers Compensation Regulator [2016] QSC 311
Case
[2016] QSC 311
Decision Date

CaseChat Overview and Summary

The case of Devi v Workers Compensation Regulator concerns the applicant’s application for an extension of time to review a decision of the respondent regarding the refusal of compensation for a psychiatric or psychological disorder. The applicant, who suffered burns to her right leg in the course of her employment, had initially applied for worker’s compensation benefits under the Workers’ Compensation and Rehabilitation Act 2003 (Qld). After WorkCover accepted the applicant’s application, it subsequently rejected her claim for compensation for a psychiatric or psychological disorder. The applicant then applied to the respondent for an extension of time to review this decision, which was ultimately refused. The applicant subsequently applied to the Court for a statutory order of review of the respondent’s decision.

The central legal issues in this case were whether the respondent had taken into account irrelevant considerations, failed to take into account relevant considerations, exercised a discretionary power in accordance with a rule or policy without regard to the merits, or made an error of law in refusing the applicant’s request for an extension of time. The applicant argued that the respondent’s decision was flawed on these grounds. The respondent, on the other hand, maintained that the decision was made in accordance with the relevant legal test and that only relevant considerations were taken into account.

The Court examined the relevant statutory provision, s 543(3) of the Act, which permits an extension of time to be granted if special circumstances exist. The Court noted that the decision in Carmody was of little assistance in interpreting this provision, as it concerned a different statutory provision that gave the Court a broad discretion. The Court emphasised that s 543(3) does not provide a broad discretion to grant extensions if it is “just” to do so, but rather only permits an extension if special circumstances exist. The Court concluded that the respondent must first determine whether special circumstances exist and that it is not bound to grant an extension even if such circumstances are found. This conclusion aligns with the observations made by Martin J in Blackwood v Pearce. The Court also noted that the legislative amendment, which permits an application for extension of time to be made at any time, does not affect the observations made in Blackwood.

In summary, the Court found that the respondent’s decision was not an improper exercise of power, and the application for statutory order of review was dismissed. The Court will hear the parties regarding costs.

Orders

Orders of the court

1. The application for statutory order of review is dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

The applicant contends the making of the decision was an improper exercise of the power. At issue is whether the respondent took into account irrelevant considerations, failed to have regard to relevant considerations, exercised the power in accordance with a rule or policy, without regard to the merits, or made an error of law. Facts On 9 April 2014, the applicant suffered burns to her right leg in the course of her employment as a cook at a service station. The applicant made an application under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“Act”) for worker’s compensation benefits. On 16 April 2014, WorkCover accepted her application. The applicant was subsequently referred by WorkCover to a psychiatrist, Dr Prabel Kar. This referral was made on the basis of reports from the applicant’s General Practitioner of ongoing psychological symptoms. Dr Kar provided two reports to WorkCover, dated 11 August 2015 and 20 August 2015. The applicant subsequently applied to WorkCover for compensation for a psychiatric or psychological disorder. On 31 August 2015, WorkCover rejected this application on the basis the applicant had not sustained a work-related psychiatric injury. In reaching its decision, WorkCover had regard to Dr Kar’s reports. On 1 September 2015, WorkCover issued a notice of assessment in relation to the injuries sustained to the applicant’s leg. On 15 December 2015, the applicant lodged a notice of claim for damages under the common law provisions of the Act. This notice was in respect of the injuries sustained to her leg. A compulsory conference was scheduled for 12 April 2016. That conference was adjourned to enable the applicant to obtain psychiatric evidence in support of her having suffered a psychiatric or psychological condition, consequent upon the injuries to her leg. Decision The applicant had three months from the date WorkCover made its decision rejecting her application in which to apply to the respondent for a review of that decision. The applicant did not apply for a review within that time period. On 29 April 2016, the applicant applied to the respondent under s 542(2) of the Act for an extension of time in which to review WorkCover’s 31 August 2015 decision, to reject her application for compensation for a psychiatric or psychological disorder, and for a review of that decision. That application was accompanied by psychiatric reports from Dr Karen Chau. The applicant submitted the delay in applying for a review of WorkCover’s decision was due to the applicant’s solicitors forming the view the opinions expressed in Dr Kar’s reports were sound. However, this had turned out to be incorrect. On 20 May 2016, the respondent refused the applicant’s application for an extension of time to review WorkCover’s decision. The application The application for statutory order of review sets out two grounds of review. At the hearing, the applicant abandoned the first ground. The remaining ground is that the respondent’s decision was an improper exercise of power.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

A compulsory conference was scheduled for 12 April 2016. That conference was adjourned to enable the applicant to obtain psychiatric evidence in support of her having suffered a psychiatric or psychological condition, consequent upon the injuries to her leg. Decision The applicant had three months from the date WorkCover made its decision rejecting her application in which to apply to the respondent for a review of that decision. The applicant did not apply for a review within that time period. On 29 April 2016, the applicant applied to the respondent under s 542(2) of the Act for an extension of time in which to review WorkCover’s 31 August 2015 decision, to reject her application for compensation for a psychiatric or psychological disorder, and for a review of that decision. That application was accompanied by psychiatric reports from Dr Karen Chau. The applicant submitted the delay in applying for a review of WorkCover’s decision was due to the applicant’s solicitors forming the view the opinions expressed in Dr Kar’s reports were sound. However, this had turned out to be incorrect. On 20 May 2016, the respondent refused the applicant’s application for an extension of time to review WorkCover’s decision. The application The application for statutory order of review sets out two grounds of review. At the hearing, the applicant abandoned the first ground. The remaining ground is that the respondent’s decision was an improper exercise of power. While not expressly stated within the application, this ground relies on s 20(2)(e) of the JR Act. The applicant alleges the respondent’s decision was an improper exercise of power for the following reasons:(a)the respondent took into account irrelevant considerations in reaching its decision;(b)the respondent failed to take into account relevant considerations in reaching the decision;(c)the respondent exercised a discretionary power in accordance with a rule or policy without regards to the merit of the particular case; and(d)the respondent’s decision involved an error of law. Legislation Section 542 of the Act relevantly provides:“(1)An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision … (2) For subsection (1), the applicant may, at any time but not more than once, ask the [respondent] to allow further time to apply for review. (3) The [respondent] may grant the extension if it is satisfied that special circumstances exist.”Applicant’s Submissions The applicant submits the considerations relevant to whether an extension of time should be granted are: the extent of the delay; the explanation for the delay; prejudice to the applicant, if an extension were not granted, and prejudice to the respondent, if an extension were granted; enthusiasm for prosecuting the review; and merits of the review. The applicant submits these factors, which were set out by de Jersey J (as he then was) in Carmody v WorkCover Queensland,[1] represent a constant thread throughout recent decisions of the Industrial Relations Commission and the Industrial Court. [1] (1998) 157 QGIG 119.

Ratio Decidendi

Legal Principle Established

The respondent submits the decision was made having regard to the relevant legal test. Only relevant considerations were had regard to, and the decision was made on merit, not to any policy or rule. ConsiderationSpecial circumstances In Carmody, the Industrial Court applied a number of factors in determining whether it ought to grant an extension of time within which to appeal from an Industrial Magistrate’s dismissal of a claim for workers’ compensation.[2] However, at that time, the relevant statutory provision, s 346 of the now repealed Workplace Relations Act 1997 (Qld), gave the Court a broad discretion to “make a decision it considers just”.[3] Section 543 is a very different provision. It does not give the respondent a broad discretion to grant extensions if it is “just” to do so. It only permits an extension to be granted if special circumstances exist. The decision of Carmody is of little assistance in interpreting s 543(3) of the Act. [2] Carmody v WorkCover Queensland (1998) 157 QGIG 119. [3] Industrial Relations Act 1997 (Qld), s 346 (a). A proper reading of s 543(3) of the Act, in the context of the nature and scope of the legislative scheme, supports a conclusion that the respondent must first determine whether special circumstances exist. If the respondent is satisfied such special circumstances exist, the respondent has a discretion as to whether or not it grants an extension of time. It is not bound to grant an extension of time in the event the respondent is satisfied special circumstances have been shown. The legislation permits the respondent to decide that the circumstances, while special, do not warrant an extension. This conclusion is consistent with Martin J’s observations of “special circumstances” in Blackwood v Pearce.[4] His Honour wrote that “it would be a question of fact in each case as to what circumstances might be special but the accumulation of new evidence would, ordinarily, not amount to a special circumstance”.[5] I respectfully agree with that observation. [4] [2015] ICQ 12. [5] Blackwood v Pearce [2015] ICQ 12 at [50]. Both parties noted in their submissions that an amendment was made to s 542 of the Act, in response to Blackwood v Pearce.[6] However, that amendment does not affect those observations. That amendment was to permit an application for extension of time to be at any time; previously an application for an extension of time had to be made within three months (i.e. the time in which a person had to apply for a review). It did not introduce the concept of “special circumstances” or create the respondent’s power to grant extensions of time. [6] Explanatory Notes, Workers’ Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 at 7. The issue in Blackwood was whether there was any power for the respondent to consider an application for review made outside the three-month time limit. In Cloncurry Shire Council v Workers’ Compensation Regulatory Authority,[7] A Lyons J held that a failure to comply with the time limit in s 542 did not invalidate an application for review. Cloncurry was followed in a number of cases. In this context, Martin J wrote:[8]“In the cases that have followed Cloncurry further glosses have been put on s 542. In addition to the unwarranted creation of a new power to extend time, that “power” has been made subject to a restriction – that there must have been substantial compliance or other special circumstance. There is no legislative basis for either accretion.”[7] [2006] QSC 362 at [26]. [8] Blackwood v Pearce [2015] ICQ 12 at [42].