Hou v Zhen Qi Hou Pty Ltd - [2022] NSWPICPD 6

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hou v Zhen Qi Hou Pty Ltd [2022] NSWPICPD 6
APPELLANT:	Zhen Qi Hou
RESPONDENT:	Zhen Qi Hou Pty Ltd
INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W180/21
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	21 February 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 28 May 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998 – failure to make a claim occasioned by ignorance, mistake, or other reasonable cause – Gregson v L & MR Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 and Burke v Suncorp Staff Pty Ltd [2021] NSWPICPD 6 considered – adequacy of Member’s reasons - Roncevich v Repatriation Commission [2005] HCA 40 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Stanton, counsel
Brydens Lawyers
Respondent:
Mr B Mead, solicitor
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms D Moore
DATE OF MEMBER’S DECISION:	28 May 2021

INTRODUCTION AND BACKGROUND

The appellant, Mr Zhen Qi Hou, was a working director of the respondent, Zen Qi Hou Pty Ltd, a building company, when he suffered an injury at work on 15 April 2014. On the date of injury, the appellant was constructing the timber frames of a two-story home. Whilst on the first floor, he lost his balance and fell some 3 metres through a void where a staircase was being installed, suffering a facture injury to his right foot. The appellant underwent surgery on 28 April 2014 and remained off work until returning to light duties in January 2015.[1]
[1] Appellant’s statement 27 January 2021, ARD pp 2–3, [8]–[17].
There is no dispute about the fact of this injury, or a dispute about the appellant’s status as a working director which enlivens his entitlement to claim workers compensation in NSW.
By virtue of the appellant’s date of injury of 15 April 2014, the six-month time limit to make a claim for compensation expired on 15 October 2014, as required by s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant did not make a claim for workers compensation until the claim was submitted on 20 July 2015, some 15 months after the date of injury.
Several dispute notices were issued by the respondent’s insurer, GIO, in response to the appellant’s claim. By notice issued pursuant to s 74 of the 1998 Act (as it then was) dated 27 July 2015, the insurer declined the claim for a number of reasons, including that the claim had not been made within six months of the injury as required by s 261 of the 1998 Act. The appellant sought a review of the decision on 7 August 2015 pursuant to s 287A of the 1998 Act, on the basis that the delay was occasioned by his lawyer’s advice to make a claim for public liability insurance.[2] GIO issued further s 74 notices dated 8 September 2015 and 8 December 2015 maintaining their declinature.
[2] ARD, p 28.
Some years later, on 29 October 2019, the appellant claimed lump sum compensation for 11% whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). This claim was disputed in a s 78 notice dated 20 December 2019 with reliance on the previous notices. GIO issued a final s 78 notice dated 27 July 2020 following a claim for surgery which was made in a letter from Brydens Lawyers, dated 7 July 2020.[3] In the insurer’s notice, the dispute of the appellant’s claim was maintained pursuant to ss 254 and 261 of the 1998 Act, and ss 4, 9A, 59, 59A and 60 of the 1987 Act.
[3] ARD, p 8.
The appellant filed proceedings in this Commission on 8 March 2021 seeking payment for both past and future medical expenses with respect to his injury. In those proceedings, there were two issues in contest, firstly a consideration by the Member of s 261 of the 1998 Act and secondly an issue pertaining to s 59A of the 1987 Act. The remaining disputes were conceded by the respondent. The Member proceeded to deal with the issue under s 261 of the 1998 Act first, on the basis that if the appellant was unsuccessful on that issue, no issue under s 59A of the 1987 Act would then require attention.
The Member entered an award for the respondent making the following finding:
“For these reasons I do not accept that the [appellant’s] failure to make a claim was occasioned by ignorance, mistake or other reasonable cause such that in accordance with s 261 of the 1998 Act, there is an award for the respondent.”[4]
[4] Hou v Zhen Qi Hou Pty Ltd [2021] NSWPIC 244 (reasons), [72].
As a consequence in this appeal, the real issue relates to how the Member dealt with her considerations under s 261 of the 1998 Act and whether there was any error in discretion, fact or law in the discharge of decision making.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE EVIDENCE

Given that this case is about the time limitation provisions imposed by s 261(4) of the 1998 Act, I set out the below evidence which is germane to the matters I must consider on appeal. Such evidence pertains to the circumstances leading to the lodgement of the appellant’s claim, and the explanation provided by the appellant for failing to make his claim within the required time.

The appellant’s statement

The appellant has provided one statement dated 27 January 2021 in which he identifies himself as Director/Builder of the respondent. He was born in China and was 62 years of age at the time of making his statement, which he says was completed with the assistance of a Mandarin speaking interpreter.
The appellant states that he completed high school and university in China where he obtained a degree in engineering. He migrated to Australia in 1992, where he met his wife. He obtained employment as a process worker for a sofa manufacturer between 1992 and 1998, and during this time also studied at TAFE and obtained a Diploma in Building and a Diploma in Business Management.
The appellant became a licensed builder and set up his own business in 1998, employing two to three workers, with the help of a mandarin speaking accountant. He states that due to “language barriers, [he] needed someone who knew the legalities of opening a business to assist [him]”.[5] This accountant advised the appellant to take out a workers compensation insurance policy. The appellant understood it was compulsory to do so but did not recall receiving any policy information after taking out cover. The appellant states that even if he did, he would not have understood the document due to his “English language barriers”.[6]
[5] Appellant’s statement 27 January 2021, ARD, p 2, [1].
[6] Appellant’s statement 27 January 2021, ARD, p 5, [14].
The appellant states at [15]:
“I have never had any employees go on workers compensation in the past, so I am not familiar with the requirements/time frames of lodging a claim for a work-related injury”.
The appellant states that after his injury, he did not report it to anyone within the company as he is his own boss and was not aware he was required to inform his insurance company.[7]
[7] Appellant’s statement 27 January 2021, ARD, p 3, [16].
The appellant retained Slater and Gordon after seeing their advertisement in a Chinese Newspaper which “advertised compensation for injuries suffered at work”. He was dealing with a Mandarin speaking lawyer who provided him with the following advice:
“… the advice provided to me at the time was to lodge a public liability claim only against the site I had the fall at.
The advice provided to me at the time was not to lodge a workers compensation claim and pursue a public liability claim instead. I did not know any better and followed the advice of my solicitor at the time …
Slater and Gordon commenced investigating a public liability claim on my behalf and I was later told, by mid-2015 that this was not viable with a very small chance of being successful, and I was advised to lodge a workers compensation claim.”[8]
[8] Appellant’s statement 27 January 2021, ARD, p 5, [16]–[19].
It was only after GIO rejected his claim, that the appellant says he “was first made aware and learned about the 6 months’ timeframe [sic] period”. He says he was never advised of this “deadline” prior to lodging his claim, and that Slater and Gordon only advised him of the time limit relevant to his public liability claim. The appellant states that if he was informed to lodge his claim from the beginning, he would have done this, and done it without delay.[9]
[9] Appellant’s statement 27 January 2021, ARD, p 5, [20]–[22].
The appellant believes he “did the right thing” by obtaining workers compensation insurance when advised by his accountant and by lodging his claim as soon as he was advised to.[10]
[10] Appellant’s statement 27 January 2021, ARD, p 5, [24].
The appellant reiterates that he was “simply not aware” of the six-month time limit, and states “I do not speak or read English. I am not familiar with the processes and procedure of what is required of me and I rely on the advice of professionals who unfortunately misinformed me.”[11]
[11] Appellant’s statement 27 January 2021, ARD, p 5, [25].

Correspondence from Slater and Gordon

A Conditional Cost Agreement dated 3 December 2014 is addressed to the appellant, in relation to a “Public Liability Claim”.[12] The agreement does not shed light on the ambit of the advice provided by Slater and Gordon, although I do note that the document appears to be translated to Mandarin. The document does not confirm the exact date the solicitors were retained, but counsel for the appellant before the Member asserted at arbitration that one could infer that he retained them some weeks prior, in about November 2014.[13]
[12] Reply to Application to Resolve a Dispute (reply), p 4.
[13] Transcript of proceedings 13 May 2021 (T), 4.31–5.10.
In a letter addressed to the appellant from Slater and Gordon on 21 July 2015, the appellant is advised that he does not have a viable public liability claim. The letter states “I confirm my previous advice to make [a] workers compensation claim. Unfortunately, in these circumstances I am unable to assist you further. If you disagree with the advice I have given and you wish to pursue your claim, I recommend that you seek alternative legal representation”. Slater and Gordon follow this with guidance on the time limits under the Limitation Act 1969 (NSW) to commence proceedings in the District Court or Supreme Court of NSW. They conclude the letter by advising the appellant that his file will be closed.[14]
[14] ARD, p 25.
No further evidence is before me to clarify the nature of the “previous advice” provided by Slater and Gordon in respect of lodging a workers compensation claim.

Worker’s Injury Claim Form and other written documents

On 16 September 2015, a form was signed by the appellant which noted a date of injury of 15 April 2014. The claim form appears to be written by the appellant in English and responds to questions including his hours of work and occupation.[15] This claim form post-dates the initial dispute notice issued by GIO on 27 July 2015, which indicates that the appellant’s claim was in fact made on 20 July 2015.[16]
[15] ARD, p 21.
[16] ARD, p 10.
The appellant’s application for review of GIO’s dispute (mistakenly provided to the Workers Compensation Commission) is written in English and signed by the worker, and states “I delay to make the claim because my lawyer suggested me to claim public liability insurance [sic]. We sign the agreement but it is not terminate now [sic].” The appellant lists the attachments as “1. Agreement signed with lawyer Slater and Gordon; 2. The letter from lawyer Slater and Gordon state 3 year limitation time to make claim”.[17] The appellant provided this Application to GIO under cover of another letter typed in English and signed by him on 21 August 2015.[18]
[17] ARD, p 28.
[18] ARD, p 29.

Medical Evidence

There is no question that the appellant received treatment to his right ankle following the incident on 15 April 2014 and in the lead up to and following the expiry of the six-month time limit. The appellant was treated by orthopaedic surgeon (Anthony Kwa)[19] and neurosurgeons (Dr Alsahli and Dr Siu)[20] in 2015. Whilst these records do not contemplate the issue of time limits or workers compensation, I note that neither doctors’ medical reports indicate that the appellant required the assistance of a mandarin interpreter to describe the history of the incident or his symptomology. One can assume these consultations occurred in English. However, when examined by Dr Lam, orthopaedic surgeon in 2020, the appellant was aided by an interpreter.[21]
[19] ARD, p 44.
[20] ARD, pp 45–47.
[21] ARD, p 81.
Of interest are the clinical records of Epping Healthcare on 26 October 2014, which are indicative of knowledge of workers compensation prior to engaging solicitors. It is recorded “right calcaneus fracture … want to have legal action against W/C … suggest [sic] to see his lawyer”. On 11 September 2015, almost 12 months after this initial entry, there is suggestion again that the appellant “want [sic] to have W/C”.[22]
[22] ARD, p 51.
Of interest too are the medico-legal reports of Dr SK Cyril Wong dated 12 November 2015 and 25 October 2019. These reports indicate that the appellant proceeded with examination without requirement of an interpreter, and was able to provide a history of injury, background and symptomology, presumably in English.[23] However, when the appellant was examined by Dr James Bodel in 2017[24] and Dr Pillemer in December 2019[25], a Mandarin interpreter was present.
[23] ARD, pp 38–42, 68–72.
[24] ARD, p 57.
[25] ARD, p 73.
No issue has been taken by the appellant with regard to the accuracy of the medical records.

Investigation Report

A report was obtained by the respondent’s insurer dated 24 August 2015. Curiously, the statement evidence annexed to this report was not in evidence, although the report does make some comments in respect of the issue of time limitations, as provided by the appellant:
“Following the incident and subsequent injury the [appellant] did not lodge a workers compensation claim. He was advised by his lawyer at the time, Slater and Gordon Lawyers to claim through his public liability insurance. We have no further details in this regard only that the [appellant] said the matter was not pursued as he was further advised there was little chance of a winning result. As a result of this advice the [appellant] at a later stage lodged a workers compensation claim.”[26]
[26] Reply, p 16.

THE MEMBER’S REASONS

The Member determined that the appellant’s failure to make a claim was not occasioned by ignorance, mistake, or other reasonable cause within the meaning of s 261 of the 1998 Act. He was therefore barred from an entitlement to recover compensation.
The onus was on the appellant to establish that his failure was occasioned by the factors outlined under s 261(4). This required an evaluation of the evidence before the Member in consideration of the appellant’s proposition that his ignorance was occasioned by “two main factors, firstly, his lack of knowledge of English and secondly because he was unaware of his rights”, as well as “other reasonable cause … as a result of advice he received from his former solicitors … which ties in with his claim that he was unaware of his rights”.[27]
[27] Reasons, [17]–[18].
Ultimately, the Member was not persuaded that the appellant’s knowledge of English was as limited as he claimed, in order to occasion ignorance. The Member referred to the appellant’s statement which confirmed his residence in Australia for 29 years, during which he obtained several educational qualifications. The Member doubted that the appellant could have completed these qualifications without reasonable knowledge of English, and there was no evidence indicating that these courses took place in any language other than English. Furthermore, the appellant managed a construction company in which he employed others, a feat that the Member envisaged would be difficult with a limited knowledge of English. Although the appellant stated that he did not have the capacity to understand his workers compensation policy, the Member “simply [could not] accept that he could complete two courses yet fail to understand sufficient English to understand the policy he had and the procedures involved in making a claim”.[28]
[28] Reasons, [19]–[27].
The Member turned to the engagement of Slater and Gordon and the appellant’s assertion that “the advice provided to [him] at the time was not to lodge a workers compensation claim and pursue a public liability claim instead”. This suggested to the Member that the appellant “understood the nature of a workers compensation claim as opposed to a public liability claim” and posed the question of whether this was ignorance or an active and conscious choice.[29]
[29] Reasons, [28]–[32].
The Member referred to the letter from Slater and Gordon of 21 July 2015 having no reference to pursuing a workers compensation claim, and alluded to the appellant having knowledge of workers compensation anyway, due to the existence of a letter from the Commission predating the engagement with Slater and Gordon. The Member found it “hard to believe that an experienced firm like Slater and Gordon did not tell him of any deadline for making a claim” and queried why the appellant did not pursue such a clam while he was off work.[30]
[30] Reasons, [32]–[40].
The Member also considered the reference in medical records to “W/C” prior to making his claim, suggestive of the appellant having some knowledge of workers compensation procedures.[31] At [62] of the Reasons, the Member held “it is clear to me that the [appellant] on at least several occasions discussed compensation for his injury with his doctors, such that I can infer, particularly in the absence of any earlier statements, that he had knowledge of his rights and entitlements to compensation”.
[31] Reasons, [41]–[46].
Other documents which raised “serious doubts” as to the “veracity of the [appellant’s] statement” included the Worker’s Injury Claim Form, Application for Review, and letter to GIO attaching same, all of which were written in clear English by the appellant.[32] An investigation report obtained by the respondent’s insurer also outlined further qualifications than those in the appellant’s statement, while a medical certificate mentioning his attendance to a tribunal hearing appeared suggestive of the appellant’s “greater knowledge of English than he claims”.[33]
[32] Reasons, [47]–[54].
[33] Reasons, [55]–[61].
In considering the concept of “ignorance”, the member turned to Gregson v L & MR Dimasi Pty Ltd,[34] Westlake v Sydney Symphony Subscribers Committee[35] and Burke v Suncorp Staff Pty Ltd.[36] Whilst the Member noted that the facts differed, the task of evaluating the evidence was “essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions.”[37]
[34] [2000] NSWCC 47; 20 NSWCCR 520 (Gregson).
[35] [2009] NSWWCCPD 12 (Westlake).
[36] [2021] NSWPICPD 6 (Burke).
[37] Reasons, [68], applying Westlake.

Ultimately, the Member concluded that the evidence presented an educated, working director with a “reasonable command of English”, who sought advice from his accountant about a workers compensation policy and discussed pursuing a claim with his doctors and the insurer. In deciding to pursue a public liability claim, the appellant may not have turned his mind to his rights at workers compensation, however, as observed in Burke, this was “a different proposition from being ignorant to the existence of those rights”. The Member was ultimately not satisfied with the appellant’s evidence, finding it unreliable and the explanations provided inadequate.[38]
[38] Reasons, [69]–[71].
As a result of the determination in respect of s 261 of the 1998 Act, the Member was not required to address the dispute arising in respect of s 59A of the 1987 Act and the Certificate of Determination issued on 28 May 2021 recorded an award for the respondent.[39]
[39] Reasons, [72]–[73].

GROUNDS OF APPEAL

The appellant relies upon the following grounds of appeal:
Ground One: That the Member erred in law when she failed to correctly pose the statutory question she needed to answer.
Ground Two: That the Member erred in law when she failed to consider the alternative question of whether the failure to make a claim within the six-month period was occasioned by other reasonable cause.
Ground Three: That the Member erred in law when she failed to give any reasons as to why there was no other reasonable cause that occasioned the failure.
Ground Four: That the Member made an error of fact finding when she concluded the letter from Slater and Gordon dated 21 July 2015 “did not make a reference to pursuing a workers compensation claim.”
Ground Five: That the Member has made an error in the exercise of a discretion in taking into account irrelevant matters being:
(a) either the three-year limitation period for commencing a public liability claim or the three-year period referred to in s 261(4) of the 1998 Act;
(b) the GP's note of the consultation on 11 September 2015;
(c) the motivation to claim weekly benefits caused by financial hardship, or
(d) the reference to a tribunal hearing.

LEGISLATION

Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

SUBMISSIONS

I will deal with the detail of what is submitted with respect to each of the five appeal points in the discussion section below. The following is a brief overview of the arguments put forward by the parties.

Appellant’s submissions

The appellant asserts that the Member did not consider relevant statutory issues of whether the failure to make a claim within six months was occasioned by ignorance or by other reasonable cause. Rather, she “‘direct[ed]’ herself ‘as to the law’” by posing the different question of whether the appellant was ignorant of his right to make a claim and seek compensation.[40] In support of this submission, the appellant asserts that the Member’s reliance on the GP record of 26 October 2014 referring to “W/C” and the discussion with legal advisors were not evidence that he was informed of the six-month time limit. The appellant submits that the Member erred in failing to deal with the question of “other reasonable cause”, this cause being that he retained solicitors and trusted their advice to pursue a public liability claim, which he did promptly and reasonably.[41] Further, the appellant submits that the Member failed to provide reasons to support the conclusion that there is no “other reasonable cause” resulting in his failure to make a claim. The appellant refers to the letter of Slater and Gordon dated 21 July 2015 and points to the Member’s erroneous assertion that this letter failed to advise the worker to pursue a workers compensation claim, when it did, in fact. It is asserted that this error may have formed part of the Member’s reasoning, as it was indicative of the Member believing the appellant had prior knowledge about making a claim from another source.[42] Finally, the appellant alleges that the Member considered a number of irrelevant matters at Ground Five, all of which involved a failure to properly exercise a discretion.[43]
[40] Appellant’s submissions, [4.27], [5.1.1]–[5.1.3].
[41] Appellant’s submissions, [3.23].
[42] Appellant’s submissions, [5.4].
[43] Appellant’s submissions, [5.5].

Respondent’s submissions

In reply, the respondent submits that the issues requiring determination and the applicable legislation were well known to the Member who had quoted s 261 of the 1998 Act in its entirety, and that the Member had accurately determined that the appellant failed to provide evidence discharging his onus of proof in respect of the provision.[44] In particular, the respondent submits that no evidence was provided by the appellant to establish that he was not advised on the six-month time limitation. The respondent submits that in reading the decision as a whole, the Member has adequately addressed and dismissed the assertion that the appellant’s failure to bring a claim was due to other reasonable cause, that cause being the appellant’s reliance on legal advice to pursue a public liability claim. Specifically, the respondent points to the Member’s acceptance that the appellant acted on Slater and Gordon’s advice in respect of the public liability claim, but that she found it difficult to believe they did not advise him of the six-month time limit to lodge a workers compensation claim.[45] While the respondent accepts that the Member erroneously stated that the correspondence from Slater and Gordon did not reference a workers compensation claim, this was a minor error which did not affect the Member’s decision.[46] Finally, the respondent refutes the various errors in discretion alleged by the appellant at Ground Five, stating that these errors had no bearing on the Member’s ultimate decision.[47]
[44] Respondent’s submissions, [25]–[32].
[45] Respondent’s submissions, [33]–[40].
[46] Respondent’s submissions, [41]–[43].
[47] Respondent’s submissions, [44]–[47].

DISCUSSION

Before turning to each of the appeal points, it is necessary to set out the case law with respect to s 261 of the 1998 Act.
Section 261 of the 1998 Act requires that a claim for compensation must be made within six months after the date the injury or accident happened. This limitation or bar is lifted if the failure to make a claim “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”[48] and a claim was made within three years after the date that the injury or accident happened. In this case there is no doubt that the appellant’s claim was made outside the specified six-month period but within the period of three years from the date the injury or accident happened.
[48] Section 261(4) of the 1998 Act.
The appellant at all times bears the burden of proving that the failure to make the claim within the six-month period was occasioned by “ignorance, mistake, … or other reasonable cause”. (The absence from the State exception is not relevant for the purposes of this case.)
The starting point for consideration of this provision is a decision of Burke J in Gregson where his Honour said at [61] as follows:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
Gregson was subsequently considered by O’Grady DP in Westlake where he said as follows:
“It is my opinion that the Arbitrator’s findings with respect to the Appellant’s knowledge of his hearing difficulties over a period of time do not directly address the question as to ‘ignorance’ of the matters enunciated by Burke J in Gregson.
There is no evidence of any weight before the Commission which addresses the question as to the Appellant’s state of knowledge concerning his rights and obligations under the relevant compensation law at various times since 1978. The onus is upon the Appellant, and such evidence is essential to enable a determination as to his entitlement to be relieved, by reason of ignorance, from the obligation of compliance with the notice provisions. The Appellant has failed to establish such entitlement and, in those circumstances, I respectfully agree with the Arbitrator’s conclusion that the Appellant is debarred from recovery of compensation by reason of his non-compliance with the relevant provisions concerning notice of injury and making of claim.”[49]
[49] Westlake v Sydney Symphony Subscribers Committee [2009] NSWWCCPD 12 [65]–[66].
Section 261 has also recently been considered by Snell DP in Burke. Deputy President Snell affirmed a Member’s reasoning in delivering an award for the respondent, finding that the failure to make the claim was not occasioned by the appellant’s ignorance. Specifically in Burke, the Deputy President affirmed the following:
“24. The Member referred to the appellant’s submission that she failed to make a claim at an appropriate time ‘because she did not realise that a claim could be made in this jurisdiction for the consequences of a psychiatric injury’. He noted the appellant had been employed by an insurance company in a department that processed claims. She was ‘successfully assessed under her income protection policy following her psychiatric injury in 2010’. She had previously successfully completed a workers compensation claim in respect of a back injury. The Arbitrator said that the respondent’s counsel expressed ‘some reservations’ about the appellant’s submission on this issue. The Member said: ‘I share those reservations.’ He said he had already found the appellant’s evidence to be unreliable. He found the appellant’s explanation to be inadequate. She said she had not discussed the availability of workers compensation when arranging her income support claim. She did not discuss her consultation with Dr Lovric where the topic was raised twice.
25. The Member said ‘it may very well be that she did not consider her options at that time, not out of ignorance, but because she was receiving weekly payments under her income protection policy and, as she said, did not turn her mind to her rights at workers compensation.’ He said this was ‘a different proposition from being ignorant of the existence of those rights’. The Member referred to the appellant’s history of working as a manager, in a responsible job with David Jones, before she commenced with the respondent. She would have performed her duties as a claims officer in a responsible way also. She was aware of the workers compensation scheme as she had previously made a claim herself. The Member said it was likely she would have been aware of the existence of workers compensation for psychological injuries. The Member said he was not persuaded of the appellant’s ignorance in this regard.
26. The Member found that the appellant’s failure to make a claim was not occasioned by ignorance. There was an award for the respondent.”
The appellant in Burke was unable to discharge the burden of proof required by s 261 and the approach taken by the Deputy President in Burke is of relevance to the consideration of this matter.
Before the Member, as I have described above, the appellant relied upon the exceptions found in s 261(4) of the 1998 Act being ignorance, mistake or other reasonable cause. The appellant forcefully asserted that the failure to make a claim within six months of the injury was occasioned by ignorance and that the ignorance was that he was unaware of his rights deriving from the Act and the obligations imposed by it. In support of this submission the appellant’s English language difficulties were relied upon. It was also submitted that there was overlap between the concept of ignorance and that of mistake.[50] It was further asserted as follows:
“So the mistake, if you like, arises from the fact that you are ignorant of your obligations under the Act.”[51]
[50] T 11.13–15.
[51] T 11.23–24.
Finally, “other reasonable cause” was relied upon. The reasonable cause was defined in the following terms:
“That reasonable cause being that he received inappropriate guidance from solicitors that he had retained to advise him on what to do.”[52]
[52] T 13.3–5.
In terms of the facts of this matter, there is no dispute that the appellant suffered his injury in a fall at a construction site on 15 April 2014. Applying the terms of s 261 of the 1998 Act would therefore require the appellant to have made a claim for compensation by 15 October 2014, which clearly was not done. On the appellant’s case, this claim was not made until 20 July 2015, approximately nine months after the expiry of the prescribed six-month period.
Before turning to the five specified grounds of appeal, I make this remark about the appellant’s submissions. Section 3 of the submissions, which is entitled “Background and summary of the case advanced before the Member on behalf of the Appellant”, deals with the facts and legal submissions regarding s 261 of the 1998 Act. Section 4 of the submissions, which is titled “The Member's decision”, is a commentary on aspects of the Member’s decision before turning to the five precise appeal grounds. There is a certain amount of overlap between the commentary and the appeal grounds. Doing the best I can, I have attempted to relate such commentary as is relevant to each appeal ground in order to ensure that the totality of the appellant’s arguments are being addressed.

As to Ground One

Ground One alleges a very precise error, namely that the Member has made an error of law in that she has misdirected herself as to the relevant statutory question to consider. Issue is taken with a single sentence at reasons [63] where the Member said as follows:
“In short, it must be ignorance as it relates to any right to make a claim and seek compensation.”
This, so the argument goes, is not the correct test nor was it the argument that was put before the Member. The argument that was developed before the Member is outlined at appellant’s submissions [4.27], as referred to at [45] above.
The appellant asserts that the Member has not addressed the two precise issues which are set out in appellant’s submissions [4.27] and which are repeated at appellant’s submissions [5.1.1].
Reasons must be read as a whole.[53] For the following reasons, I am of the view that the characterisation by the appellant in this appeal ground does not represent a fair reading of the Member’s decision.
[53] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
Firstly, at reasons [13], the Member has set out s 261 of the 1998 Act in full. Secondly, at reasons [16]–[18], the Member has accurately described the case conducted by the appellant. I set these three paragraphs out in full.
“16. In this particular case, the [appellant] bears the onus of establishing that that the failure was occasioned by ignorance, mistake, or other reasonable cause.
17. Counsel for the [appellant] urged me to accept that the [appellant’s] ‘ignorance’ was occasioned by two main factors, firstly, his lack of knowledge of English and secondly because he was unaware of his rights.
18. ‘Other reasonable cause’ it was submitted, was as a result of advice he received from his former solicitors to which I will refer more fully below, and which ties in with his claim that he was unaware of his rights.”
Further, when one considers reasons [63], the sentence with which issue was taken in this appeal ground must be read in context. Reasons [63] in full reads as follows:
“Counsel for the [appellant] submitted that the terms of s 261 were precise and specific as to the concept of ‘ignorance.’ In short, it must be ignorance as it relates to any right to make a claim and seek compensation. An example was provided that a professor of English with thorough knowledge of the language may be utterly ignorant of his or her rights to compensation for an injury.”
Immediately following [63] is reference to the decision of Burke J in Gregson which I have set out above.
Considered correctly, the offending line in [63] does not purport to be the test that the Member was dealing with in full, rather it is clear from the sentence that the Member is describing her task in shorthand and when one marries what appears in [63] with [64] of the reasons, it can be clearly understood that the Member is grappling with one concept and one concept alone, and that is the meaning of the word ‘ignorance’ for the purposes of s 261 of the 1998 Act. It is clear from a consideration of the decision that the Member, having correctly set out the appellant’s case, particularly at reasons [17] and [18], then proceeded to deal with those arguments. No issue has been taken by the appellant on appeal that the description of the appellant’s arguments at reasons [17] and [18] was anything other than an accurate reflection of the case conducted below. Having posed the correct questions for consideration, the fact that a short form or summary of one aspect of that task is set out at reasons [63] is not a fair reading of the Member’s decision, nor is it revealing of any error on the Member’s part.

The appellant has asserted that the Member failed to correctly pose statutory questions that she needed to answer. These were the issues raised by the appellant as representing the contest between the parties and these were addressed in terms by the Member.
Ground One is dismissed.

As to Ground Two

Ground Two also asserts that the Member erred in law by failing to consider whether the failure to make the claim within the statutory period was occasioned by “other reasonable cause”. The appellant asserts that this question was not dealt with at all and as such is a failure to exercise the jurisdiction with which the Member was charged.
The “other reasonable cause” argument advanced by the appellant related to the appellant’s retainer of solicitors and his subsequent reliance upon their advice. This is set out in some detail in the appellant’s submissions [3.23] and [4.27], as outlined at [45] of this decision.
As I have described above in my reasoning with respect to Ground One, at reasons [18] the Member described the appellant’s claim to relief based upon the “other reasonable cause” exception was as a result of the advice received from his former solicitors. As I have stated with respect to Ground One, no issue has been taken by the appellant with how reliance upon the “other reasonable cause” exception was set out at reasons [18].
In terms of the decision, at reasons [14] the Member set out at length the appellant’s statement of 27 January 2021, which included what the appellant said about his dealings with his then solicitors. The decision then proceeds to discuss various aspects of the evidence of what transpired between the appellant and his then solicitors, see in particular reasons [28]–[33], [36]–[37], [39] and [70]. In these paragraphs of the decision, the Member is clearly grappling with the appellant’s contention pertaining to the “other reasonable cause” exception.
The only reason the Member in these paragraphs is considering what transpired with the appellant’s solicitors was to answer the question that appeared at reasons [18]. It is clear that by the time the Member makes her formal findings at reasons [72], this exception has been considered and dealt with in accordance with the Member’s duty to consider that question.
The error as alleged has not occurred. The Member dealt with the appellant’s argument with respect to this exception and dealt with it in terms.
As a result, Ground Two also fails.

As to Ground Three

Ground Three alleges that the Member failed to give any reasons as to why the “other reasonable cause” exception was not made out. The allegation advanced by the appellant is quite precise, it alleges an error of law in terms of a failure to give any reasons for the conclusion that the exception was not made out.
Section 294(2) of the 1998 Act requires as follows:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
In Roncevich v Repatriation Commission[54] the High Court was dealing with the adequacy of reasons. However its remarks are apposite in terms of the present case which alleges that no reasons were given. At [64], Kirby J (as he then was) said as follows:
“Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.” (emphasis added, footnotes omitted)
[54] [2005] HCA 40 (Roncevich).
It is not a fair reading of the Member’s decision to allege that there was a failure to give any reasons as to why the “other reasonable cause” exception has not been made out. As I have set out in response to Ground Two above, the question with respect to this contest was appropriately set out at reasons [18]. Thereafter at the paragraphs I have identified with respect to Ground Two, the Member evaluated the evidence which related to all that transpired between the appellant and his then solicitors. This was the “real issue” in contest between the parties. The Member has, at the paragraphs I have referred to with respect to Ground Two, evaluated and rejected the submissions advanced by the appellant with respect to the “other reasonable cause” exception. In particular at reasons [30], the Member quotes the following extract from the appellant’s statement:
“The advice provided to me at the time was not to lodge a workers compensation claim and pursue a public liability claim instead.”[55]
[55] Appellant’s statement 27 January 2021, ARD p 5, [18].
The Member then says the following about this quote:
“… This suggests to me that the [appellant] understood the nature of a workers compensation claim as opposed to a public liability claim.
As Counsel for the respondent succinctly put it, was it ignorance or an active and conscious choice?”[56]
[56] Reasons, [30]–[31].
The appellant in his statement asserts that his solicitors never advised him of the six-month time limit required by s 261.[57] With respect to this assertion by the appellant, the Member found as follows at reasons [36]:
“I also find it hard to believe that an experienced firm like Slater & Gordon did not tell him of any deadline for making a claim. Even if that were true, I am left wondering why the [appellant] did not pursue a claim in circumstances where he was off work and hospitalised for some time and presumably needed some income and medical expenses paid.”
[57] Appellant’s statement 27 January 2021, ARD pp 5–6, [19]–[21].
As noted above, reasons do not have to be lengthy or elaborate.[58]
[58] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
Criticism is advanced by the appellant of the finding at reasons [36] alleging that it does not satisfy the requirement for explaining the essential reasoning process involved in reaching the view that was taken.
For the reasons set out below I do not accept this submission. Firstly, the statutory obligation to give reasons is as I have set out above in s 294(2) of the 1998 Act. Secondly, the reference at reasons [36] which is now subject to criticism cannot be read in isolation. By the time that the Member made this statement, the Member had conducted a review of the appellant’s statement (reasons [14]) and in the various paragraphs which I have set out with respect to Ground Two above, the evidence regarding that which transpired between the appellant and his then solicitors. It is true that the reasons at [36] are brief, but this has not involved the Member in any error. This remark though does need to be considered in light of the Member’s reservations about the appellant’s evidence which have not been challenged on appeal.
At reasons [71] the Member found as follows:
“I too have reservations about the [appellant’s] evidence. Overall it is both unreliable and his explanations when challenged over the years in relation to his claim are inadequate.”
Reading the decision as a whole, it is clear that the Member was not persuaded that the “other reasonable excuse” submission had been made good by the appellant.
This appeal ground in its terms alleged that the Member failed to give any reasons as to why this exception was not made out. This has not been established. This appeal ground as an alternative takes issue with the adequacy of the Member’s reasoning. For the reasons I have discussed above, this has not been established. The Member addressed the issue in contest (in the Roncevich sense) and reached a decision that was available.
No error has been established and this appeal ground is dismissed.

As to Ground Four

This appeal ground alleges a factual error at reasons [33], where the Member found as follows:
“That letter was in English only, and did not make any reference to pursuing a workers compensation claim.”
Clearly upon a review of the letter concerned,[59] the statement at reasons [33] is not correct.
[59] ARD, p 25.
The appellant alleges that this “erroneous finding” may have formed part of the Member’s reasoning process and if it did the decision would thereby be affected by error. Specifically, at appellant’s submissions [5.4.2] the appellant asserts that this finding may have formed part of the Member’s reasoning process along the following lines:
“He had made a claim on 20 July 2015.
As this was made before he got the letter from Slater & Gordon dated 21 July 2015 he must have had knowledge about the desirability of making a claim from some other source.”
The submission then continues that if these two matters (or something similar) were part of the reasoning process that led the Member to conclude there was no ignorance, that conclusion was based upon an erroneous finding of fact.
This submission cannot be substantiated. There are a number of aspects of the evidence which point to or suggest knowledge or awareness on the part of the appellant regarding workers compensation matters.
In his statement dated 27 January 2021, the appellant describes how he had received advice from his accountant about the necessity to take out workers compensation insurance. The statement goes on to state:
“After the fall at work, I retained Slater and Gordon as my solicitors …
The advice provided to me at the time was not to lodge a workers compensation claim and pursue a public liability claim instead.”[60]
[60] Appellant’s statement 27 January 2021, ARD p 5, [16]–[18].
There were also various references to workers compensation matters in medical records which were referred to by the Member at reasons [43]–[45].
The appellant quite fairly cannot assert that the error which appears at reasons [33] affected the Member’s reasoning process. At its highest, the appellant quite fairly asserts that it may have infected the reasoning process. Notwithstanding this mistake, there was other material available which led to the inference about the appellant having knowledge prior to receiving the 21 July 2015 advice. Absent this material that I have identified, the submission made by the appellant might have had some substance. However in light of that material, it cannot be said that the factual error made by the Member formed part of the reasoning process and as a result this appeal ground has not been established.
Ground Four is as a consequence dismissed.

As to Ground Five

Ground Five alleges that the Member made an error in the exercise of her discretion by taking into account four matters which are said to be irrelevant. They are:
(a) either the three-year limitation period for commencing a public liability claim or the three-year period referred to in s 261(4) of the 1998 Act;
(b)    the GP’s note of the consultation on 11 September 2015;
(c)    the motivation to claim weekly benefits caused by financial hardship, and
(d)    the reference to a tribunal hearing.
I will deal with each of the four points in turn.
In pursuing this ground of appeal, the appellant relies upon the following passage, which is referred to but not expanded on, from House v The King.[61] The extract is as follows:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
[61] [1936] HCA 40; 55 CLR 499, 504–505 (House).
In terms of a House type consideration, it must be remembered that the mere recitation of aspects of the evidence is insufficient. In this case, the Member is exercising a discretion in terms of the considerations as to whether or not the appellant has made out the exceptions contained in s 261 of the 1998 Act. The key question for consideration in this appeal point is whether any of the four matters complained of caused that discretion to miscarry.

Ground 5(a): Either the three-year limitation period for commencing a public liability claim or the three-year period referred to in s 261(4) of the 1998 Act

The appellant’s submissions on this point appear at [4.10]–[4.12]. Firstly it is stated that it is unclear which three-year period the Member is referring to and in any event it is stated to be irrelevant to the question of the appellant’s knowledge within the six-month period immediately following his injury.
The section of the Member’s decision subject to this complaint is at reasons [37] and reads as follows:
“When told that there was little merit in a public liability claim, the [appellant] could still have pursued a claim, although out of time, on the basis of ignorance or mistake, and within the three year period.”
It is to be noted that this paragraph immediately follows a passage in the decision where the Member stated that she found it hard to believe that the appellant’s lawyers did not tell him of any deadline for making a claim.
I think it is tolerably clear that the Member is referring at reasons [37] to the time period which is referred to in s 261(4) of the 1998 Act. On the appellant’s case, or explanation, he was told in or about July 2015 that his public liability claim was without merit. At this point the six-month period provided for by s 261 of the 1998 Act had expired. However in accordance with that provision the claim could still be pursued “on the basis of ignorance or mistake” as it was still within the three-year period provided for in s 261(4) of the 1998 Act.
The statement contained at reasons [37] is factually correct. I do not accept the appellant’s assertion that the contents of reasons [37] “were irrelevant to the question of what knowledge the appellant had with respect to the six month claim limit”[62] because clearly the Member was not dealing with the question of the appellant’s knowledge during that period. Rather, the Member is quite properly directing her mind to the provisions of s 261, namely that if the claim was made out of time, it could still be pursued on the basis of ignorance or mistake provided it was within the three-year time limit. This is a proper and appropriate direction for the Member to be giving herself and involved the Member in no error of discretion.
[62] Appellant’s submissions, [5.5.1].
Ground 5(a) is dismissed.

Ground 5(b): The GP’s note of the consultation on 11 September 2015

The appellant’s complaint under this ground is that the appellant’s state of knowledge in September 2015 was not relevant with respect to the task with which the Member was charged in terms of considering whether or not the s 261 of the 1998 Act exception had been established.
The offending paragraph is at reasons [45]. However it is necessary to set out more than that paragraph in order to place it in its appropriate context. At this section of the decision, the Member is examining the evidence and from time to time making a remark upon the evidence in terms of the issues at stake.
The relevant extract from the Member’s decision commences at reasons [41]:
“41. The clinical notes from the Epping Healthcare Centre confirm that the [appellant] first attended there on 15 April 2014.
42.    On 2 May 2014 it was noted that he had just been discharged from hospital.
43.    On 26 October 2014 the entry reads: ‘c/o still pain when walking. Want to have Legal action against W/C. suggest to see his lawyer.’
44.    On 27 March 2015 the entry reads: ‘Letter written to !care [sic] Physiotherapy & Rehabilitation printed…’
45.    On 11 September 2015 the entry reads: ‘came for medical certificate. current works as part time - pain in right heel which limited him to works more [sic] - want to have W/C.’
46.    These entries suggest to me that the [appellant] certainly had some knowledge of workers compensation procedures at least as early as October 2014.”
It is asserted by the appellant, with respect to the clinical note entry for 11 September 2015, as follows:
“With respect to the Member, she has not considered the timing of this and instead she has apparently used the content of the (post actual claim) GP’s entry for 11 September 2015 to conclude what his knowledge of workers compensation procedures was before he had been advised to make the claim.
With respect to the Member, this is not a logical process of reasoning. This is because she appears to be basing a conclusion about his state of knowledge about needing to make a workers compensation claim prior to July 2015, in part, based on his state of knowledge after he had been advised by a solicitor in July 2015 that he should make such a claim.”[63]
[63] Appellant’s submissions, [4.17]–[4.18].
With respect to the appellant, I do not think that this is a fair or available reading of these sections of the Member’s decision.
The critical finding is at reasons [46]. At [46] the Member said, construing these various entries from the Epping Health Care Centre clinical notes, that they suggested to her that the appellant had some knowledge of workers compensation procedures as early as October 2014. Pausing here, October 2014 is an important date because it is during that month that the six-month period for the purposes of s 261 of the 1998 Act expires. Further, the reference at reasons [43] to the clinical notes supports this finding. It is also noteworthy that at no stage did the appellant take issue with the contents of the 26 October 2014 clinical notes. Whilst the reference to “entries” at reasons [46] is perhaps inapt, in my view it is apparent that it is the October 2014 clinical note entry that is the source of attention and concern of the Member.
It is to be remembered that at reasons [14] the Member set out the appellant’s statement in some detail. In that statement, the appellant asserted various things including:
“I speak very limited English and I require the assistance of an interpreter.
…
When I had the injury … I was not aware that I was required to inform the insurance company. I have never had anyone lodge a worker’s compensation claim in the past, so I am not familiar with the process.
…
As stated, I am not familiar with the laws and procedures …
If my accountant had not informed me about a [sic] worker’s compensation insurance, I would not have known to take out a policy as I am not familiar with all the legalities ...
…
I do not speak or read English. I am not familiar with the processes and procedure of what is required of me and I rely on the advice of professionals who unfortunately misinformed me …”[64]
[64] Appellant’s statement, 27 January 2021, ARD pp 1–7.
After setting out this statement, the structure of the decision was to examine the evidence and to test the reliability of what the appellant has said. As a consequence, the Member then assessed the evidence and identified where this appeared to be at odds with the appellant’s statement. Ultimately at reasons [62] the Member made the following observation:
“It is clear to me that the [appellant] on at least several occasions discussed compensation for his injury with his doctors, such that I can infer, particularly in the absence of any earlier statements, that he had knowledge of his rights and entitlements to compensation.”
This was a proper and appropriate task to undertake given the contents of the appellant’s statement.
Further, it is clear that the clinical entry of 11 September 2015 was simply a part of the factual matrix that was considered by the Member, but from a consideration of the decision, in and of itself that single entry was not determinative in the sense that it would lead to a conclusion that the Member’s discretion has miscarried in the House sense.

The appellant’s assertion that the reference to this clinical note has produced an error in the exercise of the Member’s discretion has not been established and is as a consequence dismissed.

Ground 5(c): The motivation to claim weekly benefits caused by financial hardship

The appellant takes issue with the following remarks which appear at reasons [59]:
“It does not seem credible that the [appellant] would not seek some weekly compensation and/or medical expenses if in fact he was in financial difficulties. Moreover, his qualifications are greater than he claimed in his statement and again suggest to me that he has a much greater knowledge of English than he claims.” (emphasis added)
The appellant’s argument is:
(a) “there was no persuasive argument before the Member that the appellant was in ‘financial difficulties’”,[65] and
(b) “perhaps more importantly the question of whether the appellant was in ‘financial difficulties’ or not is, with respect, irrelevant to the question of whether the appellant was aware of the need to make some kind of claim for workers compensation within 6 months of his injury.”[66]
[65] Appellant’s submissions, [4.22].
[66] Appellant’s submissions, [4.23].
The appellant’s submission is that this was an irrelevant matter that was taken into account by the Member and as a result this has caused an error in the exercise of the Member’s discretion. The appellant asserts that whether or not the appellant was in financial difficulties is not a question which touches upon whether or not the appellant was aware of the requirement to make a claim for workers compensation within six months of suffering his injury.
The respondent, both below and on appeal, asserted that one reason why the appellant would not make a claim during his incapacity was that he continued to receive income from overseeing the operation of his business and therefore made a conscious choice not to pursue workers compensation benefits. This was a submission based upon the Presidential decision in Burke where Snell DP noted and confirmed the Member’s decision at [69] where the following was stated:
“… [the applicant] did not turn her mind to her rights at workers compensation. That is a different proposition from being ignorant of the existence of those rights.”
With respect to the appellant, the Member has not made a positive finding that the appellant was in financial difficulties. The section from reasons [59] reads “if in fact he was in financial difficulties”.
It is noteworthy that at reasons [70] the Member agreed with the observations of the Deputy President in Burke that I have set out above.
As can be seen, this issue arose in the context of an argument about whether the appellant had turned his mind to considering a workers compensation claim along the lines as was considered in Burke. I do not see this passage of the decision being used for the purposes now asserted by the appellant.
There was no evidence from the appellant that he was in financial difficulties, although in his statement he did make the following remarks:
“17. I was off work from the date of injury to about January 2015. When I returned to work, I started doing 2 hours a day, then gradually increased my hours to 4 days.”[67]
“37. I have not received any settlements of compensation for the injuries I have sustained.”
“38. I was never paid any wages or reimbursed for my medical expenses.”[68]
[67] Appellant’s statement 27 January 2021, ARD, p 3.
[68] Appellant’s statement 27 January 2021, ARD, p 7.
In the report by A.B. Investigations obtained by the respondent the following appears:
“He referred [to] the family home and the land with the new home as investments. He explained that after his injury his investments were affected because prior to the injury he was able to work full time on the house/land and within the Insured Company. Since the injury however he has not been able to work full time which subsequently affected the income he was able to make.”[69]
[69] Reply, p 11.
Clearly the material before the Member was not sufficient to make any finding as to whether or not the appellant was in financial difficulties. Indeed, the state of the evidence would be remarkably common to any worker who has suffered an injury as severe as the appellant’s, namely that they could not work for a period and they suffered income loss.
I do not view this section of the Member’s decision as touching upon the question as to the appellant’s state of knowledge regarding the necessity to make a claim during the six-month post injury period. This is the appellant’s assertion on appeal as to the error said to be associated with this matter. I do not accept that submission.
At its highest, this issue is part of a consideration relating to the Member’s assessment of the Presidential decision in Burke. The Member, quite properly, did not make any positive finding as to whether or not the appellant was in financial difficulties as the evidence was not of a quality to substantiate such a finding. In the absence of such factual finding, it cannot be said that the Member’s discretion miscarried in the House sense. This might have been different had such a positive finding been made on this issue in circumstances where the evidence taken at its highest would not have supported such a finding. As a consequence, this ground of appeal is not made out and is dismissed.

Ground 5(d): The reference to a tribunal hearing

The appellant asserts at submissions [4.21]–[4.24] and [5.5.4] that the reference to a “tribunal hearing” could not have involved workers compensation and thus could not have imparted any knowledge to the appellant about relevant time limits for lodging workers compensation claims and is as a result an irrelevancy to the Member’s deliberations. The offending paragraph is at reasons [60].
I set out below however reasons [59]–[61] which provide as follows:
“59. It does not seem credible that the [appellant] would not seek some weekly compensation and/or medical expenses if in fact he was in financial difficulties. Moreover, his qualifications are greater than he claimed in his statement and again suggest to me that he has a much greater knowledge of English than he claims.
60. Consistent with my views above is a medical certificate from a doctor at Ryde Hospital dated 22 April 2014 when the [appellant] was still an inpatient which reads: ‘unfit for work but will be attending the Tribunal hearing …’
61. Once again, there is nothing in the [appellant’s] statement that addresses these matters.”
It is clear that at reasons [59] the Member posited a view that the appellant “has a much greater knowledge of English than he claims.” Reference is then made in the next paragraph to the appellant attending a tribunal hearing and that the appellant’s statement did not address these matters.
It is to be remembered that in the appellant’s statement, he asserted that he had very limited English and was not familiar with laws and procedures. The Member was entitled to review the evidence and test that proposition. This was done which led to the Member’s ultimate finding that the appellant’s evidence was unreliable and that his explanations in relation to his claim were inadequate.[70] I do not read or construe the reference to the tribunal hearing at reasons [60] as having any relationship to knowledge of workers compensation, rather it seems that this was a part of the Member’s assessment regarding the appellant’s English skills. This material which was within the Ryde Hospital notes was, it is true, not addressed by the appellant in his statement. The inference that the appellant says was drawn by the Member, namely that this tribunal hearing may have imparted knowledge to the appellant about workers compensation, is not made out. Just as I have referred to above, the Member, having closely considered the appellant’s statement, then reviewed the evidence in order to assess whether or not the explanations stated by the appellant in his statement were in fact made out.
[70] Reasons, [71].
This was not a miscarriage of discretion as these were relevant matters for the Member to consider.
This appeal ground is dismissed.

DECISION

It was not disputed before the Member that the appellant had failed to make a claim for compensation within the six-month period prescribed by s 261 of the 1998 Act. As a consequence, the appellant bore the burden of proof to relieve himself of the bar or limitation found in s 261. This required the appellant to prove that his failure was occasioned by ignorance, mistake or other reasonable cause. The appellant failed to discharge this burden before the Member, who undertook a consideration of all of the evidence and was not satisfied that the appellant was entitled to the relief sought. In this process, the Member has extracted at length the appellant’s statement in which the explanation relied upon is set out. The Member then tested the explanation proffered by the appellant by comparing it to other evidence. No error in either fact finding, application of the law or discretion has been made out by the appellant and as a result the original decision must stand.
The Certificate of Determination dated 28 May 2021 is confirmed.

Judge Phillips

PRESIDENT

21 February 2022