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…

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.

Continue reading Hou v Zhen Qi Hou Pty Ltd

Details

AGLC: Hou v Zhen Qi Hou Pty Ltd [2022] NSWPICPD 6
Case: [2022] NSWPICPD 6
Decision Date: 21 February 2022

CaseChat Overview and Summary

The matter before the court was an appeal by Hou against the decision of Zhen Qi Hou Pty Ltd. The central dispute concerned the applicability of section 261(4) of the Workplace Injury Management and Workers Compensation Act 1998, specifically whether the claimant's failure to make a workers' compensation claim was due to ignorance, mistake, or other reasonable cause. The case was heard in the Industrial Court of New South Wales.

The court was required to determine whether the claimant's failure to lodge a claim was due to ignorance, mistake, or other reasonable cause. It also had to assess the adequacy of the reasons provided by the Member in the original decision. The court considered previous cases, including Gregson v L & MR Dimasi Pty Ltd and Burke v Suncorp Staff Pty Ltd, which dealt with similar issues under the same statutory provision. Additionally, the adequacy of the reasons given by the Member was evaluated in light of the High Court’s remarks in Roncevich v Repatriation Commission.

The court found that the Member’s reasons were adequate as they addressed the "real issue" in the contest between the parties. The Member had correctly identified and evaluated the evidence relating to the interaction between the claimant and his solicitors. The court emphasised that reasons do not need to be elaborate or lengthy, and in this case, the Member had sufficiently addressed the grounds of appeal. The Member had considered the claimant's understanding of the nature of workers' compensation versus public liability claims and found that the claimant's assertion that his solicitors did not advise him of the six-month time limit was implausible. The court concluded that the Member’s decision was sound and adequately reasoned.

The court dismissed the appeal and affirmed the decision of the Member. The original decision of Zhen Qi Hou Pty Ltd stands.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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