Moon t/a Urban Sanctuary Landscaping v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 128
•21 August 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Moon t/a Urban Sanctuary Landscaping v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 128 |
PARTIES: | Moon, Damien Peter t/a Urban Sanctuary Landscaping v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/183 |
PROCEEDING: | Application to waive compliance with s 550(1)(a) |
DELIVERED ON: | 21 August 2014 |
HEARING DATE: | 17 July 2014 |
MEMBER: | Industrial Commissioner Fisher |
ORDERS : | 1. The application is dismissed. 2. Costs are reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Application for leave to file appeal out of time - whether the applicant has substantially complied with the statutory time limit - whether special circumstances exist to waive compliance with s 550(1)(a) - where the applicant sought legal advice from multiple firms - where proceedings by WorkCover Queensland have been instituted - whether the person engaged to perform work was a worker - whether the issue of worker can be determined in other proceedings - where the applicant was aware of the appeal period |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 550(1)(a) |
| APPEARANCES: | Mr A. Newman, Counsel instructed by Brandon & Gullo Lawyers for the Applicant. |
Decision
Damien Moon trades as Urban Sanctuary Landscaping (the Applicant). In July 2013 the Applicant accepted a landscaping project that was scheduled to take three weeks. Because Mr Moon was undertaking divinity studies at the time, he asked his father‑in‑law, Frank Goldsworthy, who had worked on other projects with him previously, to supervise the project. Mr Goldsworthy had the Applicant's authority to engage others to assist in completing the project. Mr Goldsworthy engaged a friend, Neville Walters, to undertake paving and specialist carpentry work.
Mr Walters injured himself on the project. He applied for and was granted workers' compensation under the Workers' Compensation and Rehabilitation Act 2003 (the Act) by WorkCover Queensland (WorkCover).
The Applicant said only people who had an Australian Business Number (ABN) were engaged to undertake work for him. He asked Mr Walters to supply an ABN, which he did, but it was out of date. Because the Applicant did not believe that Mr Walters was a worker under the Act, a review of the decision with the Workers' Compensation Regulator (the Regulator) was sought. The Applicant was unsuccessful in challenging the decision of WorkCover.
The Regulator's review decision is dated 19 November 2013. It is common ground that the Applicant received the decision on or about 21 November 2013. The Applicant was advised in the review decision that an appeal had to be lodged with the Queensland Industrial Relations Commission (the Commission) within 20 business days after the date of receipt of the decision. Thus the time for filing the appeal expired on 19 December 2013.
The appeal was not filed until 30 May 2014. An application for leave to appeal out of time was filed on the same date.
Shortly after receiving the review decision, the Applicant was contacted by WorkCover advising that it was pursuing unpaid workers' compensation premiums. Legal action was commenced against the Applicant by WorkCover in the Brisbane Magistrates Court by way of Claim and Statement of Claim filed on 5 March 2014. The Applicant filed a Notice of Intention to Defend and Defence on 4 April 2014.
Relevant Factors
Section 550(1)(a) of the Act provides that an appeal to the Commission about a review decision must be made within 20 business days after notice of the review decision is received. Neither that section nor any other explicitly provides power to the Commission to extend the time for filing an appeal. However, the Commission has been found to have discretion to waive the time limits set out in s 550(1)(a) of the Act on the grounds of substantial compliance or special circumstance.n[1]
[1] Steven Pearce AND Q-COMP (C/2010/64) - Decision < at [3].
The Commission accepts the Respondent's submission that the question for the Commission to determine is whether:
1. The Applicant has substantially complied with s 550(1)(a) of the Act; or
2. Special circumstances exist such that the time limit in s 550(1)(a) should be waived.
Has the Applicant substantially complied with the Act?
No submissions were received by the Applicant on this point.
The Respondent submits that there has been no substantial compliance given the extent of the delay in filing the appeal. The Commission accepts that submission.
Do special circumstances exist to waive the time limit?
The parties agree that the factors traditionally considered in cases where an extension of time is sought are ones which should be considered by the Commission in making its decision in the present matter. These are:
(a) the extent of the delay;
(b) the explanation for the delay;
(c) the prejudice that would be caused to the Applicant were the time not waived;
(d) the prejudice that would be caused to the Respondent if the time were waived;
(e) the enthusiasm for prosecuting the appeal; and
(f) the merits of the appeal.
(a) The extent of the delay
The appeal was filed five calendar months and 10 days or 109 business days outside the 20 business day time period.
(b)The explanation for the delay
The latest date on which the appeal could be filed to be within the prescribed time limit was 19 December 2013. The Applicant submits some concession should be given to the fact that this date was four working days prior to Christmas, which is a notoriously busy time of year and followed by the New Year, when many firms are closed.
On receiving the review decision, the Applicant contacted the Queensland Law Society to ask for names of law firms on the Gold Coast that could provide advice to employers on workers' compensation matters. Three names were provided and the Applicant contacted them all by telephone in late November 2013. However each firm provided different advice.
The Applicant was flummoxed by the differing opinions. He put the matter aside and went on five days' holiday with his family between 29 November and 5 December 2013.
On his return from holidays the Applicant contacted another law firm, which provided limited advice in a telephone conversation. That advice, amongst other matters, was not to appeal to the Commission unless he was confident of success. The Applicant was not advised of his prospects of success at that time.
The Applicant almost gave up seeking legal advice because no lawyer had indicated any possibility of appealing the review decision, despite his actively seeking advice.
The matter was put aside during the Christmas/New Year period.
The Applicant had a paid consultation with another firm in January 2014 and received their written advice on 30 January 2014. That included advice that the appeal period had lapsed and the opinion that Mr Walters was a worker with a valid workers' compensation claim.
On 5 February 2014, the Applicant contacted his current firm of Solicitors. He said "[t]his was the first time I had received any indication as to prospects of appealing the Respondent's Decision and as to the merits of my case." That firm engaged Counsel for an opinion given the change to the definition of "worker" in the Act.
(c) The prejudice that would be caused to the Applicant were the time not waived
The Applicant submits he would have a great deal to lose if this application was dismissed. This is because the WorkCover proceedings in the Magistrates Court are a direct consequence of the review decision. Those proceedings seek to recover an amount of approximately $35,500, which is a substantial amount for a small business with a turnover of just in excess of $100,000. In addition, the Applicant's family is reliant on the income of the business and there are no other sources of income except some federal government payments.
The Respondent concedes the Applicant would be prejudiced because of the WorkCover proceedings and its effect if successful. However, the Respondent submits that the Applicant is defending the WorkCover proceedings and his defence includes the argument that Mr Walters was not a worker under the Act.
(d) The prejudice that would be caused to the Respondent if the time were waived
The Applicant submits the Respondent would suffer no material prejudice in the event the time limit was waived.
The Respondent concedes that it would not suffer any real prejudice were the Commission to waive the time limit.
(e) The enthusiasm for prosecuting the appeal
The parties differ as to the Applicant's enthusiasm to prosecute the appeal. The Applicant submits he was diligent in seeking legal advice about his position from five different law firms. In addition, Counsel was engaged to provide an opinion and to prosecute the application. Since the present firm has been engaged, the Applicant has been involved in supplying information in order that the appeal and the application could be prepared.
It was also submitted that the Commission should have regard to the fact that the Applicant is not a lawyer and has little understanding of the workers' compensation scheme and the process required to prosecute an appeal. In this regard, non-lawyers frequently approach time frames which lawyers regard as inviolable with considerably less alarm.[2]
[2] Michael Thomas Niesler AND Q-COMP (WC/2012/491) - Decision <>
The Respondent points to the legal advice received by the Applicant that he had little prosects of success. Although the Applicant approached the current firm on 5 February 2014, nearly four months elapsed before the appeal was filed. Within that time the Notice of Intention to Defend and Defence was filed in the Magistrates Court.
(f)The merits of the appeal
The Applicant submits that there are good prospects of success on appeal. Various factors relied on include that the Applicant does not employ workers but engages contractors; contractors are asked to supply their ABN, as was Mr Walters; the Applicant completed the online Australian Taxation Office (ATO) survey which showed that Mr Walters was not an employee; that the project time frame was three weeks and Mr Walters was only engaged for 10 days of that period.
Against those submissions, the Regulator submits that there is a good case that Mr Walters was a worker because he did not have an ABN; he was paid at the end of each week he worked on the project and was paid an hourly rate. Further, Mr Walters did not submit a tax invoice for payment; he was not conducting his own business at the time; he did not provide his own material and was unable to delegate his work to another person.
Conclusion
In deciding whether or not to waive compliance with the statutory time frame, the starting point is that that time frame should be respected. The Applicant gave evidence that he was aware of the time frame in which to lodge an appeal but it was not until 109 business days later that an appeal was filed. This is not an insubstantial delay in the context of the statutory requirement of 20 business days.
The Applicant was facing a complex situation - not only did he have to consider whether to appeal the review decision but WorkCover had commenced proceedings seeking the recovery of a substantial sum. The Applicant was confronted by the prospect of a considerable negative financial impact to his business and his family in the event the WorkCover proceedings are successful. In the circumstances it was imperative for the Applicant to be properly advised about his legal position and options, including whether Mr Walters was a worker as defined by the Act. On the evidence this is the argument in favour of special circumstances being found so as to waive compliance with the statutory time period in which to lodge an appeal.
Between the receipt of the WorkCover decision and the review decision, the Applicant sought legal advice about the issue of whether Mr Walters was an employee or a contractor. This written advice, though not detailed, raised salient issues involved in the determination of the question. I note that in his application for review, the Applicant addressed the issue of whether Mr Walters was a worker by reference to his use of the tool set up by the ATO. It is clear that by the time the review decision was received, the Applicant was alive to the key issue i.e., whether Mr Walters was a worker or not.
The Applicant, being unfamiliar with his legal position, initially took appropriate, reasonable and timely steps to seek out and obtain legal advice on receipt of the review decision. The Applicant was aware of the time limit for filing the appeal but by the expiry of that time, he had not filed. From the advice the Applicant said he received in the first instance, it appears that it primarily addressed the WorkCover proceedings, although he said he told the firms of the review decision. Where he received advice about a possible appeal, it was that he should only do so if he was confident of success.
I am prepared to concede that the Christmas/New Year period is notoriously difficult in which to obtain advice, however, the fact is that the time for filing an appeal expired before Christmas. During that time, as well as making enquiries, the Applicant took a (brief) family holiday.
The Applicant took further steps in January 2014 by consulting another firm which gave him unfavourable written advice in respect of any appeal against the review decision. Although the Applicant had consulted four law firms since the receipt of the decision, he did not cease his search for legal advice at that point.
The Applicant approached his current firm on 5 February 2014. By then, the time frame had been exceeded by 24 business days and the Applicant was advised that the time frame had been exceeded.
It was submitted that this was the first time the Applicant had been offered a detailed assessment of his workers' compensation issues, his prospects of appealing the review decision and its likely outcome. It appears that until January 2014 the Applicant had been largely relying on telephone consultations with legal firms. However, in January 2014, the Applicant had a paid consultation with a firm and received advice that Mr Walters was a worker with a valid workers' compensation claim. From the history recounted, I consider that at all times the Applicant was alive to the issue of Mr Walters' status and, from receipt of the review decision, was aware of the appeal period and his right of appeal. He shopped for advice that was favourable to him both during the appeal period and after it had expired.
The new law firm might have conceptually regarded the statutory time frame as inviolable but there was a dissonance between their advice and their actions. This firm decided that Counsel's advice was required and embarked on a significant information gathering process before filing the appeal in the Commission. It was not until 30 May 2014, almost four months after the initial consultation, that the appeal was filed.
The Commission accepts that at some point Counsel's advice on the status of Mr Walters would be necessary. However, I am not persuaded that it was necessary to cause further delay in filing the appeal by awaiting the provision of that advice. Although the appeal form requires the grounds of appeal to be set out, they were clear from the Applicant's perspective viz., that Mr Walters was not a worker under the Act and as such, the injury sustained by him did not arise out of or in the course of the employment and employment was not a significant contributing factor. Great detail is not required in the appeal forms and they can be amended. The most prudent course, when a putative appellant is already outside the prescribed time limit, is to expeditiously file the appeal setting out basic grounds and then either amend the appeal form with further and better particulars if required or discontinue the appeal if it is without substantial merit. To act as the law firm did here is to place their client in even greater jeopardy than he was before he consulted them.
It is also to be noted that the law firm was able to file the Notice of Intention to Defend and Defence in the Magistrates Court on 4 April 2014, some eight weeks prior to the appeal being filed.
The Commission acknowledges that the Applicant may be prejudiced if compliance is not waived but also sees the merit in the Respondent's submission that the Applicant has an alternative forum in which to argue that Mr Walters was not a worker. The Commission also accepts that the Respondent would not be prejudiced were the Commission to waive compliance with the time limit.
Another relevant issue is the merit of the appeal. It is not the role of the Commission to determine whether an appellant will be successful or not in the appeal in a hearing about whether to waive compliance. At best, the Commission might be able to form a view based on the limited material available. I have not heard evidence from Mr Walters and have only heard evidence from Mr Moon. Mr Goldsworthy was unavailable for cross‑examination in person and as a result his affidavit was not admitted into evidence.
Mr Moon gave evidence to the Commission that Mr Walters told him he had his own business. However this statement was not included in his Affidavit filed as part of the application to extend time to appeal. Although Counsel for the Applicant submitted that too much ought not to be made of this difference because not everything is put into an Affidavit, the Respondent took the opposite view. Mr Moon gave evidence about the substantial work that was involved in the preparation of the appeal and the application. I consider that had Mr Walters made such a statement to Mr Moon then, given its importance, it would have been included in his affidavit. In my view, Mr Moon's credit is not assisted by this disparity.
The Commission accepts that deciding whether a person is a worker or a contractor often involves consideration of a complex matrix of facts. This case is no different, however, it is important to note that Mr Walters did not have a current ABN at the time he performed work for the Applicant and did not submit a tax invoice. The absence of these factors alone cast doubt about the correctness of the Applicant's contention that Mr Walters was engaged as a contractor. Even accepting there is a range of other indicia to be considered, and that limited evidence is before the Commission, I consider the Applicant does not have reasonable prospects of success.
Further, and although the question of whether Mr Walters was a worker is one that should be more properly heard in the Commission, it is a point raised in the Defence filed and arguably is a matter that can be heard and determined by the Magistrates Court.
The Applicant must show that special circumstances exist to persuade the Commission to waive the time period set out in s 550(1)(a) of the Act. The Commission accepts that it was appropriate for the Applicant to be properly advised of his legal position given the potentially significant adverse consequences confronting his business and his family. The factors that weigh against the case for special circumstances are not the insubstantial delay in filing the appeal and the reasons for that delay. Although there has been substantial activity on the part of the Applicant to secure legal advice, I have reached the conclusion that the delay is largely attributable to his shopping for favourable legal advice. That is amply demonstrated by his actions in January and February 2014, after the time for filing the appeal had expired. The legal firm ultimately retained added substantially to the delay. However, even were the Commission to decide not to penalise the Applicant because of the dilatory actions of his legal advisors, the Applicant is still left with the consequences of his own actions in continuing to seek out legal advice after the time period had expired. In addition, the Applicant does not have reasonable prospects for success on appeal.
For the foregoing reasons, I am not satisfied the Applicant has been able to establish special circumstances. Accordingly, the Commission declines to exercise its discretion to waive compliance with s 550(1)(a) of the Act.
The application is dismissed.
The Commission reserves all questions of costs.
Order accordingly.
0
0
0