Pryszlak v Workers' Compensation Regulator (No 2)

[2017] QSC 296

SUPREME COURT OF QUEENSLAND

CITATION:

Pryszlak v Workers’ Compensation Regulator (No 2) [2017] QSC 296

PARTIES:

JOHN WALTER PRYSZLAK
(Applicant)

v

WORKERS’ COMPENSATION REGULATOR

(Respondent)

FILE NO/S:

S 273/17

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

11 December 2017

DELIVERED AT:

Rockhampton

HEARING DATE:

On the papers – last submissions received 1 December 2017

JUDGE:

McMeekin J

ORDERS:

The decision of the respondent dated 22 March 2017, refusing an extension of time on the basis that special circumstances did not exist, be set aside.1.   

The application for an extension of time made by the applicant dated 28 February 2017 be referred to the respondent for further consideration. 2.   

The respondent pay the applicant’s costs of and incidental to the application. 3.   

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – GENERALLY – where the applicant was successful in his application for a Statutory Order of Review – where the parties agree on a number of orders – where applicant seeks further directions be made in accordance with s 47(3) of the Judicial Review Act 1991 (Qld) – where the respondent submits that s 47 of the Judicial Review Act 1991 (Qld) cannot provide support for the giving of such directions – where s 30(1)(d) of the Judicial Review Act 1991 (Qld) provides a potential source of power for the directions sought – whether the additional directions sought by the applicant should be made

Judicial Review Act 1991 (Qld) s 30(1)(d), s 47(3)

Pryszlak v Workers’ Compensation Regulator [2017] QSC 286, related

COUNSEL:

R Green for the applicant

C Hartigan for the respondent

SOLICITORS:

Grant and Simpson Lawyers for the applicant

Crown Law for the respondent

1. McMeekin J: Mr Pryszlak was successful in his application for a Statutory Order of Review. On 23 November 2017 I delivered reasons and ordered that unless submissions to the contrary were received within 7 days:

1.        The Order below is set aside; and

2.        The application for an extension of time be referred back to the respondent for further consideration.

1. Submissions were received.  The parties agree on the following orders:

   1.          The decision of the respondent dated 22 March 2017, refusing an extension of time on the basis that special circumstances did not exist, be set aside;

2.          The application for an extension of time made by the applicant dated 28 February 2017 be referred to the respondent for further consideration; and

3.          The respondent pay the applicant’s costs of and incidental to the application.

1. The applicant seeks, and the respondent opposes, that a further direction be given as follows:

It is further directed that in consideration for an extension by the applicant, the respondent, in determining whether or not special circumstances exist, give consideration to the following:

(a)   The applicant had no prior experience in workers’ compensation claims;

(b)   The applicant was unsophisticated with limited education, and limited reading and writing skills;

(c)   The applicant failed to appreciate how limited was the evidence considered by the original decision maker. He assumed that the authority that he gave to Q-Comp to obtain his medical records would result in all relevant records being obtained;

(d)   The assumption adopted by the applicant as set out in (c) above was not unreasonable having regard to the matter set forth in paragraphs (a) and (b);

(e)   Because of that assumption, the Applicant assumed that Q-Comp was aware of the facts that those records would prove beyond any doubt i.e. the nature of the foreign body that had caused his injuries;

(f)   In the circumstances his failure to seek advice or otherwise act either within the three month period, or at all until he fortuitously received legal advice, was understandable;

(g)   The applicant had a compelling case that the original decision was wrong;

(h)   The decision was potentially prejudicial to the applicant depriving him of a right to claim workers’ compensation and statutory benefits and potentially a common law claim;

(i)   There was no prejudice to the employer or WorkCover in the sense of any relevant evidence having been lost;

(j)  The explanation for not pursuing his rights lay in his ignorance of both the process (that an independent tribunal may reach a different decision) and of the evidence originally considered;

(k)   It was not a case of a lack of interest in vindicating his rights, i.e. of deliberately standing by, with knowledge of all relevant facts, and doing nothing.

1. The directions the applicant seeks derive from my observations at paragraph [67] of my reasons.[1] The direction are said to be necessary to “assist the decision maker consistent with s 47(3) of the Judicial Review Act 1991 (Qld)” (“JRA”).

   [1]Pryszlak v Workers’ Compensation Regulator [2017] QSC 286 at [67].

1. The respondent points out that s 47 JRA cannot provide support for the giving of such directions. The section falls under Part 5 of the JRA which deals with the courts’ powers with respect to prerogative orders and injunctions. The application here dealt with a statutory order of review in relation to a decision made by WorkCover.

1. Section 30(1)(d) of the JRA does provide a potential source of power:

Powers of the court in relation to applications for order of review

(1)      On an application for a statutory order of review in relation to a decision, the court may make all or any of the following orders—

(d)      an order directing any of the parties to do, or to refrain from doing, anything that the court considers necessary to do justice between the parties.

1. I do not think it appropriate to give the direction sought. My listing of the matters that I thought may be relevant to the issue was intended not to define the limits of those matters or to conclude that they were, of necessity, relevant. Rather I regarded those matters as potentially relevant as I understood the material. It is for the parties to place what evidence they wish before the decision maker (which may change things) and to make such submissions they think appropriate. It will then be for the decision maker to determine the matters relevant to the issue. Whilst the power provided to the Courts is a broad one, the power does not authorise the Court to make such directions that might infect the decision maker below to arrive a particular result.

1. This of course does not prevent the applicant putting forward each of the matters mentioned in my reasons. However, it would be inappropriate for those factors to form part of the orders of the Court. I am not prepared to make the directions sought by the applicant.

1. I order that:

1.          The decision of respondent dated 22 March 2017, refusing an extension of time on the basis that special circumstances did not exist, be set aside;

2.          The application for an extension of time made by the applicant dated 28 February 2017 be referred to the respondent for further consideration; and

3.          The respondent pay the applicant’s costs of and incidental to the application.