Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) - [2014] QIRC 187

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187
PARTIES:	Lyndell Cecelia Tanna (as Executor of the Estate of Ernest Valentine Tanna) (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent)
CASE NO:	WC/2013/362
PROCEEDING:	Appeal against decision of Simon Blackwood (Workers' Compensation Regulator)
DELIVERED ON:	19 November 2014
HEARING DATE:	7 October 2014
MEMBER:	Industrial Commissioner Fisher
ORDERS:	1. The application is allowed. 2. The decision of the Regulator is set aside. 3. The Commission substitutes another decision to waive the time limit. 4. The matter is remitted to the Review Unit of the Regulator with directions to proceed to decide the application for review made to it on 4 July 2014.
CATCHWORDS:	WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Employer given leave to appear and be heard - Worker's diagnosis latent onset injury confirmed - Six month period for filing application expired - Worker deceased - Application instituted by executor of estate - Whether claimant's failure to lodge application within six month period due to reasonable cause - Appellant claims delay attributable to solicitor - Determined reasonable cause has been established - Application allowed and decision of Regulator set aside - Application remitted to Review Unit of the Regulator to proceed to decide the application for review.
CASES:	Workers' Compensation and Rehabilitation Act 2003, s 36A, s 131, s 141 Collin Charles Cook v Q-COMP (2008) 187 QGIG 220 Glen Trevor Churchill v Q-COMP (2009) 190 QGIG 247 Quinlivan v Portland Harbour Trust [1963] VR 25 Black v City of South Melbourne [1963] VR 34 Sophron v Nominal Defendant (1957) 96 CLR 469 Keir v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 123
APPEARANCES:	Mr T. Pincus, Counsel instructed by Slater & Gordon Lawyers for the Appellant. Mr P.B. O'Neill, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator). Ms J. McClymont, Counsel instructed by DibbsBarker Lawyers for Mount Isa Mines Limited.

Decision

Ernest Valentine Tanna signed an application for compensation on 2 April 2012. The Solicitor for Mr Tanna, Carl Hughes of Slater & Gordon Lawyers, lodged the application with Xtracare, the workers' compensation insurer for Xstrata, on 27 August 2012. The parties and the Employer, Mount Isa Mines Limited, which was given leave to appear and be heard in the proceedings, agreed Mr Tanna's diagnosis of a latent onset injury was confirmed on 18 January 2012. The six month time period for filing the application expired on 18 July 2012.

Simon Blackwood (Workers' Compensation Regulator) confirmed the decision of Xtracare not to waive the statutory time frame for lodging the application in accordance with ss 131 and 141 of the Workers' Compensation and Rehabilitation Act 2003.

Mr Tanna passed away on 1 November 2013 and his appeal against the Regulator's decision is instituted by his widow, Lyndell Cecelia Tanna, as executor of his estate.

The only issue in this appeal is whether the Appellant can show Mr Tanna's failure to lodge…

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.

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Details

AGLC: Tanna (as Executor of the Estate of Ernest Valentine Tanna) v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 187
Case: [2014] QIRC 187
Decision Date: 19 November 2014

CaseChat Overview and Summary

The matter before the Court involved an executor, Tanna, as the appellant, and the Workers' Compensation Regulator, Simon Blackwood, as the respondent. The dispute centred around a worker's compensation claim, specifically whether the time limit for lodging an application for review should be waived due to reasonable cause for delay. The worker, who had passed away, was diagnosed with a latent onset injury. However, the six-month period for filing the application had lapsed, prompting the executor to institute the application on behalf of the deceased estate.

The court was tasked with determining whether the claimant's failure to lodge the application within the stipulated six-month period was due to reasonable cause. The appellant argued that the delay was attributable to the solicitor, and the court had to decide if this constituted reasonable cause under the relevant legislation. The primary focus was on interpreting the concept of "reasonable cause" and its application to the facts of the case, particularly in light of the deceased worker's circumstances and the actions of the solicitor.

The Court examined the evidence presented, including the role and actions of the solicitor, and determined that reasonable cause had indeed been established. The delay was attributed to the solicitor's failure to act promptly, which the Court found to be a justifiable reason for the late filing. Consequently, the application was allowed, and the decision of the Regulator was set aside. The matter was remitted to the Review Unit of the Regulator to decide the application for review, as originally submitted on 4 July 2014.

The final orders of the Court were that the application be allowed, the decision of the Regulator be set aside, and the matter be remitted to the Review Unit of the Regulator with specific directions to proceed with the review application.

Orders

Orders of the court

1. The application is allowed.

2. The decision of the Regulator is set aside.

3. The Commission substitutes another decision to waive the time limit.

4. The matter is remitted to the Review Unit of the Regulator with directions to proceed to decide the application for review made to it on 4 July 2014.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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