Turay v Workers' Compensation Regulator

Case [2023] ICQ 13


INDUSTRIAL COURT OF QUEENSLAND

CITATION: PARTIES:

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Turay v Workers’ Compensation Regulator [2023] ICQ 13

SUSAN BALLU TURAY

(appellant)

v

WORKERS’ COMPENSATION REGULATOR

(respondent) C/2023/4

Appeal

16 June 2023

HEARING DATE:    24 May 2023

MEMBER:                Davis J, President

ORDER:  Appeal dismissed

CATCHWORDS:      APPEAL AND NEW TRIAL – RIGHT OF APPEAL –

SCOPE AND EFFECT OF APPEAL – where WorkCover made a decision adverse to the appellant – where the Workers’ Compensation and Rehabilitation Act 2003 (WCR Act) provided for a right of review of that decision to the respondent

–    where the respondent affirmed the decision – where the WCR Act provided for an appeal to the Queensland Industrial Relations Commission (QIRC) from the decision of the respondent – where the appellant appealed to the QIRC – where the QIRC dismissed her appeal – where the appellant appealed to the Industrial Court of Queensland – where the WCR Act provided for the appeal to be “by way of rehearing”

– where the Industrial Relations Act 2016 (IR Act) provided for appeals from the QIRC to the Industrial Court of Queensland – where the IR Act provided for appeals on grounds limited to errors of law or excess or want of jurisdiction – whether an appeal from the QIRC to the Industrial Court of Queensland against a decision made under the WCR Act is limited to errors of law or excess or want of jurisdiction

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – INTERFERENCE WITH JUDGE’S

FINDINGS OF FACT – where the appellant lodged a claim for workers’ compensation under the WCR Act – where the application was lodged out of time – where WorkCover had a discretion to waive the time limit – where the discretion arose if the appellant had reasonable cause for not lodging the application within time – where WorkCover did not waive the breach of the time limit – where the appellant sought review of the decision of the respondent – where the respondent upheld

the decision of WorkCover – where the appellant appealed the respondent’s decision to the QIRC – where the QIRC heard the matter de novo – where the QIRC dismissed the appellant’s appeal – where the appellant appealed to the Industrial Court of Queensland – where the appeal was one by way of rehearing

–   whether the findings of fact by the QIRC were open and properly made – whether the inferences drawn by the QIRC were open and properly drawn – whether the discretion to find that there was no reasonable cause was infected by error

Acts Interpretation Act 1954, s 36

Electrical Safety and Other Legislation Amendment Act 2011 Electrical Safety and Other Legislation Amendment Bill 2011 Fair Work Act 2009 (Cth)

Industrial Relations Act 1999, s 332, s 341, s 345, s 346,

s 347, s 348, s 349

Industrial Relations Act 2016, s 3, s 7, s 407, s 429, s 503,

s 554, s…

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Turay v Workers' Compensation Regulator [2023] ICQ 13
Case
[2023] ICQ 13
Decision Date

CaseChat Overview and Summary

Turay v Workers' Compensation Regulator involved an appeal against a decision made by the Workers' Compensation Regulator (WorkCover) which was affirmed by the Workers' Compensation and Rehabilitation Regulator. The appellant had originally lodged a claim for workers’ compensation under the Workers' Compensation and Rehabilitation Act 2003, but the application was lodged out of time. The Regulator did not waive the breach of the time limit and the appellant's review application was dismissed. The appellant then appealed to the Queensland Industrial Relations Commission (QIRC), which dismissed the appeal. The Industrial Court of Queensland was the final appellate forum.

The central legal issues in this case revolved around the scope and effect of an appeal from the QIRC to the Industrial Court of Queensland, particularly whether such an appeal against a decision made under the Workers' Compensation and Rehabilitation Act 2003 is limited to errors of law or excess or want of jurisdiction. Another issue was whether the findings of fact by the QIRC were open and properly made, whether the inferences drawn by the QIRC were open and properly drawn, and whether the discretion to find that there was no reasonable cause was infected by error.

The court found that the appeal from the QIRC to the Industrial Court of Queensland against a decision made under the Workers' Compensation and Rehabilitation Act 2003 was not limited to errors of law or excess or want of jurisdiction. The court held that the findings of fact by the QIRC were open and properly made, the inferences drawn by the QIRC were open and properly drawn, and there was no error in the exercise of the discretion to find that there was no reasonable cause. The appeal was dismissed.

The final orders were that the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 559 of the WCR Act65 provided: “559 Decision of appeal bodyThe appeal body must give—(a)the appeal body’s decision in a hearing in open court; and(b)a written copy of the decision to each party.” Mr Hetmanska submitted that as there had been no pronouncement of the judgment in open court, time had not begun to run. That, he said, was the effect of s 559 of the WCR Act. However, the registrar had purported to issue the judgment pursuant to s 346 of the 1999 IR Act. QCOMP submitted that time had run. In the end, Hall P did not decide the issue, but the case explains why legislative clarification was required. The Electrical Safety Bill was amended after it was read in the House a second time. Clause 66 was altered so as to bring s 561 of the WCR Act to its present form as appears at paragraph [31] of these reasons, apart from the present reference to the 2016 IR Act, not the 1999 IR Act. The effect of the amendment to clause 66 was that the limitations of grounds to errors of law or jurisdiction was removed, but the adoption of the 1999 IR Act provisions remained. The Explanatory Memorandum to the amendment to the Electrical Safety Bill stated:“Clause 14 omits part of clause 66 of the Bill. Clause 66 would have amended section 561 of the Workers’ Compensation and Rehabilitation Act 2003 with respect to appeals to the industrial court. The amendment to clause 561 would have limited the grounds upon which an appeal to the Industrial Court of Queensland could be made, namely error of law, or excess, or want, of jurisdiction. To remove doubt, the provision of clause 66 that provides that the Industrial Relations Act 1999 applies to the appeal is not being amended. This will have the effect that the appeal period will be the period within 21 days after the decision being appealed is given.” (emphasis added) As it was in 2006. The reference in the Explanatory Memorandum, specifically to the appeal period, is understandable given that the genesis of clause 66 was Hetmanska v Q-COMP and that decision concerned application of the appeal period. Subject to provisions in statutory interpretation legislation,66 the construction exercise involves the objective determination of the intention of the legislature expressed through the actual words used in the text of the relevant provision,67 but having regard to context and purpose.68 The principles were recently authoritatively restated in R v A269 in the following terms:“32The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.33Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.34This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.35The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which

Ratio Decidendi

Legal Principle Established

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