Wang v Workers' Compensation Regulator

Case [2025] ICQ 20

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Wang v Workers’ Compensation Regulator [2025] ICQ 020

PARTIES:

YUEHAI WANG

(appellant)
v
WORKERS’ COMPENSATION REGULATOR

(respondent)

FILE NOs:

C/2023/25

C/2023/26

PROCEEDING:

Application

DELIVERED ON:

23 September 2025

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2024

MEMBER:

Davis J, President

ORDERS:

1.    The application to adduce evidence on appeal which was not before the Commission is dismissed.

2.    The Registrar shall allocate a date for hearing of the appeals.

3.    Costs reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – ADMISSION OF FURTHER EVIDENCE – GENERAL – where the appellant claimed to be injured when struck by a car walking home from his place of employment – where the Workers’ Compensation and Rehabilitation Act 2003 (Workers’ Compensation Act) provides that a claim for workers’ compensation must be made within six months of the date of entitlement to compensation – where the appellant lodged his application late – where the Workers’ Compensation Act allowed the insurer to waive the time limit – where the Workers’ Compensation Act provided that the entitlement to compensation runs from the date 20 days before the claim was made – where the Workers’ Compensation Act provides that the insurer may extend the period of cover – where the insurer waived the time limit – where the insurer did not extend the period of cover – where the appellant sought review of the insurer’s decision not to extend the period of cover – where the respondent set aside the insurer’s determination extending time for the claim – where the respondent decided that the appellant did not have a valid and enforceable claim – where the appellant appealed to the Queensland Industrial Relations Commission – where the appellant sought to adduce fresh evidence – where the Commission refused that application – where the Commission dismissed the appeal – where the appellant appealed to the Industrial Court of Queensland – where the appellant sought to adduce further evidence on the appeal – where the appellant sought to take other steps before the hearing of the appeal – whether the further evidence ought be admitted on appeal – whether further steps need to be taken before the hearing of the appeal

Industrial Relations Act 2016 (Qld), Chapter 11
Industrial Relations (Tribunals) Rules 2011 (Qld), r 61

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 7, s 32, s 35, s 36A, s 131, s 544, s 548, s 549, s 561

Carlton v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 029, cited
Church v Simon Blackwood (Workers’ Compensation Regulator) [2015] ICQ 031, considered
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22, cited
Kim v Workers’ Compensation Regulator [2019] ICQ 14, cited
Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49, followed
Local Government Association of Queensland Ltd v Queensland Services Industrial Union of Employees and Ors [2017] ICQ 002, cited
R v Katsidis; ex parte Attorney-General (Qld)

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AGLC
Wang v Workers' Compensation Regulator [2025] ICQ 20
Case
[2025] ICQ 20
Decision Date

CaseChat Overview and Summary

The case of Wang v Workers' Compensation Regulator involved the appellant, Mr Wang, who sought to appeal a decision made by the Workers' Compensation Regulator (the Regulator) in relation to a workers' compensation claim. Mr Wang had lodged his claim late, beyond the statutory six-month period stipulated by the Workers’ Compensation and Rehabilitation Act 2003 (the Act). The Act allows the insurer to waive the time limit, but it did not extend the period of cover in this case. Mr Wang's initial application for review of the insurer’s decision not to extend the period of cover was dismissed by the Queensland Industrial Relations Commission, which decision was subsequently set aside by the Regulator. Mr Wang appealed this decision to the Industrial Court of Queensland, seeking to introduce new evidence and take additional steps before the hearing.

The primary legal issues before the court were whether the appellant should be permitted to introduce new evidence on appeal and whether further steps needed to be taken before the hearing of the appeal. The court examined the statutory framework governing appeals under the Act and noted the discretionary power of the court to admit additional evidence as provided by section 561(3) of the Act. The court further delineated between "fresh evidence" and "new evidence," emphasizing that the admission of such evidence is contingent upon the statutory purpose and the interests of justice.

In its reasoning, the court found that Mr Wang had not provided specific details on how WorkCover failed to comply with section 544 of the Act, which mandates that the Regulator may require the decision-maker to provide relevant information. The court noted that Mr Wang had already established certain facts, such as WorkCover accepting his claim and his employer being notified, through cross-examination of Ms Cavanagh, a WorkCover representative. The court also observed that the recording of a conversation between Mr Wang and a WorkCover officer, Sophia Dunnell, was available to Mr Wang before the hearing before the Deputy President, thereby not qualifying as fresh evidence. Consequently, the court dismissed the application to adduce evidence on appeal which was not before the Commission.

The court further ordered that the Registrar should allocate a date for the hearing of the appeals and reserved costs. This decision underscores the importance of adhering to statutory provisions when appealing decisions under the Workers’ Compensation and Rehabilitation Act, and highlights the limited scope for admitting new evidence on appeal.

Orders

Orders of the court

1. The application to adduce evidence on appeal which was not before the Commission is dismissed.

2. The Registrar shall allocate a date for hearing of the appeals.

3. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

As to the claims based on Mr Wang’s mental state, the Deputy President observed that there was no medical evidence to support those claims[38] and Mr Wang was in a sufficient state to give instructions to Maurice Blackburn.[39] If Mr Wang did not know until April 2021 how to obtain a Work Capacity Certificate and make a WorkCover claim that was, the Deputy President held, a mistake of law on Mr Wang’s behalf and ignorance of the law is not “reasonable cause”.[40][38]At [83].[39]At [84]-[87].[40]At [95].Principles for admitting further evidence As explained in Turay v Workers’ Compensation Regulator,[41] an appeal from the Commission about a decision made under the WCR Act lies pursuant to Chapter 13 of the WCR Act, not Chapter 11 of the Industrial Relations Act 2016,[42] except to the extent that provisions of the IR Act are incorporated by s 561(2) of the WCR Act.[41][2023] ICQ 13.[42]Workers’ Compensation Regulator v Glass (2020) 4 QR 693. Section 561 of the WCR Act provides:“561 Appeal to industrial court(1)A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.(2)The Industrial Relations Act 2016 applies to the appeal.(3)The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.(4)The court’s decision is final.” (emphasis added) It is unnecessary to consider what powers are bestowed upon the Court through s 561(2) on appeals under the WCR Act as s 561(3) clearly gives a discretion to receive additional evidence on appeal. The common law drew a distinction between “fresh evidence” and “new evidence”. Fresh evidence is that which was either not in existence at the time of the trial or, if it was in existence, was not reasonably discoverable by the party seeking to lead it on appeal.[43] A relatively broad discretion arises for the admission of fresh evidence. [43]Lawless v The Queen (1979) 142 CLR 659 at 674-676; and Ratten v The Queen (1974) 131 CLR 510 at 516-517. “New evidence” is evidence which does not comply with the two prerequisites to qualify as “fresh evidence” but where its admission is necessary in the interests of justice, usually because the evidence is likely to change the result. In such a case, the evidence may be admitted.[44][44]R v Young (No 2) [1969] Qd R 566; and see generally, the judgment of Jerrard JA in R v Katsidis; ex parte Attorney-General (Qld) [2005] QCA 229 at [10]-[19]. As already observed, the discretion here is a statutory one by force of s 561(3). The width of the discretion is determined not by common law principles but upon the proper construction of the provision and it being exercised consistently with its statutory purpose.[45] [45]Shrimpton v The Commonwealth (1945) 69 CLR 613 at 629-630; and Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [69]-[70] per Kirby and Callinan JJ in dissent on other points.

Decision

Reasons for decision

Mr Wang complains that WorkCover failed to comply with s 544 of the WCR Act and wishes to explore that in evidence on the appeal. Section 544 provides:“544 Decision-maker must give information to Regulator(1)The Regulator may, by written notice, require the decision-maker to give the Regulator—(a) within 5 business days after receiving the notice—(i)all relevant information and documents in relation to the application that is in the decision-maker’s possession; or(ii)the information asked for by the Regulator; or(iii)if the Regulator believes on reasonable grounds that the reasons given by the decision-maker for the decision-maker’s decision have not addressed the matters prescribed under a regulation for section 540(4)—reasons for the decision that address those matters; or(b) within the period stated in the notice, any further information the Regulator needs to decide the matter.(2)The notice may state the way the information, documents and reasons must be given.(3)The decision-maker must comply with the notice.(4)The decision-maker must pay the cost of obtaining the further information.” There are no particulars provided by Mr Wang as to how Workcover has failed to comply with its obligations under s 544. As already observed, Ms Cavanagh was called and cross-examined before me on 30 July 2024. Mr Wang established, through Ms Cavanagh, that WorkCover accepted Mr Wang’s claim and that his employer was notified accordingly.[52] That fact is not contentious. The Regulator set aside that acceptance and it is the Regulator’s decision which is the subject of the present appeal.[52]Transcript, 30 July 2024, T1-14; and Exhibit 12. Mr Wang then established that his employer paid the claim excess to WorkCover.[53] The payment of the excess is irrelevant to the current appeal. The payment was a step that was taken in reliance upon WorkCover’s decision before that decision was reversed by the Regulator.[53]T1-15 to T1-18; and Exhibit 14. Mr Wang established that a WorkCover officer, Sophia Dunnell, telephoned him on 5 May 2021.[54] Ms Cavanagh was aware of a note of that conversation. The note records Mr Wang’s assertions that the injury occurred while he was travelling from work and explained that the delay in lodging the claim was as a result of bad advice from lawyers. Ms Cavanagh said that she had a full recording of the telephone conversation and that the note did not reflect all of it. She said that the recording was disclosed to Mr Wang on 23 March 2022 and also disclosed to the Regulator. At best, the conversation evidences a statement by Mr Wang which is broadly consistent with his case. The recording was available to him before the hearing before the Deputy President.[54]The file note made by Ms Dunnell is Exhibit 16. Mr Wang then established in cross-examination of Ms Cavanagh that WorkCover received a request for attendance notice, issued on 19 January 2024.[55] Ms Cavanagh said that to the best of her knowledge WorkCover had complied with the attendance notice. [55]Exhibit 17.

Ratio Decidendi

Legal Principle Established

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