Deng v Q-Comp [2011] QSC 191

 

Issues: whether the JR application should be dismissed pursuant to s 12 of the Judicial Review Act 1991 (Qld) because adequate provision is made by a law under which the applicant is entitled to seek a review, in circumstances where it is contended:

 

  • there is public interest in having Q-Comp properly carry out the functions entrusted to it under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”), s 545;
  • it is contrary to the public interest to have Q-Comp’s statutory functions transferred to the Industrial Relations Commission; &
  • there is public interest in Q-Comp monitoring self insurers to ensure compliance with the WCRA

 

Facts and history: Mr Deng lodged an Application for Compensation on 31 January 2007 with Australian Meat Holdings (“AMH”) a self insurer under the WCRA for a back injury alleged on 18 December 2006. AMH rejected the injury on 15 March 2007 and the letter of rejection contained advice to his right of review with QCOMP. Mr Deng did not exercise the right until 6 November 2009 when he engaged solicitors. QCOMP rejected the review on the basis it was out of time by close to 3 years and that the “special circumstances” criteria had not been met. This decision was appealed to the Industrial Magistrate who ordered the matter be remitted to QCOMP with the following orders:

 

(a) Look at all facts and circumstances relating to his workers compensation claim

 

(b) Receive and consider any additional information

 

(c) Make a determination as provided by s 545 of the Act as to whether Mr Deng should or should not be classed as a person entitled to receive workers compensation

 

QCOMP then appealed to the Industrial Court and President Hall held:

 

“[10] In my view it is tolerably clear that the threshold issue which arises when Q-Comp is confronted with an Application for review which is out of time is whether there is a proper basis for waiving or excusing the non compliance. I can understand that the apparent strength of an applicant’s underlying case for waiving or excusing the non compliance is not irrelevant to that assessment. To excuse non compliance to review an Application for Review which is doomed to failure would be wrong. An Application for Review raising issues of moment (if one puts aside the factual uncertainties) requires serious consideration. However, the serious consideration is of the issue whether a non compliant Application for Review should be acted upon. The critical matters will be the circumstances, extent and explanation for the non compliance. The underlying merit of the Application for Compensation cannot provide the ‘special circumstance’ to justify pressing on, notwithstanding the non-compliance in seeking a review. Section 542 must be read as a whole. A potential application for a review seeking an extension of time prior to the expiry of the three months pursuant to the express terms of s 542(3) must show that ‘special circumstances’ exist to warrant the extension. It would be wrong to rely on construction of the Act to grant a hearing on broader grounds to an applicant who has failed to comply with the three month time limit at s 542(1). There is the additional consideration that the approach taken at first instance, potentially burdens Q-Comp with determining whether a review which would succeed, should not be conducted for non compliance. To find such a legislative outcome in the absence of express words is a step too far. The ‘special circumstance’ referred to in the authorities pertains to the non compliance in respect of which waiver or excusal is sought; not to whether the fruits if victory should be snatched from the applicant’s grasp.

 

[11] In my view, although the Application for Review should be remitted to Q-Comp to consider whether there are ‘special circumstances’ to warrant excusal for the failure to comply with the statutory time limit, the accompanying Directions imposed by the Industrial Magistrate should be set aside. Alternative Directions should not be imposed. Fundamentally the discretion lies with Q-Comp. The discretion lies neither with the Industrial Magistrate nor with this Court, and the exercise of the discretion is in its infancy.”

 

President confirmed the Order of the Industrial Magistrate setting aside Q-Comp’s decision and remitting to Q-Comp the question of whether the Application for Review should be dealt with notwithstanding that the Application failed to comply with s 542(1) of the WCRA. The directions however were set aside.

 

QCOMP subsequently considered the issue of “special circumstances” including Mr Deng’s Sudanese ethnicity and poor grasp of English, however, still rejected the Application for Review.

 

In response Mr Deng lodged both the JR application and an appeal to the Queensland Industrial Relations Commission pursuant to the right of appeal provided by s 549 of WCRA.

 

Ann Lyons J

 

[36] In particular, reliance is placed on the decision in Nelson v Q-Comp[2] where the applicant had filed an application for a statutory order of review pursuant to the JR Act. Q-Comp had then filed an application seeking an order that the application be dismissed under s 48(1) of the JR Act.

 

[37] The applicant in Nelson had relied on a breach of the rules of natural justice, in particular, that there had been a breach of natural justice when Q-Comp had proceeded to make a decision on 27 April 2004 before Mr Nelson had obtained a report from a Dr Robinson, whose report had been foreshadowed to Q-Comp prior to the making of the decision. Q-Comp had not informed the applicant or his solicitors that it intended to make a decision before the report was obtained. In that decision Justice Mullins discussed the public interest submissions as follows:

 

“[29] The primary submission made by Mr Rangiah of counsel on behalf of the applicant was that procedural fairness required the applicant to be given sufficient time to gather evidence and provide submissions. As part of that submission, the applicant relied on the course of communications between his solicitor and the respondent that preceded the decision and submitted that the conduct of the respondent in failing to notify the applicant’s solicitor that it proposed to proceed to make the decision after 26 April 2004 meant that the applicant lacked the opportunity to put further evidence or to make oral or written submissions before the decision was made.

 

[30] It was submitted that there were a number of public interest factors that supported the application for statutory order of review being permitted to proceed, rather than the applicant being forced to pursue his appeal to the Industrial Magistrates Court. These were described as the public interest in having a statutory decision maker properly carry out the functions entrusted to it by the Legislature; the public interest in not having the Industrial Magistrates Court burdened by reason of the failure of the respondent to carry out its function properly; and the public interest in determining whether the respondent did in fact err, so that any such error could be avoided in the future.

 

[31] It was submitted that if the appeal to the Industrial Magistrate proceeded, the Industrial Magistrate would determine the question that was decided by the respondent rather than determining whether the respondent was required to give procedural fairness to the applicant and the content of that obligation. It was submitted that if any error on the part of the respondent in relation to procedural fairness was not corrected, it was likely to occur again.”

 

[38] Mullins J concluded:

 

“[45] The respondent is an administrative decision maker and its processes are quite different to that of the next stage of review provided for under the WQA which is the appeal to the Industrial Magistrates Court. There is a distinct public interest in ensuring that the decision making entrusted to the respondent fulfils its object. In the circumstances in which the respondent made the decision in this matter, weight should be given to the public interest in ascertaining whether the respondent did err in failing to provide procedural fairness to the applicant before making the decision. The appeal to the Industrial Magistrates Court would not be able to consider that matter.

 

[46] I am not persuaded that the respondent has made out any of the grounds under s 48(1) for obtaining summary dismissal of the application for statutory order of review. The failure of the respondent to notify the applicant’s solicitor of the intention to proceed to make the decision, without waiting for the applicant’s further medico-legal report, in the light of the communications which preceded the making of the decision, together with the public interest in ensuring that any such procedural error on the part of the respondent be identified, justify allowing the application for statutory order of review to proceed. That public interest aspect allows the approach taken in Turner v Valuers’ Registration Committee of Queensland to be distinguished. I also do not consider that it is appropriate at this stage to exercise the jurisdiction under s 12 of the JRA to dismiss the application for statutory order of review, because the applicant has also filed a notice of appeal in the Industrial Magistrates Court. These matters which I have identified also are sufficient at this stage to conclude that the interests of justice does not require the application for statutory order of review to be dismissed pursuant to s 13 of the JRA.

 

[39] Accordingly, her Honour considered that a number of public interest factors were important in deciding that she should determine the application for judicial review and sought to distinguish the earlier decision of Turner v Valuers’ Registration Committee of Queensland[3]. In Turner Holmes J held that the right of appeal conferred by s 61(1)(c) of the Valuer’ Registration Act 1992 involved a full appeal on the merits in the course of which the District Court was empowered to examine the disciplinary committee’s decision in its entirety and accordingly within the meaning of s 12 of the JR Act adequate provision had already been made for the review of the decision by another court. Holmes J had followed the approach of Thomas J in Stubberfield v Webster[4] where it was held that “as a general rule judicial review should not be seen as a substitute for the appellate process in the civil courts.”

 

 

[41] Section 12 of the JR Act provides:

 

“12 When application for statutory order of review may be dismissed

 

Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22 or 43 that was made to the court in relation to a reviewable matter because—

 

(a) the applicant has sought a review of the matter by the court or another court, otherwise than under this Act; or

 

(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the court or another court.”

 

[42] Essentially the question for this Court is whether adequate provision is made by a law under which Mr Deng is entitled to seek a review of the matter. Counsel for Mr Deng essentially argues that adequate provision is not made and that there is a public interest in the matter being determined in this Court…

 

[43] I consider however that there is adequate provision in the WCR Act and the IR Act under which Mr Deng is entitled to seek a review of the decision and that Mr Deng has in fact availed himself of those rights and has lodged an appeal to the Industrial Relations Commission. In my view the requirements of both s 12 (a) and (b) of the JR Act have been satisfied.

 

 

[45] It is significant in my view that the WCR Act and the IR Act there is a comprehensive scheme of reviews and appeals and Mr Deng’s case is an example of how that regime in fact operates in practice. He has successfully availed himself of his review rights to date and his current appeal is listed for a mention next week in the Industrial Relations Commission. The IR Act also provides at s 320 that the Commission is not bound by technicalities, legal forms or rules of evidence and may inform itself on a matter it considers appropriate in the exercise of its jurisdiction. Section 267 specifically provides that the original and appellate jurisdiction conferred on the Commission by an Act is “exclusive of the jurisdiction of the Supreme Court or another court of Tribunal unless otherwise prescribed under this Act”.

 

 

[49] Furthermore even if the judicial review application is successful the matter will still have to go back to Q-Comp in any event. I am not satisfied therefore that there will necessarily be a more timely determination if the matter proceeds by way of judicial review. It was also clear in Nelson that if the matter was not determined before her Honour it was likely that a 3 day hearing would follow in the Industrial Magistrates Court involving the calling of medical witnesses. That is not the position here. I am not satisfied that in the circumstances of this case there is a greater efficiency in having the matter determined in this Court.

 

[50] The next issue I must consider is whether there are substantial public interest reasons why the application for judicial review should proceed to a determination on the merits. Having considered the material currently before me I am not satisfied that significant public interest issues arise in this case. In Nelson one of the issues before her Honour was a question of the construction of the scheme established under the WorkCover Queensland Act 1996 (WQA). Senior Counsel for Q-Comp in that case had in fact submitted that as a matter of construction of the scheme under part 2 of chapter 9 of WQA “there was no breach of the rules of natural justice in the making of the decision by the respondent without waiting for the further medical evidence (or submissions) foreshadowed by the appellant’s solicitors”. It was submitted to her Honour that if the error in relation to “procedural fairness was not corrected, it was likely to occur again.” It is clear that it was on that “public interest aspect” that Mullins J considered that the approach in Turner could be distinguished.

 

[51] It would seem to me that there is not that particular public interest aspect in the present case. I cannot discern in the public interest arguments put forward by Counsel for Mr Deng a particular systemic failure. In Nelson there was a very clear systemic failure as it was clear Q-Comp considered that a review officer could determine a matter using the medical evidence on the file whilst actually knowing that further medical evidence was forthcoming. Furthermore in the present case one of the public interest arguments is a submission that it is contrary to the public interest to have Q-Comp’s statutory functions transferred to the Industrial Relations Commission. The difficulty with that argument is that such a consequence is indeed clearly provided for in the WCR Act. An appeal to the Commission in the current circumstances is the clear intent of the legislation. That is the statutory scheme.

 

[52] Ultimately I consider that there is a comprehensive and appropriate review process laid down in the WCR Act and the IR Act. As Holmes J held in Turner “I conclude that there is adequate provision for review of the matter by another court.” In particular I agree with the remarks of Thomas J in Stubberfield v Webster[6] that with respect to judicial review applications “it is therefore important that it be clearly understood that this remedy is not regarded as a substitute of the appellate system within the ordinary judicial process”.

 

[53] Whilst Counsel for Q-Comp has raised the question of whether there is an abuse of process to have an application on foot in this Court whilst at the same time lodging an appeal in the Industrial Relations Commission I accept that because of the time limits involved the appeal to the Commission had to be made before this application could be heard and that s 11 of the JR Act is relevant and would allow for dismissal of the ‘other review’. The issue however was not fully argued before me and I do not consider it necessary to decide that question given the order I propose.

 

[54] The application for a statutory order of review by Mr Deng is therefore dismissed.

 

Brisbane Barrister – David Cormack

 

 

 

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