Further to the earlier post and the decision of McMeekin J in Pryszlak v Workers’ Compensation Regulator  QSC 286 the question of “special circumstances” in s.542(3) of the Workers’ Compensation and Rehabilitation Act 2003 (the Act) was appealed.
Sofronoff P delivered the judgment. Fraser and Philippides JJA concurred.
 Section 542, with which this appeal is concerned, is the last of these instances.
 It can be seen that occasions for the exercise a discretion, to which the existence of “special circumstances” may be relevant, vary from the conduct of court proceedings to a consideration of late applications for compensation or for review of decisions. In only one of these instances, namely in s 131(4), is the scope of the expression expressly limited. In that case, a specialist medical tribunal will decide whether “special circumstances of a medical nature” exist.
 In all other instances, including s 542, the scope of the expression is not expressly confined and, accordingly, whether any circumstance that arises for consideration is “special” or not will depend entirely upon the purpose for which the discretion is to be exercised.
 Section 5 of the Act describes the scheme of the Act in terms which s 4 states are the main objects of the Act. Section 5(2) provides that some of the “main provisions of the scheme” are those that provide for compensation.
 Section 5(4) states that it is intended that the scheme should “ensure that injured workers are treated fairly by insurers”. The term “fairly” will mean different things in different contexts but, in the context of an administrative decision maker who is obliged to perform a statutory duty to consider an application, s 5(4) connotes that the decision will be made fairly according to law. Like any provision for an extension of time, the purpose of s 542 is to strike a balance between an applicant’s entitlement and the benefits of finality. The power to extend time exists to prevent injustice in a particular case that might be caused by the enforcement of a general time limit. It is an instance of the general policy of the law to ensure that mandatory statutory provisions are not applied blindly so as to cause injustice in an individual case.
 Consequently, the meaning of “special circumstances” will be informed by its purpose but also by other provisions that depend upon it. In the case of s 542 the large factor will always be the explanation for the failure to make the application within time. However, the merits of the claim for compensation are also obviously relevant for if a claim has little merit there can hardly be any likely injustice in refusing an extension of time. On the other hand, while an application for an extension of time is not the occasion for a merits review, if an evidently meritorious claim exists, then that will bear upon the question whether other relevant circumstances taken together with the merits would constitute special circumstances. It is not possible nor desirable, by some word formula, to do that which the legislature has declined to do in s 542, but which it did in s 131, namely to define the scope of the expression.
 In this case the respondent’s application did raise circumstances that were capable of being regarded as special.
 Prominent among these is that he was denied procedural fairness by not being shown his employer’s letter, a letter which not only maligned his character but which also cast unjustified doubt about whether he had been injured at all. As appears from paragraph  of this judgment, Mr Nucifora was led to believe the injury was sustained on a date that was incorrect. The history given by the respondent, confirmed in all respects by the medical records, is consistent with his having suffered a real injury and that it was sustained at work on a date in early April.
 The failure to give the respondent an opportunity to respond to Mr Nucifora’s allegations worked a real injustice in this case because it resulted in the decision maker failing to appreciate what she would have appreciated if she had given the respondent that opportunity. She would have been informed that both Mr Nucifora’s theory that the injury never happened and his assertion that the injury had not been reported were incorrect. She would have been informed that she did not have the relevant medical records that the respondent had authorised WorkCover to obtain. Those are matters that, it is evident, were material to the decision whether there were special circumstances.
 The truth of the matter was apparent from Mr Smith’s submissions and the material that he had assembled and had given to the Regulator. A consideration of the evidence that he submitted showed that it is more probable than not that the respondent had suffered an injury, that he had sustained this injury at work, that Mr Nucifora’s deductions to the contrary were misconceived, that the respondent had reported his injury to his superiors and that any assertion to the contrary was not correct. The fact of the injury had actually been established beyond any doubt, to the point that the wire lodged in his hand, which Mr Nucifora told WorkCover he doubted was even there, could be inspected in a photograph. None of this had been considered by the decision maker because of WorkCover’s failure to afford the respondent procedural fairness.
 A failure to afford procedural fairness means that the decision sought to be reviewed is not a decision at all. That the decision maker, whose decision is the subject of the application for an extension of time, has not actually performed the statutory duty imposed upon her is, undoubtedly, a special circumstance within the meaning of s 542 because one of the objects of the Act is that workers should be treated fairly. That would be so even if s 545(1A)(c) was not in the Act. However ss 545(1) and (1A) depend upon s 542 and affect its meaning. They provide…
 Section 545(1A)(c) assumes that a breach of the rules of natural justice, at least a breach that had an operative effect as in this case, would justify a decision on review to set aside the original decision refusing an extension of time.
 The finding of the Regulator’s delegate that no special circumstances existed failed to take into account that some of the errors that led to the decision had been induced by the decision maker’s own failure to afford natural justice. This failure conflicts with one of the primary objects of the Act, which is to treat workers who come within its terms fairly.
 There are other problems with the decision to refuse an extension of time.
 Mr Smith furnished the Regulator’s delegate with voluminous and unimpeachable information about the circumstances of the occurrence of the injury and the fact of the injury. As s 545(1A)(a) and (b) make plain, information might be furnished to the Regulator upon a review that is relevant to the decision under review but which was not available to, or not known by, the decision maker. That information might well demonstrate the special circumstances required. It may or may not matter that the information was available to the applicant but not given to the decision maker. In a case in which the applicant for compensation did not know, but believed, that the decision maker had all the relevant information and not just a two sentence opinion from the most recent treating doctor, the early availability of the information should not matter. That information, now provided, was highly material to the review because it bore upon the injustice of the operation of the time limit but the reasons for the decision under consideration in this appeal show no sign that any of that material was considered.
 As McMeekin J said, the decision maker failed to consider the merits of the claim. The injury suffered by the worker lies at the centre of any application for compensation or for an extension of time to make such a claim. As s 5 of the Act makes plain, one of the purposes of the Act is to give compensation to injured workers. While the entitlement of an employer to the finality ensured by time limits is a relevant factor, it is also a factor that a worker has in fact been injured and has not had the claim fairly understood or considered or, as in this case, ever considered as a matter of law. The Regulator correctly recognises the relevance of merit because a specific inquiry was made about that subject in this case and the Regulator’s published guidelines, given to Mr Smith, also say so. That approach is correct and the submissions to the contrary made on the Regulator’s behalf in this appeal are incorrect. I respectfully agree with McMeekin J that the failure to consider the merits of the respondent’s claim involved a failure to consider a relevant matter and also vitiated the decision.
 There is also the fact that the delegate of the Regulator found that the respondent had not demonstrated that he was suffering from a medical incapacity that prevented him from lodging his application for review on time. No doubt such incapacity, if it existed, would have been a relevant consideration to consider. But in a case in which the applicant’s case did not involve such a factor, its non-existence is an irrelevant consideration.
 For these reasons I would dismiss the appeal.
David Cormack – Brisbane Barrister & Mediator