WCRA: s.542(3) “special circumstances” for extension to review

Devi v Workers Compensation Regulator [2016] QSC 311

The applicant sought a review under s 20 of the Judicial Review Act 1991 (Qld) (“JR Act”) of the Regulator’s decision dated 31 August 2015 rejecting the determination of the decision of injury for the applicant’s psychological injury based on the reports of Dr Kar.

WorkCover Queensland (WorkCover) had previously accepted the applicant’s physical injury under the  Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the “Act”) and the applicant had lodged a notice of claim for damages, which had progressed to the point of nominating a date for the compulsory conference. The conference was adjourned to enable the applicant to obtain psychiatric evidence.

The applicant did not lodge a review of the decision with the Regulator under the Act within the required three months and later on 29 April 2016 applied under s 542(2) of the Act for an extension. The applicant submitted the delay was because her lawyer formed the view Dr Kar’s opinion as expressed in his reports were sound, but then later decided they were not. The Regulator refused the application for the extension.

The applicant submitted the decision was an improper exercise of power.

Section 542(2) of the Act was amended on 24 September 2015:

“the applicant may, at any time but not more than once, ask the Regulator to allow further time to apply for review”.

The amendment was in response to the decision of Blackwood v Pearce [2015] ICQ 12.

Boddice J found the amendment did not alter the issue to be decided which was whether “special circumstances” existed as required by s.542(3). The ability to alleviate potential injustice from the enforcement of strict time limits did not extend to “provide a person with the opportunity to revisit a decision, made under advice, to not pursue a right of review. It does not exist to allow a person to review a bad decision that person later regrets” [29]. Similarly, his Honour found that the failure to take steps taken within the three months is indicative that the applicant considered the decision was not worthwhile pursuing, while later regretted, an extension does not exist for that purpose [30].

In considering whether “special circumstances” existed his Honour agreed with Martin J in Blackwood v Pearce [2015] ICQ 12:

“…it would be a question of fact in each case as to what circumstances might be special but the accumulation of new evidence would, ordinarily, not amount to a special circumstance”.[5]

The capacity to seek an extension of time within the three month period does not require an applicant for such an extension to demonstrate to the [respondent] that the applicant has a particularly good case. All that need be shown is that special circumstances exist.[9]

His Honour found:

[34] The prospects of success of any review of WorkCover’s decision is not a circumstance that affected the applicant’s ability to comply with the three month timeframe. Similarly, prejudice, either to the applicant or WorkCover, were not circumstances that affected the applicant’s ability to prepare her review. Having regard to the particular circumstances of the applicant’s case, those considerations were not relevant to the respondent’s decision.

[35] The fact the applicant acted on her solicitor’s advice, and that advice turned out to be incorrect, was also not a consideration relevant to the respondent’s decision. Taking into account such a decision would have the potential for any decision made under legal advice to be called into question. The review process is not the appropriate forum in which to seek compensation for decisions taken on the basis of poor legal advice.

[36] The applicant has not shown the respondent failed to take into account relevant considerations.

His Honour found the factors in Carmody v WorkCover Queensland (1998) 157 QGIG 119 were not determinative of what the Regulator must take into account when determining whether or not special circumstances exist [42]. What is relevant is an assessment of the facts of the case and depending on the individual circumstances, “all, or none, of the factors set out in Carmody, may be relevant” [27].

David Cormack – Brisbane Barrister & Mediator

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