Allwood v Sundin, Chung, Greaves & Anor [2021] QCA 196

SUPREME COURT OF QUEENSLAND CITATION: Allwood v Sundin, Chung, Greaves & Anor [2021] QCA 196 PARTIES: JASON ALLWOOD (appellant) v DR J SUNDIN, DR A CHUNG AND DR C GREAVES CONSTITUTING THE GENERAL MEDICAL ASSESSMENT TRIBUNAL – PSYCHIATRIC (first respondent) STATE OF QUEENSLAND (second respondent) FILE NO/S: Appeal No 7864 of 2020 SC No 812 of 2019 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2020] QSC 188 (Ryan J) DELIVERED ON: 10 September 2021 DELIVERED AT: Brisbane HEARING DATE: 15 February 2021 JUDGES: Holmes CJ and Fraser and Mullins JJA ORDER: Appeal dismissed with costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – where, from 2008 until 21 July 2014, the appellant suffered a work related psychiatric/psychological injury (the “first injury”) and later, from 22 July 2014 until January 2015, suffered a work related aggravation of a pre-existing psychiatric/psychological injury (the “second injury”) – where the Medical Assessment Tribunal - Psychiatric assessed the appellant’s degree of permanent impairment from the first injury at four per cent, which meant that he was ineligible to seek common law damages in relation to that injury – where the appellant was out of time to bring an application for judicial review – where the appellant’s explanation for the delay is that he was not initially “aggrieved” by the decision, but became aggrieved upon receipt of a psychiatrist’s report which made it clear that his claim for damages as a result of the second injury could not be such that would compensate him for the psychiatric injury that he suffered during his employment – where the primary judge found that was not a satisfactory explanation for the appellant’s delay – where the primary judge found that some -- 1 of 9 -- 2 of the appellant’s grounds of review were arguable – where the primary judge found in the absence of a satisfactory explanation for delay it would not be in the public interest to grant the extension of time – where the primary judge found a grant of an extension would not be fair and equitable in the circumstances – whether the primary judge erred in exercising her discretion to extend the time Judicial Review Act 1991 (Qld), s 7, s 20, s 26 Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 237, s 505 House v The King (1936) 55 CLR 499; [1936] HCA 40, applied Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, cited COUNSEL: S D Anderson for the appellant S A McLeod QC for the respondents SOLICITORS: Shine Lawyers for the appellant Crown Solicitor’s Office for the respondents [1] HOLMES CJ: I agree with the reasons of Fraser JA and with the order his Honour proposes. [2] FRASER JA: The appellant appeals against an order made by Ryan J dismissing his application for a statutory order to review a decision made under s 505 of the Workers’ Compensation and Rehabilitation Act 2003 by the first respondent (“the tribunal”) that the degree of the appellant’s permanent impairment resulting from the first of two injuries he sustained in the course of his employment was four per cent. [3] A document recording the decision was given to the appellant on 20 December 2018. Under s 26 of the Judicial Review Act 1991 any application for a statutory order of review was required to be made no later than 28 days after 20 December 2018 or within such further time as the Court allowed. The appellant did not apply until 14 October 2019. He therefore required an extension of time of nearly nine months. Ryan J refused to extend time, with the result that the application was dismissed. [4] The appellant made two applications for workers’ compensation under the Workers Compensation and Rehabilitation Act: (a) The appellant’s first application, dated 21 July 2014, describes the nature of the first injury as “Stress, anxiety”. (An application form prepared by WorkCover and bearing the same date describes the nature of the applicant’s injury as “Psychological System in general, Depression”.) The appellant attributed the first injury to specified conduct of his employer between August 2008 and 18 July 2014. (b) The second application, dated 12 January 2015, describes the nature of the applicant’s second injury as “Aggravation of acute depression and anxiety, intimidation + harassment”. (An application form prepared by WorkCover and bearing the same date describes the injury as “Psychological system in general, Anxiety/depression combined”). The appellant attributed the second injury to specified conduct of the employer between 22 July 2014 and 11 January 2015. -- 2 of 9 -- 3 [5] Those applications followed a tortuous path: (a) On 25 November 2014 WorkCover rejected the first application upon the ground that the appellant had not sustained an injury. (b) On 17 April 2015 the Regulator set aside WorkCover’s decision rejecting the first application and requested WorkCover to obtain fresh evidence and again make a decision upon that application. (c) On 9 October 2015 WorkCover rejected the first application and the second application. (d) On 15 April 2016, the Regulator affirmed WorkCover’s decision to reject the first application and set aside WorkCover’s decision to reject the second application. (e) On 28 September 2017 the Queensland Industrial Relations Commission set aside the Regulator’s decision to affirm WorkCover’s decision to reject the first application. [6] WorkCover ultimately accepted both applications and referred each of them to the tribunal to decide if the injury had resulted in a degree of permanent impairment. On 7 December 2018, the tribunal made the following decisions: (a) The appellant had sustained a four per cent degree of permanent impairment from the first injury. (b) The appellant had sustained a 20 per cent degree of permanent impairment from the second injury. (That degree of impairment was calculated by deducting four per cent for the pre-existing impairment from the first injury from the assessed degree of the applicant’s total permanent impairment of 24 per cent.) [7] Under s 20 of the Judicial Review Act, only a person “who is aggrieved by a decision to which this Act applies” is entitled to apply for a statutory order of review. By s 7(1)(a) of the Judicial Review Act, “a reference to a person aggrieved by a decision includes a reference … to a person whose interests are adversely affected by the decision”. [8] At the hearing in the Trial Division, the appellant’s main argument was that, until he received reports by two psychiatrists, Dr Chalk and Dr Dwyer, in August and September 2019 respectively, he was not “aggrieved” by the tribunal’s decision that he had sustained a four per cent degree of permanent impairment from the first injury. Ryan J rejected that argument. The appellant repeats it in the first and third grounds of his appeal. The argument does not explain how acceptance of the proposition that the appellant was not “aggrieved” by the decision when it was made could have any effect upon the operation of s 26 of the Judicial Review Act. In any event, it cannot be accepted that the appellant was not “aggrieved” by the tribunal’s decision with respect to the first injury from the moment when that decision was made. [9] Under s 237(1)(a)(i) and s 237(5) of the Workers Compensation and Rehabilitation Act in the form it was in between 15 October 20131 and 31 January 2015,2 a worker was entitled to seek damages for an injury sustained by that worker only if the worker 1 As amended by s 17 of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013, the relevant provisions of which commenced when the Bill was introduced into the Legislative Assembly on 15 October 2013. 2 As amended by s 6 of the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015, the relevant provision of which was taken to have commenced on 31 January 2015. -- 3 of 9 -- 4 had received a notice of assessment from the insurer for the injury and the degree of permanent impairment for the assessed injury was more than five per cent. The appellant brought his application upon the premise that, because the tribunal assessed the degree of his permanent impairment for the first injury at four per cent, s 237 extinguished his common law right to claim damages for that injury from this employer. That premise was not in issue in the Trial Division and it is not in issue in this appeal.3 [10] In addition to that adverse effect upon the appellant’s legal rights of the tribunal’s decision about the first injury, there was evidence before the primary judge relating to the practical impact upon the appellant of the extinguishment of his common law right to claim damages. That evidence included: (a) A report to the appellant’s solicitor by Dr Dwyer, dated 24 November 2015, recited that, “[a]s per your request of 23/11/15, I am providing the following psychiatric opinion in relation to Mr Allwood’s claim for damages following a series of distressing incidents that occurred at his place of work between 2008 and 2015”. Dr Dwyer did not separately assess the effect of each injury upon the appellant’s psychiatric or psychological illness, but Ryan J recorded that at the hearing in the trial division counsel for the appellant agreed that Dr Dwyer’s 2015 report, which was in the possession of the appellant or his lawyer when the tribunal made the decision sought to be reviewed in December 2018, “suggested “on its face” that the first injury was more significant than the second”.4 That concession is borne out by reference to Dr Dwyer’s report.5 (b) After the tribunal’s decisions in December 2018, a psychiatrist, Dr Chalk, was commissioned by WorkCover’s solicitors to provide a report relating to the appellant’s common law claim for damages relating to his second injury. Dr Chalk examined the appellant on 13 August 2019 and provided a report dated 16 August 2019. Dr Chalk did not agree with the tribunal’s assessment relating to the first injury. He expressed the opinions that the appellant suffered a major depressive illness, his “Final % WPI” was 17 per cent, and, whilst there may have been some aggravation of the appellant’s difficulties after 22 July 2014, his impairment related to events before that date and no apportionment was appropriate. (c) An exchange of emails between the appellant’s solicitor and Dr Dwyer on 17 September 2019 records that Dr Dwyer discussed with the appellant’s solicitor and counsel the tribunal’s “medical reports”, the medical report of Dr Chalk, and the reports Dr Dwyer had provided in the matter, so that the solicitor for the appellant could seek Dr Dwyer’s opinion upon the apportionment of the impairment as between the two workers’ compensation claims made by the appellant. Dr Dwyer confirmed the accuracy of the appellant’s solicitor’s summary of Dr Dwyer’s opinion that the appellant’s impairment “is primarily caused by the first claim …”, “the events the subject of the second claim were exacerbating factors”, and Dr Dwyer therefore considered that “80% of the impairment is related to the first claim and 20% of the impairment to be related to the second claim resulting in impairments of 17.6% and 4.4% respectively”. 3 It is therefore not necessary to consider the transitional provision in s 680 of the Workers’ Compensation and Rehabilitation Act as amended by the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2013. 4 Reasons [150]. 5 See, in particular, the reference to the severity of the appellant’s symptoms at times before he made his first claim for workers compensation on 21 July 2014 at pages 3 – 4, 11 – 12 and 16 of the report. -- 4 of 9 -- 5 [11] The appellant argues that he was not “aggrieved” by the tribunal’s decision with respect to the first injury because, until he received Dr Chalk’s and Dr Dwyer’s reports in 2019, the only evidence about the apportionment of the impairment as between the first and second injuries was found in the tribunal’s decisions and an award of damages with respect to the second injury would compensate the appellant for the harm he had suffered as a result of both injuries. [12] The probative value of the tribunal’s decisions as evidence of the severity or effect of the appellant’s psychiatric or psychological injuries in a common law claim is questionable, to say the least. The evidence mentioned in [10](a) of these reasons also undermines the appellant’s argument that, before he received Dr Chalk’s and Dr Dwyer’s reports in August and September 2019, respectively, he had no evidence about the apportionment of the impairment as between the first and second injuries other than that which might be derived from the tribunal’s decisions. Nor did the appellant adduce evidence in his application that before he received those reports he had not obtained any other evidence about the apportionment of the impairment. It is also not clear how the appellant could have been compensated for the harm he had suffered as a result of the first injury in circumstances in which s 237 of the Workers’ Compensation and Rehabilitation Act precluded him from bringing a common law claim for damages for that injury. [13] The appellant’s argument is in any event misconceived for the more fundamental reason that a person, such as the appellant, who is adversely affected beyond any effect on the public at large by the legal or practical effect of an administrative decision under an enactment is “aggrieved” by that decision for the purposes of s 20 of the Judicial Review Act.6 As Ryan J concluded, the appellant was “aggrieved” in the relevant sense because he was deprived by the tribunal’s decision about the first injury of his legal right to claim common law damages for that injury.7 [14] The appellant also challenges Ryan J’s exercise of the discretion to refuse an extension of time. [15] In relation to the merits of the application, Ryan J observed that chapter 11 of the Guidelines for the Evaluation of Permanent Impairment, Second Edition (“Queensland Guide”) provides a method for assessing psychiatric impairment. For present purposes it is sufficient to reproduce only two of the paragraphs of the Queensland Guide to which Ryan J adverted: “11.6 The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker’s own description of his or her functioning and limitations, from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals, results of standardised tests … and work evaluations may provide useful information to assist with the assessment. 6 See Argos Pty Ltd v Corbell Minister for the Environment and Sustainable Development (2014) 254 CLR 394 at 409 [48] (French CJ and Keane J), 414 [61] (Hayne and Bell JJ), and 417 [76] (Gageler J) and Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22 at [13] – [14] (Bowskill J). 7 Reasons [137]. -- 5 of 9 -- 6 Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to ‘whole person impairment’. … 11 . 10 To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker’s pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below [that is, PIRS]8. The injured worker’s current level of impairment is then assessed, and the pre-existing impairment level (%) is then subtracted from their current level to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.” [16] Ryan J found that in one respect the third and fourth grounds, and the fifth ground, of the application for statutory review were arguable: “Third and Fourth Grounds [3. The decision fails to provide adequate reasoning for the conclusions reached in assessing the Applicant’s impairment under the relevant PIRS categories and constitutes an error of law; 4. There was no evidence or material to justify the making of such assessments which were made under the PIRS criteria and such assessments were contrary to the respondents’ own findings in the body of the decision.] … [220] I acknowledge that on one view, the PIRS rating for the applicant’s employability ought to have been higher than class 1 because by after 18 July 2014, it seems that the applicant was totally incapacitated for work (which would warrant a class 5 score). [221] However, the Queensland Guide expressly states in paragraph 11.6 that the evaluation of impairment will need to take into account variations in the level of functioning over time. Also, as Kirby J said [in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259], one of the reasons why the weight to be given to material before the decision-maker (here, the fact of hospitalisation) is reserved to the decision-maker is because the decision-maker has more experience in the consistent application of relevant administrative rules. [222] Nevertheless I acknowledge that it is arguable that the MAT has not adequately explained its reasons for assigning class 1 to the applicant’s employability for the purposes of its decision. And 8 “PIRS” is the psychiatric impairment rating scale set out in the Queensland Guide. -- 6 of 9 -- 7 I acknowledge that this is a factor which favours the grant of an extension of time. … [227] … I am prepared to conclude that the applicant may have a valid argument about the absence of justification for its assigning class 1 to the applicant’s employability for the purpose of the PIRS assessment in claim #043 [for the first injury]. Fifth ground [“5. The decision is inconsistent with the decision for the first respondent dated 7 December 2018 for referral [relating to the second injury]”] … [231] My conclusions as to the third and fourth grounds apply to the fifth ground. …” [17] Ryan J observed that she would “treat this aspect of the substantive argument as a matter in favour of the granting of an extension”. Her Honour also took into account in the appellant’s favour that the second respondent did not assert that prejudice would flow to it from the grant of an extension of time. Ryan J observed, however, citing Conti J’s summary in Westwood v Human Rights & Equal Opportunity Commission9 of relevant principles referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen,10 that the mere absence of prejudice was not sufficient to justify the grant of an extension of time. Ryan J also accepted that there had been a qualification to the dictum of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen that it was a pre-condition of the exercise of the discretion to extend time that the applicant had shown an acceptable explanation of the delay; in a particular case an extension of time might not be refused despite delay not being explained or not being satisfactorily explained, but the absence of any reasonable explanation for the delay may be a persuasive factor against granting an extension.11 Ryan J considered the risk of injustice to the applicant if an extension were not granted was relevant, but found that risk difficult to assess in this complex case. None of that reasoning is in issue in this appeal. [18] It was the absence of any explanation for the delay in applying which was the persuasive factor for Ryan J’s decision to refuse an extension. The only evidence adduced by the appellant in support of his application for an extension of time was an affidavit by the appellant’s solicitor which merely exhibited documents relating to the appellant’s Workers’ Compensation applications, the various decisions relating to those applications, and the reports and other documents summarised in [10](a)-(c) of these Reasons. No affidavit by the appellant was filed and the affidavit by the appellant’s solicitor did not advert to any explanation for the appellant’s delay in applying. 9 [2004] FCA 153 at [28]. 10 (1984) 3 FCR 344. 11 Ryan J cited Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663 at 665 (Moynihan J); Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 372 (Thomas J) and Westwood v Human Rights & Equal Opportunity Commission [2004] FCA 153 at [28] (Conti J), referring to Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 (Hill J). -- 7 of 9 -- 8 [19] Ryan J was “struck by the absence of any reasonable explanation”.12 Ryan J rejected the argument that evidence which revealed the effect of the tribunal’s decision on the appellant’s entitlement to bring a common law claim was not available until the appellant received Dr Chalk’s report. Ryan J found there was nothing stopping the appellant’s lawyers from, interrogating or at least raising the tribunal’s decision with Dr Dwyer within time. Ryan J concluded that in this case the “public interest fell in favour of not encouraging delay in responding to administrative decisions by allowing those acting for an applicant to be passive in response to a decision which plainly has an adverse effect upon an applicant”; to extend time in this case would be to “work around” the time limit in the absence of any reasonable explanation for the applicant’s failure to comply with it. [20] Under the sixth and eighth grounds of the appellant’s appeal, the appellant argues that, until the appellant received the reports of Dr Chalk and Dr Dwyer, it was reasonable for the appellant to conclude upon the basis of the tribunal’s decisions that, in a common law claim against his employer for damages for the second injury, all or most of the of loss and damage he had incurred would be recoverable. The appellant argues that, in these circumstances, it was reasonable for him not to go to the considerable expense of commissioning a report by Dr Dwyer until he received the evidence of Dr Chalk, who disagreed with the tribunal’s decision about the first injury. [21] As Ryan J noted, however: (a) Neither the appellant nor his lawyer gave any evidence about the reason for the appellant’s delay in applying for a statutory order of review: “… [t]here was no evidence from the applicant or his lawyers about the way in which the decision of the [tribunal] was received by them: no evidence that they reasoned at the time that while the applicant was deprived by the decision of an entitlement to bring a common law claim in relation to his first injury he was not “aggrieved” by the decision because he was left with the second injury common law claim and its promise of substantial damages on the basis of the [tribunal’s] assessment”.13 (b) Dr Dwyer’s report of November 2015 suggested that the first injury was more significant than the second. (c) The appellant’s lawyers did not have to wait for Dr Chalk’s report to discuss the tribunal’s assessment and apportionment with Dr Dwyer. (d) The appellant did not adduce any evidence about why his lawyers did not discuss the tribunal’s assessment with Dr Dwyer soon after the tribunal delivered its decision. [22] Contrary to the second and seventh grounds of the appellant’s appeal, Ryan J’s finding that Dr Dwyer’s opinion about the tribunal’s assessment was available to the appellant and his lawyers whenever they chose to seek it,14 does not imply that all injured workers ought, within the 28 day appeal timeframe, spend money to check that the decision of three expert psychiatrists constituting the tribunal is correct; a distinctive feature of the evidence in this matter is that when the tribunal made its decisions in December 2018 the appellant already had Dr Dwyer’s report of 24 November 2015, which admittedly suggested that the first injury was more significant than the second injury. That report should have alerted the appellant’s 12 Reasons [242]. 13 Reasons [119]. 14 Reasons [122]. -- 8 of 9 -- 9 lawyers to the existence of a substantial risk in a common law claim based only upon the second injury that the evidence would not support a finding that the second injury was a cause of most of the appellant’s loss and damage. [23] The fourth ground of the appellant’s appeal contends that the trial judge erred in finding that nothing had changed about the effect of the decision in the months between when it was made and when the appellant’s lawyers sought Dr Dwyer’s opinion about it because, in summary, the appellant was not able to seek compensation for his substantial loss and damage until after Dr Dwyer’s and Dr Chalk’s opinions established error in the tribunal’s decision. This ground of appeal overlooks the explanation given by the trial judge for the challenged finding, which was that the decision had an adverse effect upon Mr Allwood’s legal rights “as soon as it was made”.15 [24] In my respectful opinion there was plainly no error in Ryan J’s conclusion that the appellant had not satisfactorily explained his delay in applying for statutory review of the tribunal’s decision. [25] The remaining ground of appeal, the fifth ground, contends that Ryan J erred in refusing to grant an extension of time in circumstances where she had acknowledged that there were factors in the decision of the tribunal which favour the grant of an extension of time with respect to grounds 3 and 4, and ground 5, and there was no prejudice to the respondents. [26] I would readily accept that, if the explanation for the appellant’s delay contended for before Ryan J could be accepted, then the appellant would have an overwhelming claim for a favourable exercise of the discretion to extend time. There is, however, no basis for inferring such an explanation in the absence of any evidence by the appellant or the appellant’s solicitor that it was the explanation for his delay. The importance of evidence of an explanation for delay in applying in an application for an extension of time has been made clear in innumerable decisions in many different statutory contexts. In this case, the absence of any evidence by the appellant or his solicitor of any explanation for the delay is particularly striking in light of the report given by Dr Dwyer to the appellant’s solicitor in November 2015. [27] The question for this Court is not whether it would have exercised the discretion to extend time. The question is whether Ryan J made an error in the exercise of the discretion which justifies appellate inference in her decision to refuse an extension. The kinds of errors that might have such an effect are identified in House v The King.16 Ryan J did not make any such error. [28] I would dismiss the appeal with costs. [29] MULLINS JA: I agree with Fraser JA. 15 Reasons [137]. 16 (1936) 55 CLR 499 at 505. -- 9 of 9 --