Cooper v Q-COMP [2012] ICQ 5

CITATION: Stuart Cooper AND Q-COMP (C/2012/5) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial commission Industrial Relations Act 1999 - s. 346(2) - application for extension of time Stuart Cooper AND Q-COMP (C/2012/5) PRESIDENT HALL 2 May 2012 DECISION [1] Mr Cooper claimed benefits under the Workers' Compensation and Rehabilitation Act 2003 (the Act). WorkCover Queensland rejected his claim. Mr Cooper sought a Statutory Review. Q-COMP confirmed WorkCover Queensland's decision. Mr Cooper then appealed to the Queensland Industrial Relations Commission (the Commission). By a decision given on transcript on 14 February 2012, the Commission rejected Mr Cooper's appeal. The decision (with accompanying reasons) was published the same day. Mr Cooper now Appeals to this Court. [2] Mr Cooper has a right to Appeal. It is vested by s. 561(1) of the Act. However, by s. 561(2) of the Act, the Industrial Relations Act 1999 (the IR Act) applies to the Appeal*. By s. 346(1) of the IR Act, any such appeal must be commenced within 21 days of the delivery of the decision at a hearing. Here, Mr Cooper was three days out of time. [*Hetmanska v Q-COMP1and Q-COMP v Australian Language Schools Pty Ltd2 deal with an earlier version of s. 561(2).] [3] Section 346(2) of the IR Act confers a discretion to extend time. I adhere to the view of s. 346(2) as expressed in WorkCover Queensland v Zanoletti3: "The limitation period of 21 days at s. 346(1) should not be seen as an arbitrary cut-off point unrelated to the demands of justice. It should be treated as representing the Legislature's judgment that the community will best be served by appeals being commenced within that brief limitation period, notwithstanding that on occasion the limitation period may defeat a perfectly good case: compare Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 553 per McHugh J (with whom Dawson J Agreed). The discretion to allow an extension of time at s. 346(2) should not be treated as having equal standing with s. 346(1). It is not the case that once an application for extension of time is made, the Court is to exercise a broad discretion about whether to refuse or to grant the extension. The task confronting the Court is to exercise a power to grant an extension upon the footing that the interest of the Queensland community are best served by the 21 day limitation period at s. 346(1). An applicant for an extension of time has the positive burden of demonstrating that the justice of the case requires the indulgence of a further period, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 540 at 547 per Toohey and Gummow JJ and at 554 per McHugh J (with whom Dawson J agreed). Section 346(2) gives no direct guidance as to the basis upon which the power is to be exercised. It should be treated as 'full and unlimited' discretionary power. It is useful to marshal up the cases, e.g. Canaway v Workers' Compensation Board (1996) 152 QGIG 1186 and Carmody v Workers' Compensation Board (1998) 157 QGIG 119, in which the power has been exercised (or not exercised) and distil 'principles' or 'guidelines' for the disposition of other cases in which the power at s. 346(2) is invoked. However, any such set of 'principles' or 'guidelines' may not be treated as exhaustive. Neither may testing the circumstances of a particular case against the 'principles' or 'guidelines' become a substitute for the exercise of the power itself.". In the ordinary case, the key factors will be the length of the delay, the explanation for the delay, the prejudice to the putative appellant if an extension is not granted, the prejudice to the putative respondent if an appeal is permitted after delay and (if capable of expeditious assessment) the prospects of an appeal being successful. [4] Here, the delay is very short. However, Mr Cooper has not explained the delay. Ordinarily, in the case of a self- represented litigant, one would assume ignorance. Here, the evidence is that an employee of Q-COMP spoke with Mr Cooper about the decision on 15 February 2012. He was informed of his right to appeal and of the time limit. On the same day he was provided with a standard form "Application to Appeal" and a simple draft ready for completion. Q-COMP could not have done more. It is not Q-COMP's role to fund applicant's who choose to litigate against Q-COMP. 1 Hetmanska v Q-COMP (2006) 183 QGIG 917 2 Q-COMP v Australian Language Schools Pty Ltd (C/2010/5) - Decision <http://www.qirc.qld.gov.au> 3 WorkCover Queensland v Zanoletti (2001) 167 QGIG 669 -- 1 of 2 -- 2 [5] Mr Cooper has poor prospects of success. The Commission's decision rests heavily on findings about credibility. Mr Cooper's arguments do not raise the decision of the High Court in Fox v Percy4. On the contrary, the submissions of Mr Cooper go to proposed fresh evidence and to issues relevant to the desirability of proceedings under the Workplace Health and Safety Act 1995 which have not been instituted. [6] If the extension of time is not granted, Mr Cooper will have no Appeal. Q-COMP concedes that it would not be prejudiced by an extension of time. [7] One will always feel sympathy for a self-represented litigant. However, consideration and indulgence cannot be given such weight that litigants are not equal before the law. The discretion at s. 346(2) is not routinely exercised to help litigants out of difficulty, compare Carmody v WorkCover Queensland5 at 119 per de Jersey P. I am not persuaded that an extension should be granted in this case. [8] I dismiss the Application for Extension of Time. I reserve all questions as to costs. Dated 2 May 2012. D.R. HALL, President. Released: 2 May 2012 Appearances: Mr S. Cooper, the Applicant. Mr P.B. Rashleigh, directly instructed for Q-COMP. 4 Fox v Percy (2003) 214 CLR 118 5 Carmody v WorkCover Queensland (1998) 157 QGIG 119 -- 2 of 2 --