Colin Muir Kidd v Q-Comp [2010] QMC 17

MAGISTRATES COURTS OF QUEENSLAND CITATION: Kidd v Q-COMP [2010] QMC 17 PARTIES: COLIN MUIR KIDD (appellant) v Q-COMP (respondent) FILE NO/S: MAG252551/09(3) DIVISION: Industrial Magistrates Court PROCEEDING: Appeal against decision of Q-COMP – application to extend time to appeal ORIGINATING COURT: Industrial Magistrates Court at Brisbane DELIVERED ON: 15 June 2010 DELIVERED AT: Brisbane HEARING DATE: 9 June 2010 MAGISTRATE: Lee G ORDER: The application to extend time to appeal is refused. This means the application is unsuccessful. CATCHWORDS: INDUSTRIAL LAW - WORKERS COMPENSATION – application in an appeal – application for an extension of time to lodge Notice of Appeal – factors in exercising discretion to extend time – statutory appeal period 20 business days - where delay was over 10 months Industrial Relations Act 1999 (Qld), s 346 Uniform Civil Procedure Rules 1999 (Qld), r 7(1) Workers Compensation and Rehabilitation Act 2003 (Qld), s 550, s 557 Workers Compensation and Rehabilitation Regulation 2003 (Qld), r 88(3)(a) Eureka Street Pty Ltd v Q-COMP and Rane [2007] QIRComm 11 Hetmanska v Q-COMP (2006) QGIG 917 -- 1 of 16 -- 2 Hunter Valley Developments Pty Ltd et al v Minister for Home Affairs and Environment (1984) FCA 176; (1984) 58 ALR 305 Carmody v WorkCover Queensland No C 63 of 1997, 5 February 1998 Mc Quade and Hayes v WorkCover Queensland [2000] QIC 56; 156 QGIG 126 Morrison-Gardiner v Car Choice Pty Ltd [2004] QCA 480 Perdis v The Nominal Defendant [2003] QCA 555 Q-COMP v. Baulch [2004] QIC 11; 175 QGIG 978 Taylor v Q-COMP [2008] QIRComm 128 COUNSEL: G Cross for appellant S Sapsford for respondent SOLICITORS: Colin Patino & Co for appellant Respondent appeared on own behalf [1] By application filed 21 January 2010 Colin Muir Kidd (the applicant) seeks an order granting an extension of time within which to lodge an appeal out of time against a decision of Q-COMP (the respondent) dated 4 February 2009. A Notice of Appeal was filed in this court on 14 December 2009, over 10 months later. While submissions for the applicant concede that it should have been filed within 20 business days of 4 February 2009 i.e. by 4 March 20091, for appeal purposes time runs from when the applicant received it presumably about two or so business days later. [2] Section 550(1) of the Workers Compensation and Rehabilitation Act 2003 (the 2003 Act) relevantly provides: 550 Procedure for appeal (1) The appeal must be made— (a) if the appeal is about a review decision—within 20 business days after the appellant receives the review decision; or (b) …. (2) …. (3) For subsections (1) and (2), the appellant may, within the periods mentioned in the subsections, ask the respondent to allow further time to appeal. ……. 1 Paragraphs 1.2 & 3.3 submissions for the applicant; see section 550(1)(a) Workers Compensation and Rehabilitation Act 2003 -- 2 of 16 -- 3 [3] The power in this court to make such an order is discretionary and is contained in section 557 the 2003 Act. The parties do not dispute this although it was submitted for the applicant that the power is also contained in section 346 of the Industrial Relations Act 1999 (the IR Act). I prefer the view that the source of power resides in the 2003 Act. That is consistent with views expressed in other cases such as Taylor v. Q-COMP [2008] QIRComm 128 (22 July 2008) and Eureka Street Pty Ltd v Q- COMP and Rane [2007] QIRComm 11 (9 February 2007); Q-COMP v Baulch [2004] QIC 11; 175 QGIG 978 (27 February 2004) 2. [4] In support of the application the applicant gave oral evidence as well as tendering his affidavit filed 8 June 2010. He also relied on the oral evidence and an affidavit of his current solicitor Alistair Stewart Lord of the firm Colin Patino & Company filed 3 June 2010. The applicant and Mr Lord were cross examined. The respondent resists the application in reliance on the applicant’s evidence. I heard submissions on 9 June 2010. Further written submissions were received by both Counsel later on 9 June and 10 June 2010 addressing a further point at the request of Counsel for the applicant. I reserved my decision to 9.00am 15 June 2010. Background [5] In October 2007 the applicant, born 4 June 1966, commenced full time employment as a heavy fork lift operator with Toll QRX (the employer) at its premises at Curzon Street, Tennyson working around 45 hours per week. The employer is a self insurer for the purposes of the 2003 Act3. [6] After describing poor work conditions related to the uneven driving surface and defective seats in the forklifts, the applicant said he began experiencing stiffness and then dull pain in his lower back a few weeks after starting work. When the pain got worse he attended general practitioners including Dr P. Herron who issued a number of workers compensation certificates certifying him for “light duties”4. In oral evidence he said this was not adhered to by the employer at first. [7] Then by application dated 12 March 2008 the applicant claimed workers compensation “for a back injury suffered over a period of time”5. It was received by the employer’s self insurance unit on 19 March 2008 (exhibit 1). [8] The employer’s self insurance unit then retained investigators who provided a report dated 14 April 2008 enclosing a statement from the applicant as well as statements from a number of other people all of whom were employed by the employer and who were supervisors at various levels part from one6. 2 See also McQuade and Hayes v WorkCover Queensland [2000] QIC 56; QGIG 126 (3 October 2000) per Hall P. in considering former section 505 WorkCover Queensland Act 1996 which, for all intents, is the same as current section 557 of the 2003 Act; in Q-COMP v Baulch, Hall P. observed that s 346 IR Act applies to extensions of appeal periods in appeals to the Queensland Industrial Court – this makes sense because the definition of “industrial tribunal” in s 345 IR Act which appears in s 346 IR Act does not include the Industrial Magistrates Court; 3 In Part 4 (Employer’s self insurance) of Chapter 2 (Employer’s obligations); 4 Affidavit of the applicant at paragraphs 2, 3, 4 & 5; 5 Paragraph 6 of his affidavit; 6 Paragraphs 7 & 8 of his affidavit; see also exhibit “CK3” to that affidavit; -- 3 of 16 -- 4 [9] The applicant had involved and derived assistance from his union representative at some point prior to the statement obtained by the investigator from Simon Turner (terminal manager) dated 14 April 20087. His oral evidence on this point is not clear. [10] The employer then arranged for the applicant to see orthopaedic surgeon Dr S. Journeaux and this consultation took place on 16 April 2008. The applicant was aware of the purpose for this. Dr Journeaux provided a report dated 16 April 20088. It was date stamped as having been received by the employer’s self insurance unit on 26 June 2008. This delay may be attributed to the fact that Dr Journeaux took into account an MRI scan of the lumbar spine performed in May 2008 the result of which was considered “normal with no evidence of any degenerative change”9. Without more, I do not think there was anything sinister about the date of Dr Journeaux’s report as submissions for the applicant suggest10. The applicant said in oral evidence that he received a copy of Dr Journeaux’s report two or three weeks later. [11] The applicant gave a history to Dr Journeaux to the effect that due to driving on uneven ground with his seat “bottoming out” he noticed the onset of low back pain and on one occasion shortly after the onset of symptoms he used a forklift without power steering and hurt his back. Among other things, he received anti-inflammatory medications and physiotherapy. [12] Dr Journeaux concluded at page 5 of his report: Having considered the mechanism of injury that has been outlined to me I am unable to marry up [the applicant’s] current pathology with the mechanism of injury as described to me. [The applicant’s] current symptoms I suspect are most likely postural. It would be reasonable to ascribe an aggravation of his postural symptoms to his work but they in my view are unlikely to be the primary cause of it. In other words, work is not a significant aggravating factor. I note the claimant has a significant psychiatric history and is on Efexor for depression. This is likely to be a relevant factor in terms of the perceived severity of symptoms and the current perception of the claimant in respect of them. I would recommend that this is assessed further by a psychologist as to comment further is outside my area of expertise. [13] On or about 3 July 2008 the applicant received the employer’s self insurance unit’s decision in rejecting his claim (exhibit 2)11. In accepting the opinion of Dr Journeaux, 7 Paragraph 33 statement of Simon Turner who says the name of the union delegate was Steve Barlow although the applicant said the name was “Mark” when giving evidence; 8 Paragraph 9 & exhibit “CK4” of the applicant’s affidavit; 9 Dr Journeaux’s report at page 4 under “Conclusions” – in exhibit “CK4 to applicant’s affidavit; see also page 3 under “Investigations” of Dr Todman’s report dated 15 February 2010 – exhibit “CK7” to applicant’s affidavit; 10 Paragraph’s 2.7, 2.8, 2.9 & 6.15 of submissions for the applicant; it was suggested that Dr Journeaux back dated his report to comply with Workers’ Compensation and Rehabilitation Regulation (2003) r 88(3)(a) i.e. to provide the report within 10 days of the examination; it was asserted that this amounted to fraud; 11 Paragraph 10 & exhibit “CK5” of the applicant’s affidavit; -- 4 of 16 -- 5 it was concluded that there was no medical evidence to support the view that the applicant’s back complaints were work related. [14] Accompanying that decision was a letter dated 3 July 2008 informing the applicant of his rights of review. Q-COMP’s phone number was provided for any questions regarding the procedure for seeking a review. The letter appears to have attached a Q-COMP document entitled “How to Apply for a Review of a Statutory Claim” informing the applicant that, if he desired to seek a review, he must do so within three months of receiving the original decision12. [15] The applicant gave evidence that he disagreed with that decision and was of the view that his claim for compensation should have been accepted. [16] His union’s solicitors, Maurice Blackburn, advised that he obtain a specialist’s report and an MRI for the purposes of a review of that decision to QCOMP. Undoubtedly to protect his interests, Maurice Blackburn advised the applicant to lodge an application for review which they did on his behalf on his instructions under cover letter dated 8 September 2008 (exhibit 3). This was within the applicable appeal period. That letter said in part: Our client .. intends to obtain further medical opinion regarding the work relatedness of his injury. We have requested our client’s workers’ compensation file from Toll, and upon receipt of same we will schedule a medical appointment for our client. Please contact the writer to confirm receipt of our client’s Application for Review and to discuss the timeframes by which the supporting material must be provided. [17] Clearly, that firm was intending to act for the applicant if a further medical report was obtained. It appears that firm would only act for him further in the review to Q-COMP if the applicant followed its advice to obtain that specialist’s report13. He was told it would cost $1,000 and he said he could not afford that at the time. The applicant simply accepted that figure and made no further inquires. The result was that no further medical evidence was placed before Q-COMP and a decision was made on that basis14. [18] The applicant said he received Q-COMP’s decision dated 4 February 2009 (exhibit 4) in mid February 200915. It confirmed the original decision to reject his claim for compensation. Accompanying Q-COMP’s decision was a letter dated 4 February 2009 advising the applicant among other things: If you or your employer are aggrieved by the decision then either party may lodge an appeal with an Industrial Magistrate or the Queensland Industrial 12 Included in exhibit “CK5” of the applicant’s affidavit; 13 See also exhibit “CK6” of applicant’s affidavit – letter Maurice Blakcburn to Q-COMP dated 8 September 2008; 14 Paragraph 11 & exhibit “CK6” of the applicant’s affidavit; 15 Paragraph 12 of the applicant’s affidavit; -- 5 of 16 -- 6 Relations Commission. Your appeal rights are set out in the attached written notice. For any questions in relation to this matter, please contact me on the above telephone number. [telephone number provided at top of the letter]. [19] Then at pages 6 & 7 of Q-COMP’s decision under a bold heading “Right of Appeal” the applicant was informed as follows: If either party disagrees with this decision then either party may appeal to: An Industrial Magistrate (84 courts state-wide) OR The Queensland Industrial Relations Commission in Brisbane. Either party has 20 business days from the date of receipt of this decision in which to lodge an appeal. If a party chooses to lodge an appeal with an Industrial Magistrate, the notice of appeal must be filed at the Magistrates court nearest to the place where the party resides/carries on business or at a Magistrates Court agreed between the party and Q-COMP. [20] Again, the applicant gave oral evidence that he disagreed with that decision at the time and believed that his application for compensation should have been accepted. He also thought that this is the end of matter and made the decision at that point not to appeal Q-COMP’s decision. [21] There is no dispute that the applicant knew of the 20 day appeal period. When he received Q-COMP’s decision he thought that was the end of the matter and made a conscious decision not to take the matter any further at that point. He was not legally represented then although it appears Maurice Blackburn, who lodged the request for review to Q-COMP within the prescribed time limit and before a specialist’s report was to hand to preserve the applicant’s interests, would have acted in that review if a specialist’s report had been obtained. [22] In any event, the applicant has provided no evidence in this application of attempts by him to further prosecute an appeal after receipt of the Q-COMP decision. He did not phone Q-COMP for advice nor did he give evidence of any attempts to seek out solicitors such as Mr Lord who would act for him on a speculative basis. Further, he has made no attempt in making any inquires about obtaining a specialist’s report for a reduced fee or alternatively, by accessing the public system as was the case in Taylor v Q-COMP [2008] QIRComm 128 (22 July 2008). Whether or not the public system could provide an adequate report for compensation purposes is not to point. The point is he did not even try. [23] Then in about April 2009 the applicant was selling art work at a market place when he fortuitously met Mr Lord, who, at that point was presumably a potential customer. After a discussion, Mr Lord gave the applicant his details to arrange a meeting. Mr Lord met the applicant at the applicant’s residence on or about 24 April 2009. By that time the appeal period had already expired early March 2009. -- 6 of 16 -- 7 [24] Mr Lord agreed to act for the applicant on a “no win no fee” basis. The firm Colin Patino, who are personal injury specialists, would pay for a medical report. If the applicant was unsuccessful in his appeal, he would not be out of pocket at all. If he was successful, Colin Patino would then charge fees and then recover from the applicant the costs of any medical reports. Mr Lord was aware of the 20 day appeal period which had well and truly expired by 24 April 2009 but advised the applicant to get a specialist’s report first and not file a Notice of Appeal at that point to avoid the possibility of an adverse costs order in the event the appeal had to be withdrawn because the specialist’s report did not support the applicants’ case. However, during cross examination Mr Lord agreed that filing a Notice of Appeal would not attract adverse costs consequences. [25] Mr Lord arranged to get the applicant’s WorkCover file which was received by him 22 May 2009. This was sent to the applicant 14 days later on 5 June 200916. Mr Lord had a further conference with the applicant on 12 June 2009 and alerted him that the appeal period had expired but recommended that counsel’s advice be sought on prospects of success first even though a Notice of Appeal had not been lodged. Counsel’s opinion was received on or about 9 October 200917. There is no evidence as to what steps were taken by either Mr Lord or the applicant between 12 June 2009 and 9 October 2009 to progress the matter. This is in the context of a statutory appeal period of 20 business days. While in general terms counsel’s opinion supported the applicant’s prospects, unsurprisingly, it was subject to obtaining a supporting specialist’s report. During evidence Mr Lord was a little vague as to whether that advice referred to the appeal period having expired when he said that “it might have been mentioned”. [26] At some point after receiving counsel’s advice, Mr Lord arranged for the applicant to see neurologist Dr D. Todman on 24 November 2009. Mr Lord does not indicate in his affidavit when he first arranged this and, in his first report, Dr Todman does not indicate when he was first instructed18. However, Mr Lord does state in his affidavit that on the 20 November 2009 he rescheduled the appointment to15 February 201019. This was because of the applicant’s work commitments outside Brisbane20. At the date of Dr Todman’s report (15 February 2010) the applicant had been working as a storeman at the Chinchilla powerhouse for six months. [27] Prior to the applicant seeing Dr Todman and prior to obtaining a report from Dr Todman, Mr Lord then makes the decision upon instructions no doubt based on his advice to lodge a Notice of Appeal on 14 December 2009. This is despite the obtaining of such report being a major reason for not lodging a Notice of Appeal in the first place21. In this respect, he says at paragraph 6 of his affidavit: The decision was not taken lightly by the applicant. He had to balance the possibility of an adverse costs order (if the report of Dr Todman was unhelpful and the appeal was unsuccessful) against his need to lodge his Notice of 16 Paragraph 3 of Mr Lord’s affidavit; 17 I note that paragraph 4 of Mr Lord’s affidavit is silent as to when he instructed counsel; 18 Exhibit “CK7” to affidavit of the applicant – his report dated 15 February 2010; whereas Dr Journeaux states in his report he was first instructed by letter dated 11 April 2008; 19 Paragraph 5 of Mr Lord’s affidavit; 20 Paragraph 17 of the applicant’s affidavit; 21 See for example paragraphs 23 & 24 of the applicant’s affidavit; -- 7 of 16 -- 8 Appeal as soon as possible. Conscious that time was marching on and aware that he should lodge his Notice of Appeal as soon as possible, the applicant instructed me to lodge his Notice of Appeal. [28] Dr Todman’s first report is dated 15 February 2010, the day he saw the applicant. The applicant provided a history to Dr Todman that within 3 or 4 weeks of starting work with the employer he began to experience low back pain of moderate severity with some sciatica. In accepting the applicant’s verbal history given over two years after the alleged events, Dr Todman among other things concluded at page 4: The injuries as described are consistent with causing trauma to thoracic and lumbar spine. Structures that may be affected could include muscles, ligaments, facet joints and intervertebral discs. The ongoing symptoms represent a chronic musculo-ligamentous strain in both thoracic and lumbar regions. [29] Dr Todman then goes on to assess for whole of person impairment for the lumbar spine (5%) and thoracic spine (7%). His second report dated 26 March 2010 primarily deals with the results of an MRI scan of the applicant’s thoracic spine on 20 February 2010. The results were normal. Dr Todman then provides advice about future treatment. [30] Interestingly, this application was filed in this court on 21 January 2010 returnable for 18 February 2010. The application was filed after the Notice of Appeal was eventually lodged 14 December 2009 but before the applicant saw Dr Todman on 15 February 2010. Clearly Mr Lord and the applicant did not have the benefit of a supporting medical report (written or oral) as at 21 January 2010. It seems incongruous on the one hand that there was a concern about exposure to a costs order through the simple and inexpensive task of lodging a Notice of Appeal in this court but on the other hand bringing an application in this court before the applicant saw Dr Todman and before Dr Todman’s views were available, which, one would have thought, may itself expose the applicant to an adverse costs order. To an extent this seems to be supported by Mr Lord’s first and only letter to Q-COMP (on the evidence) dated 19 January 2010 (exhibit 6) setting out the history of the matter and enclosing a copy of this application wishing to engage in dialogue about the extension of time issue22. Relevant principles on applications to extend time [31] Regarding the starting point in applications such as this, I agree with the statements made in Taylor v Q-COMP [2008] QIRComm 128 (22 July 2008) per Commissioner Fisher (at 4 of 5) as follows: The starting point in any extension of time application is that the time limit prescribed by the legislation must be respected. Time limits represent the view of Parliament that justice requires disputes be settled as quickly as possible; they provide certainty about prospects of litigation and ensure relevant evidence is not lost. An extension of time is an exception to the statutory time 22 In particular see paragraphs (m) & (n) on page 2 of that letter; -- 8 of 16 -- 9 limit. Although the Commission has the power to extend time the onus rests with Mr Taylor to show that his case is worthy of an exception being made such that the justice of the case requires an extension of time be granted [32] This is not in consistent with statements of principle by Wilcox J. in a case relied on by the applicant, Hunter Valley Developments Pty Ltd et al v Minister for Home Affairs and Environment (1984) 58 ALR 305 where at page 6 of 10 it was stated23: (a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The “prescribed period” of 28 days is not to be ignored (Ralkon v. Aboriginal Development Commission (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v. Nolan (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an “acceptable explanation of the delay” and that it is “fair and equitable in the circumstances” to extend time (Duff v. Freijah (1982) 43 ALR 479 at 485; Chapman v. Reilly, Neaves J., 9 December 1983, not reported, at page 7). [33] Putting aside the concept of beneficial legislation, those general statements as to the starting position are also supported by reference to annotations to rule 7 of the Uniform Civil Procedure Rules 199924 in Civil Procedure Queensland, Volume 1, Butterworths at paragraph [r 7.5]: Recourse to r 7 cannot be used to excuse non-compliance with the requirements of legislation, see for example Gillies v. Dibbetts [2001] 1Qd R 596; BC200002133 at [21] per Wilson J. See also Singh v. Duport Harper Foundries Ltd [1994] All ER 889 and Brown v. Coccaro (1993) 10 WAR 391. Rule 7 is a discretionary provision. In Mango Boulevard Pty Ltd v. Spencer [2007 QSC 276 …Wilson J. with reference to FAI General Insurance Co Ltd v. Southern Cross Exploration NL (1988) 165 CLR 268 …, considered that, at [16]: ...it is to be regarded as a remedial provision conferring on a court a broad power to relieve against injustice, but manifestly a power to be exercised with caution and, in the case of self-executing orders, with due regard to the public policy centred in the finality of litigation and the principle that orders are made to be observed. [34] In the context of this court exercising jurisdiction under the 2003 Act, the respondent referred to Mc Quade and Hayes v. WorkCover Queensland [2000] 156 QGIG 126 for the proposition that the applicant must establish “compliance in substance” with section 550 of the 2003 Act. In that case, the appellants had lodged their Notices of Appeal within the time limit set by section 499(1) WorkCover Queensland Act 1996 23 In considering an extension of time under section 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth); 24 Rule 7(1) “ The court may, at any time, extend a time set under these rules or by order”; -- 9 of 16 -- 10 (the 1996 Act) which is the equivalent to section 550 of the 2003 Act but had not complied with the requirement to serve a copy of their Notices of Appeal on the review unit within the time limits prescribed by subsection 499(6) of the 1996 Act (s 550(6) of the 2003 Act). Hall P. found that section 499 was directory but that substantial compliance was required. This decision was followed in Eureka Street Pty Ltd v. Q-COMP and Rane [2007] QIRComm 11 (9 February 2007). [35] The respondent also referred to matters a court should consider in applications such as this in Carmody v WorkCover Queensland (No. C63 of 1997), a judgement of de Jersey P. (as he then was) delivered 5 February 1998 where, among other things, he said in respect of exercising the discretion to extend time on appeal to the Queensland Industrial Court under section 346 IR Act25: I exercised the analogous discretion under the Industrial Relations Act 1990 in Canaway because, as I there put it, the circumstances were,’ sufficiently special to warrant my invoking the discretion under section 90’. Formulations in words like that are not particularly helpful of course, but judicial officers tend to use them from time to time for a particular purpose and that is to indicate that those sorts of discretions are not routinely exercised to help people out of difficulties. Were that to be done the importance to the system of adherence to procedural requirements could be diminished unduly. …it is important to note the sorts of considerations which bear upon the exercise - the extent of the delay which has occurred since the Magistrates decision was given, any explanation for that delay, whether extending time or rectifying the position now would cause prejudice to the respondent to be seen of course against any prejudice to the applicant in the absence of an order rectifying the position, the degree of apparent enthusiasm for the prosecution of the appeal demonstrated by the applicant should rectifying orders be made and so far as might be gauged summarily in any reliable way the prospects of success of the appeal on the merits. [36] The applicant primarily relies on the factors identified in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 30526. These are (a) special circumstances need not be shown (b) prejudice to the respondent (if any) (c) whether other people other than the respondent are affected (d) the merits of the substantive appeal (e) explanation for delay (f) prejudice to appellant (g) interests of justice. [37] In general terms, and in reliance on a number of authorities, it was submitted for the applicant that compliance with section 550 is directory and that the 2003 Act is beneficial legislation27; even where there is no substantial compliance it is open to grant an extension of time28; and, given the objects of the 2003 Act in providing a scheme whose aim is to provide benefits to injured workers and in reliance on Hetmanska v Q-COMP (2006) 183 QGIG 917 (23 November 2006), then applications 25 3rd & 4th paragraphs on page 2 of 3; 26 Paragraph 5.5 (a) to (g) submissions for the applicant; 27 Paragraphs 5.1.1 & 5.1.3 submissions for the applicant; 28 Paragraph 5.1.2 submissions for the applicant; -- 10 of 16 -- 11 to extend time should be “approached with generosity of spirit”29; and, after taking all those factors into account, it is a balancing exercise. [38] In Hetmanska, the appellant worker’s application for review of Q-COMP’s decision to the Industrial Relations Commission was dismissed on 27 July 2006. He wrote to the Commission on 24 August 2006 complaining he had not received a written record of the proceedings or decision indicating that he wished to challenge the Commissioner’s decision. The Industrial Registrar replied about access to transcripts but did not consider it appropriate for the Commissioner who made the decision to make any further comment. In this respect, Hall P. found that the appellant worker was entitled to, but was not given, a written copy of the decision of the Commission contrary to a statutory provision until 7 September 2006. The appellant wrote a letter received 15 September 2006 by the Commission again putting it on notice that he considered the decision to be wrong. Then, by letter dated 18 September 2006 he was advised by the Industrial Registrar of his right to appeal to the Queensland Industrial Court within 21 days30. The appellant received that letter 22 September 2006 and filed his Notice of Appeal to the Queensland Industrial Court on 24 October 2006. There was discussion by Hall P. as to when the appeal period commenced to run i.e. 27 July 2006 when the order was made or when he actually received the reasons for decision on 7 September 2006. Immediately after referring to “generosity of spirit” Hall P. also approved of the proposition that the appellant worker’s letter received by the Industrial Registrar 15 September 2006 could have been treated as an appeal within time. It was only 7 days after he received the written reasons for decision. [39] In those circumstances, and in particular where that unrepresented worker was initially not given a written decision in a timely way contrary to legislation and where he continued to agitate his intentions to appeal by letters of 24 August 2006 and 15 September 2006, I can understand the context in which Hall P. made the comment about “generosity of spirit”. However, unlike the applicant in the present matter who actually received Q-COMP’s decision and decided not to proceed any further and in fact did nothing active thereafter to pursue his appeal rights, Hetmanska actively pursued his intention to appeal because he thought it was wrong even when he had trouble obtaining the basis for the Commissioner’s decision. [40] I shall turn to a range of factors to consider in this application. Extent of the delay [41] The applicant received Q-Comp’s decision no later that mid February 2008. It was more likely received within four or so business days of 4 February 2008. The Notice of Appeal was not lodged with the court until 14 December 2009, about 10 months later. There is no dispute that this constitutes a substantial delay31. While recognising that delay in itself is not “an insuperable obstacle”, this factor clearly weighs against the exercise of the discretion. 29 Paragraph 5.4 submissions for the applicant; 30 Section 346 IR Act; 31 Oral submissions; see also paragraphs 5.8 & 6.1 submissions for applicant - 5 months was considered substantial in Foundadjis v. Bailey [2007] QIC 8; -- 11 of 16 -- 12 Explanation for the delay [42] The reasons given for the delay outlined in written submissions are32: Obtaining solicitors prepared to act on a speculative basis; Obtaining solicitors who would fund a medico-legal report; Unusual nature of Q-COMP’s decision i.e. relying on the opinion of an orthopaedic surgeon as opposed to a general practitioner; Delay while Mr Lord sought and obtained the appellant’s file; Delay in obtaining an examination with neurologist Dr Todman [43] The tenor of the applicant’s case is that his appeal would not succeed unless he had supporting medical evidence from a specialist and that it would be unethical for Mr Lord to lodge a Notice of Appeal unless there was evidence to support his case. A further reason advanced for not lodging a Notice of Appeal is that the applicant may become exposed to a costs order if he had to discontinue in the event the report of Dr Todman was not supportive. The applicant was self represented at first at least and could not afford to pay for a medical report33. [44] First, upon receipt of Q-COMP’s decision, the applicant consciously decided not to pursue an appeal even though he thought he was entitled to compensation. He did not make inquires as to who might assist him in finding a solicitor such as Mr Lord who would act on a speculative basis and pay for a medical report. Even assuming he could not afford a medical report in early 2008, he did not make inquiries about alternative ways of obtaining a specialist’s report. He only engages Mr Lord after a fortuitous meeting in a public market place in April 2008, not through any concerted effort on his part to find him and secure his services. [45] At their first meeting at the applicant’s residence on 24 April 2008, they were both aware that the appeal period had well and truly expired. Mr Lord requested and obtained the appellant’s file on 22 May 2008. I don’t think this small delay has a great impact on the case. At a conference on 12 June 2008, undoubtedly on advice from Mr Lord, the applicant agrees to instruct counsel on prospects. This advice was not forthcoming until October 2008. There is no evidence as to what actions were taken by either the applicant or Mr Lord during the period June to October. Time was languishing away in the full knowledge of the applicant and Mr Lord that the 20 day appeal period had well and truly expired before the applicant met Mr Lord. This delay constituting a period of over three months awaiting advice has not been explained at all. 32 Paragraph 6.8 submissions for the applicant; 33 Paragraphs 4.1 to 4.3 submissions for the applicant; -- 12 of 16 -- 13 [46] I do not accept the proposition that it is unethical to lodge an appeal just because it is not known whether or not Dr Todman would provide a supporting report. These proceedings are appeals on the merits against the decision of an administrative body. Further, in deciding to appeal or not, in my view the predominant factor is to preserve the applicant’s interests by filing a Notice of Appeal. This consideration far outweighs the unlikely and remote event that Q-COMP would seek costs at an industrial callover at an early stage for discontinuance had Dr Todman’s report been unfavourable. Matters are discontinued all the time at these callovers without any adverse costs orders and this could have been easily clarified by making contact with Q-COMP. There is no evidence that either the applicant or Mr Lord contacted Q-COMP to canvass that concern at any stage until Mr Lord’s letter dated 19 January 2010 which set out the history of the matter and raising the issue of the granting of leave. Although Mr Lord was acting on a speculative basis, there was no impediment for the applicant in making those inquires as many others do. I do not consider that ground to be reasonable. I accept the respondent’s submissions in this respect. [47] It was submitted for the applicant in supplementary submissions that delay on the part of a solicitor should not be attributed to the applicant. The Court of Appeal decisions of Perdis v The Nominal Defendant [2003] QCA 555 and Morrison-Gardiner v. Car Choice Pty Ltd [2004] QCA 480 were referred to. [48] Perdis was a common law personal injuries claim for damages. On 6 September 2002 the plaintiff was injured in a motor vehicle accident with an unidentified vehicle. She consulted solicitors on 14 November 2002 which was within the three month period in which she had to notify the Nominal Defendant. A notice was given to the Nominal Defendant on 13 December 2002, seven days outside the three month period. In those circumstances, the Nominal Defendant’s appeal was dismissed and it was found that a reasonable excuse had been provided for that 7 day delay. However, after observing that it was a reasonable excuse for the plaintiff to entrust the matter with a solicitor, Davies JA qualified that at paragraph [13]: It may be necessary to qualify that general proposition where, after a claimant has entrusted the matter to his or her solicitor, there is something which would cause a reasonable person in the position of the claimant to make further inquiry or take other steps but it is unnecessary to consider any such qualification here for the claimant here did all that could reasonably have been expected of her. [49] In the present case, the applicant was fully aware of the 20 day appeal period and decided not to go any further. He then engaged Mr Lord on a speculative basis after fortuitously meeting him but time drifted on for a long time. I think that a person in the position of the applicant should have made further inquires or take further steps if he was in fact serious about appealing. As a general proposition, while the delay of a solicitor should not be attributed to the client, in my view the principle relied on in Perdis does not assist the applicant here. I accept the respondent’s supplementary submissions on this point34. [50] Further, at paragraph [14] in Perdis, Davies JA concluded that there was no requirement to explain any delay prior to the three month period expiring – only the 34 Paragraphs 5 to 14 respondent’s submissions; -- 13 of 16 -- 14 delay that occurred after that. It was seven days in that case. He went on to observe however, that “the whole of the period from 6 September 2002 (date of accident) may be relevant when considering the exercise of the discretion under section 39(5) (c)”35. The delay in the present case is a total of 10 months. In my view, this also militates against the exercise of the discretion to extend time to appeal in this case. [51] In the circumstances, I agree with the respondent’s submissions that there has been no proper explanation for the delay: From the date of receipt of Q-COMP’s decision up to 24 April 2008 when he retained the services of Mr Lord; and From 24 April 2008 to 14 December 2008 when the Notice of Appeal was eventually lodged. Prejudice to the Respondent [52] The applicant submits that prejudice to the respondent is minor36. The employer obtained statements from the applicant and five others from the workplace in April 2008 and has the report of orthopaedic surgeon Dr Journeaux dated 16 April 2008 and received by the employer’s self insurance unit on 26 June 2008. [53] The respondent submits that there is significant factual dispute about the mechanism for the applicant’s injuries and whether his employment was contributory to that injury. Statements of the witnesses referred to above were taken over two years ago and even more time will elapse before the matter would proceed to trial if this application were granted. Critical conversations and events by these witnesses would become “problematic with the passage of time”. [54] I have read the statements provided by the investigator. Contrary to submissions for the applicant, I agree with the respondent that there are generally factual issues. While some of those statements may support the applicant’s case in the sense that the ground over which the applicant drove the forklifts was uneven, those statements are generally not complimentary of the applicant. I agree that important evidence would be lost due to fading memories and the passage of time. The respondent would be prejudiced to an extent greater than that alleged in the applicant’s submissions. Prejudice to the Applicant [55] It is not disputed that the applicant would be prejudiced if this application were not granted. 35 Motor Accident Insurance Act 1994 (Qld); 36 Paragraph 6.14 submissions for the applicant; the applicant and Mr Lord assert this in their respective affidavits; -- 14 of 16 -- 15 Enthusiasm for prosecuting the Appeal [56] In view of my comments throughout these reasons, I conclude that the applicant’s enthusiasm for prosecuting his appeal was far from satisfactory. First, he decided not to appeal after he received Q-COMP’s decision. He did nothing until he fortuitously met Mr Lord who acted for him on a speculative basis. He did not even telephone Q-COMP on the phone number provided to seek advice about his options. Armed with the full knowledge of the 20 day appeal period, the applicant let things drift away until 14 December 2009 when the Notice of Appeal was lodged. He then instructed his solicitors to lodge the appeal at that point even though he had not been assessed by Dr Todman then. He could have and should have done this much earlier and could have filed it within the 20 days if he was serious about it: see also similar comments in Taylor v Q-COMP [2008] QIRComm 128 (22 July 2008) at page 4 of 5 per Commissioner Fischer. Merits of the Appeal [57] In citing a range of authorities finding in favour of workers who have sustained back symptoms because the seats on their machines have bottomed out37, the applicant submits that prosects of success are good with respect to the mechanism of injury, the causation issue and the identified injury. This is also on the basis of what is contained in Dr Todman’s report. The circumstances of the injury were fully investigated and the three year limitation period for a common law claim has not passed38. [58] The applicant’s submissions simply come to the view that the applicant’s case is good having regard to Dr Todman’s reports on causation without any analysis of why those reports should be preferred to Dr Journeaux’s report in circumstances where Dr Journeaux saw the applicant on 16 April 2008, shortly after the alleged events39. [59] On the other hand the respondent refers to a range of factual issues including that the applicant’s desire to pick and choose which machinery he operated, failure to report symptoms at the time he alleges the injury was sustained, that he had issues with his back in the past and the applicant was capable of riding his pushbike to work despite having suffered the injury alleged. The submission is to the effect that there are a range of factors that mitigate against the workplace being a significant contributing factor40. [60] In respect of the medical evidence, orthopaedic surgeon Dr Journeaux gives an opinion based on an interview with the applicant close to the time of the alleged work injury. He could not marry up current pathology with the mechanism of injury as described to him by the applicant. Dr Journeaux concluded that the applicant’s symptoms are most likely postural41. 37 See O’Sullivan v. Hotchin & Anor [1977] QSC 40 & others at paragraph 6.9 applicant’s submissions; 38 Paragraphs 6.9 to 6.11 applicant’s submissions; 39 Paragraph 6.9 applicant’s submissions; 40 Page 9 respondent’s submissions; 41 Page 10 respondent’s submissions; -- 15 of 16 -- 16 [61] It was submitted for the respondent that neurologist Dr Todman could only hypothesize as to the possibility of injury because his report is 2 years after the event. The MRI scan of the thoracic spine on 20 February 2010 was normal. [62] I agree that there are a number of issues that need to be determined if the matter were to proceed to trial. However, I would tend to agree with the respondent’s submissions that the applicant’s case is not a strong one. Conclusion [63] After considering all of the material and submissions, for the foregoing reasons I do not consider the interests of justice is served by granting the extension of time. Accordingly, I refuse to exercise the discretion to extend time for the applicant to appeal. [64] The applicant is to pay the respondent’s costs of and incidental to this application to be assessed or agreed. I grant liberty to apply to either party on the giving of 3 business days notice if agreement on quantum of costs cannot be agreed. -- 16 of 16 --