Australia Meat Holdings Pty Ltd v Q-COMP [2007] ICQ 26 (2007) 185 QGIG 231

[Extract from Queensland Government Industrial Gazette, dated 13 July, 2007, Vol. 185, No. 11, pages 231-236] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Australia Meat Holdings Pty Limited AND Q-COMP (C/2007/15) PRESIDENT HALL 3 July 2007 DECISION Section 542(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides that subject to s. 542(4), an application for a review of a decision by an insurer, or a failure to make a decision by an insurer "...must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision or the failure to make a decision and the reasons for the decision or failure" to make a decision. The critical issue on this Appeal is identification of the consequences which flow from failure by an applicant to comply with the time limit of 3 months. The Act makes no express provision about the consequence of failure to comply with the time limit. The consequences of disconformity are to be ascertained by construction of the statutory language having regard to the context of the language and the purpose and policy of the provisions containing the language. In my view the starting point is Chapter 7, Parts 1 and 2 which provide: "Chapter 7 The Authority Part 1 Establishment 326 Authority is established The Worker's Compensation Regulatory Authority (the Authority) is established. 327 Authority is a body corporate etc. The Authority - (a) is a body corporate with perpetual succession; and (b) has a common seal; (c) may sue and be sued in its corporate name. 328 Authority may operate under trading name The Authority may operate under a trading name prescribed under a regulation. 329 Authority represents the State The Authority represents the State. Part 1 Functions and powers 330 General statement of Authority's functions (1) The Authority's primary function is to regulate the workers' compensation scheme. (2) In enforcing this Act as the regulator, the Authority's functions include the following - (a) to monitor the compliance of insurers with this Act; (b) to monitor the performance of insurers under this Act, including the consistent application of this Act; (c) to decide applications relating to self-insurance; (d) to approve amounts payable under an industrial instrument for the purposes of section 107B; (e) to undertake reviews of decisions under chapter 13, part 2 and manage appeals under chapter 13, part 3; (f) to support and oversee the efficient administration of medical assessment tribunals; (g) to undertake workplace rehabilitation accreditation and compliance activities; (h) to provide rehabilitation advisory services; (i) to maintain a database for scheme-wide reporting; (j) to promote education about the workers' compensation scheme; (k) to collect fees under the Act; (l) to administer grants under the Act; (m) to perform other functions given to the Authority under this or another Act. -- 1 of 5 -- 2 331 Authority's general powers (1) The Authority has, for or in connection with the performance of its functions, all the powers of a natural person, including, for example, the power to -. (a) enter into contracts; and (b) acquire, hold, dispose of and deal with property; and (c) appoint attorney and agents, including for debt collection; and (d) charge, and fix terms, for goods, services and information supplied by it; and (e) engage consultants; and (f) establish subsidiaries; and (g) do all other things necessary or convenient to be done for, or in connection with, the performance of its functions. (2) Without limiting subsection (1), the authority has the powers that are conferred on it by this or another Act. (3) The Authority may exercise its powers inside and outside Queensland. (4) Without limiting subsection (3), the Authority may exercise its powers in a foreign country. (5) The fact that the doing of an act by the Authority would not be, or is not, in its best interests does not affect its power to do the act. (6) In this section - power includes legal capacity.". (Emphasis added) From Chapter 7, Parts 1 and 2, one moves to Chapter 13, Part 2. Section 539 declares the object of Part 2 to be "...to provide a non-adversarial system for prompt resolution of disputes.". Section 540 defines the decisions to which Part 2 applies. Section 541 confers a right to seek a review upon a claimant, worker or employer aggrieved by a decision or failure to make a decision. Consistently with s. 330(2)(e), s. 545 entrusts the functions of conducting the review to the Workers' Compensation Regulatory Authority. Directing its command to the Authority the section provides: "545 Review of decision or failure to make a decision (1) The Authority must, within 25 business days after receiving the application, review the decision and decide (the review decision) to - (a) confirm the decision; or (b) vary the decision; or (c) set aside the decision and substitute another decision; or (d) set aside the decision and return the matter to the decision-maker with the directions the Authority considers appropriate. (1A) The Authority may Act under subsection (1)(d) only if the authority - (a) has considered information that was not available to, or known by, the decision-maker when the decision-maker made its decision; or (b) believes on reasonable grounds that the decision-maker did not have satisfactory evidence or information to make its decision; or (c) believes on reasonable grounds that the decision-maker has not observed natural justice in making its decision. (2) If an application is about the failure to make a decision, the Authority may - (a) make the decision (also a review decision) after considering the information before it; or (b) return the matter to the decision-maker with the directions the authority considers appropriate. (3) The decision-maker to whom the directions are given must comply with the directions. (4) The authority may extend the time in subsection (1) - (a) with the applicant's consent, to allow the applicant a right of appearance or to make representations under section 543; or (b) with the applicant's consent, to obtain information under section 544; or (c) if the applicant applies to the Authority in writing for time to give the Authority further information. (5) If the Authority acts under subsection (1)(b) or (c) or (2)(a), the decision is taken for this Act, other than this part, to be the decision of the decision-maker.". -- 2 of 5 -- 3 The word "must" at s. 545(1)(a) being used with reference to a power, indicates that the power is required to be exercised, Acts Interpretation Act 1954, s. 32 CA(2). If the subsection is given its literal meaning, it is the receipt of the application, not receipt of an application compliant with s. 542, which triggers the Authority's obligation. Section 542, which directs its command not to the Authority but to the applicant, provides: "542 Applying for review (1) An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision or the failure to make a decision and the reasons for the decision or failure, unless subsection (4) applies. (2) For subsection (1), the applicant may, within the 3 months mentioned in the subsection, ask the Authority to allow further time to apply for review. (3) The Authority may grant the extension if it is satisfied that special circumstances exist. (4) If the notice did not state the reasons for the decision or the failure to make a decision - (a) the applicant must ask the decision-maker for the reasons within 20 business days after receiving the notice; and (b) the decision-maker must give written reasons within 5 business days after the applicant asks for the reasons; and (c) the application for review must be made within 3 months after the applicant receives the reasons, regardless of whether the reasons address the matters prescribed under a regulation. (5) The application for review - (a) must be made in the approved form and given to the Authority; and (b) must state the grounds on which the applicant seeks review; and (c) may be accompanied by any relevant document the applicant wants considered in the review. (6) The authority must, within 10 business days after receiving the application, give the applicant and the decision maker written notice that the application has been received.". (emphasis added) There is no express provision that an application beyond the 3 month limitation of time is invalid or a nullity. Given that s. 541(1) may fall for consideration in superior courts of record of general jurisdiction and in courts of record of limited jurisdiction that omission is entirely understandable, compare Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387 at paras [10] to [16] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. However if the Legislature had intended the right to a review (s. 541) to terminate with the expiration of the three month period at s. 541(1), the Authority might readily enough have been forbidden to deal with such an application or, alternatively, forbidden to receive the application. I quite accept one must inquire whether "... it was a purpose of the legislation that an outcome in breach of the provision should be invalid.". Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 to 391 per McHugh, Gummow, Kirby and Hayne JJ. The cautionary caveat appears in Berowa Holdings Pty Ltd v Gordon (2006) 228 ALR 387 at paras [85] to [86] in the reasons for decision of Kirby J: "First, s. 151C(1) does not use the language of nullity or voidness. It is, instead, expressed in terms of what a person to whom compensation is payable under the Act is entitled, or not entitled, to do. Unlike ss 151F, 151G and 151H, it is not addressed to what the court may do in the award of damages. The Act does not state the consequences of breach of the non-entitlement expressed in s 151C(1). Deriving those consequences therefore depends on drawing, from the language and apparent purpose of the provision, outcomes which the Parliament has not stated. The duty imposed on a person by s 151C(1) is one of imperfect obligation. Where Parliament has enacted a provision in language which holds back from attaching consequences of nullity and voidness to the acts of a person in breach, it requires a very strong indication elsewhere in the Act that this is Parliament's purpose, if the court is to derive an implication that this is so. This is because of the drastic consequences that can follow conclusions of nullity and voidness in the law.". Here the consequence of treating failure to act within the time limit at s. 541(1) as barring the aggrieved claimant worker or employer from all redress in a consequence of great significance which sets ill with the objects at s. 5. The objects at s. 5 are, by s. 4, an aid to the interpretation of the Act. Section 5 provides, (amongst other things): -- 3 of 5 -- 4 "Workers' Compensation Scheme (1) This Act establishes a workers' compensation scheme for Queensland - (a) providing benefits for workers who sustain injury in their employment, for dependants if a worker's injury results in the worker's death, for persons other than workers, and for other benefits; ... (4) It is intended that the scheme should - (a) maintain a balance between - (i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and (ii) ensuring reasonable premium levels for employers; and (b) ensure that injured workers or dependants are treated fairly by insurers; and (5) Because it is in the State's interests that industry remain locally, nationally and internationally competitive, it is intended that compulsory insurance against injury in employment should not impose too heavy burden on employers and the community.". Further, the loss of all redress is to be imposed as a consequence to protect a time limit which will start to run only when the applicant has both the decision and the reasons for the decision and which may be extended pursuant to s. 542(2) and (3) i.e. a variable time limit. Additionally, whilst I accept that "must" is not necessarily used in the same sense wherever it appears in s. 542, it is more than a little difficult to articulate a basis for distinction. To impute an intention that all remedy should be lost as a consequence of some of the peccadillos referred to is a bold step indeed. In my opinion on its proper construction s. 542(1) is not intended to extinguish the right to a review when an applicant fails to meet the time limit of three months. I am comforted in that conclusion by the decision of Lyons J in Cloncurry Shire Council v Workers' Compensation Regulatory Authority and Anor [2006] QCS 362. In that case, albeit for different reasons, Her Honour reached the same result. To deny s. 542(1) the effect contended for by the Appellant is not to render the subsection otiose. The Act does not authorise the Authority to refuse to receive an application which complies with s. 542. The legislative scheme appears to me to impose a requirement upon the Authority to conduct a review where an application is made in conformity with s. 542 but, subject to the constraint of an appeal to an Industrial Magistrate - leave to the judgement of the Authority whether to deal with a non-conforming application. Such a construction explains s. 542(2) and (3) upon which Senior Counsel for the Appellant heavily relies. An applicant granted an extended period of time before the 3 months expires, gains certainty and retains the right to insist that the review be conducted if the application is lodged within the extended time. The Authority has the function of undertaking reviews under Chapter 13, Part 2 (s. 330(2)(e)). The Authority also has the function of monitoring the compliance of insurers with the Act (s. 330(2)(a)) and the function of monitoring the performance of insurers under the Act including the consistent application of the Act (s. 330(2)(b)). The conduct of an out of time review may well be an appropriate way of discharging those functions. At first instance the Industrial Magistrate held that the demands of s. 542(1) had been met because there had been substantial compliance. His Honour took that view in reliance upon the decision of this Court in Q-COMP v Baulch (2004) 175 QGIG 978. I do not resile from the decision in Q-COMP v Baulch, ibid. However, that decision related to the WorkCover Queensland Act 1996. In the form which it took relevant to the Appeal, s. 491 of the WorkCover Queensland Act 1996 was a true counterpart of s. 542. However, the WorkCover Queensland Act 1996 did not establish a regulatory authority. The function of a review was performed by WorkCover. The function was performed by WorkCover in the cases even where WorkCover was the insurer, albeit by a discrete unit. Under the current Act, the review function is transferred to the Workers' Compensation Regulatory Authority (trade name, Q-COMP). There is every reason why regard should be had to the legislative statement of the Authorities' functions in determining how applications which do not comply with s. 542(1) are to be dealt with. There may well be cases in which the Authority will (properly) decide to conduct a review where there has not been substantial compliance. In Cloncurry Shire Council v Workers' Compensation Regulatory Authority and Anor [2006] QSC, Lyons J was pressed with the example of a worker in a coma. Given that s. 32 extends to psychiatric/psychological injuries, a more mundane example might be the worker who lacks capacity until long after the three months has expired. Looking at the matter from an employer's perspective a test case may expose a flaw infecting a series of decisions by an insurer. However, all of that is for the future. The law develops on a case-by-case basis. Here, it is sufficient to accept that a decision to deal with an out of time application may be based on substantial compliance, and to inquire whether the Industrial Magistrate was right to conclude that such compliance had occurred. The current case is certainly not as clear cut as the factual situation in Q-COMP v Baulch, op. cit. In that case, the applicant had completed her application within time but it had not been received by Q-COMP until two days after the expiration of the three month period. Here, the application was lodged more than six months after the decision of the self-insurer which the worker sought to review. However, the applicant had manifested her intention to exercise the -- 4 of 5 -- 5 right to seek a review and had taken positive steps within the limitation period to do so. In the event, she was "let down" by union officials who had the carriage of her claim for a review. The merit of the worker's claim has not been put in issue. There is no suggestion that the delay has embarrassed the conduct of any review. The prejudice suffered by the self-insurer is no more than that a dormant (and presumably finalised) claim is to be re-opened. In my view, to adopt the language of Kirby J in MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636 at paras [56] to [58], the practical effect of what has been done substantially equates with the practical effect which s. 542 seeks to achieve. The Industrial Magistrate was correct to hold that there had been substantial compliance. I dismiss the Appeal. I reserve all questions as to costs. If costs become an issue, the issue will be dealt with by way of submissions in writing. Dated 3 July 2007. D. R. HALL, President. Released: 3 July 2007 Appearances: Mr J. Griffin QC and with him Ms J. McClymont, directly instructed for the Appellant. Mr G. Long SC, directly instructed for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 5 of 5 --