Australia Meat Holdings Pty Limited v WorkCover Queensland [2002] ICQ 53 (2002) 171 QGIG 394

QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 15 November, 2002 394 ######################################################################################################################### ## INDUSTRIAL COURT OF QUEENSLAND WorkCover Queensland Act 1996 – s. 509 – appeal against decision of industrial magistrate Australia Meat Holdings Pty Limited AND WorkCover Queensland (No. C72 of 2002) PRESIDENT HALL 31 October 2002 DECISION On 7 August 2001 Mr Luke Mansfield made an application for workers’ compensation benefits for an injury which he described as an umbilical hernia. On 22 October 2001 the application was rejected by the self insurer, viz Australia Meat Holdings Pty Limited. On 14 January 2002 WorkCover’s Independent Review Unit made a review decision which set aside the decision of the self insurer and substituted a decision that Mr Mansfield’s application for workers’ compensation benefits be referred to the General Medical Assessment Tribunal “for decision in respect of the matter set out in s. 438(2) of the Act”. The self insurer, as it was entitled to do, appealed to the Industrial Magistrates Court. When the appeal was called a number of preliminary points were taken. Of those preliminary points only two are now agitated on the appeal against the decision of the Industrial Magistrate (which was adverse to the self insurer). The first point taken is that the Independent Review Unit was “out of time”. As a matter of fact that proposition is correct. The Application for Review was received by the Review Unit on 12 November 2001. (It was dated 30 October 2001). By s. 494(1) the Review Unit must, within 35 days after receiving an application for review, review the relevant decision unless the period is extended by the Review Unit (with the worker’s consent) pursuant to s. 494(4). The Review Unit did not give its decision until 14 January 2002. Mr Mansfield did not consent to an extension. Indeed, he was not asked to consent. Mr Mansfield did ask for a “right of appearance”. That right was granted after he had been contacted by the Review Unit on 8 January 2002. (The appearance took place on 10 January 2002). However, although the proposition that the Review Unit was “out of time” is factually correct I do not accept that the Review Unit’s omission to discharge its statutory duty deprived Mr Mansfield of a right to review. In truth, the issue is whether the time limit at s. 494(1) is, subject to extension pursuant to s. 494(4), a mandatory requirement the performance of which is a condition precedent to the jurisdiction of the Review Unit. In dealing with an analogous point in Hatton v. Beaumont and Others (1978) 20 ALR 314 at 318 Jacobs J (with whom Gibbs ACJ, Stephen and Aickin JJ agreed) was content to adopt as a correct statement of general principle a passage from the (then current) edition of Maxwell on Interpretation of Statutes: “A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power. Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right of authority conferred, and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.”. -- 1 of 2 -- 15 November, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 395 There are certainly provisions within the WorkCover Queensland Act 1996 requiring the fulfilment of conditions as to time by a worker seeking to take up the opportunity for an independent review. The provisions are contained within s. 491 of the Act. They stand in stark contrast to the provisions at s. 494. The obligations at s. 494 do not fall upon the applicant for review. The obligations at s. 494 fall upon the Independent Review Unit. There is nothing in the language of s. 495(4), which gives the applicant a remedy if the Review Unit does not act timeously, to suggest that failure to exercise that remedy involves the consequence that the right which accrued upon filing of the application lapses. In my view there is no merit in the appellant’s first point. The second point taken by the appellant is that whilst the Review Unit has pursuant to the joint operation of s. 494(1)(c) and (5) with s. 437, power to refer a matter to the General Medical Assessment Tribunal, the Industrial Magistrate failed to determine whether the power had been “appropriately” exercised. I do not accept that submission. It seems to me that the Industrial Magistrate did consider the Review Unit’s reasons for referring the matter to the General Medical Assessment Tribunal, found that the critical reason was the inability of the Review Unit to determine which of the conflicting medical opinion evidence it should accept, and concluded that the decision to refer to the General Medical Assessment Tribunal was a proper exercise of the Review Unit’s discretion. That seems to me to be correct. The Review Unit was exercising a discretion on grounds which are not particularised by the WorkCover Queensland Act 1996. The grounds for the exercise of the discretion are to be found in the subject matter and purpose of the Act. Whilst there is power in an Industrial Magistrate to correct an erroneous exercise of the discretion, an exercise of discretion should be characterised as erroneous only where erroneous within the principle in House v. The King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McKiernan JJ. (See also Norbis v. Norbis (1986) 161 CLR 513 at 518 to 519 per Mason and Deane JJ). It is correct to say that appeals to the Industrial Magistrates Court against decisions of the Review Unit are not normally constrained by that principle. The reason is that the bulk of the appeals from the Review Unit to the Industrial Magistrates Court are not appeals against the exercise of a discretion. It is not a matter of asserting that the appeal differs according to the nature of the decision made by the Review Unit. It is a matter of asserting that assessment of the correctness of the Review Unit’s decision will vary according to whether, by the grant of a discretion, the Review Unit was granted some latitude in matters where opinions will often differ. I dismiss the appeal. I reserve the question of costs. Dated 31 October 2002. D.R. HALL, President. Released: 31 October 2002 Appearances: Ms J. Ryrie of Counsel, directly instructed, for the appellant. Mr S. Sapsford of Counsel, directly instructed, for the respondent. -- 2 of 2 --