BACKGROUND

In Queensland, insurers are required to make decisions in relation to applications for compensation (claims). Some of those decisions are ‘reviewable’ by the Workers’ Compensation Regulator (the Regulator).

The Regulator’s review decisions can be the subject of an appeal to the Queensland Industrial Relations Commission (the Commission). Section 550(1(a) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (the Act) provides that a Notice of Appeal must be lodged within 20 business days after a person receives the Regulator’s review decision.

Section 550(3) seemed to provide that an appellant could, within the time limit to appeal, ask the Regulator to allow further time to appeal.

There has been uncertainty as to whether it was only the Regulator that could allow an extension of time within which to appeal - or whether the Commission had the power to do this also.

ISSUE

In 2010, President Hall of the Industrial Court of Queensland held in Steven Pearce v Q-Comp[1] (Pearce) that the time limit to appeal prescribed in section 550(1)(a) could be waived by the Commission if there was ‘substantial compliance or special circumstances.’

In 2015, Deputy President O’Connor in van der Berg v Simon Blackwood (Workers’ Compensation Regulator)[2] felt constrained to follow the earlier decision of the Industrial Court in Pearce, [3] but he was concerned there was no legislative basis for interpreting section 550(1)(a) in the way the Industrial Court had.

Deputy President O’Connor considered that it was only the Regulator, and not the Commission, who had the power to waive compliance with section 550 of the Act or otherwise extend any time to appeal.[4]

Later in September 2015, section 550(3) of the Act was specifically amended by the Workers’ Compensation and Rehabilitation and other Legislation Amendment Bill 2015[5] to try and clarify the position:

However, the appellant may ask the respondent [invariably the Regulator] to allow further time to appeal.

The Explanatory Notes to the amending legislation offered this:

Clause 29 amends section 550 of the Act to allow a respondent the right to allow further time for the appellant to appeal on consent of the parties. This is consistent with the amendments made in relation to review applications under clause 28.

In 2016, after this amending legislation, in Grice v Workers’ Compensation Regulator[6] Vice President Linnane agreed with the views of Deputy President O’Connor that the Commission had no power to waive compliance with section 550(1)(a) of the Act even in circumstances where there might have been substantial compliance or other special circumstances.[7]

In September 2016, Deputy President Kaufman in Keighran v Workers’ Compensation Regulator[8] also took this approach:

It seems to me that there are now two conflicting decisions on the principles of law that are applicable and, as in my view and in the view of Deputy President O’Connor and Vice President Linnane and Justice Martin, the correct interpretation of the law is that there is no discretion to allow an appeal out of time in this Commission, I am able to follow the decision which I consider to be correct.

That is my ruling. I do not have that discretion. I cannot give you leave to appeal out of time.[9]

OUTCOME

It is only the Regulator, not the Commission, that has the power to extend the time to appeal a review decision to the Commission.