Allwood v Sundin, Chung, Greaves & Anor [2020] QSC 188

The applicant's application for an extension of time

• [107] I was referred to numerous authorities on the court's approach to an application for an extension of time in this context.
• [108] In Kuku Djungan Aboriginal Corporation v Christensen [1993] 2 Qd R 663, Moynihan J said (at page 665) -

It seems to me that, prima facie, proceedings commenced outside the limitation period ought not to be entertained unless the applicant shows an acceptable explanation of the delay and that it would be fair and equitable in the circumstances to extend the time. Such considerations, in cases such as the present, extend beyond considerations applying as between the applicant and the respondent and to include a wider public interest. The same may be said of considerations of prejudice to the respondent and others consequent on the delay in bringing the application ... [Also] the merits of the substantive application are a consideration relevant to granting an extension of time ...

• [109] In Hoffman v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369, Thomas J said (at page 372) -

The principles upon which time may be extended in cases of this kind have been mentioned in a number of decisions ... They include the existence of a satisfactory explanation, notions of what is fair and equitable in the circumstances, whether any prejudice will be occasioned to the respondent, the public interest, and (where such a view is possible) the merits of the substantial application for review. There is some difference of view as to whether the provision of an adequate explanation for the delay is a pre-condition to allowance of such an application ... Perhaps it is not [a pre-condition] but the absence of explanation for a delay must at least be a persuasive factor against granting an extension.

• [110] Earlier in that decision, Thomas J explained that whilst the court should, if it can conveniently do so, take into account the merits of the applicant for review for which the extension was sought, it was not normally possible, or even desirable to contemplate the merits or prospects of the applicant's success when and if the decision is referred back to the decision-maker except in a very limited way. His Honour continued (at 370) -

The function of the court under the Judicial Review Act is not that of reviewing decisions on the merits, but rather of ensuring the procedural fairness and protecting applicants from legal errors of the kind listed in s. 20(2). That is not to say that a court will always be blind to the ultimate picture if it is clearly enough in view ...

• [111] In Westwood v Human Rights & Equal Opportunity Commission [2004] FCA 153, Conti J summarised the relevant principles by reference to Wilcox J's decision in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 344. Conti J said, at [28] that the principles (as they applied to the Commonwealth Act) may be summarised as follows -

(i) although the Judicial Review Act does not in terms place any onus upon an applicant for extension, and special circumstances need not be shown, the court will not grant the application unless positively satisfied that it is proper to do so, and the prescribed period is not to be ignored; indeed it is the prima facie rule that proceedings commenced outside that period of time will not be entertained;

(ii) it is a pre-condition of the exercise of discretion in extending the time for making any such application that the applicant for extension must show an acceptable explanation of the delay, and that it is fair and equitable in the circumstances to extend the time;

(iii) a distinction is to be drawn between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision, and a case where the decision-maker was allowed to believe that the matter was finally concluded; the reasons for that distinction are said to be not only the need for finality of disputes, but also the fading from the human memory problem that inherently arises the longer review of a decision is delayed;

(iv) any prejudice to the respondent to the proceedings, including any prejudice in defending the proceedings occasioned by the delay is material; moreover the mere absence of prejudice is not enough to justify the grant of an extension; in that context, public considerations may often intrude; thus a delay which may result, if the application is successfully, in the unsettling of other people is likely to prove fatal to the application;

(v) the merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted; and

(vi) considerations of fairness as between the applicant and other persons otherwise in a like position are also relevant to the manner of exercise of the Court's discretion.

• [112] Conti J went on to explain that there had been a qualification to this longstanding dictum of Wilcox J, as per Hill J in Kim Hyun Tai v Bolkus (1996) 42 ALD 249 at 252 -

The comment of his Honour in respect of the first guideline, that it is a pre-condition to the exercise of discretion that the applicant show an acceptable explanation of a delay might, if seen as a statement of law, require some modification ... Certainly it may be expected that an explanation will be given and the strength or otherwise of that explanation will be a relevant matter to be considered. So, too, would failure to give any explanation at all. But I would not wish to foreclose the possibility that the justice of allowing an extension of time was so great that failure to give an explanation operated to disentitle an applicant for review.

In the present case no explanation at all has been given. The failure to give an explanation is a matter to be taken into account. It does not, however, in my view, lead to the conclusion that the application should automatically be disallowed.

• [113] In Waratah Coal Pty Ltd v Nicholls & Anor [2013] QSC 68, Applegarth J succinctly expressed the relevant considerations as follows at [77] -

In determining whether to grant an extension of time pursuant to s 26 of the JRA, consideration should be given to:

(b) whether the grant of an extension would be fair and equitable in the circumstances; and

• [114] Of (c) his Honour also said, at [80] (footnotes omitted) -

In some cases in which an extension of time is sought within which to commence judicial review proceedings it is not possible to form a view about the applicant's prospects of success. Often it is not appropriate in determining an application for an extension of time to embark upon an assessment of the merits. However, if the prospects of success of a substantive application are plainly strong or plainly weak, then that may be relevant to the application for an extension of time ...

• [115] Those authorities have guided my approach in this matter.

The explanation given for the delay: Applicant's submissions

• [116] The MAT's decision about claim #043 meant that the applicant was not entitled to pursue a claim for common law damages based on his first injury.
• [117] Although the decision had that effect, the applicant submitted in writing that he was not aggrieved by it (when it was made) "because he was entitled to bring a claim for damages with respect to the second injury, and those damages, based on the evidence, would compensate him for the harm he suffered as a result of the first and second injuries. This is so because the only evidence with respect to apportionment of the impairment between the first and second injuries was that of the MAT".
• [118] He went on to submit that it was not until "receipt of the evidence from Dr Dwyer on 17 September 2019 [that] it became clear that [his] claim for damages as a result of the second injury could not be such that would compensate him for the psychiatric injury that he suffered during his employment".
• [119] I note that there was no evidence about the reason for the delay tendered in support of the application. For example, there was no evidence from the applicant or his lawyers about the way in which the decision of the MAT was received by them: no evidence that they reasoned at the time that while the applicant was deprived by the decision of an entitlement to bring a common law claim in relation to his first injury he was not "aggrieved" by the decision because he was left with the second injury common law claim and its promise of substantial damages on the basis of the MAT's assessment. The applicant's counsel submitted, essentially, that I was able to draw those inferences from the facts. For the moment, I will assume that it is appropriate for me to do so.
• [120] Counsel for Mr Allwood elaborated on this "not aggrieved by the decision" argument in oral submissions. She said, in effect, that the applicant did not become aggrieved within time because it was only when Dr Chalk's report was received that it "became clear that WorkCover was in a position to argue that the assessment of permanent impairment was incorrect and that the bulk of the damage caused to Mr Allwood was from the first of the injuries and not the second. Then, when Dr Dwyer agreed with that assessment it became essentially impossible for Mr Allwood to argue against that".

[18] All these concerns are founded on the notion that the mining in which RAG has engaged, or might yet carry out, may impact adversely on the applicant's interests; and as much may be assumed. But that does not mean that the impugned decision - to approve the assignment of Pelsoil's interest to RAG - involved the prospect of some adverse consequence for the applicant or his interests.

[19] Neither approval of the assignment, nor the assignment itself, could have prejudiced the applicant's rights under the compensation agreement. There is no suggestion that Portman had ceased to be bound by that agreement; and ... the mining lease was subject to a condition that the holder comply with all the terms of any such agreement. In these circumstances, as the Judge held, the assignment would permit the applicant to enforce the obligation to maintain the homestead against Portman, RAG, and, if Pelsoil had covenanted to do so, against Pelsoil.

• [127] The applicant argued -in effect - that he was in the same position. He had, it was submitted "the ability to exercise his other rights with respect to his second injury up until Dr Dwyer's report".[44]
• [128] The applicant also referred me to paragraph [21] (and in particular to the phrases in bold below) in which his Honour said -

It was not suggested before the Judge, through evidence or argument, that the nature, extent or consequences of the mining and related activity might possibly have been different were it not for approval of the assignment. And no case was advanced ... to the effect that the identity of the miner might otherwise matter to the applicant or his interests: there was, for example, no suggestion that Pelsoil's capacity or willingness to perform its obligations in connection with the lease or pursuant to the compensation agreement may have been different from RAG's.

• [129] As I understood counsel's argument, she was suggesting that the present applicant was not "aggrieved" as required only because the MAT's decision might have had an adverse impact on him - as turned out to be the case.
• [130] The applicant did not attempt to draw any particular support for his argument from Chilcott beyond noting that Cullinane J said at [16] that, "The question whether a person is a person aggrieved will in each case turn upon the terms of the particular legislation, an analysis of its subject matter and the scope and purpose of the relevant statutory provisions".

The explanation given for the delay: Second respondent's submissions

• [131] The second respondent submitted that the applicant's written submissions revealed that he made a conscious decision not to challenge the MAT's decision - because he considered that the damages he would receive for his second injury would also compensate him for his first injury.
• [132] In writing, the second respondent said -

... the explanation offered by the applicant does not warrant the granting of an extension of time in which to bring the application for judicial review. The position of the applicant is that he clearly made a conscious decision not to challenge the Tribunal's decision. So much is evident from his submissions. His sole explanation is reliant upon views expressed by medical practitioners as to the state of his psychiatric condition. Whether their retrospective views are correct or not is beside the point and irrelevant. The time limit imposed by the JR Act serves the purpose of bringing finality to decision-making processes. Accordingly, the justification for an extension is opportunistic and no extension should be granted.

• [133] In oral submissions, Queen's Counsel for the second respondent replied directly to the applicant's submission that he was not aggrieved by the decision of the MAT until he received the opinion of Dr Chalk and the indication from Dr Dwyer that he, in effect, agreed with it. He said -[45]

... my learned friend's conflating issues. I don't take the point that he was not aggrieved, because he was always aggrieved because he got an adverse decision from the tribunal.

• [134] He submitted that there was "nothing stopping" the applicant from seeking Dr Dwyer's opinion about the apportionment prior to the hearing of the MAT.

• [135] As Williams JA said in Shaw v Barker in 2001, there are numerous decisions on the proper meaning and construction of the term "person aggrieved". Those decisions establish that a person aggrieved is one whose rights or special interests have been adversely affected by an administrative decision. Also -
  • The words "a person who is aggrieved" should not be given a narrow construction: Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421;
  • To be "aggrieved", a person's interests must be genuinely affected in a practical way by the decision: Lock the Gate Alliance Ltd v Chief Executive under the Environmental Protection Act 1994 [2018] QSC 22 citing Argos Pty Ltd v Corbell Minister for the Environment and Sustainable Development [2014] HCA 50; (2014) 254 CLR 394 at [48] per French CJ and Keane J, at [61] per Hayne and Bell JJ, and at [86] per Gageler J; and
  • The interests that may be adversely affected by a decision include, but are not confined to, legal rights, privileges, permissions or interests: Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50;

To draw a conclusion that a person meets the statutory description of "a person whose interests are adversely affected" by a decision requires: first, identification of a decision of the designated kind; secondly, examination of the legal or practical operation of that decision; and, thirdly, the making of a judgment that the legal or practical operation of the decision has been to result in an adverse effect on identified interests of the person. The nature of the requisite interests, and the nature and degree of the requisite adverse effect, depend on the statutory context in which the description appears.

Conclusion: there has been no satisfactory explanation for the applicant's delay

• [137] As per Chilcott, having regard to the legislation which applies here (the WCRA), its subject matter and the scope and purpose of the statutory provisions under consideration - namely, to limit a worker's entitlement to pursue a claim for common law damages - unquestionably, the applicant was a person "aggrieved", in the section 7 JRA sense, by the decision of the MAT about his first injury as soon as the decision was made. He was deprived by that decision of his entitlement, or legal right, to seek common law damages for his first injury.
• [138] There is no issue about whether or not the applicant's interests were affected in a practical way by the MAT's decision or whether he suffered prejudice as a consequence of it. They unquestionably were and he unquestionably did. The decision had an immediate practical and prejudicial effect on him: it left him unable to pursue an action for common law damages for his first injury.
• [139] To say that the applicant was not aggrieved by the MAT's decision when it was made, but became aggrieved months later, misconceives the meaning of a "person aggrieved" for the purposes of the JRA. It conflates the applicant being a person aggrieved (as per section 7 of the JRA) by the decision with his reaction to it.
• [140] In the months between the MAT's decision and the applicant's lawyers seeking Dr Dwyer's opinion about it - nothing had changed about the effect of the decision. The decision had an adverse effect upon Mr Allwood's legal rights as soon as it was made.
• [141] If it were appropriate for me to draw inferences from the facts before me in the absence of evidence from the applicant or his lawyers about it - the inference which I would draw is that when the decision was made, the applicant believed he had, in effect, a "work around" solution.
• [142] In my view, the correct analysis of the inferences which the applicant asks me to draw is that whilst he was aggrieved by the first decision, he was able to with it or with it because he believed that he would be successful in a damages claim for his second injury which would provide him with money which he considered would sufficiently compensate him for his first second injuries.

• [153] The applicant relies on the merits of his claim in his application for an extension of time. The principles relevant to this aspect of his application include the following from the decision of Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ('Wu'), at pages 291 - 292 (footnotes omitted). His Honour said (my emphasis) -

What are the principles which should guide the judge conducting that review and appellate courts supervising such a decision?

1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law.
2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker.
3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.
4. Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense.
5. The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review ...

• [154] The applicant asserts that the MAT made numerous errors in its assessment of the applicant's DPI for the first injury. His grounds (as per the application) are a little difficult to follow. Further and better particulars have been provided.
• [155] In support of his grounds, the applicant relies upon various paragraphs or sections of the Guidelines for the Evaluation of Permanent Impairment, second edition (Queensland Guide).
• [156] It is worth setting out the relevant provisions of the Queensland Guide now, to give context to the applicant's arguments, with emphasis on aspects relied upon by the applicant or which I consider important.

• [157] Paragraph 1.5 of the Queensland Guide explains that it is designed to assist a suitably qualified and experienced medical practitioner or assessor to assess a claimant's degree of permanent impairment.
• [158] Paragraph 1.6 states -

1.6 The following is a basic summary of some key principles of permanent impairment assessments:

(a) Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account of the claimant's relevant medical history and all available relevant medical information in order to determine:

• Whether the condition is stable and stationary;
• Whether the claimant's compensable injury/condition has resulted in an impairment;
• Whether the resultant impairment is permanent;
• The degree of permanent impairment that results from the injury; and
• The proportion of permanent impairment due to a previous impairment, if any, in accordance with diagnostic and other objective criteria as outlined in this Guide.

(b) Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and when making deductions for pre-existing impairments.

• [159] Paragraph 1.15 states (although this appears above, I have repeated it for convenience) -

Assessments are only to be conducted when the medical assessor considers that the degree of permanent impairment of the claimant is unlikely to improve further and is stable and stationary. This is considered to occur when the worker's condition is well stabilised and is unlikely to change substantially in the next year with or without medical treatment.

A report of the evaluation of permanent impairment should be accurate, comprehensive and fair. It should clearly address the question/s being asked of the assessor. In general, the assessor will be requested to address issues of:

• current clinical status, including the basis for determining whether the injury is stable and stationary;
• the degree of permanent impairment that results from the injury/condition; and
• the proportion of permanent impairment due to any previous impairment, if applicable.

• [161] Chapter 11 of the Queensland Guide deals with psychiatric and psychological disorders. It "lays out" the method for assessing psychiatric impairment. By 11.4, the impairment rating must be based on a psychiatric diagnosis. By 11.6, it is expected that the psychiatrist will provide a rationale for the rating based on the injured worker's psychiatric systems. The section continues -

The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations, from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals, results of standardised tests ... and work evaluations may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to 'whole person impairment'.

• [162] Paragraph 11.10 deals with pre-existing impairment, and states -

To measure the impairment caused by a work-related injury or incident, the psychiatrist must measure the proportion of WPI due to a pre-existing condition. Pre-existing impairment is calculated using the same method for calculating current impairment level. The assessing psychiatrist uses all available information to rate the injured worker's pre-injury level of functioning in each of the areas of function. The percentage impairment is calculated using the aggregate score and median class score using the conversion table below [that is, PIRS]. The injured worker's current level of impairment is then assessed, and the pre-existing impairment level (%) is then subtracted from their current level to obtain the percentage of permanent impairment directly attributable to the work-related injury. If the percentage of pre-existing impairment cannot be assessed, the deduction is 1/10th of the assessed WPI.

• [163] The Queensland Guide goes on to explain the psychiatric impairment rating scale (that is, PIRS), the way in which it is to be applied, and the way in which psychiatric percentage impairment is calculated.

• [164] The first of the applicant's grounds is that the making of the decision was an improper exercise of power by reason of its failure to take "relevant considerations" into account.
• [165] The applicant argued that the MAT failed to take into account that he was "already suffering substantially as a consequence of the injuries suffered due to the events of claim number [#043] and so much so that the applicant had ceased work and been hospitalised for his injuries at the Princess Alexandra Hospital Mental Health Unit".
• [166] The applicant also argued that the matters taken into account in the PIRS assessment undertaken for the decision on claim #627 should have been taken into account in the PIRS assessment of the applicant for claim #043.
• [167] The first of those complaints amounts to an argument on the merits.
• [168] As I understand the applicant's second complaint, it is that the MAT ought not to have assessed the applicant's DPI for the first injury because at the time he left work, his injury was not stable and stationary. The applicant referred to paragraph 1.15 of the Queensland Guide and submitted that an assessment of his impairment as at the time he stopped work was not "appropriate".
• [169] He submitted, in effect, that the MAT erred in questioning him about his condition as of July 2014 because his condition was not then stable or stationary. He submitted, "Facts about Mr Allwood's mental state before the period of injury came to a close, or when his injury was not stable or stationary, cannot rightly form the basis of the permanent impairment assessment".
• [170] The argument seemed to be that the Queensland Guide required the PIRS assessment to be completed on the basis of the applicant's state when he presented to the MAT: thus it was impermissible for the MAT to attempt a PIRS assessment of the applicant for an earlier point in time.[47]
• [171] Counsel for the applicant said -[48]

... my point ...is that the Tribunal must, if there is a pre-existing condition, an earlier injury at work or some other pre-existing condition, they must make clear if they consider that the earlier condition continues to cause a permanent impairment and if they do consider it to cause a permanent impairment, then they must explain that and identify it in the table ..."

... it was not... the job of the Tribunal to determine what the impairment was at an earlier time, because that isn't how the Guidelines are set up. So the cause of the impairment is a retrospective activity but the impairment itself is not.

• [172] I note that counsel made no submissions about paragraph 11.10 of the Queensland Guide which, at least on its face, appears to suggest that the MAT was indeed required to conduct a PIRS assessment for the earlier injury.
• [173] She submitted that the MAT ought to have completed the PIRS assessment for the first injury on the basis of the same evidence used in its PIRS assessment for the second (and, as I understand the argument, arrived at the same DPI).
• [174] As to how the MAT was to reach its conclusion about the effect of the impairment caused by the first injury in arriving at its conclusion (of 20 percent DPI) for the second, she said it should not have used a PIRS assessment to do so.[49] She submitted that it was unnecessary for the MAT to have calculated the contribution of the first injury to the DPI as at December 2018 in that way - although she seemed to be suggesting that the MAT was entitled to reach an assessment of 4 percent DPI for the first injury - just not via the PIRS process.[50]
• [175] Also, counsel submitted that the MAT would have been in error if it "meant" its decisions to be read together, because each decision had to stand on its own.[51]
• [176] She submitted that to determine the DPI for the first injury and its contribution to the applicant's DPI in December 2018, the MAT ought to have "look[ed] back in time at the records that were given to [it]... to identify what symptoms Mr Allwood was experiencing". She argued that the MAT had misdirected itself to perform a PIRS retrospectively, instead of on the day Mr Allwood appeared before it.[52]

• [177] The second respondent submitted that the applicant's first ground was without substance and was contrary to the MAT's reasons. The MAT found that the applicant's condition was stable and stationary (as at December 2018).
• [178] Paragraph 1.6 of the Queensland Guide required the MAT to assess the complainant on the day he appeared at the MAT. The MAT was entitled to rely upon what the applicant said to it that day about how he was functioning years beforehand. The purpose of paragraph 1.6 was to ensure that the MAT also acquired "evidence" from the claimant in the course of its assessment of DPI.[53]
• [179] Queen's Counsel did not refer to paragraph 11.10 of the Queensland Guide.

• [180] An evaluation of the "appropriateness" of the MAT's approach to the matters referred to it must be a reasonable one which takes into account the MAT's expertise.
• [181] The MAT had two related claims referred to it - the claim concerning the first injury and the claim concerning the aggravation of a pre-existing condition (including an eating disorder, which I note was not expressed as an injury in claim #043).
• [182] It was required to apply the Queensland Guide to determine inter alia in the case of the first injury - the degree of permanent impairment which resulted from it; and in the case of the second injury - the degree of permanent impairment which resulted from it and the proportion of that permanent impairment which was due to any previous impairment.
• [183] In assessing permanent impairment, the MAT was required, by 1.6 of the Queensland Guide, to conduct a clinical assessment of the claimant as they presented on the date of the assessment in order to determine inter alia, whether the relevant condition was stable and stationary and the degree of permanent impairment (if any) which resulted from the relevant injury.
• [184] Reading that requirement reasonably with 1.15 - the MAT was required to conduct a clinical assessment of the applicant and if, upon that clinical assessment (taking account of the other matters referred to in 1.6), the MAT considered that the applicant's condition (injury) was stable and stationary, then the MAT was permitted to go on to assess the degree of permanent impairment.
• [185] On the basis of the applicant's presentation on the day of the assessment (as per 1,6), the MAT concluded that his condition/injury was stable and stationary as at December 2018. It went on, as permitted, to assess the DPI of each injury.
• [186] It seems to me that, in accordance with 11.10, the assessment had to be conducted in accordance with PIRS for each claim considered individually and for the purposes of claim #627. But in the absence of reference to this paragraph by either counsel I will not treat that section as determinative of this complaint.
• [187] Even apart from paragraph 11.10, in my view, a reasonable reading of the Queensland Guide does not suggest that, in this case, the MAT was permitted to make an assessment of pre-existing impairment on the basis of a PIRS assessment because the pre-existing impairment was not stable and stationary in July 2014.

• [192] The applicant's second ground was that the MAT's decision involved an error of law "in incorrectly applying the PIRS criteria in assessing the degree of permanent impairment sustained from the assessed psychiatric diagnosis".
• [193] In its further and better particulars, the applicant explained, in effect, that this ground repeated the complaints made in relation to the first ground - that is, that the MAT failed to take into account that the applicant was suffering substantially from the first injury and that it was the applicant's responses to the PIRS "areas" (for example, self-care and personal hygiene; concentration, persistence and pace) as at December 2018 which should have appeared in the PIRS rating form (which formed the basis of the assessment of DPI).[54]

• [194] As before, the first complaint under this ground invites a merits review. And I have dealt with the second complaint above. In my view, it was appropriate to apply the PIRS to the first injury. And it was appropriate to do so on the basis of the applicant's self-report about relevant matters as at July 2014, in the context of the other material before the MAT (as per 1.6)
• [195] There is no substance in this ground.

• [196] The applicant's third ground was that the MAT had erred in law because its decision failed to provide "adequate reasoning for the conclusions reached" in assessing the applicant's impairment under "the relevant PIRS categories". His fourth ground was that there was no evidence or material to justify the making of the assessments made under the PIRS criteria and such assessments were contrary to the MAT's own findings in the body of its decision.
• [197] In his further and better particulars, the applicant elaborated on this ground as follows -

The first respondent failed to provide adequate reasoning for its conclusions, in that the first respondent:

(a) Concluded that there was not Mental State Examination pertaining to this Claim [#043] as it is a historical claim but provided no explanation as to how it came [to] this conclusion.

(b) Concluded that the applicant was working full-time, although experiencing emotional difficulties and failed to explain this conclusion in the context that he had in fact ceased working and had been admitted to hospital prior to the events of claim number [#627] occurring.

(c) Accepted that as of mid-to-late July 2014, the applicant had developed a range of psychiatric conditions which included Post-Traumatic Stress Disorder, Major Depressive Disorder, and Panic Disorder with Agoraphobia and Generalised Anxiety Disorder but failed to provide any reasoning supporting how these serious and substantial psychiatric disorders rendered a 4% PIRS.

(d) Determined that the substantial and debilitating conditions that the applicant suffers from are ongoing as a consequence of the events of claim number [#627] and not claim number [#043] but failed to provide any or any adequate reasoning as to why that is the case.

• [198] The applicant submitted that there was no evidence to justify the conclusions in (a) to (d) above and that those conclusions were contrary to the evidence contained in the referral.
• [199] Also, the applicant stated in his further and better particulars in relation to the fourth ground -

In coming to the conclusions described above there was no evidence or other matters to justify the conclusions and is contrary to the evidence as described in paragraph 1(a) herein [that is, "the fact that prior to the events occurring the subject of claim [#627] the applicant was already suffering substantially as a consequence of the injuries suffered due to the events of claim [#043] and so much so that the applicant had ceased work and been hospitalised for his injuries at the Princess Alexandra Hospital Mental Health Unit].

• [200] The applicant's written submissions elaborated on (a). He submitted that the MAT's "conclusion" that there was no Mental State Examination pertaining to the first injury because it was a historical claim" was "confusing". He submitted if the conditions were ongoing - they were not "historical". Also - the events the subject of a claim necessarily occur in the past and all are "historical". He went on to say -

... the only way that this statement can be explained is that it was impossible for the Tribunal to undertake a mental state examination in relation the first injury because, at the time of the examination in December 2018 the Applicant had already sustained an aggravation of his injury (the second injury). It stands to reason therefore that it would have been impossible to undertake a mental state examination of the Applicant in respect of the first injury alone without a consideration of the impacts of the second injury.

• [201] As to (b), the applicant submitted that the MAT's conclusion was factually incorrect.
• [202] The applicant did not further elaborate on (c).
• [203] The applicant added, with respect to (d) that the MAT's finding was inconsistent with its finding that the conditions which were the result of the first injury were ongoing at the time of the assessment.

• [204] The second respondent submitted that the MAT's statement about not undertaking a Mental State Examination in relation to claim #043 was "an obvious one" which was "plainly correct". Also, it was not the MAT's function to determine the nature of the applicant's first injury (and to conduct a mental state examination for that purpose). The nature of the injury had already been determined by WorkCover.
• [205] As to (b) - the second respondent submitted that the reasons for decision of the MAT were to be read as a whole and fairly - relying on Minister for Immigration and Ethnic Affairs v Wu - including Kirby J's statements set out above. The statement about the applicant's working had to be read in context -

It is referring to the fact that the applicant was working full-time and experiencing difficulties prior to ceasing work on 18 July 2014. So much is evident from the history provided to the Tribunal by the applicant and is consistent with the reasons that the Tribunal was aware when the applicant ceased employment. No error has been demonstrated.

• [206] As to (c), the second respondent submitted that the MAT's reasoning was adequately set out in its decision.
• [207] With respect to (d), the second respondent observed that the applicant relied on section 20(2)(h) of the JRA. To establish this ground of review, section 24 of the JRA applied - but it was not apparent from the applicant's submissions which subsection of section 24 the applicant wished to invoke.
• [208] Further the assessment of the evidence and the weight to give it were matters for the MAT: Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363.
• [209] Generally, the second respondent submitted that the MAT's decision was "not in any way contrary to the evidence that was before it".

• [210] In Wu, the High Court considered the proper role of a reviewing court in this context. At page 272, Brennan CJ, Toohey, McHugh and Gummow JJ referred to the following well settled propositions -
  • A court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker; and
  • The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
• [211] Their Honours continued (footnotes omitted, my emphasis) -

[These propositions] recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:

'The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it: but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'

• [212] Bearing in mind my role, I have reached the following conclusions.
• [213] There is nothing confusing about the MAT's statement that "there was no Mental State Examination pertaining to" claim #043 because it was an "historical claim".
• [214] A mental state examination is an examination which follows a prescribed structure and leads to a description of a person's current state of mind or psychological functioning. The structure requires the assessor to consider a patient's appearance, mood, affect, speech et cetera.
• [215] Reading and applying the Queensland Guide reasonably in this case did not require the MAT to conduct a mental state examination for claim #043.
• [216] A mental state examination was an appropriate part of the clinical assessment required by paragraph 1.6 of the Queensland Guide.
• [217] A mental state examination may, or may not, of itself, inform the MAT's decision on DPI. To take a hypothetical example: A person's thought disorder or paranoid thinking might be apparent to the MAT upon a mental state examination conducted on the date of the assessment. But, if the injury referred to the MAT for assessment did not include symptoms of thought disorder or paranoid thinking, the mental state examination would not assist the MAT in its task, but it might cause the MAT to be cautious about the person's self-report.
• [218] In the present case, it seems that the mental state examination did inform the MAT's decision about claim #627. At worst, the MAT's statement, that there was no mental state examination for claim #043 because it was historical, was a superfluous or unnecessary statement. There is nothing in this argument.
• [219] As to (b), reading the reasons as a whole and fairly, it is plain that the MAT understood that Mr Allwood stopped working in July 2014 and that, until that point, although he had been working full time, he had been experiencing emotional difficulties. Making allowances for what might be thought to have been an "unhappy" lack of chronology, in my view, the MAT appreciated that Mr Allwood had been suicidal and had been hospitalised. And the MAT was aware that he was totally incapacitated for work in July 2014.
• [220] I acknowledge that on one view, the PIRS rating for the applicant's employability ought to have been higher than class 1 because by after 18 July 2014, it seems that the applicant was totally incapacitated for work (which would warrant a class 5 score).

(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established;

(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

• [226] Section 20(2) of the JRA limits the grounds upon which an application may be brought. The ground in section 20(2)(h) is "that there was no evidence or other material to justify the making of the decision".
• [227] Notwithstanding the second respondent's valid complaints about the applicant's failure to expressly identify the limb of section 24 upon which he relied, I am prepared to conclude that the applicant may have a valid argument about the absence of justification for its assigning class 1 to the applicant's employability for the purpose of the PIRS assessment in claim #043.

• [228] The applicant submitted that the decision was "inconsistent with the decision [of] the First Respondent dated 7 December 2018 for referral number 59659".
• [229] In his Further and Better Particulars, the applicant explained that "[t]he inconsistency ... relates to the matters described above and the facts that support that this is a reviewable error include those referred to in paragraph 1(a) herein".
• [230] As I understand the applicant's arguments, this ground was intended to argue something similar to that argued in ground four - that the decision was inconsistent with evidence of the applicant's state as at 7 December 2018.
• [231] My conclusions as to the third and fourth grounds apply to the fifth ground. I note that the second respondent made no separate response to this ground either.

• [232] The applicant submitted that there was a breach of natural justice in relation to the making of the decision.
• [233] In his Further and Better Particulars, the applicant submitted that there was a breach of natural justice in that the MAT -
  • failed to ask the applicant questions which would have allowed it to "properly assess which category of PIRS the applicant should be in", and
  • failed to ask the applicant questions which would have allowed it to "properly assess whether the ongoing impairment related to" claim #043 or claim #627.
• [234] In his written submissions, the applicant said -

There was a breach of natural justice in relation to the making of the Decision in that the Tribunal failed to ask Mr Allwood about his mental state after work on 18 July 2014 and following. Given that the Tribunal found that his injuries from the first application for Workers' Compensation were continuing at the time he was examined by them, the Tribunal ought to have questioned Mr Allwood about their ongoing symptoms and their cause.

• [235] The second respondent submitted that this ground must fail because it did not proceed on a fair reading of the MAT's decision. On a fair reading of the decision, the MAT obtained information from the applicant which was relevant to the PIRS categories. The history contained in the material before the MAT and the applicant's self-report enabled the MAT to reach the conclusions it did in relation to the PIRS's categories. Also, the Tribunal noted Dr Dwyer's opinion that by November 2015, the applicant had some capacity for work and had resumed some activity, namely taking his dogs to the dog park

• [236] There is no evidence from the applicant himself about the questions he was asked or not asked by the MAT. However, it is plain from the MAT's reasons that it did question Mr Allwood about his ongoing symptoms. I doubt that he would have been in a position to answer its questions about the cause of his symptoms - that was not a matter for him. But it is clear from the MAT's reasons that Mr Allwood was questioned by it about his symptoms after 18 July 2014. For example, the MAT said - [55]

His condition, at the time that he stopped work was not stable and stationary. He continued to report a range of symptoms over the next four years. He was continuing psychological and psychiatric treatment from that date forward. The history of his symptomatology from that time was consistent with the bulk of reports from independent treating psychiatrists and his psychologist.

• [237] As I understand the MAT's reasons, the contrast between the history and the reports was intended as a contrast between that which the applicant told it at the hearing (including, I presume, in response to its questions) and the written material.
• [238] The evidence presented in this matter does not support the sixth ground.

• [239] The applicant submitted that there would be no prejudice to the second respondent if the extension of time was granted. He submitted that it was in the public interest that the MAT undertake its referrals in accordance with the Queensland Guide. He submitted that every worker in Queensland had a right to be treated fairly and "the same as every other worker".[56] He also submitted, in effect, that not to extend time would lead to injustice in his case because he was a man with a significant psychiatric impairment. The power to extend time existed so as to prevent injustice. Counsel referred to Workers' Compensation Regulator v Pryszlak [2018] QCA 157.

The second respondent's response to those other matters

• [240] The second respondent submitted that the public interest was not served by this court's granting an extension of time. Years might pass between a decision of the MAT and an applicant's receipt of an expert's opinion contrary to it. It could not be in the public interest to permit a challenge to the MAT's decision after a long period of time on the basis that it was only upon receipt of the contrary opinion that the applicant became aggrieved. He submitted that granting an extension of time in the present case would defeat the statutory limitation period.[57]
• [241] More generally, the second respondent submitted that the complaints made about the decision were expressing nothing more than dissatisfaction with the MAT's decision.

• [242] Drawing on the principles espoused in the authorities, I recognise that delay is not a reason in itself for refusing an application for an extension of time within which to bring an application for a statutory order of review of an administrative decision (Kim Hyun Tai v Bolkus). Indeed even an unexplained, or unsatisfactorily explained delay is not per se a reason for refusing an extension of time within which to bring an application. But I am struck by the absence of any reasonable explanation for the delay in this case and it is a persuasive factor against granting an extension (Hoffman v The Queensland Local Government Superannuation Board; Kuku Djungan Aboriginal Corporation v Christensen).
• [243] The argument that the applicant was not aggrieved by the decision was misconceived.
• [244] The applicant's lawyers were not required to wait passively until WorkCover produced a report for the purposes of the second injury common law claim before considering the applicant's position in the light of the MAT's decision. To suggest that relevant evidence (which revealed the effect of the MAT's decision on the applicant's position in the common law claim) was not available until the receipt of Dr Chalk's report is not correct. There was nothing stopping the applicant's lawyers from interrogating the MAT's decision with Dr Dwyer within time - or at the very least raising it with him (within time).
• [245] With one exception, none of the substantive grounds are arguable. The exception is the submission that the MAT erred in its assessment of the applicant's employability as class 1. Bearing in mind the statements of Kirby J in Wu, I must not overlook the MAT's experience in these matters. And I must be careful not to fall into a merits review. Nevertheless, I will treat this aspect of the substantive argument as a matter in favour of the granting of an extension.
• [246] I have considered the risk of injustice to the applicant were I not to grant the extension. However I find that risk difficult to assess on the basis of the brief submissions made to me about it in this complex case.
• [247] I have further taken into account that the second respondent does not assert that prejudice would flow to it from my granting the extension of time. However, the mere absence of prejudice is not enough to justify the grant of an extension (see citing ).

• [249] Taking into account all relevant considerations as above, I decline to extend time in the present case and the application is dismissed.
• [250] It seems to me that costs ought to follow the event. Unless the parties wish me to consider submissions to the contrary, the applicant is to pay the second respondent's costs of the application on the standard basis.

• [251] Queen's Counsel for the second respondent initially had objections to the affidavit of the applicant's solicitor (Mr Gibson) - court document 7. He argued that any reference to the MAT's decision about the second injury (which was an exhibit to Mr Gibson's affidavit) was irrelevant.[58] Later, he seemed to retreat from that position - but he did not explicitly withdraw his objection.
• [252] If it were necessary for me to rule upon it, I would rule (consistently with my approach) that the MAT's decision in relation to the applicant's second injury was relevant and admissible in the applicant's application.
• [253] Also, I am compelled to observe that the material (1400-odd pages) exhibited to the affidavit filed in support of this application was difficult to navigate. It was without a helpful index, not in chronological order, disorganised and repetitive. A more thoughtful collection and presentation of the material would have better assisted the court. In case this matter goes elsewhere, I direct that the index of material prepared by my associate be placed on the file.

[2] See court document 8, page 504, letter from Dr Dwyer to Shine Lawyers, "As per your request of 23 November 2015, I am providing the following psychiatric opinion in relation to Mr Allwood's claim for damages following a series of distressing incidents that occurred at his place of work between 2008 and 2015" (my emphasis).

[3] The limiting effect of the WCR Amendment Act upon those entitled to seek damages for an injury sustained by a worker was alleviated by the Workers' Compensation and Rehabilitation and Other Legislation Amendment Act 2015, which received assent on 24 September 2015. The section amending section 237(1) was taken to have commenced on 31 January 2015.

[4] By consent, on 28 October 2019, Crow J's orders included an order that the first respondent abide the order of the Court on this present application, save as to costs.

[8] Court document 7, page 68 states the date upon which the List of Stressors was sent to WorkCover. The list itself is at court document 7, pages 41 - 50. .

[9] Court document 7, pages 57, 58 and 59.

[17] Court document 8, pages 504 - 524. The report was requested on 23 November 2015 and provided to Shine Lawyers on 24 November 2015.

[18] Court document 7, page 86 and court document 8, page 468.

[23] Court document 8, pages 463 - 465.

[24] Court document 8, pages 466 - 477.

[26] Court document 12, pages 1396 - 1408. I note the errors on page 4 (court document 12, page 1393) of the decision and page 7 (court document 12, page 1396) of the decision concerning claim #043. Mr Allwood did not stop work on 18 January 2014 (he stopped on 18 July 2014). The date of his injury was not "over a period of time from 2008 to 18 July 2017" (the relevant period ended in July 2014). The applicant made nothing of these errors.

[36] Court document 12, pages 1420 - 1421.

[37] Court document 12, pages 1422 - 1423.

[54] See the forms encompassed in the decisions at court document 12, pages 1396 and 1405.