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[2015] QSC 252
General information, not legal advice.
Supreme Court of Queensland
2015-09-03
Daubney J
Original judgment source is linked above.
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - GENERALLY - where the first applicant and second applicant are employees of the Department of Justice and Attorney-General - where the first applicant and second applicant applied to WorkCover for alleged injuries suffered through their employment - where the claim of the first applicant and second applicant was accepted by WorkCover - where the Department of Justice and Attorney-General applied for review of the WorkCover decisions to the Workers' Compensation Regulator - where the Workers' Compensation Regulator set aside the decision of WorkCover for the first applicant and second applicant - whether the respondent exceeded its jurisdiction by making the decision for the first applicant after the statutory deadline - whether the first applicant's and second applicant's right to natural justice was violated as the Workers' Compensation Regulator is under the jurisdiction of the Department of Justice and the Attorney-General.
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Isbester v Knox City Council [2015] HCA 20
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
WorkCover Queensland v Queensland Health (Fraser Coast District Health Service) (2003) 172 QGIG 12
[1] The first and second applicants are State public servants employed as Youth Justice Conferencing Convenors with Youth Justice, a division within the Department of Justice and the Attorney-General ("DJAG").
[2] The applicants have applied for judicial review of certain decisions made by the Workers' Compensation Regulator ("the Regulator"), namely:
- A decision dated 13 January 2015 setting aside the decision of WorkCover Queensland ("WorkCover") to accept the first applicant's claim for workers' compensation and return the matter to WorkCover with appropriate directions.
- A decision dated 23 October 2015 setting aside the decision of WorkCover to accept the second applicant's claim for workers' compensation and return the matter to WorkCover with appropriate directions.
[4] On 20 May 2014, the first applicant lodged an application for compensation with WorkCover, claiming that he had suffered injuries in the nature of "Psychological system in general, Anxiety/stress disorder".
[5] On 8 July 2014, DJAG provided submissions to WorkCover in relation to the claim. The first applicant provided reply submissions on 15 July 2014.
[6] By a letter dated 23 July 2014, WorkCover accepted the first applicant's claim, and advised DJAG:
"WorkCover Queensland has decided to accept Mr Bond's application, as he sustained a psychological or psychiatric 'injury' based on sections 32(1)(b) of the Workers' Compensation and Rehabilitation Act 2003".
[7] On 21 October 2014, Crown Law, acting for DJAG, lodged an application with the Regulator for a review of the WorkCover decision pursuant to s 542(1) of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
[8] The first applicant was informed of this application for review of the WorkCover decision by a letter from the Regulator's office dated 23 October 2014. That letter stated, inter alia, as follows:
Whilst the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides a 25 business day timeframe to make the review decision, with a further 10 business days to provide written reasons for the decision, due to current circumstances we may not be able to meet that timeframe. We will however endeavour to provide an outcome at the earliest opportunity."
[9] On 5 November 2014, the Regulator's designated "Review Officer" sent an email to the first applicant in relation to the review process. This email relevantly stated:
"The Review decision is due by 26 November 2014. Whilst the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides a 25 business day timeframe to make the review decision, with a further 10 business days to provide written reasons for the decision, due to current circumstances we may not be able to meet that timeframe. However we will endeavour to make the decision as soon as possible after all submissions have been received."
[10] Also on 5 November 2014, the Regulator's Review Officer sent an email to Crown Law advising:
"A review decision is due to be made by the Workerss Compensation Regulator (the Regulator) by 26 November 2014.
Whilst the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides a 25 business day timeframe to make the review decision, with a further 10 business days to provide written reasons for the decision, due to current circumstances we may not be able to meet that timeframe.
JAG has a right under section 546(4) of the Act to appeal to an Industrial Magistrate against the Regulator's failure to make a decision within the time allowed under section 545 of the Act(1). However, an outcome will be provided at the earliest possible opportunity."
[11] On 17 November 2014, the first applicant sent an email to the Regulator's Review Officer requesting copies of DJAG's application for review and submissions, and a copy of WorkCover's reasons for decision, saying he needed these "[i]n order for me to appear in this review in a meaningful way". The Regulator's Review Officer responded on the same day, advising that she would be reviewing the matter that week in order to determine whether there were any further documents to release to the first applicant "under the principles of natural justice".
[12] On 18 November 2014, the Regulator's Review Officer sought copies of the first applicant's medical records from WorkCover.
[13] On that same day, 18 November 2014, the Regulator's Review Officer also sent an email to the first applicant attaching copies of submissions which had been provided by DJAG and sought the first applicant's comments on those submissions by 25 November 2014.
[14] The first applicant responded on 23 November 2014, noting the 16 page submissions provided by DJAG, and making the following request:
"With due respect, I request another week, until 2 December 2014, to respond to the Department's submissions. The Department's submissions are rather voluminous and filed with extensive legal authority that I am in the process of reviewing. I can't possibly provide a meaningful natural justice response in the time frame given."
[15] The first applicant was given an extension until 28 November 2014. In the email dated 24 November 2014 in which the extension was granted, the Regulator's Review Officer made clear that ordinarily an extension of time could not be provided, but because the decision would not be made by 26 November 2014, the extra days could be provided to the first applicant.
[16] By a letter dated 29 November 2014, the first applicant provided his submissions to the Regulator's Review Officer.
[17] On 2 December 2014, the Regulator's Review Officer again sought the medical records from WorkCover. It seems that, for reasons unexplained in the material before me, WorkCover never responded to that request.
[18] On 5 January 2015, the first applicant wrote to the Regulator asserting that the "Regulator no longer possesses jurisdiction to review WorkCover's acceptance of my claim for workers' compensation". The first applicant directed the Regulator to s 545(1) of the Act and argued that, because the Regulator had not made a decision within the 25 day time-frame referred to in that sub-section, the Regulator no longer possessed jurisdiction to make a review decision.
[19] The Regulator's Review Officer responded by an email on 8 January 2015, saying:
"Section 546(4) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) provides that the applicant to the review may appeal to an industrial magistrate if they are aggrieved that the Regulator has not made a review decision within the timeframes specified under section 545 of the Act.
At this stage the applicant has elected not to pursue their appeal rights as allowed under section 546 of the Act.
Accordingly the Regulator will proceed on with the review process and endeavour to provide the decision to all parties as soon as possible."
[20] By "Reasons for decision" dated 13 January 2015, the Regulator gave notice of, and reasons for, the Regulator's decision to set aside WorkCover's decision to accept the first applicant's application for compensation and to return the matter to WorkCover with appropriate directions.
[21] On 14 April 2014, the second applicant lodged an application for compensation with WorkCover Queensland, claiming that she had suffered injuries in the nature of "Psychological system in general, Anxiety/depression combined". This application was accepted by WorkCover, and DJAG was notified of this acceptance by correspondence from WorkCover dated 16 June 2014.
[22] On 10 September 2014, Crown Law, acting for DJAG, lodged an application for review and supporting documentation with the Regulator.
[23] On 22 September 2014, the Regulator's office sent emails to the second applicant and to Crown Law advising of the review process.
[24] On 16 October 2014, the Regulator decided to set aside the WorkCover decision and to return the matter to WorkCover with appropriate directions. Reasons for that decision were provided by the Regulator on 23 October 2014.
[25] On 21 January 2015, the applicants filed the present application for orders under the Judicial Review Act 1991. The relief sought was expressed as follows:
"The First Applicant and the Second Applicant claim -
1. Pursuant to section 29(2)(a) and (b) of the Judicial Review Act 1991 (Qld), interlocutory Orders suspending the operation of the Respondent's review decisions and Orders staying any proceeding under the review decisions during the pendency of this Application for Judicial Review;
2. Pursuant to section 30(1)(a)(i) of the Judicial Review Act 1991 (Qld), Orders quashing or setting aside the review decisions with effect from the day of the making of the respective review decisions;
3. Alternative to the remedy sought in paragraph 1 above, pursuant to section 47(4)(a) of the Judicial Review Act 1991 (Qld), interlocutory orders suspending the operation of the review decisions and an Orders staying any proceedings under the review decisions during the pendency of this Application for Judicial Review;
4. Alternative to the remedy sought in paragraph 2 above, pursuant to section 41(2) of the Judicial Review Act 1991 (Qld), prerogative Orders of certiorari setting aside and quashing the Respondent's review decisions with effect from the day of the making of the respective review decisions;
5. An order for costs in favour of the First Applicant and Second Applicant; and
6. Any other orders that this honourable court considers proper and just."
[26] The originating application sets out two grounds:
(a) In respect of the first applicant only, it was contended that "[t]he Respondent Exceeded its Jurisdiction by Making a Review Decision after its Statutory Deadline for Doing so Expired";
(b) In respect of both applicants, it was contended that "[i]n making its Review Decisions, the Respondent violated the First Applicant's and the Second Applicant's respective rights to natural justice because the party that applied for the Review Decisions is the same party that made the Review Decisions (the Department of Justice and Attorney-General)".
[27] I will deal with these arguments in the order in which they were addressed in the parties' submissions.
[28] Both applicants were, as I have already noted, State public servants employed as youth justice conferencing convenors in the Youth Justice Division of DJAG. At the time the Regulator made the decisions affecting the first applicant and the second applicant, the Regulator's office was also within DJAG.
[29] Crown Law, which represented DJAG in the review proceedings before the Regulator, also falls within DJAG.
[30] The establishment of the Regulator's office, and the appointment of the Regulator, are provided for in s 326 of the Act:
"326 Establishment of office and appointment of Regulator
(1) The office of the Workers' Compensation Regulator is established.
(2) The Governor in Council may appoint a public service officer as the Workers' Compensation Regulator (the Regulator).
(3) The Regulator is appointed under the Public Service Act 2008 and may hold that appointment in conjunction with his or her other public service office.
(4) The Regulator must act independently when making a decision under this Act but otherwise is subject to direction in the person's capacity as a public service officer or an officer of the department."
[31] The functions of the Regulator, as prescribed by s 327 of the Act, include "to undertake reviews of decisions under Chapter 13, Part 2...".[1] The reviews of WorkCover's decisions affecting the first applicant and the second applicant were such reviews.
[32] Sections 328 and 329 of the Act then provide:
(1) Subject to this Act, the Regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of the Regulator's functions.
(2) Without limiting subsection (1), the Regulator has all the powers and functions that an authorised person has under this Act.
The Regulator may delegate a function or power under this Act to an appropriately qualified -
(c) person, or a person of a class, prescribed under a regulation."
[33] It was not suggested that there was any issue in the present case arising out of either of these sections.
[34] The process of such reviews was described in an affidavit of Mr Paul Goldsborough, Senior Director, Workers' Compensation and Policy Services, Office of Fair and Safe Work Queensland, as follows:
"8. A claimant, worker or an employer aggrieved by a decision or a failure to make a decision by WorkCover Queensland or a self insurer may apply to the Regulator for review. Reviews are conducted by the Regulator, or the Regulator's delegates, independently to the insurer and the parties to any review application. They are usually conducted on the papers and the review applicant has the right to appear in person to make representations."
[35] At the time the Regulator's decisions concerning the first applicant and the second applicant were made, the Act was administered by the Attorney-General and Minister for Justice. The office of the Regulator formed part of the Office of Fair and Safe Work Queensland, within DJAG. The Regulator's office has since transitioned from DJAG to Queensland Treasury.[2]
[36] The applicants' argument under this heading was that when, as was the case here, the Regulator's office fell within DJAG, there was an "obvious conflict of interest" which made it "impossible for the decision-maker to appear unbiased".[3] The applicants contended that the public servant who is the Regulator is subject to the same departmental policies and directives applicable to every other DJAG employee, including the applicants. It was submitted:
"Any hypothetical bystander would conclude that the review process was stacked against both of the Applicants. The Regulator's own lawyers forcefully insisted to public servants who are not schooled in law that WorkCover erred in accepting the Applicants' claims."
[37] The applicants' submissions continued in a similar vein, asserting, in effect, that senior managers, human resources officers, and Crown Law officers "insisted to a low level DJAG public servant [i.e. the Regulator] that WorkCover's acceptance of the Applicants' respective claims was wrong".
[38] The applicants pointed to the fact that senior managers within the different divisions of DJAG served on DJAG's "board of management", and said that such "entanglement between DJAG senior management leads to the obvious conclusion that the Applicants were not afforded a level playing field during the review process".
[39] In their reply submissions, the applicants acknowledged the requirement under s 326 of the Act for the Regulator to act independently. The applicants eschewed any assertion "that the relatively low-level public servants who made the respective review decisions were in-fact biased". It was submitted, rather, that "when DJAG is both the decision maker and a party to the decision a hypothetical bystander might reasonably infer that the decision maker may be biased".
[40] In short, the applicants' argument was that the mere fact that, at the time the decisions were made, the office of the Regulator fell administratively within DJAG gave rise to a case of apprehended bias.
[41] In Ebner v Official Trustee in Bankruptcy,[4] the plurality observed:[5]
"Bias, whether actual or apprehended, connotes the absence of impartiality."
[42] In that case, the plurality posited the test for apprehension of bias (at least in the case of judicial officers) as follows:[6]
"The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
[43] These Ebner principles were recently again ventilated in the High Court in Isbester v Knox City Council.[7] After setting out the two-stage test, the plurality (Kiefel, Bell, Keane and Nettle JJ at [21]) noted that in Minister for Immigration and Multicultural Affairs v Jia Legeng,[8] Hayne J had observed "essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making".[9] The plurality continued:
"[22] It was observed in Ebner[10] that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm.[11] The content of the test for the decision in question may be different.[12]
[23] How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised.[13] The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made[14] as well as to have knowledge of the circumstances leading to the decision.[15]
[44] In Isbester, the appellant dog owner had been charged by the respondent Council with a series of offences under the Domestic Animals Act 1994 (Vic) as a consequence of attacks by her dogs. The appellant pleaded guilty to those charges. A particular Council employee, who held the position of "Co-ordinator of Local Laws", was the Council officer who gave instructions to the Council's solicitors to prosecute the charges and negotiate the pleas. The day after the appellant dog owner pleaded guilty to the charges in the Magistrates Court, a letter drafted by this Council officer was sent to the appellant advising that it was open to the council to consider destruction of the dog, and that there would be a meeting of Council's Domestic Animals Act Committee to consider all of the information prior to making any decision. The particular Council officer who had been involved in the prosecution of the offences was to be a member of that committee, although not delegated to make the final decision. After discussion with the other two committee members, and after hearing submissions from the appellant, it was decided that the dog should be destroyed. The extent of involvement by his Council officer, Ms Hughes, in the work of the committee was described by the plurality:
"[10] It is not disputed that Ms Hughes participated fully in the decision-making process of the Panel following the hearing. She agreed in cross-examination that she played a major role in that process. After a detailed discussion between the Panel members, Ms Hughes said, Mr Kourambas provided the instruction that the dog should be destroyed and she proceeded to draft reasons for his approval and signature. The appellant was notified of the decision by a letter dated 15 October 2013."
[45] The plurality in the High Court examined the question of the nature of Ms Hughes' interest in the proceedings of the committee of which she was part in light of the fact that she had effectively acted as a prosecutor against the appellant. Their Honours said:
"[46] A 'personal interest' in this context is not the kind of interest by which a person will receive some material or other benefit. In the case of a prosecutor or other moving party it refers to a view which they may have of the matter, and which is in that sense personal to them. The interest of a prosecutor may be in the vindication of their opinion that an offence has occurred or that a particular penalty should be imposed, or in obtaining an outcome consonant with the prosecutor's view of guilt or punishment. It is not necessary to analyse the psychological processes to which a person in such a position is subject. It is well accepted, as the two cases referred to show, that it might reasonably be thought that the person's involvement in the capacity of prosecutor will not enable them to bring the requisite impartiality to decision-making. This is not to equate such a person with a judge.
[49] The majority reasons in Ebner should not be understood to exclude cases of the kind here in question from the application of the principle by the test there stated. The test directs attention, as a first step in cases where apprehended bias is alleged, to the critical question of the decision-maker's interest. The difference in the application of the test is that in cases like the present one that concern incompatibility of roles, once the interest is identified as one which points to a conflict of interest, the connection between that interest and the possibility of deviation from proper decision-making is obvious."
[46] The present case is, of course, completely factually different. There is no suggestion in the present case that the Regulator, or anyone in the Regulator's office, had anything to do with the applicants, or their workers' compensation applications, other than for the purpose of conducting the independent reviews required by s 326(4).
[47] The Regulator is under a statutory duty to act independently when making a decision under the Act. So much is clear from the opening clause of s 326(4). The second clause of that subsection, which says that the Regulator "otherwise is subject to direction in the person's capacity as a public service officer or an officer of the department", does not impact on the Regulator's primary duty to act independently when making a decision under the Act. It preserves the terms and conditions of the Regulator's engagement as a public servant, but does not derogate from the statutory requirement that the Regulator act independently when making a decision under the Act.
[48] In terms of the two stage test laid down in Ebner, the applicants did not identify what they said might lead the Regulator to have decided their cases other than on their legal and factual merits. At its highest, the applicants raised a spectre of association, and made some gratuitous assertions (with no foundation in evidence) of the prospect of persons (i.e. the Regulator and the Regulator's Review Officer) they described as "low level" public servants being unduly pressured by more senior public servants.
[49] An association between an adjudicator and a party may of course give rise to an apprehension of impartiality. In that regard, the plurality in Ebner said:[16]
"It is not only association with a party to litigation that may be incompatible with the appearance of impartiality. There may be a disqualifying association with a party's lawyer, or a witness, or some other person concerned with the case. In each case, however, the question must be how it is said that the existence of the 'association' or 'interest' might be thought (by the reasonable observer) possibly to divert the judge from deciding the case on its merits. As has been pointed out earlier, unless that connection is articulated, it cannot be seen whether the apprehension of bias principle applies. Similarly, the bare identification of an 'association' will not suffice to answer the relevant question. Having a mortgage with a bank, or knowing a party's lawyer, may (and in many cases will) have no logical connection with the disposition of the case on its merits."
[50] In the present case, even if one accepts that there was an association between the Regulator and the party applying for a review by virtue of the fact that the Regulator's office fell administratively under DJAG, the bare identification of that "association" will not suffice.
[51] These were administrative reviews conducted by public servants who, in the discharge of decision-making functions under the Act, were required to act independently. It is clearly relevant in this context that the Regulator was subject to the statutory requirement of independence imposed by s 326(4). That requirement of independence was not in any way impacted by the administrative deployment of the office of the Regulator within the administrative structure of DJAG. There is simply nothing in the applicants' evidence to suggest any departure by the Regulator from that statutory duty of independence. The applicants' material does not establish any way in which the Regulator was, or could have been regarded as being, diverted from its statutory obligation to decide the case independently merely by reason of the administrative arrangements which saw the office of the Regulator fall within DJAG.
[52] Whilst the applicants' submissions addressed a prospect of the Regulator being influenced by more senior public servants who were deployed within DJAG, there is not a shred of evidence to make good even the possibility that the Regulator in this case came under any form of improper pressure.
[53] Nor could it be said that the circumstances of this case pointed to the Regulator having an interest of a nature which would subject the Regulator to a conflict of interest such as would found an apprehension of deviation from proper decision-making, as referred to in the Isbester case at [49]. The only factor pointed to by the applicants was the fact that the parties with interests in the Regulator's decision and the office of the Regulator itself all fell, for administrative purposes, under the organisational umbrella of DJAG (as too, for that matter, did the applicants themselves). But beyond the unsubstantiated assertion of the prospect of undue pressure to which I referred above, the applicants made no case for it to be apprehended that the Regulator suffered, or could possibly suffer, from a conflict of interest such as would or could cause the Regulator not to exercise the decision-making powers in accordance with the statutory obligation of independence.
[55] For the first applicant only, it was argued that, because the Regulator had not made its decision within a 25 business day period prescribed under the Act, then the Regulator was deprived of power to make the decision concerning the first applicant.
[56] Section 545 of the Act relevantly provides:
"545 Review of decision or failure to make a decision
(1) The Regulator must, within 25 business days after receiving the application, review the decision and decide (the review decision) to -
(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 Regulator considers appropriate.
(1A) The Regulator may act under subsection (1)(d) only if the Regulator -
(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.
(4) The Regulator 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 Regulator in writing for time to give the Regulator further information.
(5) If the Regulator 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."
"(4) If the Regulator does not make a review decision within the time allowed under section 545(1) or (4), the applicant may appeal to an industrial magistrate against the Regulator's failure to make the decision."
[58] It was not in issue that the Regulator did not make a decision on the review application concerning the first applicant within 25 business days after receiving the review application.
[59] The first applicant argued that s 545(1) was mandatory in terms, and, by reference to
s 32CA(2) of the Acts Interpretation Act 1954, contended:
"Thus, unless a statutory exception applies, the Regulator was required to make a review decision within 25 business days after receiving the application for review. Section 545(4) of the Act sets forth the sole statutory bases for extending the 25 business day timeframe for making the review decision and none of those bases were applicable to the Regulator's review decision.
There being no applicable statutory exception to the Regulator's legislative mandate to make a review decision within 25 business days after receiving the application for review, the Regulator plainly lacked any statutory power to make a decision beyond the 25 business day deadline.
Once the 25 business day deadline passed, DJAG's only available remedy was to 'appeal to an industrial magistrate against the Regulator's failure to make the decision'. Section 546(4) of the Workers' Compensation and Rehabilitation Act (2003).
In conclusion, because the Regulator did not make a review decision within the statutory timeframe, the review decision issued by the Regulator was beyond its statutory powers. Accordingly, the First Respondent respectfully requests that this Honourable Court declare it to be void."
[60] The matter is, however, not quite as simple as portrayed by the first applicant. Section 545(1) prescribes a procedure to be followed by the Regulator in undertaking a review decision.
[61] In Project Blue Sky Inc v Australian Broadcasting Authority,[17] the plurality said (omitting references):[18]
"91 An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various context, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
[93] In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'." (emphasis added)
[62] As was noted by Hall P, when considering cognate provisions under the WorkCover Queensland Act 1996, reference to s 32CA of the Acts Interpretation Act does not assist:
"The issue is not whether the duty cast upon the Statutory Review Unit is mandatory in nature. The issue is the consequence of non-compliance."[19]
[63] This is not a case in which statute confers a right with a direction that time limits must be observed. This, rather, is a case in which a public duty is to be performed by the Regulator within a specified time. True it is that non-compliance with that time limit entitles the party seeking the review to institute an appeal against the Regulator's failure to make the decision within the specified time. But it does not necessarily follow that the failure to make a decision within the specified time automatically leads to the power to make the decision being vitiated.
[64] Section 545 falls within Chapter 13 Part 2 of the Act. Section 539 of the Act provides:
"The object of this part is to provide a non-adversarial system for prompt resolution of disputes."
[65] Section 545(4) defines circumstances under which the Regulator may extend the 25 business day timeframe referred to in s 545(1). Notably, the circumstances referred to in s 545(4) all concern the party applying for the review decision. In the same vein, s 546(4) confers on the party applying for the review decision an entitlement to appeal against the Regulator's failure to make the decision within the 25 business day timeframe.
[66] The purpose of the 25 business day timeframe referred to in s 545(1) is to promote the object of "prompt resolution" referred to in s 539. Clearly enough, it is the party seeking the review which has the prime interest in seeing the review undertaken promptly, and this is reflected both in s 545(4), which permits extensions to the decision timeframe with that party's consent, and s 546(4), which gives that party a right of redress (in the form of an appeal to an industrial magistrate) if the Regulator's decision is not made within the timeframe.
[67] But nothing in these provisions suggests that it is the purpose of the Act that a failure by the Regulator to comply with the 25 business day timeframe confers on the respondent to a review application a benefit by sidewind of the Regulator being automatically stripped of the power to make the decision. Accordingly, I do not consider it could be said that it was the purpose of this legislation that a decision made by the Regulator under s 545(1) outside the 25 business day period should be regarded as invalid.
[68] This ground of review has not been established by the first applicant.
[69] The applicants have not established either ground of review. Accordingly, there will be the following orders:
1. The application filed 21 January 2015 is dismissed;
[2] Affidavit of Paul Goldsborough (affirmed 27 February 2015) filed on 27 February 20145, para 5.
[5] Gleeson CJ, McHugh, Gummow and Hayne JJ at [23].
[10] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [4]; [2000] HCA 63; 75 ALJR 277.
[11] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [181]; [2001] HCA 17; 75 ALJR 679.
[12] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [70]; [2002] HCA 51; 77 ALJR 70.
[13] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 612; [1985] HCA 81; 60 ALJR 113.
[14] Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438 at [68]; [2002] HCA 51; 77 ALJR 70.
[15] Stollery v Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509 at 519; [1972] HCA 53; 46 ALJR 602.
[18] McHugh, Gummow, Kirby and Hayne JJ at [91] - [93].
[19] WorkCover Queensland v Queensland Health (Fraser Coast District Health Service) [2003] QIC 115; (2003) 172 QGIG 1228.
Bond & Anor
Queensland Department of Justice and Attorney-General
(2000) 205 CLR 337
(2001) 205 CLR 507
(1998) 194 CLR 355
(2015) 89 ALJR 609
(2002) 210 CLR 438
(1985) 159 CLR 550
(1972) 128 CLR 509
[54] The applicants have not made out the first ground for seeking judicial review.