ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND
CONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION
APPLIES –
GENERALLY – where the applicant applied to the respondent for compensation
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS ANDCONDUCT – DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATIONAPPLIES –GENERALLY – where the applicant applied to the respondent for compensationunder the Workers’ Compensation and Rehabilitation Act 2003 (Qld)(‘WCR Act’) – where the respondent dismissed that application– where, pursuant to s 326 of the WCRAct, the applicant sought review bythe Workers’ Compensation Regulator (‘Regulator’) of therespondent’sdecision to dismiss the applicant’s application –where the Regulator dismissed that review application – wheretheapplicant applies in the Supreme Court of Queensland for judicial review of therespondent’s dismissal of the applicant’sapplication forcompensation – where the Regulator was not joined to the judicial reviewproceedings and the applicant didnot seek judicial review of theRegulator’s decision – whether the application for judicial review
should be dismissed
Judicial Review Act 1991 (Qld) s 20, s 26, s
48
Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 11,
s 32, s 35, s 540, s 542, s 548, s 548A, s 549, s 550
Deloitte Touche
Tohmatsu v Australian Securities Commission (1995) FCR 562, cited
Deng
v Q-Comp [2011] QSC 191, cited
Lowis v Queensland Industrial Relations
Commission [2019] QSC 277, cited
Mid Brisbane River Irrigators Inc v
Treasurer and Minister for Trade of the State of Queensland [2014] 2 Qd R
592
[2014] QSC 196, cited
Van der Berg v WorkCover Queensland [2021]
QSC 28, followed
Judgment (20 paragraphs)
[1]
[1] On 3 June 2025, the self-represented applicant (Mr Henschke) commenced this proceeding under s 20 of the Judicial Review Act1991 (Qld) (JR Act). He seeks a statutory order of review in respect of a decision made by the respondent (WorkCover) on 18 October 2021 to reject his application for compensation under the Workers' Compensation and Rehabilitation Act2003 (Qld) (WCR Act). The basis for the rejection was that the work injury Mr Henschke suffered - exacerbation of pre-existing post-traumatic stress disorder (PTSD) and anxiety - was found to have arisen out of reasonable management action taken in a reasonable way by his employer (rejection decision).[1]
[2] The grounds of review set out in Mr Henschke's application are that: the rejection decision was induced or infected by fraud;[2] the making of the rejection decision was an "improper exercise of power / unreasonableness";[3] and, procedural fairness.[4] Mr Henschke also seeks an interlocutory order that the rejection decision be stayed.
[3] WorkCover has applied for Mr Henschke's review application to be dismissed pursuant to s 48 of the JR Act. The court's discretion to dismiss a review application is engaged if: it would be inappropriate for proceedings in relation to the review application to be continued;[5] no reasonable basis for the application is disclosed;[6] the review application is frivolous or vexatious;[7] or the review application is an abuse of the process of the court.[8]
[4] WorkCover submits that it would be inappropriate for the review application to continue because:
[2]
(a) the rejection decision is no longer operative, having been overtaken by subsequent decisions which Mr Henschke does not challenge by the review application;
(b) Mr Henschke has brought the review application more than three years after the written statement of the reasons for the rejection decision was provided to him, and this is not an appropriate case in which to extend the 28 day time period for bringing such an application;[9]
(c) Mr Henschke's makes allegations of fraud against his employer (which is not a party to the review application) which are scandalous;
(d) in any event, the matters which Mr Henschke relies upon to assert that his former employer engaged in fraud had no bearing upon the rejection decision;
(e) to the extent that Mr Henschke seeks to challenge WorkCover's finding that his former employer's conduct constituted reasonable management action, he impermissibly seeks to have the court engage in a review of the merits of the rejection decision;
(f) Mr Henschke's complaints about a lack of procedural fairness are misconceived in circumstances where they arise from events which occurred after the rejection decision was made.
[3]
[5] For the reasons which follow, I accept WorkCover's submission that it would be inappropriate for proceedings in relation to the review application to continue for the reason set out at [4](a) above. The review application should be dismissed.
[4]
[6] In 2021, Mr Henschke was employed as a truck driver by Regius Pty Ltd trading as Cornwall Logging (Regius). He attended two meetings with representatives of Regius to discuss concerns he held about having been underpaid. The first meeting took place in early July 2021. After that meeting, Regius sought advice from the Chamber of Commerce and Industry Queensland (CCIQ) as to whether Mr Henschke had been underpaid. CCIQ subsequently advised Regius that, rather than having been underpaid, Mr Henschke had been paid more than he was entitled to be paid under the relevant award. Regius informed Mr Henschke of the advice it had received from CCIQ at the second meeting, which occurred on 18 August 2021.
[7] Mr Henschke did not attend work while Regius was investigating the claim that he had been underpaid. On 20 August 2021, Regius sent Mr Henschke a letter which required him to show cause why disciplinary action should not be taken against him in respect of his non-attendance at work. Mr Henschke responded to that letter on 24 August 2021.
[8] On 27 August 2021, Mr Henschke lodged his claim for compensation under s 132 of the WCR Act for the injury (exacerbation of his pre-existing PTSD and anxiety) he contended was sustained in the course of his employment with Regius. He asserted that the injury was the result of verbal aggression and harassment by representatives of Regius at the meetings where he raised his concerns about having been underpaid. Medical certificates which Mr Henschke provided to WorkCover in support of his compensation claim recorded that he was suffering from PTSD said to have been caused by his manager becoming verbally aggressive when he asked for an increase in his pay rate.
[9] Mr Henschke, and a support person who accompanied him in attending the second meeting on 18 August 2021, provided statements in support of the compensation claim. Mr Henschke also provided various payslips, the show cause letter which Regius had sent to him, and his response to that letter. Regius subsequently provided WorkCover with its response to the compensation claim and a timeline of events. It also provided (among other documents) timesheets for Mr Henschke and the advice it had received from CCIQ concerning Mr Henschke's pay. Regius contested Mr Henschke's assertion that his manager had been verbally aggressive towards him.
[5]
(a) accepted that Mr Henschke was a "worker" for the purposes of the WCR Act,[10] and that he had sustained a personal injury in the form of PTSD and anxiety for which his employment with Regius was a significant contributing factor;[11]
(b) nevertheless, rejected the compensation claim on the basis that this personal injury was excluded from the statutory definition of "injury" by s 32(5) of the WCR Act because:
(i) the injury arose out of management action, comprising Mr Henschke's interactions and meetings with his managers to discuss his concerns about having been underpaid;
(ii) there was insufficient information to confirm undermining behaviours by Mr Henschke's managers;
(iii) instead, WorkCover found that Regius was managing Mr Henschke's performance and attendance at work;
(iv) although that management action might have caused Mr Henschke distress, WorkCover had determined that the action was reasonable and taken in a reasonable way.
[6]
[11] The covering letter which WorkCover sent to Mr Henschke attaching the rejection decision stated that the rejection decision had been internally reviewed and confirmed by a manager (as required by s 538 of the WCR Act). Both the covering letter, and the written reasons for the rejection decision, advised Mr Henschke that he could request an external review and provided information about how to request such a review.
[7]
[12] A claimant who is aggrieved by a decision to reject a compensation claim under the WCR Act can apply for an external review of the decision by the Workers' Compensation Regulator (Regulator) appointed pursuant to s 326 of the WCR Act.[12] An application for external review must be made within 3 months after written notice of the rejection decision is received.[13] This right to have a decision reviewed by the Regulator forms part of what has been described as a comprehensive legislative scheme of reviews and appeals of decisions on applications for compensation under the WCR Act.[14]
[13] On 21 October 2021, Mr Henschke applied for external review of the rejection decision by the Regulator.
[14] The Regulator performed that review pursuant to s 545 of WCR Act. That provision requires that the Regulator must, within 25 business days after receiving the review application, review the decision and decide to either: confirm the decision; or, vary the decision; or, set aside the decision and substitute another decision; or, set aside the decision and return the matter to the decision-maker with the directions the Regulator considers appropriate. I accept that, as WorkCover submits, a review by the Regulator under s 545 of the WCR Act constitutes a review of the merits of the decision under review.
[15] On 9 November 2021, the Regulator confirmed the rejection decision (confirmation decision). In reaching the confirmation decision, the Regulator concluded that:
[8]
(a) Mr Henschke sustained an injury of a psychiatric nature - the aggravation of his pre-existing PTSD and anxiety - which arose out of his employment with Regius and to which such employment was a significant contributing factor;
(b) that injury arose out of management actions, comprising the meetings held to attempt to resolve the dispute about Mr Henschke's pay entitlements and actions taken by Regius to alert Mr Henschke to the concerns it had regarding his absence from work;
(c) the significant conflict in the evidence concerning the conduct of both Mr Henschke and his managers in the meeting on 18 August 2021 meant that it was not possible to conclusively determine that the managers' conduct exhibited any miscarriage of management action;
(d) in circumstances where Regius had investigated Mr Henschke's pay claim through CCIQ, it was entitled to consider his absence from work was without authorisation;
(e) on all the available evidence, the management action taken by Regius regarding Mr Henschke's pay dispute and his absence from work was both reasonable and taken in a reasonable way.
[9]
[16] I further accept that, as WorkCover submits, upon the making of the confirmation decision by the Regulator, it was that decision which operated to preclude Mr Henschke's claim for compensation.
[17] The written reasons provided by the Regulator informed Mr Henschke of his right to appeal the confirmation decision to the Queensland Industrial Relations Commission (QIRC) within 20 business days after he received notice of that decision.[15] Mr Henschke did not file an appeal with the QIRC within the required period.
[18] In January 2025, Mr Henschke commenced proceedings against Regius in the Federal Court of Australia seeking orders that Regius provide him with various records relating to his employment. Mr Henschke asserts that information he obtained through that proceeding demonstrates fraud by Regius in the information it provided to WorkCover in response to his compensation claim. In summary, Mr Henschke contends that a document obtained through the Federal Court proceeding establishes that he had been paid less than the amounts which Regius, on advice from CCIQ, informed WorkCover it had paid to him and, further, that he had not been overpaid as Regius had contended.
[19] In February 2025, Mr Henschke filed an appeal against the confirmation decision with the QIRC. As the appeal was filed out of time, Mr Henschke was required to ask the Regulator to allow further time to appeal.[16] On 6 March 2025, the Regulator refused to grant Mr Henschke's request to extend the time to appeal the confirmation decision.
[10]
Did the confirmation decision affect the availability of review under the JR Act?
[11]
[20] In Deloitte Touche Tohmatsu v Australian Securities Commission,[17] Lindgren J described a decision that is subsequently overtaken by an ultimate and operative decision as a spent force. Where the operative effect of an earlier decision becomes spent upon the making of a subsequent decision affecting the rights and interest of a person then that person is not "aggrieved by" the spent decision for the purposes of s 20 of the JR Act.[18]
[21] In Mid Brisbane River Irrigators Inc v Treasurer and Minister for Trade of the State of Queensland,[19] Jackson J accepted the correctness of that reasoning, but found it did not apply on the facts of that case.
[22] In Van der Berg v WorkCover Queensland,[20] Bond J (as his Honour then was), referred to both Deloitte and Mid Brisbane River Irrigators in finding that a person who engages the processes of review under the WCR Act, such that the decision made on review overtakes the decision sought to be impugned under the JR Act, can no longer be regarded as a person aggrieved by the impugned decision.
[23] That is the position in the present proceeding. The operative effect of the rejection decision was overtaken by the confirmation decision. The rejection decision is spent. In those circumstances, based on the authorities referred to above, Mr Henschke can no longer be regarded as a person aggrieved by the rejection decision and, consequently, has no right to apply under s 20 of the JR Act (as he has done) for a statutory order of review in relation to that decision. For that reason, I am satisfied that it would be inappropriate for proceedings in relation to Mr Henschke's review application to continue. The review application should be dismissed under s 48(1) of the JR Act.
[24] When these issues were raised with Mr Henschke during argument,[21] he accepted the correctness of WorkCover's submission that the rejection decision was not the operative decision. For the reasons I have set out, he was right to do so.
[25] Having reached that position, it is unnecessary for me to consider any of the further reasons WorkCover advanced as to why it would be inappropriate for the review application to continue. Further, I consider it would be inappropriate to decide those issues given correspondence Mr Henschke sent to the court after the hearing of the dismissal application.
[12]
Communications from Mr Henschke since the hearing of the dismissal application
[13]
[26] After I had heard the dismissal application and reserved my decision, Mr Henschke emailed a draft application and supporting affidavit to my Associate. The draft application sought that the Regulator be joined as the second respondent to the proceeding. I directed my Associate to inform Mr Henschke that if he wished to make any application, he would need to file the documents in the Registry, but that I would not defer my determination of WorkCover's dismissal application for that to occur.
[27] Mr Henschke subsequently sent an email to my Associate which attached emails he had exchanged with the solicitors for WorkCover. In that exchange, Mr Henschke stated that the decision under review in this proceeding is the confirmation decision (not the review decision). On that basis, Mr Henschke sought WorkCover's consent to orders substituting the Regulator as respondent to the proceeding.
[28] WorkCover disputed Mr Henschke's contention that the decision which is the subject of the review application is the confirmation decision. Plainly, Mr Henschke's contention is incorrect. The relief which Mr Henschke has sought by his review application concerns a decision made by WorkCover, not the Regulator. That can only be a reference to the rejection decision. In any event, the solicitors informed Mr Henschke that WorkCover could not consent to orders which would have the effect of joining or substituting the Regulator as respondent to the proceeding; Mr Henschke would need to serve any application on the Regulator.
[29] Since the hearing of the dismissal application, Mr Henschke has not filed any application to join or substitute the Regulator as respondent. However, in circumstances where Mr Henschke has foreshadowed an intention to seek a statutory order of review in relation to the confirmation decision, I do not consider it appropriate to consider any of the matters raised by WorkCover as a basis for dismissing the present review application beyond the spent nature of the rejection decision. Such further matters as might arise in any subsequent proceeding for review of the confirmation decision should be determined in that proceeding (if brought by Mr Henschke).
[14]
[30] The application for a statutory order of review against WorkCover is dismissed.