Nelson v Q-Comp [2004] QSC 167

[1] MULLINS J: On 10 May 2004 the applicant filed an application for statutory order of review pursuant to the Judicial Review Act 1991 ("JRA") to review the decision of the respondent dated 27 April 2004 ("the decision") confirming a decision by Qantas Airways Ltd ("Qantas") to decline further liability to pay statutory workers' compensation benefits to the applicant. The respondent's decision was made under s 494 of the WorkCover Queensland Act 1996 ("WQA"). The respondent filed an application on 24 May 2004 seeking an order that the applicant's application be dismissed under s 48(1) of the JRA.

[2] The applicant's application sets out 3 grounds for seeking an order quashing or setting aside the decision. The primary ground relied upon in the application is that a breach of the rules of natural justice happened in relation to the making of the decision. The particulars which are given of that ground are:

"(a) The Respondent was under an obligation to afford the Applicant natural justice prior to making its decision, including giving the Applicant a reasonable opportunity to present evidence to the Respondent and make submissions in support of his application for review of Qantas' decision.

(b) On 31 March, 7 April and 8 April 2004 the Applicant's solicitors informed the Respondent that they were seeking instructions concerning the obtaining of a further report from a medical specialist addressing the link between the applicant's medical condition of Kienbock's disease and his employment with Qantas and requesting that the decision not be made until any such report was obtained.

(c) On 14 April and 15 April 2004 the Applicant's solicitors advised the Respondent that an appointment had been made for the Applicant to consult Dr Mark Robinson, a specialist and upper limb surgeon in order to obtain a medico-legal report.

(d) The Respondent proceeded to make a decision on 27 April 2004 before the applicant had obtained Dr Robinson's report.

(e) The Respondent had not informed the applicant or the Applicant's solicitors that it intended to make a decision before Dr Robinson's report was obtained.

(f) The solicitors for the Applicant had not, in these circumstances, made submissions and provided further material to the Respondent in support of the Applicant's application before the decision was made.

(g) In the circumstances, the Respondent did not give the Applicant a reasonable opportunity to obtain and provide further material and submissions in support of this application."

[3] On 25 August 2002 the applicant sustained an injury to his right wrist in the course of his employment with Qantas which he attributed to lifting a container. He applied for statutory compensation benefits under the WQA on 26 August 2002 and that application was accepted on the basis that he had suffered a strain to the right wrist. Because of persisting symptoms, the applicant was referred to orthopaedic surgeon, Dr Peter Rowan, who made a diagnosis of Kienbock's disease which is also described as avascular necrosis of the lunate where the blood supply to the lunate is damaged and the bone dies as it has no blood supply. On 31 July 2003 the applicant received a letter from Qantas advising that further liability for compensation benefits had been declined.

[4] The applicant then lodged an application for review with the respondent on 29 October 2003. Until 13 February 2004 the respondent refused to determine the application for review, asserting it had no jurisdiction to deal with the application. By a letter dated 13 February 2004 the respondent notified the applicant's solicitors that the respondent had reconsidered its position and was now of the opinion that the decision by Qantas as a self insurer was reviewable.

[5] On 23 February 2004 the applicant's solicitor advised an officer acting on behalf of the respondent that if the respondent were proposing to treat the applicant's condition as compensable, that the applicant would not submit any further medical evidence, but if the respondent were not going to treat the condition as compensable, then the applicant would want to put as much material before the respondent as possible to show that Kienbock's disease was trauma related and therefore compensable. The applicant's solicitor was informed by the officer that the file would be reviewed and reference made to the applicant's solicitor, before the matter was taken further.

[6] On 3 March 2004 the officer emailed the applicant's solicitor requesting advice whether the applicant intended to submit further information with respect to his application for review. The applicant's solicitor spoke with the officer on 9 March 2004 and recorded that the officer would not give him any indication, as to whether the respondent was going to accept or reject the application on review and noted that he anticipated that it would be rejected and that up to date medical material was therefore required.

[7] By letter dated 29 March 2004 the respondent requested advice from the applicant's solicitor whether any further medical evidence was to be provided on behalf of the applicant. That letter stated:

"If I have not heard from you within the next few days, I will proceed to make a review decision regarding your client's application for review."

[8] The applicant's solicitor's letter in response dated 31 March 2004 advised the respondent that the solicitor was seeking further instructions from the applicant and requested that the matter be held in abeyance until the respondent heard further from the applicant's solicitor.

[9] The applicant's solicitor telephoned the respondent's review officer handling the applicant's file on 7 April 2004. The applicant's solicitor informed the review officer that he anticipated getting instructions to obtain a medico-legal report from another orthopaedic surgeon on Kienbock's disease, but had not yet identified the orthopaedic surgeon and expected that there would be a waiting period of 2 to 3 months for an appointment. The applicant's solicitor recorded in his file note that the review officer "would give until the 26 April 2004 and then consider making a decision forthwith". The applicant's solicitor told the review officer that if he made a decision without further input from the applicant's solicitor, then the applicant would commence Supreme Court proceedings against the respondent. That attitude was confirmed in the applicant's solicitor's letter dated 8 April 2004 to the respondent.

[10] The letter dated 14 April 2004 from the applicant's solicitor to the respondent confirmed that the applicant's solicitor held instructions to seek medico-legal evidence from an independent orthopaedic surgeon on the work nexus to the diagnosed Kienbock's disease and that arrangements had been made for the applicant to see specialist hand and upper limb surgeon, Dr Mark Robinson, on 22 June 2004. The letter also advised that the applicant's solicitor would forward a copy of Dr Robinson's report, together with further submissions, as soon as Dr Robinson's report was received. The letter from the applicant's solicitor to the respondent dated 15 April 2004 advised that the appointment with Dr Robinson had been brought forward to 1 June 2004.

[11] The applicant's solicitor received no response from the respondent to the letters of 8, 14 and 15 April 2004. The decision was received by the applicant's solicitor on 28 April 2004.

[12] The question that was the subject of the decision was whether the lifting event undertaken by the applicant on 25 August 2002 was a significant contributing factor to the development of the applicant's Kienbock's disease. The respondent referred to the reports which had been obtained by Qantas from orthopaedic surgeons, Dr Gregory Couzens and Dr Bruce Martin. Dr Couzens was arguably equivocal about the relationship between the lifting incident and the development of Kienbock's disease. Dr Martin who does not appear to have examined the applicant, but expressed an opinion on the basis of the reports and information provided to him, concluded that, on the balance of probabilities, the reported mechanism of injury did not result in sufficient trauma to the applicant's right wrist to initiate or aggravate the pathological process of avascular necrosis of the lunate. Based on the medical evidence referred to in the decision, the respondent's review officer expressed the view that he was not satisfied, on the balance of probabilities, that the applicant's Kienbock's disease was related to the lifting accident on 25 August 2002. Although the decision noted that an appointment had been made for the applicant to attend Dr Robinson on 1 June 2004, the decision maker stated that he was of the opinion that the application could be determined, using the medical evidence on file.

[13] In addition to filing the application for statutory order of review, the applicant also filed a notice of appeal in the Industrial Magistrates Court on 10 May 2004.

[14] The applicant's solicitor anticipates that the hearing of an appeal to the Industrial Magistrates Court would last 2 to 3 days and estimates that the legal fees and outlays that would be incurred on the applicant's behalf for such a hearing would be in the vicinity of $15,000.

[15] The applicant is not working, is in receipt of income protection insurance payments and has substantial financial commitments including mortgage repayments. The applicant states that he cannot afford to pay costs and outlays of $15,000 for an appeal to the Industrial Magistrates Court.

[16] The applicant's solicitor states that he is conducting the applicant's application for statutory order of review on a speculative basis, because he believes that there is a public interest in having the relevant issues litigated and that similar issues are likely to arise in the future in respect of other clients of the applicant's firm. The applicant's solicitor states that he is not willing to conduct the applicant's appeal in the Industrial Magistrates Court on a speculative basis, given the risks involved and limited costs recoverable in that proceeding.

[17] Mr GE Versace, the acting manager of the respondent's appeals unit, expresses the opinion that the hearing of the applicant's appeal to the Industrial Magistrates Court would last only 1 day and that the average amount paid out for costs to successful appellants for the current calendar year where the appeal involved a physical injury is $3,354.21. Those are costs assessed in accordance with the relevant Magistrates Court scale, rather than on a solicitor and own client basis.

[18] The applicant's solicitor has exhibited to his affidavit filed on 10 May 2004 a bundle of information and articles on Kienbock's disease which show that there is some uncertainty about the aetiology of Kienbock's disease.

[19] The respondent is the review unit for the purpose of part 2 of chapter 9 of the WQA. Part 2 of chapter 9 of the WQA provides for a non-adversarial system for prompt resolution of disputes by way of review by the respondent of a decision of WorkCover or a self-insurer. Under s 494 of the WQA the respondent must, within 35 days after receiving an application for review, review the decision and decide to either confirm or vary the decision or set aside the decision and substitute another decision. Under s 491(1) of the WQA an application for review must be made within 3 months after the person applying for review receives written notice of and the reasons for the relevant decision. That time period can be extended under s 491(2) of the WQA, if the applicant within the period of 3 months requests further time to apply for review and there are special circumstances for granting an extension. Under s 491(5) of the WQA the application for review must state the grounds on which an applicant seeks review and "may be accompanied by any relevant document the applicant wants considered in the review". An applicant for review may appear before the respondent and s 492(2) of the WQA permits an applicant to make representations to the respondent by telephone or another form of communication. The respondent may require the decision maker to give it the information requested by the respondent. If the respondent seeks information under s 493 of the WQA, the respondent may, with the applicant's consent, extend the time provided for in s 494(1) of the WQA for making the decision: s 494(4) WQA.

[20] A right of appeal to an Industrial Magistrate against the decision of the respondent is given to a claimant, worker or employer aggrieved by the decision: s 498(1) WQA.

[21] On the appeal to the Industrial Magistrate, the parties are not limited to the evidence that was before the respondent: s 502 WQA. Under s 506 of the WQA the Industrial Magistrate in deciding an appeal may confirm or vary the decision, set aside the decision and substitute another decision, or set aside the decision and return the matter to the respondent with directions the Magistrate considers appropriate.

[22] A party aggrieved by the decision of the Industrial Magistrate may appeal to the Industrial Court and the appeal is by way of rehearing on the evidence and proceedings before the Industrial Magistrate, unless the Industrial Court orders additional evidence be heard: s 509 WQA.

[23] The respondent's application specifies each of the grounds provided for in s 48(1) of the JRA as a basis for striking out the application for statutory order of review and, specifically, that adequate provision is made by law for the applicant to seek review of the decision and the applicant has exercised his appeal rights. In submissions the respondent also sought expressly to rely on ss 12 and 13 of the JRA which are in the following terms:

"12 When application for statutory order of review may be dismissed

Despite section 10, but without limiting section 48, the Court may dismiss an application under section 20 to 22 or 43 that was made to the Court in relation to a reviewable matter because--

(a) the applicant has sought a review of the matter by the Court or another court, otherwise than under this Act; or

(b) adequate provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by the Court or another court.

13 When application for statutory order of review must be dismissed

Despite section 10, but without limiting section 48, if--

(a) an application under section 20 to 22 or 43 is made to the Court in relation to a reviewable matter; and

(b) provision is made by a law, other than this Act, under which the applicant is entitled to seek a review of the matter by another court or a tribunal, authority or person;

the Court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so."

[24] Mr Hinson of Senior Counsel on behalf of the respondent submitted that as a matter of construction of the scheme provided for under part 2 of chapter 9 of the WQA, there was no breach of the rules of natural justice in the making of the decision by the respondent without waiting for the further medical evidence (or submissions) foreshadowed by the applicant's solicitors. In the alternative, if it is assumed that there was a breach of the rules of natural justice, the respondent contends that the breach is curable on the appeal to the Industrial Magistrates Court.

[25] With respect to the first submission, the respondent relied on the requirement that the application for review was able to be accompanied by any relevant document the applicant wanted considered in the review and that the period of time (which the applicant fully utilised) for applying for review was 3 months after receiving written notice of the decision. It was submitted that it was intended to and did give the applicant the time in which to seek further medical evidence at that stage of the process. By way of comparison, it was submitted the requirement on the respondent under s 494(1) of the WQA was (subject to extensions) to decide the application within the relatively short period of 35 days of receiving the application for review, failing which the applicant was given the right to appeal to an Industrial Magistrate against the respondent's failure to make the decision.

[26] With respect to the second submission, the respondent relied on the approach in Turner v Valuers' Registration Committee of Queensland [2000] QSC 94; [2001] 2 QdR 100, 104 that where adequate provision was made for the review of the impugned decision by another court before which the breach of natural justice could be remedied, judicial review was not appropriate. In that case Turner sought judicial review of a decision of the Committee to find him guilty of a charge of conducting himself in a manner amounting to professional misconduct. It was argued that the provision under the relevant legislation which provided for an appeal against the decision of the Committee to a District Court Judge did not afford adequate provision for review, when one of the allegations of breach of the rules of natural justice was that the Committee had not provided Turner with full particulars of the charge brought against him. Holmes J stated at 104:

"... it does not seem to me that I should proceed on an assumption that any District Court judge hearing such an appeal would not be astute to ensure that procedural fairness was afforded to the applicant."

Holmes J noted that a District Court Judge hearing such an appeal could make appropriate directions extending to the provision of particulars and that the judge on appeal had a discretion pursuant to the legislation to receive further material and that "... one could not reasonably anticipate that the judge on appeal would act, in the exercise of his or her power in discretion, other than in accordance with the rules of natural justice".

[27] The respondent also relied on the statement made in Stubberfield v Webster [1995] QSC 182; [1996] 2 QdR 211, 217 that:

"As a general rule judicial review should not be seen as a substitute for the appellate process in the civil courts."

[28] As a discretionary matter, the respondent drew attention to the opportunism of the applicant's solicitor in seeking to obtain some indication of the likely outcome of the result from the respondent's review officer, before obtaining instructions from the applicant to proceed to obtain a medico-legal report.

[29] The primary submission made by Mr Rangiah of counsel on behalf of the applicant was that procedural fairness required the applicant to be given sufficient time to gather evidence and provide submissions. As part of that submission, the applicant relied on the course of communications between his solicitor and the respondent that preceded the decision and submitted that the conduct of the respondent in failing to notify the applicant's solicitor that it proposed to proceed to make the decision after 26 April 2004 meant that the applicant lacked the opportunity to put further evidence or to make oral or written submissions before the decision was made.

[30] It was submitted that there were a number of public interest factors that supported the application for statutory order of review being permitted to proceed, rather than the applicant being forced to pursue his appeal to the Industrial Magistrates Court. These were described as the public interest in having a statutory decision maker properly carry out the functions entrusted to it by the Legislature; the public interest in not having the Industrial Magistrates Court burdened by reason of the failure of the respondent to carry out its function properly; and the public interest in determining whether the respondent did in fact err, so that any such error could be avoided in the future.

[31] It was submitted that if the appeal to the Industrial Magistrate proceeded, the Industrial Magistrate would determine the question that was decided by the respondent rather than determining whether the respondent was required to give procedural fairness to the applicant and the content of that obligation. It was submitted that if any error on the part of the respondent in relation to procedural fairness was not corrected, it was likely to occur again.

[32] The applicant also sought to rely on his inability to afford the costs which his solicitor suggested would be involved in an appeal to the Industrial Magistrate. It was submitted that if the applicant were successful on judicial review, the respondent would be required to provide a non-adversarial determination of the applicant's claim after considering the applicant's submissions, reports and other material which would be a practical, simple, inexpensive avenue to review the decision of Qantas.

[33] I do not accept that part 2 of chapter 9 of the WQA should be given a construction which precludes the application of the rules of natural justice in the circumstances which prevailed in this matter at the time the respondent made the decision. The circumstances that can arise in connection with an application for review made to the respondent are too many and varied, as a result of the flexibility built into the legislative scheme, to enable the conclusion to be reached that was promoted by the respondent on the hearing of this application that any further medical evidence of the applicant had to be forwarded at the time of making the application for review. There is no clear legislative intention to exclude the requirements of procedural fairness in respect of the making of a decision on an application for review.

[34] Because of the many and varied circumstances that could arise in connection with the process of considering an application for review, it is not desirable to be dogmatic about the minimum content of the procedural fairness that should be afforded to an applicant for review: cf Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41, 62.

[35] The significance of the usual timetable for the making of an application for review and the giving of the decision in respect of that application is less in this matter, when it took the respondent between 29 October 2003 and 13 February 2004 to decide that it had jurisdiction to deal with the applicant's application for review.

[36] As there was no response by the respondent to the applicant's letters of 8, 14 and 15 April 2004, it was not unreasonable for the applicant's solicitor to proceed on the basis that no decision would be made by the respondent after 26 April 2004 without further contact being made by the respondent to the applicant's solicitor.

[37] What is apparent from the reasons given by the respondent for the decision is that the very issue on which the respondent was on notice that the applicant was seeking further medical evidence (and was likely to make further submissions) was pre-empted by the respondent's decision that the medical evidence on the file was sufficient to enable the decision to be made.

[38] It was only upon being advised of the decision that the applicant became aware that the respondent had formed the view that it was unnecessary to wait for the applicant's further medical evidence. In view of the communications that had preceded the decision, if the respondent considered that no further medical evidence was necessary, it was incumbent on the respondent to give the applicant an opportunity to respond to that view, before making the decision.

[39] It underlies the applicant's submissions on the hearing of this application that, as the applicant had elected to obtain a medico-legal report, the respondent could not proceed to make the decision. The applicant cannot unilaterally prolong the review process to suit his convenience. The respondent did not purport to make the decision, however, on the basis that it was not appropriate for the review process to be delayed whilst the report was being obtained. Even if that had been the view of the respondent, it was only fair that the respondent should have communicated that view to the applicant, before making the decision. That would have given the applicant's solicitor an opportunity to make submissions and provide the information and articles on Kienbock's disease.

[40] Despite the peremptory approach of the respondent in making the decision, it has to be considered whether any lack of procedural fairness is cured by the opportunity for the applicant to put into evidence before the Industrial Magistrate on the appeal from the decision the further medico-legal report and to make further submissions at that stage.

[41] It is relevant that the process for the application for review is non-adversarial and does not expose the applicant to any adverse costs order. It is also relevant that there is no impediment to providing the respondent with information and articles on Kienbock's disease.

[42] I consider that the respondent's estimate of the appeal to the Industrial Magistrate lasting 1 day only is optimistic. Because of the various theories on how Kienbock's disease is caused, it would be relevant for the applicant to give a lengthy history of his work and leisure activities, insofar as they may have impacted on his right wrist. Apart from the orthopaedic surgeon from whom the applicant is seeking a medico-legal opinion, there would need to be evidence from Drs Couzens and Martin and all of the doctors and medical personnel who have been involved in the treatment and diagnosis of the applicant. That includes the applicant's general medical practitioner, Dr Rowan and relevant radiological experts.

[43] I do not find it necessary to decide between the respective estimates of costs for an appeal to the Industrial Magistrates Court. It is clear that there is the potential for significant funds to be expended by the applicant in connection with an appeal to the Industrial Magistrate.

[44] I do not consider that it is relevant that the applicant's solicitor is not prepared to act for the applicant on the appeal to the Industrial Magistrates Court on a speculative basis. An application of this sort cannot be determined on the basis of the preference of the solicitor for an applicant for what sort of work he or she is prepared to accept on a speculative basis. There is always the possibility that the applicant can engage another solicitor who is prepared to act for the applicant on the appeal to the Industrial Magistrates Court on conditions which are acceptable to the applicant.

[45] The respondent is an administrative decision maker and its processes are quite different to that of the next stage of review provided for under the WQA which is the appeal to the Industrial Magistrates Court. There is a distinct public interest in ensuring that the decision making entrusted to the respondent fulfils its object. In the circumstances in which the respondent made the decision in this matter, weight should be given to the public interest in ascertaining whether the respondent did err in failing to provide procedural fairness to the applicant before making the decision. The appeal to the Industrial Magistrates Court would not be able to consider that matter.

[46] I am not persuaded that the respondent has made out any of the grounds under s 48(1) for obtaining summary dismissal of the application for statutory order of review. The failure of the respondent to notify the applicant's solicitor of the intention to proceed to make the decision, without waiting for the applicant's further medico-legal report, in the light of the communications which preceded the making of the decision, together with the public interest in ensuring that any such procedural error on the part of the respondent be identified, justify allowing the application for statutory order of review to proceed. That public interest aspect allows the approach taken in Turner v Valuers' Registration Committee of Queensland to be distinguished. I also do not consider that it is appropriate at this stage to exercise the jurisdiction under s 12 of the JRA to dismiss the application for statutory order of review, because the applicant has also filed a notice of appeal in the Industrial Magistrates Court. These matters which I have identified also are sufficient at this stage to conclude that the interests of justice does not require the application for statutory order of review to be dismissed pursuant to s 13 of the JRA.

[48] It would follow in the normal course that the applicant should be entitled to a costs order in respect of that application. I will hear submissions from the parties, however, before making any costs order. I will also hear from the parties on the directions that should be made for the further conduct of the application for statutory order of review.