Pryszlak v Workers' Compensation Regulator [2017] QSC 286

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS - where the applicant applied to the respondent for an extension of the time to apply for a review - where the respondent has a statutory power to grant an extension of time if "special circumstances" exist - where the respondent refused that application - where the applicant applies to this Court for a statutory order of review of the respondent's decision - where the applicant submits the respondent improperly exercised their power by taking into account irrelevant considerations - whether irrelevant considerations were taken into account

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS - where the applicant applies to this Court for a statutory order of review of the respondent's decision to refuse him an extension of time - where the applicant submits the respondent failed to take into account relevant matters - whether the decision was an improper exercise of the relevant power in failing to take into account relevant considerations

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW - where the applicant submits the respondent's decision to refuse an extension of time involved an error of law - where the decision maker restricted her consideration of whether special circumstances exist by reference to the notion that they must justify the extension - whether the respondent's decision involved an error of law

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - OTHER CASES - where there is a complaint that the respondent, in reaching its decision, exercised a discretionary power in accordance with a rule or policy without bringing into account the merits of the review - whether the respondent considered and had regard to the merits of the case in reaching its decision

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 542

Judicial Review Act 1991 (Qld) s 20

Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1017, cited

Cripps & Anor v G & M Dawson Pty Ltd & Anor; G & M Dawson Pty Ltd & Anor v Cripps & Anor [2006] NSWCA 81, cited

Devi v Workers Compensation Regulator [2016] QSC 311, distinguished

Kentwell v R [2014] HCA 37; (2014) 252 CLR 601, considered

Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108, cited

[1] A worker dissatisfied with a decision of WorkCover concerning a claim for compensation has three months in which to seek a review of that decision: s 542 Workers' Compensation and Rehabilitation Act 2003 (Qld) ("WCR Act"). The respondent here, the Workers' Compensation Regulator, can extend that time if it is satisfied that "special circumstances" exist: s 542(3) WCR Act. The application here is for a Statutory Order for Review of a decision of the Regulator refusing to extend such time brought pursuant to s 20 Judicial Review Act 1991 (Qld).

[2] The matter is of some importance to the applicant, Mr Pryszlak. The original decision means that he cannot pursue a damages claim. He says that he is left with a significant disability that impacts on his earning capacity.

[3] Mr Pryszlak injured his hand. He claimed workers' compensation. His application was rejected principally because WorkCover were not satisfied that his "work was a significant contributing factor causing his injury". He was so advised by letter of 27 August 2015. He was told in that letter that any application for review must be made within three months of receiving the letter. As well an officer from WorkCover telephoned him on the same date and advised him of his rights in similar terms.

[4] He applied for a review on 28 February 2017 - fifteen months late. His application was rejected. The review decision noted five matters that the decision maker had thought relevant. The first two matters relate to him being made aware of the three month time limit for review. The remaining three matters were:

"You advised that Mr John Pryszlak felt he had no option but to accept the WorkCover decision and did not seek any professional advice about the decision or his claim.

You mentioned that Mr Pryszlak had made no steps to progress his application prior to 6 December 2016 and did not understand the implications of the decision and the subsequent review rights.

You advised that Mr Pryszlak did not realise WorkCover would not get any medical records from Ayr Medical practice or Townsville Hospital or that he needed to provide better information about the nature and cause of his injury."

[5] The reasons for the rejection read, so far as relevant:

"The medical records you have provided do not demonstrate that your client was suffering a medical incapacity which prevented him from lodging an application for review, nor has it been established that there are special circumstances which would warrant an extension of the timeframe to apply for review.

I am not satisfied that you have provided any evidence which details how your client attempted to comply with or utilise the legislative timeframe. In addition, the evidence supplied does not support either special circumstances or a medical incapacity preventing your client from attempting to comply with the timeframe.

The review has been lodged approximately 15 months beyond the legislative timeframe to apply and granted you have listed your special circumstances warranting this delay, I do not consider it appropriate to waive the legislative timeframe to lodge your review application."

[6] The errors said to be involved in the decision to reject the application to review, and which justify this Court's intervention, are:

1.1 That the decision was an improper exercise of the relevant power by reference to whether irrelevant matters were taken into consideration, whether relevant matters were properly taken into consideration and whether there was an inflexible application of a rule or policy;

1.2 That it was based on an error of law in so far as it considered there was no special circumstance either by reference to the basis for the decision or the decision itself;

1.3 That in respect of the decision, it was contrary to law in that it was restricted in the deliberations of what constituted special circumstances or did not properly decide the merits of the request for an extension.

[7] Reliance is placed on s 20(2)(e), (f) and (i) of the Judicial Review Act. Those paragraphs provide for review where it is shown:

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(i) that the decision was otherwise contrary to law.

[8] Section 542 of the WCR Act relevantly provides:

"(1) An application for review must be made within 3 months after the person applying for review (the applicant) receives written notice of the decision ...

(2) For subsection (1), the applicant may, at any time but not more than once, ask the [respondent] to allow further time to apply for review.

(3) The [respondent] may grant the extension if it is satisfied that special circumstances exist."

[9] It was accepted that Mr Pryszlak had been accurately advised by WorkCover as to his right to a review and the three month limit.

[11] First it is said that Mr Pryzlak did not appreciate the limited evidence that the initial decision maker had before her. He assumed that the decision maker would have had available all relevant medical records about his case because he had provided an authority to obtain his medical records. His assumption was wrong. The decision maker did not have the medical records from a practice in Ayr or records from the Townsville hospital where surgery was performed.

[12] This led to the second matter relied on. That is that Mr Pryszlak didn't appreciate that what was communicated to him was something that he could challenge. He assumed that because the decision maker had all relevant material there was simply no point to a challenge. This it was stressed, was not a decision made as to the merits of a challenge but more fundamental. Counsel for Mr Pryszlak put the point this way:

"As I understand it from Mr Pryslak's position, it's not a matter of - he didn't even form a view as to the merits. So the notion of success was still foreign to whatever deliberations there were. He didn't even - he didn't get to the point of thinking there was a meaningful process that he could engage in. It's - his thinking was dominated by the notion that WorkCover did everything, considered everything and made the decision and that was it. So it was communicated that he could review, but he didn't appreciate that that involved any meaningful way in which he could somehow challenge the decision. To the extent that one might ordinarily appreciate or understand the word review, in my submission, he didn't understand the word review, because he didn't appreciate that there was any meaningful way of challenging it ...[1] To form the view that one couldn't successfully challenge it is to form a view about the merits, but Mr Pryslak didn't even get to that, in my submission."[2]

[13] This claimed lack of understanding is said to have come about because of a "lack of sophistication, his illiteracy, [and] intellectual incompetence".[3]

(a) The respondent conflated the basis for the exercise of the discretion and the exercise of the discretion. The decision maker did not appreciate that the determination of the special circumstances issue was a step preliminary to the exercise of the discretion. This had the effect that the decision maker restricted her consideration of whether special circumstances exist by reference to the notion that they must justify the extension.

(b) The decision maker's treatment of medical incapacity as apparently something separate and discrete from special circumstances was wrong and by inference suggests that other forms of incapacity were thought not to be considered as a special circumstance e.g. the claimed incapacities here. In effect that intellectual incapacity or incompetence were not considered by the decision maker at all, both being relevant matters.

(c) The decision maker failed to consider that the applicant had done nothing to comply with the time frame because he thought that there was nothing to pursue.

(d) The decision maker failed to bring into account the merits of the review that was sought. The issue was not simply that further evidence had been obtained but that the applicant operated under a misconception that he thought that Q-Comp would obtain all relevant material. It is submitted that the "Ayr records are fundamentally relevant to the very basis upon which the rejection decision proceeded".

(e) The decision maker considered that compliance with the legislative timeframe to be fundamental to the task. There was an assumption that there was a necessity to demonstrate attempts to comply with that timeframe. That involved an error of law.

[15] Before turning to the particular arguments put I would make three general observations.

[16] First, the very brevity of the reasoning disclosed makes it difficult to discern the basis on which the decision maker proceeded. Absent from those reasons is any reference to what the decision maker may have thought the concept of "special circumstances" involved. I can only proceed by inference as to the test applied. Nor did the decision maker explain whether she thought the circumstances were or were not special.

[17] Secondly, what is striking about the reasons proffered for rejecting the review is the disconnect between those reasons and the case that had been advanced on Mr Pryszlak's behalf.

[18] Mr Pryszlak had not suggested that he had a "medical incapacity" (presumably an impairment supported by evidence of a medical nature) or that any "medical incapacity" had prevented him from applying for a review or complying with the legislative timeframe. Findings to that effect, at least in the form in which they were put, were unnecessary. And the finding that the decision maker was "not satisfied that you have provided any evidence which details how your client attempted to comply with or utilise the legislative timeframe" is peculiar given that no argument was advanced that he had attempted to comply with or "utilise" the legislative timeframe. The argument put by Mr Pryszlak was that he had not even attempted to comply with the legislative time frame because of the two circumstances I have identified.

[19] However the lack of any medical incapacity and the failure to attempt to comply with the legislative timeframe could not be said to involve consideration of irrelevant matters.

[20] Given the circumstance that is relied on, at least as now explained - a claimed lack of understanding said to have come about because of a "lack of sophistication, his illiteracy, and intellectual incompetence" - the decision maker was justified in making at least passing reference to the fact that there was no medical evidence advanced to support the claimed incompetence. Perhaps that was meant. A more sophisticated writer might have merely noted that no submission was made that any "medical incapacity" was claimed as explaining the delay, and that it was not in issue that there had been no attempt made to comply with the timeframe. That would have reflected the facts. And both would have been relevant to note.

[21] The third observation is this - the way these matters were dealt with raises the concern that there was no appreciation of the significance of the matters that were advanced.

[22] It is necessary to consider just what may fall within "special circumstances" in s 542(3).

[23] Devi v Workers Compensation Regulator [2016] QSC 311 is authority for the proposition that the relevant circumstances must relate to the explanations of the delay. So much follows from the discussion at [32]-[36] under "relevant considerations":

"In considering whether or not special circumstances exist to grant an extension, the Office of Industrial Relations will consider the reasons for the delay, the length of the delay in applying for review and the merits of the review."

[33] I respectfully agree with Martin J in Blackwood v Pearce that:

"The capacity to seek an extension of time within the three month period does not require an applicant for such an extension to demonstrate to the [respondent] that the applicant has a particularly good case. All that need be shown is that special circumstances exist."

[34] The prospects of success of any review of WorkCover's decision is not a circumstance that affected the applicant's ability to comply with the three month timeframe. Similarly, prejudice, either to the applicant or WorkCover, were not circumstances that affected the applicant's ability to prepare her review. Having regard to the particular circumstances of the applicant's case, those considerations were not relevant to the respondent's decision.

[35] The fact the applicant acted on her solicitor's advice, and that advice turned out to be incorrect, was also not a consideration relevant to the respondent's decision. Taking into account such a decision would have the potential for any decision made under legal advice to be called into question. The review process is not the appropriate forum in which to seek compensation for decisions taken on the basis of poor legal advice.

[36] The applicant has not shown the respondent failed to take into account relevant considerations.

[24] After much consideration I have come to the view that I cannot accept that approach as correct.

[25] The legislation in terms does not say that the only circumstances that may be considered in determining "special circumstances" are those that explain or justify the delay. If that was the intention then it could easily have been said. Obviously those matters that explain the delay will be both relevant and capable of amounting to special circumstances but there is no warrant that I can see in the legislation to so restrict the enquiry.

[26] On this approach such things as the prejudice to parties, or lack of prejudice, and the merits of the review are not relevant. In my view any circumstance that bears on the justice of the case is relevant and the issue for the decision maker is whether all those circumstances, taken as a whole, amount to "special circumstances" justifying the extension sought.

[27] As Boddice J observed in Devi the discretion given is not a broad discretion to do justice,[4] but in my view that does not mean that matters that impact on the justice of the case are to be ignored, or that to be considered relevant to the enquiry the circumstance must relate only to the delay and the explanations for it. As the plurality observed in Kentwell v R[5], albeit in a very different context:

"The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. ...

Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted."[6]

[28] While that statement was made in the context of an application for leave to appeal a sentence and against a legislative background of a conferral of a broad discretion I fail to see why any different consideration applies here.

[29] As in Kentwell, the power here to extend the time limit is discretionary. As in Kentwell, the existence of the power is a legislative recognition that the strict application of the time limit may involve injustice. Here the exercise of the discretion is only enlivened if the circumstances are, in the view of the decision maker, "special". But that hardly means that the justice of the case is to be ignored. It is only in the weighing up of all factors that impact on the justice of the case that the decision maker can reach a view as to whether the circumstances identified amount to "special circumstances" so as to enliven the jurisdiction to extend. The fact that the jurisdictional hurdle is so described does not mean that the decision maker should ignore the interests of justice in determining what is relevant to the enquiry as to whether the circumstances were or were not "special".

[30] In the usual course the prospects of success on the review would plainly be relevant to any enquiry as to the justice of allowing an extension. A gross injustice occasioned to the worker if a review was not permitted and one that occasioned substantial loss are not factors to be ignored. In other words the more certain that the original decision was wrong, and the greater the monetary impact on the worker, the more inclined one might be to see the whole concatenation of circumstances as "special". Conversely a compelling reason for delay but coupled with a matter plainly trifling and having not the slightest prospect of success might be considered to fall well short of "special".

[31] Even if I am wrong in that, it was common ground that there are two stages to the process - first a finding that there were (or were not) special circumstances and then a consideration, if there were seen to be such circumstances, whether the discretion should be exercised. The question to be asked at that second stage must be: is it in the interests of justice that time be extended. And at that point all relevant circumstances must be brought into account.

[32] There is also the question of what the notion of "special" in "special circumstances" connotes. The term is not defined. The meaning to be attributed to the words depends on their legislative context and the objects of the Act. I would think that the circumstances would need to be out of the ordinary but not extraordinary or exceptional. That was the approach that Malpass AJ took in Aguiar v Registrar to the Workers Compensation Commission of NSW & Ors [2005] NSWSC 1017 to an extension of time provision in a very similar legislative context. I think that it meets the legislative purpose here.

[33] With those observations in mind I turn to the grounds argued.

The decision maker restricted her consideration of whether special circumstances exist by reference to the notion that they must justify the extension

The decision maker considered that compliance with the legislative timeframe to be fundamental to the task.

[34] The first and last matters argued are I think related and are bound up with the point just discussed. As mentioned above there are two stages to the process - first a finding that there were (or were not) special circumstances and then a consideration, if there were seen to be such circumstances, whether the discretion should be exercised: Devi v Workers' Compensation Regulator[7]. I accept the correctness of that view.

[35] Boddice J there held that it is quite possible for a decision maker to be satisfied that special circumstances had been demonstrated but nonetheless determine that those circumstances did not justify extending the time necessary to lodge the review.

[36] The issue is whether the decision maker made that mistake.

[37] I note that nowhere is there an express statement by the decision maker that there were two stages to the process. Nor is there any passage in which the decision maker in fact identifies those aspects of the case that might be thought to be within the concept of "special circumstances" and then determine whether they collectively amounted to "special circumstances" and if they did whether they justified an extension. Further each reference to "special circumstances" was made in a context of considering the issue of delay, suggesting that there was no acceptance as relevant of any circumstance that did not touch on the reasons for delay, or the failure to comply with the three moth timeframe in the legislation.

[38] The respondent contends that the decision maker did not make the mistake contended for pointing to the introductory words of the letter advising the decision: "I have the delegated authority to determine if special circumstances exist and to grant an extension".

[39] While that passage is indeed consistent with an appreciation of the true nature of the task, the actual reasons themselves do not indicate any such process of thinking and are expressed in such a way as to be either against it or ambiguous.

[40] The first express reference contained in the body of the reasons as to the quality that the special circumstances ought to have in the eyes of the decision maker does not reflect that appreciation of a two-step process and is ambiguous as to whether the decision involved acceptance of the fact of special circumstances but a denial of the extension or non-acceptance of the necessary underlying premise. The reasons read:

"...nor has it been established that there are special circumstances which would warrant an extension of the time frame to apply for review."

[41] There is no indication in the words used that the decision maker sees the process as a two-step task. While that may well involve error it may be an error without any impact and so not deserving of judicial review but for the fact that the focus throughout the reasons appears to be solely on the relevance of the circumstance to the explanation for delay.

[42] The other two references are suggestive of a misapprehension. In the second paragraph quoted above the meaning is not entirely clear but again it is more consistent with a conflation of the test than an appreciation of the two step process:

"...the evidence supplied does not support either special circumstances or a medical incapacity preventing your client from attempting to comply with the timeframe."

[43] It may be that the decision maker did not intend that the reference to "preventing your client from attempting to comply with the timeframe" qualify the phrase "special circumstances" but only "medical incapacity". Her meaning is unclear. Why she would draw a distinction between "special circumstances" and "medical incapacity" in that way is not clear to me. Whatever be the meaning intended it is difficult to avoid the view that the focus of the enquiry was still on the concept of prevention of compliance with the three month time frame, and so too restrictive.

[44] The third reference is ambiguous. It reads: "granted you have listed your special circumstances warranting this delay". It isn't entirely clear if the decision maker is there accepting that the circumstances in fact did justify the delay - the word "warranting" suggests as much. If so it is a peculiar feature that the decision maker did not then go on to explain why, despite those special circumstances warranting the delay, the decision should go against the applicant. In the context I am inclined to think the intended meaning was more along the lines of "explaining", or "attempting to explain" the delay. Again the focus is on the circumstances justifying delay. While that is by no means irrelevant the enquiry is not so limited as seems to have been assumed. That is not what the legislation provides.

[45] The reasons taken as a whole do not show any appreciation of the need to first identify the circumstances said to be special, then determine whether or not they had that quality and then determine whether they were sufficient to justify the long extension sought.

[46] Further I am satisfied that the decision maker assumed that the circumstances that the applicant was permitted to rely on were restricted to only those that must, of themselves, explain the delay and so justify the granting of the extension. In my view, in doing so, the decision maker did not proceed in accordance with the law as she improperly limited the scope of the relevant enquiry.

That intellectual incapacity or competence were not considered by the decision maker at all, both being relevant matters

[47] The complaint is that decision maker appeared to treat "medical incapacity" as something separate and discrete from special circumstances, that that was wrong, and by inference suggests that other forms of incapacity were thought not to be considered as a special circumstance.

"the evidence supplied does not support either special circumstances or a medical incapacity preventing your client from attempting to comply with the timeframe"

[49] There is force in the applicant's argument that the passage leads to the inference that the decision maker was under the impression that a "medical incapacity preventing [the worker] from attempting to comply with the timeframe" was something separate and distinct from "special circumstances". If so then the decision maker was plainly wrong. Such a "medical incapacity" might be a "special circumstance" within the meaning of s 542, but there is no special category of "medical incapacity" that needs to be negatived by the decision maker to permit a refusal to exercise the discretion.

[50] Having said that I do not accept that the reference should necessarily result in a finding that the wrong test has been applied. In the context of a case where there was no submission put that there was such an incapacity, to find that there was none is neither here nor there. And as pointed out above it was not irrelevant that there was no medical evidence supportive of any incapacity.

[51] What the applicant seeks to argue is that an inference should be drawn from that statement that the only incapacity considered relevant to the exercise is one that can be described as a "medical incapacity". I do not think that inference necessarily follows, and I cannot see why I should assume that the decision maker so restricted herself.

[52] Apart from any other consideration there is a fundamental fallacy in the applicant's submission that mitigates against drawing any such inference - there is no evidence that there was (or is) any intellectual incapacity or lack of competence. The complaint that intellectual incapacity or competence were not considered by the decision maker at all may be right but Mr Pryszlak's affidavit falls far short of claiming any such lack of capacity or competence. He there swears:

(a) He was educated to Grade 10 at Tumbarumba State High School in New South Wales;

(b) That he has relatively poor reading and writing skills; and

(c) That he has never previously made a workers' compensation claim.

[53] Consistently with that evidence it was conceded that Mr Pryszlak was not illiterate. While Mr Pryszlak may have poor reading and writing skills, as he says in his affidavit, that same affidavit shows that he is far from incompetent.

[54] I observe that there was no submission put to the decision maker of any such incapacity or lack of competence. What was said was that Mr Pryszlak was unsophisticated, with no prior experience of making WorkCover claims, with below average reading and writing skills, and who did not "properly appreciate the full meaning and intent of his review entitlements". It is not surprising then that the decision maker did not expressly deal with (or perhaps appreciate) the point now sought to be made. It was not relevant to the enquiry.

The decision maker failed to consider that the applicant had not done anything to comply with the time frame because he thought that there was nothing to pursue

[55] I have struggled to follow the relevance of this complaint. I think that the point is accurate - there is no indication in the reasons that the decision maker did look at the problem this way. That is explicable as the submission as now framed was not put in terms to the decision maker. But I have trouble following where the argument leads.

[56] As the summary I have given previously shows the decision maker was well aware of the factual matters that underlie the complaint - that the medical records had not been obtained and that Mr Pryszlak did not appreciate that they had not been before the original decision maker. There is a concern that the decision maker did not appreciate the impact of the missing records, at least there is no reference to how they might impact on the decision. But that is not the point made here. What the applicant now seeks to do is argue that there is a distinction between the case of a worker who considers whether or not they have a chance of success and a worker who does not. Counsel for Mr Pryszlak accepted that in the former case a deliberate decision that the prospects of success on review were poor was not a relevant matter to consider as potentially "special". He argued that this case fell into a different category.

[57] That argument was not put in terms to the decision maker. Whether that should now be allowed to be put is a matter I do not decide as the distinction sought to be made is illusory.

[58] Mr Pryszlak determined not to pursue a review. Whatever his reason for doing so does not alter the fact that he understood that there was a review process and he decided not to engage in it. His failure to exercise his right to seek a review was not a non-decision. It reflected a view that he held - there was no point to the process. What was required of the decision maker was a consideration of the reasons advanced for that failure.

"The purpose of the power to extend time is to alleviate the potential injustice that could result from strict enforcement of the time limit. It is not to provide a person with the opportunity to revisit a decision, made under advice, to not pursue a right of review. It does not exist to allow a person to review a bad decision that person later regrets."[8]

[60] If all that is being said here is that Mr Pryszlak is in a different category of case to the one mentioned by Boddice J I would accept the point as accurate. An informed view as to prospects later regretted is one thing. A mistaken view as to the material that was before the original tribunal is in quite a different category. And there is the added circumstance here that Mr Pryszlak seems to have been unaware of the possibility that a review involved a differently constituted tribunal that might take a different view of the same set of facts. The point was made to the decision maker that he was inexperienced in these matters and unsophisticated. These matters go to the explanation for the failure to comply with the three month time frame and so were plainly relevant.

[61] However there is nothing in the reasons to suggest that the decision maker formed a view that this case was on all fours with Devi, or that there was no discretion to exercise.

The decision maker failed to bring into account the merits of the review that was sought.

[62] The complaint is accurate. There is no mention in the decision of any consideration of the merits.

[63] The merits appear at this stage to be compelling ie that the injury was plainly work related. The relevant facts are:

(a) The foreign object that entered Mr Pryszlak's hand has been identified as a small piece of wire. It was retrieved from his hand at surgery carried out at the Townsville Hospital. The wire has apparently been preserved in a jar;

(b) Mr Pryszlak's work involved using a wire brush wheel;

(c) Pieces of wire consistent with that found at surgery are used in the wire brush wheels at Mr Pryszlak's place of employment;

(d) It was a common enough feature of work that pieces of wire enter worker's hands in the course of the work that Mr Pryszlak performed.

(e) A worker would not necessarily be conscious of a piece of wire entering his hand at the time it occurred due to the fine nature of the wire. In the usual course the worker would become aware of it reasonably promptly because of symptoms or the wire protruding from the skin. This piece of wire did not protrude, caused no initial problems, and so went undetected until it became infected.

(f) Mr Pryszlak says that he had no exposure at all to such pieces of wire outside his workplace.

[64] As discussed above, in my view the merits of a case while not explaining a delay nonetheless are relevant to the question of whether the circumstances are "special". A failure to consider the merits involves a failure to consider a relevant matter.

[65] Allied with this point is that the effect of the original decision was to deprive Mr Pryszlak of a potential right to pursue a claim for damages. It was not just the inability to claim the cost of treatment but a great deal more that was at stake. Mr Pryszlak now is left with a significant disability which he says impacts on his ability to work.

[66] It is not my task to decide whether there were special circumstances, only to be satisfied that the decision maker went about the task entrusted to her by the legislation in accordance with the law.

[67] The special circumstances that the applicant might rely on may be summarised as follows:

(a) The applicant had no prior experience in workers' compensation claims;

(b) The applicant was unsophisticated with limited education, and limited reading and writing skills;

(c) The applicant failed to appreciate how limited was the evidence considered by the original decision maker. He assumed that the authority that he gave to Q-Comp to obtain his medical records would result in all relevant records being obtained;

(d) That assumption was not an unreasonable one particularly given the first two matters mentioned;

(e) Because of that assumption the applicant assumed that Q-Comp was aware of the facts that those records would prove beyond any doubt - the nature of the foreign body that had caused his injury;

(f) In the circumstances his failure to seek advice or otherwise act either within the three month period, or at all until he fortuitously received legal advice, was understandable;

(g) The applicant had a compelling case that the original decision was wrong (by reference to the facts listed above);

(h) The decision was potentially prejudicial to the applicant depriving him of a right to claim workers' compensation and statutory benefits and potentially a common law claim;[9]

(i) There was no prejudice to the employer or WorkCover in the sense of any relevant evidence having been lost (or in any other manner, as best I can see);

(j) The explanation for not pursuing his rights lay in his ignorance of both the process (that an independent tribunal may reach a different decision) and of the evidence originally considered. Again the first two matters mentioned are relevant;

(k) It was not a case of a lack of interest in vindicating his rights, i.e. of deliberately standing by, with knowledge of all relevant facts, and doing nothing.

[68] Nothing in the reasons demonstrates any appreciation of the matters listed as (e), (g), or (h) as relevant. Nor is there any finding one way or the other concerning (d), (f) and (j). As to (c) it is not clear whether the decision maker thought Mr Pryszlak's assumption to be a reasonable one or not. I have not examined the duty on WorkCover to enquire but I note that the Federal Court has expressed the view, albeit in a different context, that unreasonableness could support a duty to enquire where "there is obvious material available to the decision-maker centrally relevant to the decision to be made and no attempt had been made to obtain that information before the decision maker reached a decision": Wecker v Secretary, Department of Education Science and Training [2008] FCAFC 108 at [110] per Greenwood J (French and Weinberg JJ agreeing).

[69] In my view the applicant has demonstrated that the decision maker proceeded under an error of law in that she has not adopted the two stage process that would have required her to first identify each of the circumstances said to be collectively "special", then determined whether collectively they had that character, and, if so satisfied, then determined whether collectively they justified an extension being granted.

[70] Further I consider that relevant matters have not been considered as set out above.

[71] It will be a matter for the decision maker to determine whether, singly or together, the foregoing matters amount to special circumstances justifying the extension sought. Perhaps it is usual for the relevant WorkCover officer to make decisions without obviously relevant evidence or not to obtain all relevant evidence. Perhaps it is usual for the worker to have only a very limited understanding of the process. Perhaps it is usual for a worker with a compelling case and much at stake to not appreciate that and to stand by without pursuing their rights. Perhaps this combination of circumstances is usual. For my purposes I am not prepared to hold that this combination of circumstances could not be "special".

[72] While I will hear from the parties as to the appropriate form of relief in the light of these reasons my present inclination is to set aside the order below and order that the application for an extension of time be referred back to the respondent for further consideration.

[3] I quote from the oral submissions: T1-3/47.

[5] [2014] HCA 37; (2014) 252 CLR 601 at 614 [32].

[6] At [32] - [33] per French CJ, Hayne, Bell and Keane JJ.

[7] [2016] QSC 311 per Boddice J.