List member Cate Hartigan appeared for the respondent in the matter of Pryszlak v Workers’ Compensation Regulator  QSC 286.
This matter was a judicial review of the decision by the Workers’ Compensation Regulator to extend the time for the applicant to pursue a review of WorkCover’s decision to reject his claim for compensation.
The applicant’s claim for compensation for an injured hand was rejected due to WorkCover not being satisfied that the worker’s employment was a significant contributing factor to his injury. The applicant had three months to pursue a review of this decision, but waited fifteen. The Regulator rejected the application on the grounds that the worker had been advised of the three month time limit, and that there were no special circumstances, as required by s 542 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld), for the Regulator to exercise its discretion to grant an extension of time.
The applicant explained the delay on the basis that he did not fully appreciate the evidence before the decision maker and assumed that all relevant medical evidence would have been considered by WorkCover and given that assumption he considered there to be no point to challenge the decision.
McMeekin J distinguished the decision of Devi v Worker’s Compensation Regulator  QSC 311 and found that consideration of special circumstances should not be limited to those matters that explain or justify the delay. His Honour also found that in determining what amounts to special circumstances, regard should be had to the merits of the matter. His Honour considered that the determination of whether special circumstances exist is a two-stage process involving a finding that there were (or were not) special circumstances and then a consideration, if there were seen to be such a circumstance, whether the discretion should be exercised. The question to be asked at that second stage must be: is it in the interest of justice that time be extended? If so, then at that point all relevant circumstances must be brought into account.
McMeekin J considered that the Regulator erred in limiting the scope of the relevant enquiry to matters explaining the delay. His Honour also considered the Regulator erred in not considering the merits of the claim.
McMeekin J ordered that the Regulator’s decision be set aside and the application for an extension of time be referred back to the Regulator for further consideration.
See judgment here: https://www.sclqld.org.au/caselaw/QSC/2017/286