Appeal to QIRC: Out of time – “Special Circumstances” two-tiered test

Pryszlak v Workers’ Compensation Regulator [2017] QSC 286

McMeekin J

The applicant sought to claim workers’ compensation for a hand injury alleged to be sustained during the course of his employment. By letter dated 27 August 2015, the applicant was advised that his claim was rejected principally because WorkCover was not satisfied that the applicant’s “work was a significant contributing factor causing his injury”. Both the letter and a subsequent phone call by an officer from WorkCover advised the applicant that any application for review must be made within three months of receiving the letter.

The applicant unsuccessfully applied for review from the Workers’ Compensation Regulator (Regulator) on 28 February 2017. The applicant’s delay was allegedly due to the applicant’s assumption that the Regulator had all the relevant medical records and that because of this, there was simply no utility in a challenge.

The application sought a judicial review of the decision of the Regulator. The errors alleged in the Regulator’s decision were:

  • That the decision was an improper exercise of 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;
  • 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; and
  • 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


The applicant’s submissions were:

  • The respondent restricted its consideration of whether special circumstances exist by reference to the notion that they must justify the extension;
  • The intellectual capacity of the appellant was not considered as being a relevant matter;
  • The appellant not having acted to comply with the time frame because he thought there was nothing to pursue was not considered by the respondent;
  • The appellant’s misconception that the respondent would obtain all relevant material; and
  • The assumption on behalf of the respondent that attempts to comply with the legislative time frame were fundamental

Special circumstances

In considering whether special circumstances exist, his Honour adopted an approach different to that in Devi v Workers Compensation Regulator [2016] QSC 311 which is authority for the proposition that the relevant circumstances must relate to the explanations of the delay. Of the approach, in that case, McMeekin J stated:

[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.

[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.

His Honour went on to consider each of the applicant’s submissions as follows.

Limited scope enquiry and compliance with legislative timeframe fundamental

In relation to the first and last matters submitted by the applicant, his Honour stated:

[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.

[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.

Intellectual capacity or competence of the applicant

As to whether the applicant’s intellectual incapacity or competence was considered by the Regulator as relevant matters, McMeekin J found stated:

[54] … 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 applicant’s misconception that there was nothing to pursue

McMeekin J summed up the applicant’s submission as follows:

[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 Regulator’s failure to bring into account the merits of the review

His Honour stated:

[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.


After summarising the special circumstances, the applicant may rely on, McMeekin J concluded as follows:

[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.

David Cormack – Brisbane Barrister & Mediator

NB: appeal dismissed –

Workers’ Compensation Regulator v Pryszlak [2018] QCA 157

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