Kevin John Hansen v Q-COMP and Swift Australia Pty Ltd

Date of decision: 12 March 2010, IM Hennessy

Mr Green of Counsel, instructed by WHD Lawyers for the appellant

Mr Johnson of Counsel, directly instructed by Q-COMP

Mr Cross of Counsel, directly instructed by Swift Australia Pty Ltd

Key words – Meatworker – 40 – Injury Type: physical – Appeal Outcome: appeal dismissed – Significant sections considered:

s542 an application for review must be made within 3 months after the person applying for the review receives written notice of the decision or the failure to make a decision

Head Note

The appellant lodged an application for compensation with Swift Australia Pty Ltd (a self-insured employer) on 13 October 2006 for a lower back injury. Swift provided the appellant with written notice of the decision to reject his application on 11 December 2006. The appellant, represented by his solicitor, lodged an application for review of Swift’s decision with Q-COMP on 1 June 2009. In correspondence dated 11 June 2009, Q-COMP advised that a review of Swift’s decision would not proceed on the basis that the application for review was lodged outside the three-month timeframe provided in section 542, and the appellant had not demonstrated substantial compliance with this provision. The appellant lodged an appeal with the Industrial Magistrates Court.

The appellant submitted that Swift’s written notice of 11 December 2006 did not refer to this time limit and therefore failed to discharge its legislative obligation to perform its functions and exercise its powers reasonably. The appellant gave evidence that he consulted a solicitor in February 2008 about another matter and was referred to obtain further legal advice about his workers’ compensation claim. The appellant spoke in detail with his solicitor on 18 November 2008 and the application for review was prepared by his solicitor on 27 May 2009. The appellant stated that he did not at any time contact Q-COMP on the telephone number provided in Swift’s written notice.

IM Hennessy declined to make findings about the issue of alleged factual errors in Swift’s written notice. IM Hennessy accepted that the appellant has limited education and was not aware of his legal rights, but did not take advantage of the telephone number provided in the application for review. IM Hennessy noted that the delay between consulting the solicitor in November 2008 and the application for review being lodged in 2009 was not of the appellant’s doing. However, IM Hennessy considered the overall delay of two and a half years, and noted that there was an unexplained delay between the appellant’s consultations with solicitors in February and November 2008. IM Hennessy therefore concluded that there were no special circumstances to demonstrate that the appellant substantially complied with the legislative timeframe, and dismissed the appeal.

This decision has been appealed to the Queensland Industrial Court