Court of Appeal strikes out appeal made by injured worker

27 August 2021

The Court of Appeal confirmed that an injured worker's last chance to challenge a decision with respect to a claim is through an appeal to the Industrial Court of Queensland. Thereafter, the worker has no right of appeal to the Court of Appeal.

In issue

  • The Queensland Court of Appeal (QCA) was tasked with determining an application to strike out a notice of appeal lodged by the Workers’ Compensation Regulator (the Regulator) in relation to a worker’s appeal of a decision made by Martin J, presiding as President in the Industrial Court of Queensland (ICQ).

The background

The respondent was employed by Brisbane Catholic Education at a school in Hervey Bay, and accompanied a group of students on a school sponsored trip to Vanuatu. The respondent injured her shoulder in an incident at a local waterfall, and sought statutory compensation from WorkCover Queensland (WorkCover) under the Workers’ Compensation and Rehabilitation Act 2003 (WCRA).

WorkCover issued a rejection of the respondent’s application for compensation, and pursuant to section 542 of the WCRA, the respondent sought review of that decision with the Regulator. The Regulator affirmed WorkCover’s decision to reject the application. The respondent then appealed the decision to the Queensland Industrial Relation Commission (QIRC), which affirmed the decision. The ICQ also upheld the decision and dismissed the respondent’s appeal.

The respondent lodged a notice of appeal to the QCA in relation to the ICQ’s decision. The Regulator lodged an application in the QCA to strike out the respondent’s appeal.

The decision at trial

Our summary of Martin J’s decision in the ICQ appeal can be found here. In short, Martin J determined that the respondent’s injury did not arise out of or in the course of her employment as required by section 32 of the WCRA, because her actions in participating in activities at the waterfall were not incidental to her employment.

The issues on application

On application, the Regulator contended that the effect of section 561(4) of the WCRA is that there can be no appeal from a decision of the ICQ to the QCA.

The worker submitted that by operation of section 561(2), the WCRA engages the provisions of the Industrial Relations Act 2016 (IRA). Section 561(2) states that a party aggrieved by a decision of an industrial magistrate or industrial commission may appeal to the ICQ, and in relation to that appeal, the IRA applies.

In that regard, section 554(1) of the IRA provides:

A person aggrieved by a decision of the court, or the full bench constituted by the president and 2 or more other members, may appeal to the Court of Appeal on the grounds of:

  1. error of law; or
  2. excess, or want, of jurisdiction.

The worker submitted that despite section 561(4) of the WCRA, the effect of section 561(2) and 554(1) of the IRA provided her with a right of appeal to the QCA.

The decision on application

The QCA noted that prior to the enactment of the IRA, section 561(2) of the WCRA referred to provisions in the now repealed Industrial Relations Act 1999 (the 1999 Act), whereby section 340 provided a right of appeal to the QCA only in certain circumstances. Otherwise, sections 349(1) and (2) of the 1999 Act stated that decisions by the ICQ were ‘final and conclusive’. It was noted that in the 1999 Act, no provisions conferred any right of appeal in relation to a workers’ compensation matter made by the ICQ and section 561(2) of the WCRA renders decisions in those matters final.

The respondent submitted that the enactment of section 554(1) of the IRA had the effect of widening the scope of an appeal in relation to workers’ compensation matters.

The Court of Appeal rejected that position, finding that:

  1. Prior to 2016, any limitation on appeals from ICQ decisions made under the 1999 Act were to be found in that Act, rather than another Act such as the WCRA. Similarly, any limitation on appeals from the ICQ in relation to workers’ compensation matters were to be found within the WCRA.
  2. Section 561(2) of the WCRA applies only to the appeal referred to in that section. That is, an appeal to the ICQ in relation to a decision by the QIRC. Once the appeal to the ICQ has been determined, the relevant provisions of the WCRA will apply, as there is no longer an appeal on foot.
  3. Therefore, section 561(4) of the WCRA is that a decision of the ICQ in relation to workers’ compensation matters if final.

Implications for you

The decision shows that an appeal to the Industrial Court of Queensland is the final chance for a worker to challenge a decision in respect of their workers’ compensation claim.

Workers’ Compensation Regulator v Glass [2020] QCA 133

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