Supreme Court of SA|1999-11-12|Before: Bleby JJ, Commission J, Duggan J, Debelle J

CHIROPRACTORS ASSOC & PERRY v WORKCOVER CORP No. SCGRG-97-897 Judgment No. S470 [1999] SASC 470 (12 November 1999)

WORKCOVER CORPORATION - DISCRETION TO ACCORD MEDICAL EXPERTS STATUS OF RECOGNISED MEDICAL EXPERTS Claim by Chiropractors for recognition as "recognised medical experts" under the Workers Rehabilitation and Compensation Act 1986 (SA) - whether trial judge erred in refusing to grant declarations - nature and extent of Corporation's discretion to recognise experts or recognised medical experts - whether Corporation has power to consider application on behalf of a group or to accord recognition by reference to criteria applicable to them as a group - whether Corporation required to develop and publish guidelines, principles or procedures by which medical experts may be recognised - whether Corporation required to give reasons for rejection of plaintiffs' application - whether plaintiffs had right to be afforded procedural fairness.

Appellants CHIROPRACTORS ASSOCIATION OF AUSTRALIA (SOUTH AUSTRALIA) LTD AND NAOMI PERRY:

Counsel: MS R LAYTON QC WITH MR G MANOS - Solicitors: MANOS & ASSOCIATES

Respondent WORKCOVER CORPORATION OF SOUTH AUSTRALIA:

Counsel: MR R C WHITE QC WITH MR H ROWELL - Solicitors: JOHNSON WINTER & SLATTERY

CHIROPRACTORS ASSOCIATION OF AUSTRALIA (SOUTH AUSTRALIA) LTD and PERRY v WORKCOVER CORPORATION OF SOUTH AUSTRALIA

DUGGAN J. I agree that the appeal should be dismissed for the reasons given by Bleby J.

DEBELLE J. The appellants have not demonstrated why the decision of the Chief Justice should not be upheld. I agree with the substance of the reasons of the Chief Justice for his decision. I have also had the advantage of reading the reasons of Bleby J and agree with the substance of his reasons. It follows that this appeal must be dismissed.

BLEBY J. This is an appeal against a decision of the Chief Justice dismissing an application by the appellants for declaratory relief, details of which I will refer to in due course. The declarations were sought in furtherance of an attempt by the first appellant ("the Association") to secure for its members recognition of them by the respondent as recognised medical experts for the purposes of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

In South Australia a person cannot practise chiropractic for fee or reward unless that person is registered under the Chiropractors Act 1991. For the purposes of the Workers Rehabilitation and Compensation Act a "medical expert" means a legally qualified medical practitioner and a number of specified registered para-medical professionals including a registered chiropractor. A medical expert plays an important role in the functioning of the Act. "Medical services" are services which are provided by a medical expert (s 3), and it is only the cost of such medical services provided by a medical expert that can be the subject of compensation under s 32 of the Act. Likewise, it is only the cost of medicines and other material purchased on the prescription or recommendation of a medical expert which can also be the subject of compensation. Pursuant to s 42B of the Act, the WorkCover Corporation of South Australia ("the Corporation") can only require a worker to submit to an examination by a medical expert. Medical experts have a role in providing reports which play an important part in the working of the Act: s 107A and s 109. In other words, the Act ensures that examination, diagnosis and treatment of injured workers will only be performed by medical experts.

A recognised medical expert is defined in s 3 of the Act as follows:

"'recognised medical expert' means - (a) a legally qualified medical practitioner; or (b) in relation to disabilities of a particular kind - a medical expert who is recognised by the Corporation as having specialised knowledge of, and experience in the treatment of, disabilities of that kind."

The Act is silent as to the process of recognition by the Corporation and as to any other express criteria necessary to be met in order to obtain recognition.

A recognised medical expert has a greater role and responsibility under the Act than a medical expert. A claim for compensation cannot succeed unless it is supported by a certificate relating to the claimed disability and provided by a recognised medical expert: s 52(1)(c). Where a worker claims incapacity for work, the certificate must certify the extent and probable duration of the incapacity: s 52(1)(c)(iii). If the Corporation requires the worker to submit to an examination for the purpose of satisfying itself of the nature, extent or probable duration of a disability it must be an examination by a recognised medical expert: s 53(2). The Corporation may reject a claim if the worker refuses to submit to such an examination: s 53(3). Where weekly payments of compensation are being made, they can be discontinued, reduced or reviewed only in certain specified circumstances, some of which are dependent upon the provision of a certificate by a recognised medical expert: s 36(1)(b), (1a)(b) and (2)(b) and s 38(5)(a). In certain circumstances the liability to pay compensation can be redeemed. One of the pre-requisites for redemption is that a recognised medical expert has certified that the extent of incapacity can be determined with a reasonable degree of confidence: s 42(2)(d). Refusal to submit to an examination by a recognised medical expert can lead to termination of weekly payments for incapacity: s 36(1)(f) and s 36(1a)(a) and (b). Finally, an employer in certain circumstances may require the Corporation to have the worker submit to an examination by a recognised medical expert nominated by the Corporation: s 108(1). As Mr White QC for the Corporation put it, the recognised medical expert, as opposed to the medical expert, has a role in certifying gateways to and exits from benefits under the scheme provided by the Act. However, by implication from the definition of "recognised medical expert", a recognised medical expert who is not a legally qualified medical practitioner could only give the necessary certificates and conduct the necessary examinations in relation to disabilities of the particular kind in respect of which the medical expert is recognised.

The appellants assert that they cannot provide a full service to their patients without the ability to provide the relevant certificates, and that without recognition by the Corporation they are deprived of the ability to earn fees for providing such service.

On 5 December 1996 the solicitors for the Association wrote to the Corporation. They pointed out certain features of the Act to which I have already referred. The letter continued:

"Members of the Association are specifically trained and have a specialist knowledge of a wide variety of medical conditions and in particular the diagnosis and management of musculoskeletal conditions especially spinal and lower back injuries. On behalf of the Association, we request that if WorkCover does not presently recognise registered chiropractors as having specialist knowledge of and experience in the treatment and diagnosis of disabilities of a particular kind namely spinal, lower back injuries and neuro musculoskeltal (sic) conditions that WorkCover give registered chiropractors such accreditation. The accreditation will only be for the purpose of the definition of a recognised medical expert as that term is defined in the Act and for the purpose of the Act generally. In making that request, we enclose a Submission prepared on behalf of the Association and its members."

The submission which accompanied the letter was a voluminous document containing a number of appendices relating to the skills and training of chiropractors and their recognition generally in the health systems of a number of countries. The letter requested that the Association's request be dealt with as expeditiously as possible but in any event within 6 weeks.

That letter was acknowledged by letter dated 11 December 1996, indicating that the matters concerned would be investigated, but that it was unlikely that the matter could be resolved by the end of February 1997.

On 12 February 1997 the Corporation wrote to the Association's solicitors in the following terms:

"The Corporation has decided not to extend certification rights to registered chiropractors at this time, as it does not believe that the change will be entirely beneficial to the scheme. However, the Corporation is willing to further investigate the long term possibility of extending certification rights to this group. While this does not provide any guarantee of future acceptance of the profession as primary certifying practitioners, it will enable the Corporation, the National Medical Services Group and the CAA to further investigate and consider relevant issues for the scheme. For example, the Corporation has already identified particular issues to be addressed, which include: * The need for the chiropractic profession to implement strategies to resolve relationship problems with the medical and any other professions, beyond the workers compensation environment. * The development of agreed, long term, sustainable principles for approval of provider groups seeking certification rights. * The development of appropriate risk management strategies to address any risks associated with extending certification rights to this and other professional groups. * Ensure that current concerns with legally qualified medical practitioners who are certifying time off work and management of treatment are not extended to other professional groups. * The Corporation will require strong stakeholder support for any changes to the current system. * Future direction should be consistent with the national approach towards approval of providers. * Any changes must result in net savings to the scheme. In the meantime, the Corporation also wishes to maintain a positive working relationship with the CAA and actively progress further investigation of the issue...."

The response of the Association's solicitors was dated 24 March 1997. It complained of a number of aspects of the letter from the Corporation. It asserted that the Association remained committed to its members "and we have been instructed to pursue the certification". It asserted that the Corporation had a statutory responsibility under the provisions of the Act to determine criteria relevant to the recognition of medical experts and requested that the Corporation forward to the Association the criteria upon which it would decide whether a particular medical expert should be recognised by the Corporation. It indicated that if such criteria were not provided within fourteen days, application would be made to the Court "seeking various orders concerning the refusal to recognise, the failure to give proper reasons and the failure to give any criteria whereby the Chiropractors Association could reasonably apply to become recognised".

The requested response was not forthcoming and these proceedings were commenced.

The Association is an association which represents the interests of approximately 175 or approximately 75 per cent of the registered chiropractors in South Australia. The second appellant at all material times was a member of the Association, a registered chiropractor and the President of the Association. She was in private practice and herself claimed to be disadvantaged by her non-recognition as a recognised medical expert. The statement of claim of the appellants pleaded the correspondence to which I have referred and gave particulars of where it alleged the Corporation had failed, and in support of the claim for the following declarations:

"1. That the Corporation is required pursuant to Section 3 of the Act to develop and publish criteria by way of guidelines or principles as well as set out a procedure by which medical experts may be recognised by the Corporation as recognised medical experts. 2. That the criteria used by the Corporation should be limited to the matters set out in Section 3 namely whether an applicant medical expert has specialised knowledge and experience in the treatment of specific disabilities. 3. That the defendant is required to give reasons for the rejection of the plaintiff's application. 4. Insofar as the letter of 12 February 1997 may be construed as setting out criteria applied by the defendant pursuant to Section 3 of the Act, those requirements are invalid and go beyond the provision in the Act. In the alternative the requirements are inadequate to properly assist the plaintiffs' application for recognition."

It will have been noted that the claim for recognition by the Association was in respect of all registered chiropractors. That claim was unequivocally rejected by the Corporation's letter of 12 February 1997, even though it offered to investigate the matter further. Whilst the letter of 24 March 1997 from the Association's solicitors informed the Corporation that it was instructed to pursue the "certification", the proceedings did not seek any orders in the nature of judicial review of the decision to refuse recognition.

It is not for me to speculate on the outcome of any application for judicial review of that decision, had such application been made. I respectfully agree with the Chief Justice that a class of the description contained in the letter could be recognised by the Corporation, and it is open for such an application to be made. However, it would equally be open to the Corporation to reject an application on behalf of such a class if it took the view, for example, that it required a level of knowledge of or experience in the treatment of the particular disability which was greater than that applicable to the relevant class. In other words, it would be open for the Corporation to require consideration of individual applications before recognition in order to ensure that each person recognised had the appropriate qualifications.

Be that as it may, the decision to reject the Association's application is not under challenge. That has certain consequences, at least for part of the relief claimed in the proceedings.

Without challenging the decision made by the Corporation, this part of the application merely sought a declaration that some or all of the matters referred to in the Corporation's letter of 12 February 1997 were invalid as criteria against which an application should be judged. Such a declaration, if made, could not affect the efficacy of the decision made by the Corporation. No doubt the declaration was being sought in contemplation of either the Association's application being renewed in its previous or some other form or in contemplation of applications for recognition by individual chiropractors.

As the Chief Justice pointed out in his reasons, the function of the Court is to determine whether a discretion has been exercised lawfully. The function of the Court is not to map out the scope of a statutory discretion unless in the context of a specific factual question. Because there is no challenge to the validity of the Corporation's decision, the scope of the Corporation's discretion does not arise. The only point of the declaration being sought is to guide the determination of future applications. It was against that background that the Chief Justice refused to make the declaration claimed. He said:

"First of all, I am not satisfied that the matters stated are the grounds upon which the decision was made or would be made on a further application. Secondly, the matters are expressed quite loosely. Their meaning is not clear, despite the various suggestions put to me by counsel. I consider that to make a declaration in relation to such generally expressed criteria could cause undesirable confusion in the future. A declaration that some or all of the matters are not permissible criteria might be taken to exclude something within the scope of one or other of them that was a permissible matter for consideration."

Declaratory relief is a discretionary remedy: Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 per Gibbs J at 437 - 438. I can see no grounds which justify the interference by this Court with the discretion properly exercised by the Chief Justice in declining to grant the declaration sought. Indeed, had the discretion been mine, I would have exercised it in the same way.

The Chief Justice continued, nevertheless, to add some observations on some of the matters referred to in the letter of 12 February 1997 from the Corporation in the hope that that would assist the parties. He considered that a number of matters referred to in the letter were not relevant to the exercise of the Corporation's discretion on a particular application. I agree with those observations. I would merely add that if there were evidence that the Corporation was refusing to grant recognition to any medical expert or group of medical experts in order to ensure that none but legally qualified medical practitioners would be recognised, then a refusal to recognise might be attacked upon the ground of a failure to exercise the discretion vested in the Corporation. It could be said that the determination of the application was in accordance with a pre-determined policy to reject such applications and was therefore invalid. Cf Perder Investments Pty Ltd v Lightowler [1990] FCA 239; (1990) 101 ALR 151. Parliament has contemplated that a range of medical experts may be considered for recognition as recognised medical experts. It is not for the Corporation to determine that no-one other than legally qualified medical practitioners should be recognised when Parliament has stated otherwise.

There was evidence before the Court that such might have been the policy of the Corporation in December 1993 when dealing with a similar application relating to oral and maxillofacial surgeons. There are no other medical experts presently recognised for the purpose of the definition. However, the letter of 12 February 1997 from the Corporation does not close the door to recognition of chiropractors or any other group in pursuance of any such policy. Of course, undue procrastination or delay, not apparently related to any legitimate reason, in failing to recognise might well be evidence of such a policy. However, that is not a matter for decision in this case.

The appeal, in so far as it seeks a declaration in terms of paragraph 4 of the prayer for relief must be dismissed.

I deal with this application next because in part its result also affects considerations as to the entitlement of an applicant for recognition to natural justice and the claim for relief contained in paragraph 1 of the prayer for relief.

This declaration does not in terms relate to the application of the first plaintiff which was refused by the Corporation. However, the declaration, if made, would affect the processing of future applications. I accept that both plaintiffs have standing to seek such a declaration.

The plaintiff argues that the only matters which can be considered by the Corporation on an application for recognition are those matters referred to in the definition, namely the definition of the disabilities of the particular kind and the applicant's knowledge of and experience in the treatment of those disabilities.

In my opinion, the Corporation cannot be confined to a consideration of those matters in isolation. The Corporation is entitled to go further than the matters referred to in the definition.

One of the considerations required by s 3 is the definition of the disabilities of a particular kind. It is not just a matter of accepting any definition of particular disabilities for the purpose of such an application. It will be necessary to consider whether the same definition should apply to all persons of a particular class of medical experts or whether it may vary from individual to individual within that class. Whatever the definition, it must be sufficiently precise. It must be examined in the light of the requirements and functions of a recognised medical expert. Among other things, those functions are to certify incapacity for work or its extent in a given case. However, the recognised medical expert who is not a legally qualified medical practitioner can only do so in respect of the disability for which he or she is recognised. Questions will therefore arise as to the adequacy of the definition, whether persons who suffer that disability often have other conditions contributing to an incapacity and whether those conditions may well be outside the definition of the relevant disability. They may be conditions which cannot be certified by the medical expert if he or she were recognised. That impinges on the working of the scheme as a whole and its administration.

The function and requirement of a recognised medical expert indicates that it requires certain diagnostic and prognostic skills. There is no mention of those skills in the definition. They are not necessarily skills which accompany high standards of treatment of particular disabilities. And yet it could not be said that an applicant's skills in diagnosis and prognosis are not relevant and should not be taken into account.

Once the definition of the appropriate disability is accepted, questions may arise as to whether a diagnosis can properly be undertaken by the medical expert alone or whether it can only properly be done in consultation with some other medical expert. There may therefore be conditions which might need to be placed on the recognition.

The certification of the various forms of incapacity requires a high degree of professional integrity in order to avoid abuse and inefficiencies in the compensation scheme. It might be relevant to know whether and by what means the applicant is bound by any ethical standards, and how these are to be enforced.

If it is appropriate to require higher standards of training and experience than apply to all persons of the class of medical expert being considered, a system of identification will need to be set up to ensure that only those recognised do in fact sign certificates. That in turn may require limitations either as to numbers or location of recognised medical experts, depending perhaps in part on the availability of other relevant medical experts.

I have mentioned only some of the considerations that to the Corporation might properly be relevant. They go beyond the matters referred to in the definition in s 3. Those considerations and any others must in turn be assessed against the overall objectives of the Act as set out in s 2, along with the principal objectives of the Corporation as set out in s 12 of the WorkCover Corporation Act 1994.

I do not gain much assistance from other phrases used in the Act such as "apprentice", "local government corporation" and "educational institution". These all contain in their respective definitions something which must be approved or prescribed by the Corporation. These are expressions which obviously involve the exercise of a wide discretion. What is required to be "recognised" in this definition is not a scheme, body or institution without qualification, as is the case in those definitions. The complication in this definition is the requirement to recognise not just a person but a person who meets certain unspecified qualifications. That makes it different from those involving an unfettered approval or prescription.

However, when the question is asked, for what purpose or function the recognition is being effected, one is led inevitably to a wider consideration than the factors referred to in the definition. Once again, it is inappropriate to specify or map out the precise scope of the statutory discretion. The function of the Court is to determine whether it has been lawfully exercised in any given case.

In my opinion the Chief Justice was correct in refusing the declaration claimed in paragraph 2.

The argument for the appellant in support of this declaration is that applicants for recognition are to be afforded the principles of procedural fairness in having their application determined. If the matters proper for consideration by the Corporation extend beyond those matters referred to in the definition, it was argued that the principles of procedural fairness cannot be complied with unless applicants know the criteria against which their application will be judged.

The number of applicants for recognition as recognised medical experts could potentially be quite high if the Corporation decides that it should only consider individual applications for recognition rather than particular classes. There can be no doubt in those circumstances that the Corporation can consider and adopt guidelines within which its discretion will normally be exercised. In Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189 at 206 French and Drummond JJ discussed the nature and effect of such guidelines particularly where high volume decision-making was necessary in certain classes of immigration decision. They said:

"The place of government policy in the Tribunal's decision-making will depend upon the interests of good government and consistent decision-making on the one hand and the ideal of justice in the individual case on the other. But its decision must be the result of an independent assessment of all the circumstances of the particular case and not the uncritical application of policy: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 421. This is nothing more than a statement of what is sometimes called the non-fettering principle which applies generally to statutory tribunals and decision-makers: see P Bayne, The Exercise of Discretion According to Policy Guidelines (1993) 67 ALJ 214. The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. .... This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question.

See also Quark Technology Pty Ltd v Workcover Corporation (1997) 194 LSJS 299 at 311.

It seems to me that there could be no objection to the development of such a policy or guidelines for implementation in this case, provided that it is made clear expressly or by implication that the Corporation will consider each case on its merits: see Carroll v Sydney City Council (1989) 15 NSWLR 541 per McHugh JA at 550.

The Corporation in this case has not ruled out the possibility of such guidelines, and has invited the appellants to join in an investigation and consideration of the relevant issues. One of the results of such investigation might well be the promulgation of such guidelines, subject to the need for flexibility such as not to restrict or deny the consideration of an individual application on its merits.

The question which the appellants seek to agitate, however, is a requirement or obligation on the part of the Corporation to develop and publish such guidelines in order to provide the necessary degree of procedural fairness to any applicant.

The first question which must be addressed is whether such an applicant is entitled to such a degree of procedural fairness. They say that they come within the class described by Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584:

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." (My emphasis)

Before this Court, the appellants did not suggest that they had any existing right to or, in the circumstances, a legitimate expectation of recognition (see FAI Insurances Ltd v Winneke (1982) 151 CLR 342). They sought to rely on the fact that the failure to recognise would adversely affect an interest that they had in being recognised. That interest was professional and financial. Without recognition they were disadvantaged professionally because they were not able to certify incapacity. That deprived them of fee income and affected the relationships with their patients, in that they had to be referred to a legally qualified medical practitioner in order to obtain the necessary certificate. However, it was not suggested that the Corporation's refusal to recognise chiropractors would deprive them of any existing interest or benefit.

As the respondent pointed out, in that sense, they were being deprived of nothing, and are not adversely affected or affected at all by the Corporation's decision to refuse to recognise them. The respondent furthermore denied that their interest or desire to enhance their professional reputation or their income was an interest which would justify any requirement of procedural fairness. It was pointed out that the appellants were not relying on any legitimate expectation of enhancement of their income, and that in the circumstances there was no entitlement to procedural fairness.

It will be noted that the formulation of the entitlement to procedural fairness to which I have referred speaks only of decisions which affect rights, interests and legitimate expectations. It is not restricted to deprivation of such interests etc.

Subsequent formulations have been more restrictive. See Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 per Mason CJ, Deane and McHugh JJ at 598. That passage was cited with approval in the joint judgment of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576 where it was said:

"It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may 'destroy, defeat or prejudice a person's rights, interests or legitimate expectations'."

Brennan J, on the other hand in Ainsworth v Criminal Justice Commission went further, at 583:

"In a majority of cases in which an act or decision is judicially reviewed, an exercise of statutory power affects the applicant's rights adversely or there is a failure to exercise a statutory power which, if exercised, would or might affect the applicant's rights beneficially. In such cases, where a person's rights or liabilities will or might be affected by the exercise or non-exercise of a statutory power following upon an inquiry, that person is prima facie entitled to be accorded natural justice in the conduct of the inquiry."

Brennan J takes the matter further than any other member of the High Court, and without judicial support elsewhere, I would not be prepared to act on that dictum in the light of the clear statement of principle of other members of the Court in Annetts v McCann and Ainsworth v Criminal Justice Commission. If it is correct that one has to demonstrate actual prejudice to a person's interests rather than a mere failure to enhance them, then I agree with the Chief Justice in this case that a decision not to recognise a chiropractor or group of chiropractors does not prejudice the applicant or applicants in the relevant sense. It merely leaves them where they were before. If I may respectfully adopt the words of the Chief Justice, the decision would deprive the chiropractors of nothing; it would merely fail to accord to them a benefit that they seek.

There are, however, cases involving first applications, as opposed to renewals of licences, where it has been held that the principles of procedural fairness should apply. These cases cannot be ignored but must be carefully analysed for what they do decide. At first blush, the dictum of McHugh J in Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 680 might suggest a wider principle. He said:

"Prospective, as well as existing, rights, interests, privileges and benefits are now within the domain of natural justice. Just as the common law has traditionally given a person a right to be heard before the exercise of a statutory power prejudices any of his or her existing rights or interests, so the common law now gives a person the right to be heard before the exercise of a statutory power prejudices some right, interest, privilege or benefit which that person can legitimately expect to obtain or enjoy in the future. The common law right to be heard may, of course, be excluded by statute. But an intention to exclude it 'is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations': Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 C.L.R. 383, at p.396."

However, the key qualification on that extension depends on there being a legitimate expectation of obtaining or enjoying the benefit. That much is made clear from the passage itself together with the context in which it appears, for immediately preceding that passage is a reference to the fact that the introduction of the concept of legitimate expectation into public law had extended the range of protection given by the common law rules of natural justice. As I have pointed out, the appellants did not rely on legitimate expectation in this case, and McHugh J made clear at 681 - 682 that he was distinguishing the situation referred to in that passage from a mere hope or expectation:

"A legitimate expectation that a person will obtain or continue to enjoy a benefit or privilege must be distinguished, however, from a mere hope that he or she will obtain or continue to enjoy a benefit or privilege. A hope that a statutory power will be exercised so as to confer a benefit or privilege does not give rise to a legitimate expectation sufficient to attract the rules of natural justice: South Australia v O'Shea [1987] HCA 39; (1987) 163 C.L.R. 378, at p.402. To attract the operation of the rules of procedural fairness, there must be some undertaking or course of conduct acquiesced in by the decision-maker or something about the nature of the benefit or privilege which suggests that, in the absence of some special or unusual circumstance, the person concerned will obtain or continue to enjoy a benefit or privilege."

Likewise, Mason J in FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 361 noted the "greater reluctance" to insist on the application of natural justice in the case of the grant or refusal of an initial application for a licence. He said:

"Generally speaking, in such a case the issues are not clearly defined; they often involve policy issues; and, though they raise the general suitability of the applicant to hold a licence, they do not often generate allegations of past misconduct."

What then is to be made of the cases where a first application or grant of a licence has attracted the principles of natural justice? The answer in each case would appear to lie in the particular requirements of the legislation in question.

In State of Victoria v Master Builders' Association of Victoria [1995] VicRp 47; [1995] 2 VR 121 a Victorian Government non-statutory task force set up to deal with collusive tendering had circulated to government departments and agencies and to municipal councils a "black list" containing a number of building contractors who, in the task force's assessment, had not responded satisfactorily to earlier correspondence requiring the lodgment of a statutory declaration denying involvement in collusive practices in the previous six years. As a result they were not to be allowed to tender for or be awarded government building contracts. The plaintiffs sought (inter alia) a declaration that any action taken by reason of the failure to comply with the requirements of the letter were unlawful. What was being attacked was therefore a failure by government departments to engage particular building contractors for that reason. The Court of Appeal concluded that there was no sound basis for any conclusion that the contractors had any legitimate expectation that they would be entitled to continue to tender or to be awarded contracts. However, the Court agreed (Tadgell J at 140, with whom Ormiston J agreed, and Eames J at 168) that the dissemination of the black list and the letters accompanying them were likely to damage the commercial reputations of those on the list. A person's reputation is an interest that will be protected by affording the person affected procedural fairness: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 577 - 578. Accordingly, the building contractors concerned were entitled to be afforded procedural fairness, and it was held in the circumstances they had not been. Thus, the case was not an endorsement of any principle of affording procedural fairness in relation to a first application or grant, but of doing so in relation to a practice which affected a person's reputation. That cannot be said of the appellants in this case.

Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 127 ALR 699 was a case where an applicant for a licence to sell "X" rated videos was held to be entitled to be afforded procedural fairness in dealing with the application, but in circumstances largely dictated by the legislation in question. The statutory scheme required that the Commissioner grant a licence, subject to such conditions he or she thinks fit "if the Commissioner is satisfied on reasonable grounds in the circumstances that the applicant is a fit and proper person to hold a licence of that type". It was thus a mandatory requirement to grant the licence if the Commissioner was so satisfied. The question of whether a person was a fit and proper person to hold a licence was a judgment which the Court held to be indistinguishable from a discretionary judgment. The Court also considered that there was no authority for the proposition that the rules of natural justice do not apply to the initial grant of a licence. What was persuasive in the case, however, was the requirement to find that an applicant was a fit and proper person. The Court adopted the passage from the judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380:

"The expression 'fit and proper person', standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

The circumstances of the grant of the licence were therefore clearly defined. They did not involve policy questions. The considerations necessary to be brought to bear on an application did involve questions of the applicant's conduct and character. There was a statutory entitlement to the licence if the criterion was met. In those circumstances the Court held that procedural fairness was to be afforded. The case is therefore to be distinguished from one like the present where there are many matters of policy, to which reference has already been made, which may be brought to bear on the recognition or otherwise of a medical expert. Although heavily relied on by them, Commissioner for ACT Revenue v Alphaone Pty Ltd does not assist the appellants.

Elderly Citizens Homes of SA Inc v WorkCover Corporation of SA (1999) 202 LSJS 116 was a case of an application by an employer under s 60 of the Act for registration as an exempt employer. In order to grant the application the Corporation had to be satisfied (s 60(3)(b)):

"(i) that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered; and (ii) that in all the circumstances it is appropriate to do so"

However, besides having regard to such matters as it thinks relevant, the Corporation was required by s 60(6) of the Act to have regard to the following matters:

"(a) whether the employer or group is, and is likely to continue to be, able to meet its liabilities; (b) the resources that the employer or group has for the purpose of administering claims for compensation; (c) the incidence and severity of compensable disabilities arising from employment by the employer or employers; (d) the effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers; (e) the record of the employer or employers in relation to the rehabilitation of disabled workers; (f) the record of the employer or employers in providing suitable employment to workers who suffer compensable disabilities; (g) the views of any industrial association that has, in the opinion [of] the Corporation, a proper interest in the matter."

The Corporation acknowledged in that case that the rules of procedural fairness applied in respect of applications for registration as an exempt employer. The question at issue was whether the applicant was entitled to inspect a report which recommended refusal of the application. Because of the concession it was not necessary for a close analysis of the basis of the entitlement to procedural fairness. However, there can be no doubt that the concession was correctly made in the light of the matters which the Corporation was required to have regard to when considering the application. The inquiry required by s 60(6) of the Act involved making findings of fact on matters fundamental to the operation of the business of the employer. It was therefore not surprising that the employer should be entitled to disclosure of and to make representations in respect of such matters said to be adverse to the applicant, and in respect of which the applicant had been given no opportunity to make representations or, if necessary, to correct. Once again, that was the product of very different legislation from that which governs the recognition of medical experts under the Act.

These cases show that there can be a requirement to afford procedural fairness in cases of first grant or first application, even where interests only may be adversely affected. However, this will only be in circumstances where the criteria specified by the relevant Act require consideration of matters which may reflect adversely on the reputation or personal qualities or fitness of the applicant.

There are no such statutory criteria in the case of an application for recognition as a recognised medical expert. Such applications will generally fall to be determined upon a number of policy considerations, to some of which I have already referred. None of the cases suggest that there is any common law obligation to afford procedural fairness in respect of consideration of those matters.

However, as Mr White QC for the Corporation properly conceded, there may be circumstances which arise in a particular case where an application falls to be decided on matters personal to the applicant and which are adverse to his or her being granted recognition. Common law principles of fairness in administrative decision-making would then require that the applicant be given an opportunity to answer and make representations on any such matters. See, for example Broussard v Minister for Immigration (1989) 89 ALR 180. However, nothing of that nature is presently suggested in respect of any actual or foreshadowed application in this case.

In discussing the entitlement to procedural fairness I have been mindful of the principle that the common law duty to afford procedural fairness applies to administrative decision-making unless there is a clear manifestation of a contrary statutory intention: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 584, and Deane J at 632; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576. However, that principle only applies to the class of persons whose rights, interests or legitimate expectations are protected by the legislation in question. The appellants have not shown that, under present circumstances, they come within that class.

As it has not been demonstrated that the appellants or any prospective applicants for recognition will, as a matter of course, be entitled to be afforded procedural fairness in relation to the matters most likely to have to be considered by the Corporation, it follows that they are not entitled to require the publication by the Corporation of criteria by way of guidelines or principles under which such applications will be dealt. The Chief Justice was correct in refusing this claim for declaratory relief, and this aspect of the appeal cannot succeed.

I would merely add that there would also be substantial practical difficulties in compliance with any such requirement. In the first place, the requirement would have to be met in respect of each of the eight categories of medical expert, other than legally qualified medical practitioners, listed in the definition of "medical expert". The criteria would probably have to be quite different in each case. There would be the difficulty of the Corporation possibly having adequately to specify every category of disability in which each of those eight groups might have a relevant interest - a formidable, if not impossible task.

Then there is the practical difficulty adverted to by the Chief Justice that after having specified the criteria, the Corporation might receive an application, the content of which would prompt the Corporation, quite justifiably, to consider other matters which it had omitted to specify. Presumably, then, the criteria would have to be amended, and perhaps previous applications reconsidered in the light of those amendments. This is because, if there were a present obligation to specify the necessary criteria, it has always existed. The consequences of that sort of procedure can never have been intended by the Parliament.

Finally, any criteria or guidelines specified could not reasonably bind the Corporation. I have already referred to cases where any such guidelines or policy must be administered with a degree of flexibility in order to meet the reasonable requirements of individual cases. The guidelines, if specified, could not therefore be conclusive in any event.

This asserts that the Corporation was obliged to give reasons for its rejection of the appellants' application. It can be disposed of quite shortly.

There is no general rule of the common law or principle of natural justice that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests, or defeat the legitimate or reasonable expectations, of other persons: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 per Gibbs CJ at 662 and 670, Wilson, Brennan and Dawson JJ concurring; Deane J at 676. Furthermore, there is nothing in the Act which expressly or by implication would require the giving of such reasons, such as might be the case if there were a procedure by way of appeal against the decision of the Corporation. It would be improper to direct the giving of reasons merely so that they could be used as an indirect means of facilitating a further application either by the appellants or some other person. The appeal against the refusal to grant this declaration must also be dismissed.

The Chief Justice ordered that the appellants pay the respondent's costs of the action to be taxed. The appellants appeal against that order. They argue that although they did not succeed in obtaining the declarations they claimed, they were nevertheless successful on a number of issues. They were found to have standing; they succeeded in arguing that their application was not invalid by virtue of its being made in respect of a class and that some of the matters contained in the Corporation's letter of 12 February 1997 were not appropriate matters to be taken into account.

An order for costs is discretionary. Although the applicant may have succeeded on one or two subsidiary issues, it failed to obtain any of the relief that it was seeking. There are no possible grounds on which that discretionary order can be interfered with.

Workers Rehabilitation and Compensation Act 1986(SA)

Chiropractors Act 1991

WorkCover Corporation Act 1994

CHIROPRACTORS ASSOC & PERRY v WORKCOVER CORP No. SCGRG-97-897 Judgment No. S470 [1999] SASC 470

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Judgment (96 paragraphs)

CHIROPRACTORS ASSOC & PERRY v WORKCOVER CORP No. SCGRG-97-897 Judgment No. S470 [1999] SASC 470 (12 November 1999)

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Legislation Cited (3)

Cases Cited (15)