Coats v Vinarchy Australia Ltd [2026] SAET 44

1. There are 3 grounds advanced by the respondent.
2. Firstly, that the decision of the respondent was an exercise of discretion and therefore not reviewable.
3. Secondly, the application itself is misconceived and lacking in substance in that there is no obligation on the respondent to establish a return to work plan (RTW plan) until it is proven that the applicant's injury was a work injury for the purposes of the Return to Work Act 2014 (RTW Act). The respondent relies upon the decision of Gilchrist DPJ in Department for Education v Christopher Long,[1] which was cited with approval by Rossi DPJ in Csongrady v Department for Health and Wellbeing (Northern Adelaide Local Health Network) & Return to Work Corporation of South Australia.[2]
4. Thirdly, that the application is an abuse of process in circumstances where the matter has already proceeded to a hearing of the substantive issues before another judge with the decision reserved.

1. For its part, the applicant advances 5 propositions.
2. Firstly, even discretionary decisions are subject to review in accordance with s 97 of the RTW Act.
3. Secondly, an application for a RTW plan may be made even before it is finally determined whether an applicant has suffered a work injury by virtue of s 23(3) of the RTW Act. The decision in Long was plainly wrong as failing to have regard to s 23(3); the decision in Csongrady was distinguishable and obiter as primarily in relation to a different issue.
4. Thirdly, the factual issues to be decided in relation to this application involve an entirely different burden of proof to that involved in the substantive application heard by Kelly DPJ.
5. Fourthly, the balance of convenience favours the granting of the application with regard to the respective benefits and prejudices to the parties.
6. Finally, the application for directions of the respondent should not be considered due to the delay in bringing it.

1. The obligation to create a RTW plan is enshrined in s 25(1) of the RTW Act:

Where it appears that a worker is (or is likely) to be incapacitated for work by a work injury for more than 4 weeks, the Corporation must ensure that a plan (a recovery/return to work plan) is prepared for the worker.

1. In Long, Gilchrist DPJ stated
   1. In determining how the expression 'work injury' is to be construed, it is important to reflect upon what s 25 expects of a compensating authority.
   2. Under this provision, the first thing the compensating authority must do is reflect upon the nature of the incapacity for work. Does it appear that it will extend beyond four weeks? Even if it will not, is this the sort of matter where it would be appropriate to implement a plan even though the period of incapacity will be less than four weeks? Is it likely that the worker may not be returning to work in the short or medium term? If so, should the initial focus of the plan be on restoring the worker to the community? If the worker has no reasonable prospect of returning to work, should a recovery plan still be contemplated to still assist in restoring the worker to the community? Or, is the injury so severe that a recovery/return to work plan should not be prepared and instead, unless or until the worker becomes capable of participating in a plan, the focus should be on other forms of support and services.
   3. Having decided to implement a recovery/return to work plan, the compensating authority needs to be mindful that the plan will set out the actions and responsibilities that are to be undertaken or assumed by the worker, the employer and itself, in order to achieve the worker's earliest possible safe return to work or, if relevant, to the community on a durable basis. Having done so, it will then take the appropriate action in preparing the plan. It will consult with the worker. Insofar as is necessary or appropriate, it will also consult with the employer out of whose employment the injury arose. It will reflect upon whether it is necessary to appoint a work coordinator. It will consider whether, in preparing the plan, it is necessary to seek assistance from the relevant return to work coordinator, if one has been appointed, or from any other person who might be providing services under the plan. Insofar as is reasonably practicable, it will review any medical records relevant to the worker's condition, consult with any health practitioner who is treating the worker for a relevant injury, and consult with any other person or body that it thinks fit.
   4. It will then ensure that the recovery/return to work plan complies with the standards and requirements prescribed by the regulations. These are onerous. Under reg 15 of the Return to Work Regulations 2015, the recovery/return to work plan must be in writing. It must specify the worker's full name and date of birth, the claim number and the employer's name. It must specify the nature of the injury and the date when it was suffered. It must be as simple and flexible as possible. It must promote communication and co-operation between the parties and be appropriate to the circumstances of the worker. It must include at least one of the specific objectives, being the worker's return to the pre-injury employment with the pre-injury employer, return to different employment with the pre-injury employer, return to the pre-injury employment but with a different employer, or return to independence within the community. It must contain other provisions consistent with the objects of the RTW Act including provisions promoting early intervention; recovery and return to work services or the provision of suitable employment for which the worker is fit.
2. His Honour then considered:
   1. Looked at in this context, in my opinion it would seem a very odd outcome that a compensating must do all of these things if requested to do so by a worker, even though the fact of a work injury has not been established. It would make more sense that the compensating authority was only obliged to exercise the discretions and comply with all of the requirements imposed by s 25 of the RTW Act and reg 15 of the Regulations in connection with an established work injury.
   2. The expression 'work injury' is defined in s 4 of the RTW Act as 'meaning an injury that arises from employment under section 7.' This strongly suggests that the obligations created by s 25 only operate in respect of an injury that the compensating authority has determined is compensable or the worker has established that to be so through proceedings in the Tribunal.
3. In Long, Gilchrist DPJ was dealing with an application for directions seeking to strike out an application for review of a refusal to establish a RTW plan (the refusal) in circumstances where the work injury had been rejected but was subject to review. On the basis of the reasoning previously cited, his Honour struck out the worker's application for review of the refusal.
4. In Csongrady, Rossi DPJ was also dealing with a situation where the work injury had been rejected and challenged. By separate proceedings, there was an application for review of a refusal to establish a RTW plan. Rather than dealing with a strike out application, his Honour was dealing with an application for consolidation or otherwise concurrent hearings. In the course of his reasons, his Honour expressed the view that the decision in Long was correct.[3] In relation to the application before him, his Honour determined the question of establishing a RTW plan should await the outcome of the hearing of the substantive claims for relief in circumstances where there were two employers, only one of whom was involved in the RTW plan dispute.
5. In their reasons for decision, neither of their Honours made reference to s 23 (3) which provides that 'this Part may apply to a worker even if it has not been finally established that the worker's injury is a work injury.'

1. It is not suggested by the applicant that the question of whether he suffered a work injury should be finally determined in these proceedings. Rather, the applicant relies upon what he says is the discretionary power in s 23(3). He asserts that the exercise of the discretion to refuse to establish a RTW plan was unreasonable and should be set aside.
2. Section 25(1) is expressed in mandatory terms: "must". In contrast, s 23(3) is expressed in discretionary terms: "may".
3. Is a discretionary decision under s 23(3) reviewable?
4. Section 97 includes in the definition of "reviewable decision":

(b) a decision about the nature or scope of recovery/return to work services provided, or to be provided, for a worker;

(c) without limiting paragraph (b) - a decision relating to a recovery/return to work plan, or a provision of a recovery/return to work plan (including on a review of a recovery/return to work plan), on the ground that the decision or the provision is unreasonable;

1. Whether or not to establish a RTW plan clearly involves an element of discretion in the context of s 23(3). The applicant submits the breadth of the expression in s 97 'a decision relating to a return to work plan' as reviewable in terms of its reasonableness provides support for the proposition that any exercise of discretion in relation to establishing a RTW plan is reviewable.
2. However issues arising from s25 really involve no discretionary elements. Establishing a RTW plan is mandatory. The contents and terms of any such plans involve valuative judgments which then are reviewable in terms of their reasonableness. The wording of s97 appears to operate from the assumption that a RTW plan has been established.
3. In contrast, any appeals from an exercise of discretion usually are considered in terms of the judgment of House v the King.__[4]
4. In House, the plurality of the High Court stated the oft-quoted principle that:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[5]

1. "Reasonableness" per se is not a basis for an appeal against an exercise of discretion.
2. Further, sections 25(1) and 23(3) should be read harmoniously if possible. If the reasoning of Gilchrist DPJ is correct in his interpretation of s 25(1), then it would appear curious if the precondition for the requirement to establish a RTW plan of there being an accepted work injury, can be circumvented by seeking a review of a compensating authority's exercise of discretion under s 23(3) not to establish a RTW plan before any legal obligation to do so otherwise arises under s 25.
3. The more consonant interpretation would be that the s 23(3) discretion is unfettered and not subject to review.
4. I therefore find that the decision of the respondent not to establish a RTW plan under s 23(3) was not a reviewable decision for the purposes of the RTW Act.

1. If I were to follow the decision of Gilchrist DPJ in Long, it follows that I must uphold the application for directions and dismiss the application for review. Gilchrist DPJ stated clearly that:

[An applicant's] right to a [RTW] plan is contingent upon the existence of a work injury and ... because it is yet to be determined that there is a work injury, Mr Long has no grounds upon which to agitate his dispute.[6]

1. For the reasons preceding and that follow, I do not consider s 23(3) to undermine that decision.
2. The key word in s 23(3) is "finally". I construe it as referring to a final decision of a compensating authority as distinct from an interim decision such that permits a RTW plan to be set up pending a final decision in much the same way that interim payments may be made pending a final decision on a claim by a compensating authority.
3. The analysis of the relevant statutory provisions undertaken by Gilchrist DPJ, which was expressly approved by Rossi DPJ, favours such an interpretation.
4. In those circumstances, I am unwilling to hold the decision in Long was plainly wrong and am compelled by the principle of stare decisis to follow it. Accordingly, the application for review should be dismissed.
5. Nevertheless, I will proceed to determine the remaining issues.

1. In the substantive proceedings before Kelly DPJ, evidence was led by both parties on whether the injury alleged by the applicant occurred in compensable circumstances. The decision on which her Honour stands reserved includes the need for her Honour to determine, based on the evidence and submissions heard, whether on the balance of probabilities the applicant suffered a work injury.
2. If the case before me was to proceed to hearing and the applicant's contention on s 23(3) was correct, evidence would need to be adduced in relation to the circumstances of the alleged injury and the interrelationship between the parties. "Reasonableness" would require evidence of at least an arguable case that the applicant suffered a work injury. Although the same ultimate question would not arise for determination, both matters will require an analysis of significantly overlapping evidence from the same witnesses, with potential for inconsistent conclusions and findings of fact in relation to such evidence. To allow the matter to proceed with such a potential outcome would be, in my opinion, an abuse of process and therefore of itself justify the present application for review being dismissed.

1. Based upon the chronology of events previously cited by me, I do not consider there has been a delay on the part of the respondent which would preclude it from bringing this application. The potential for such an application was flagged early on. Since then, directions made have served to clarify and crystallise the issues underpinning this application which has assisted me in understanding and determining it.

1. In circumstances where a significant period of time from the alleged injury has passed and a decision is now awaited on the substantive proceedings, it only seems sensible to await the findings of fact and legal position of the parties to determine whether a RTW plan is necessary and if so its terms.

1. The application for directions is upheld and the application for review is dismissed.
2. The respondent seeks cost orders in relation to the application in these proceedings. I will hear the parties in relation to a timetable to deal with same.

[1] [2020] SAET 29.

[2] [2020] SAET 96.