Graeber v The State of South Australia

"I Paul Graeber

of (address supplied)

consent to the discontinuance of my weekly payments of workers compensation for the period

17/12/2011 to 23/1/2011[4]

My reason for consenting to this discontinuance is: accessing my holiday pay

I understand that my payments of compensation will cease during this period and I will receive wages due by way of long service leave / recreation leave / sick leave / other

(please identify)

Teacher on school holidays ..........

I acknowledge that I fully understand the implications and effect of consenting to a discontinuance of weekly payments and have had the opportunity to obtain advice regarding this authority.

Signature of employee.................... Date 21/12/11

Claim Number: 1520262/03 Injury Date: June 2008"

1. By letter to the worker dated 10 January 2012 the respondent noted receipt of the worker's document and advised that "...as there has been no change in your circumstances you will continue to receive weekly payments for this period." The respondent lodged his notice of dispute with respect to this decision on 12 June 2012[5].
2. In her affidavit Ms Braddick stated that as a teacher, the worker did not receive recreation leave, but that "as a result of practice for many years", teachers were paid salaries during school closure periods including the period from 17 December 2011 to 23 January 2012. Further that the practice with respect to teachers in receipt of "make up" weekly compensation on account of partial incapacity was to continue the compensation payments during a school closure period together with payment of the salary applicable for the hours for which the teacher was certified fit to undertake duties.[6]
3. The worker asserted that he was paid a salary by the respondent on the basis of the applicable industrial award and/or enterprise agreement, and that in any normal full time working year, he would be paid his salary on a fortnightly basis throughout the year, including during school closure periods. He said that during the school closure period in question, as a result of his partial incapacity, he received a salary equivalent to his payment for part-time teaching duties together with "top up" weekly payments of compensation at 80% of the difference between his part-time salary and his notional weekly earning ("NWE") entitlement. He asserted that as a result he received a lesser amount over the school closure period than he would have received if working full-time.
4. The worker said this led to his "request"[7] for a discontinuance of his weekly payments of compensation. His hope was that upon discontinuance he would receive "the usual teachers salary fortnightly payments that I would ordinarily receive at the end of one academic year and before the start of the next academic year, that is, over the summer holiday period",[8] rather than the lesser amount of 80% of the NWE rate.

1. The respondent's strike out application seeks an order for the summary dismissal of the proceedings initiated by the worker before the dispute goes to trial. I outlined the applicable principles on such applications in Durber v Arnott's Biscuits Limited[9] as follows:

"...to establish a basis for an order for summary dismissal, the employer must clearly demonstrate that the worker has no arguable case for review on either fact or law - that is, to paraphrase the words of Barwick CJ in General Steel Industries v Commissioner for Railways (NSW),[10] that the dispute is so obviously untenable that it cannot possibly succeed, or that it is manifestly groundless. In Webster v Lampard[11] the majority in the High Court observed that the power of summary dismissal should be exercised with "exceptional caution" and "should never be exercised unless it is clear that there is no real question to be tried". Further, it approved of previous judicial statements to the effect that the need for exceptional caution is nowhere more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such circumstances, great care was to be exercised to ensure that under the guise of achieving expeditious finality, a claimant is not improperly deprived of an opportunity for the trial of a case by the appointed Tribunal."[12]

1. As the Full Tribunal observed in Creek v WorkCover Corporation,[13] the applicant for a summary order dismissing a notice of dispute must demonstrate that there is no real question of fact or law to be determined on the dispute.
2. I mention a potential qualification to this approach. In WorkCover Corporation/CGU Workers Compensation (SA) Pty Ltd v Davidson,[14] the Full Tribunal heard an appeal from a decision of a single member who rejected a challenge to the jurisdiction of the Tribunal to hear a dispute and made certain orders disposing of it. The Full Tribunal observed that the jurisdictional issue, having been raised in interlocutory proceedings, should have proceeded as it did in the case now before me, by way of a specific application for directions seeking an order that the proceedings be struck out, with a supporting affidavit, if necessary.
3. The Full Tribunal observed that there was conflicting authority as to the extent of the inquiry that the Tribunal should undertake in dealing with a challenge to jurisdiction which arises in the course of an interlocutory matter. However, in the circumstances it was content to accept the appropriate test was whether there was a strong argument for the opinion that the Tribunal had jurisdiction.
4. This appears to be a more stringent test than that usually applied by the Tribunal in proceedings for summary dismissal, at least with respect to applications which do not go to jurisdiction. However, I need not delve further in that regard, as I have concluded that there is a strong argument that the Tribunal has jurisdiction to hear the dispute, a conclusion which would satisfy the apparently more stringent test applied in Davidson.

1. In my view the correspondence between the worker and the respondent which gave rise to the notice of dispute constituted first, a request by the worker that his weekly payments of income maintenance be discontinued on the ground of his consent, and second, a decision by the respondent not to accede to that request for discontinuance. The worker's notice of dispute is properly characterised as a dispute over a decision by the respondent either "not to discontinue payments" or "to continue payments" of income maintenance.
2. On its face, it may appear to be a counter intuitive proposition that a worker, having claimed an entitlement to income maintenance, and having had the claim accepted so as to be in receipt of weekly payments, should be able to unilaterally require the compensating authority to discontinue those payments. Particularly in this case, where the request was made for a temporary discontinuance, and for the reason that the worker believes he may be able to access holiday over a school closure period in an amount in excess of the weekly payments he would otherwise receive.
3. However, the worker submitted there was nothing controversial about such a proposition, and pointed to a variety of circumstances in which it was submitted a worker should be able to procure a discontinuance whatever the attitude of the compensating authority. An example was given of a worker whose notional weekly earnings entitlement came to less than the quantum of the worker's entitlement to Centrelink payments, or to a private pension or insurance entitlement, but who was not able to access those higher payments unless weekly payments of income maintenance were discontinued. Another example was the situation of a worker who proposed to apply for a job but who wished to be in a position at a job interview to say that he or she was not in receipt of weekly payments. Further, of a worker who for reasons of psychiatric health wished to terminate receipt of weekly payments with its attendant obligation to attend medical appointments and to participate in rehabilitation plans, and who simply wished to get "off the system" temporarily or permanently.
4. The contention was that it was absurd to suggest that in such circumstances a worker could not procure a discontinuance by requesting it on the basis of his or her consent, even though the worker was still entitled to ongoing weekly payments, or to suggest that it was solely up to the compensating authority to decide whether to accede to such a request.
5. The answer is not to be ascertained by a consideration of examples of hard cases where it may seem unjust to a worker, or detrimental to a worker's health, if the worker is unable to take action unilaterally to achieve a discontinuance of payments. The question is whether, having regard to the general objects and the overall scheme of the Act, a worker can request a discontinuance on the basis of his or her consent, and thereby either oblige a compensating authority to act upon that consent without more, or alternatively, if the compensating authority fails to act, challenge the decision of the compensating authority not to discontinue.
6. The respondent contended that, as the worker's claim had been accepted, and payments had commenced on the basis of total or partial incapacity, the obligation on the respondent was to continue making weekly payments, particularly where, as here, the worker provided prescribed medical certificates confirming an ongoing incapacity over the closed period in relation to which discontinuance was sought. It submitted that the Act, in setting out the circumstances in which injured workers became entitled to weekly payments of compensation, and a framework for the resolution of disputes where a compensating authority sought to discontinue or reduce those entitlements, imposed no obligation on the respondent to discontinue weekly payments at the unilateral request of a worker, and provided no right of review with respect to a decision not to accede to a request for discontinuance, particularly where that request was with respect to a closed period only.
7. Further, the respondent submitted that even if it had power under s 36(1) of the Act to make a decision to discontinue weekly payments on the basis of the worker's consent, such a process contemplated mutuality, in that the respondent first must wish to discontinue weekly payments, with the worker then consenting by indicating agreement with or acquiescence in that wish. It contended that the worker could not, merely by communicating his unsolicited consent to discontinuance and requesting that it be acted upon, oblige the respondent to effect a discontinuance.
8. Section 36(1) of the Act provides:

"36 - Discontinuance of weekly payments

(1) Subject to this Act, weekly payments to a worker who has suffered a compensable injury must not be discontinued unless -

(a) the worker consents to the discontinuance of weekly payments; or

(b) the Corporation is satisfied, on the basis of a certificate of a recognised medical expert, that the worker has ceased to be incapacitated for work by the compensable injury; or

(c) the worker has returned to work; or

(d) the worker has obtained work as an employee, or as a self-employed contractor, that is providing remuneration equal to or above the worker's notional weekly earnings; or

(e) the worker is dismissed from employment for serious and wilful misconduct; or

(f) the worker breaches the obligation of mutuality; or

(g) the worker is, without the Corporation's consent -

(i) resident outside the State; or

(ii) absent from the State for more than two months in any continuous period of 12 months; or

(h) the worker's entitlement to weekly payments ceases because of the passage of time; or

(i) the worker's entitlement to weekly payments ceases because of the occurrence of some other event or the making of some other decision or determination that, under another provision of this Act, brings the entitlement to weekly payments to an end or the discontinuance of weekly payments is otherwise authorised or required under another provision of this Act."

1. It is notable that s 36(1) provides that weekly payments "must not be discontinued unless" one of the enumerated grounds exists, as opposed to providing that weekly payments must be discontinued if one of the enumerated grounds exists. It is clear that the fact that a ground for discontinuance exists does not mean that the compensating authority must discontinue, but only that a ground exists upon which it may discontinue. Whether it does so or not is a matter for its discretion.
2. This view is consistent with that expressed by McCouaig DP in Abela v WorkCover/Employers Mutual Ltd,[15] where he said:

"The criteria for discontinuing or reducing weekly payments set out in s 36 are qualifying criteria. Section 36 does not mandate the discontinuance or reduction of weekly payments if one of the criteria is met. There remains a discretion in the compensating authority, regardless of the criteria being met, not to discontinue or reduce payments."[16]

1. This interpretation is supported by s 36(3), which provides that "[w]here the Corporation decides to discontinue or reduce weekly payments in pursuance of this section, it must give notice in writing to the worker...". That is, it is for the Corporation, or in this case, the self-insured employer, to "decide" whether to proceed to effect discontinuance where grounds to do so are considered to exist. It may choose to refrain from doing so.
2. On this approach, the contention of the worker that the respondent was obliged to discontinue weekly payments once it received the notice of consent cannot be upheld. If grounds for discontinuance exist under s 36(1)(a), a decision as to whether to proceed to discontinuance is a matter for the discretion of the respondent.
3. However, as noted above, the respondent contended that it could not exercise a discretion to discontinue even in these circumstances, whether for a closed period or not, because it had no power to do so. True it is that once a liability to make weekly payments of compensation is accepted or established, a compensating authority is obliged to continue such payments unless grounds arise for their lawful discontinuance under the Act or the entitlement ceases by operation of the Act. However, I am unable to discern any basis upon which it could be said that the Act prohibits a compensating authority from deciding to discontinue weekly payments for a closed period on the basis of the consent of the worker, even if the worker would be entitled to continued weekly payments but for that consent.
4. Whilst it would appear that the statutory authority vested in a compensating authority to discontinue weekly payments on any of grounds (b) to (i) of s 36(1)(a) of the Act is premised upon the worker allegedly not having an ongoing entitlement, it is not an assumption necessarily underlying discontinuance under s 36(1)(a). That may be the position where a worker consents to discontinuance as part of an overall settlement package including a redemption which brings all claims to an end. However, there may be circumstances, such as those described above, where the worker effectively offers to waive his or her right to ongoing payments temporarily or permanently, to achieve some other outcome. It may be that upon discontinuance being effected with the worker's consent for a closed period, the entitlement to ongoing weekly payments will then cease, with the result that weekly payments may not resume at the end of the closed period unless and until the worker successfully makes another claim for compensation. If that is so, it is a risk the worker must assume in electing to consent to discontinuance. But I am not persuaded the compensating authority has no power to discontinue indefinitely or for a closed period if there is consent as contemplated by s 36(1)(a).
5. Further, I reject the respondent's contention as to the need for mutuality before there can be a discontinuance on the basis of consent, at least in the sense that the proposal for discontinuance must first move from the respondent and then be acquiesced in by the worker. The respondent correctly submits that the dictionary definition of the word "consent"[17] suggests a voluntary agreement to or acquiescence in a proposition or that permission is given to a proposal. However, there is no basis to interpret the word "consent" in s 36(1)(a) in a narrow sense so as to require that there be a proposal for discontinuance moving from the respondent to which the worker then agrees. Consent may equally exist where the worker, as here, first requests the discontinuance. Clause (a) of s 36(1) requires no more than what the words say. A ground for discontinuance exists where the worker consents. Whether discontinuance then follows is a matter for the discretion of the compensating authority, but the fact that the proposal first moves from the worker does not mean that grounds upon which the compensating authority may take action do not exist.
6. My conclusion therefore is that the scheme of the Act, by reference to the provisions with respect to the entitlement to and discontinuance of weekly payments, does not prevent a worker from requesting a discontinuance of weekly payments on the basis of his or her consent, whether for a closed period or on an ongoing basis. The respondent has a discretion as to whether or not to proceed to a discontinuance on that ground. This approach is consistent with the object of the Act of achieving a reasonable balance between the interests of workers and the interests of employers.[18]
7. The respondent's submission with reference to the scheme of the Act must also be considered in light of the dispute resolution provisions under Part 6A of the Act, and in particular the contention that the disputed decision was not a "reviewable decision" within the meaning of s 89A(1) of the Act.
8. Section 89A provides:

"89A - Reviewable decisions

(1) The following decisions are reviewable -

(a) a decision on a claim for compensation including -

(i) a decision redetermining a claim1; or

(ii) a decision on a claim by the Tribunal, made in the exercise of the Tribunal's special jurisdiction to expedite decisions on claims2;

(b) a decision about the nature of rehabilitation services provided, or to be provided, for a worker3;

(c) a decision to vary, suspend or discontinue weekly payments;

(d) a decision on an application by an employer to have weekly payments payable to a worker employed by, or formerly employed by, the employer reviewed;

(e) a decision to disallow or reduce a charge for a medical service (unless the decision merely brings the charge into conformity with a rate of charge prescribed by regulation).

(2) However, a decision is not reviewable if declared not to be reviewable by or under this Act.

Notes -

1. See section 53(7) & (7a).
2. See section 97B(3)(b).
3. Section 28B also provides for the review of a rehabilitation and return to work plan."
4. As observed above, there was clearly a "decision" made by the respondent by its letter to the worker of 10 January 2012. The question is whether that was a reviewable decision. The worker contended that it was a "decision on a claim for compensation" under s 89A(1)(a) of the Act. The respondent contended that the scope of that phrase had to be read down given that under s 89A(1)(c) there was a specific right to seek a review of "a decision to vary, suspend or discontinue weekly payments".
5. The phrase "decision on a claim for compensation" in s 89A(1)(a) of the Act was considered by the Full Tribunal in two decisions being Davidson[19] and Hammer v Department of Correctional Services.[20]
6. In Davidson the question was whether a decision made by a compensating authority to grant or withhold consent to a worker to cease to reside in the State was immune from review by the Tribunal, there not having been at that stage a notice of discontinuance of weekly payments under s 36(1)(g)(i) of the Act on the basis that the worker was resident outside the State without the compensating authority's consent.
7. The Full Tribunal reviewed the overall scheme of the Act, and highlighted the obligation of a compensating authority to fairly determine the rights and entitlements of a worker under the Act, and the "great lengths" to which Parliament had gone to "...enable a compensating authority's determinations on such matters to be subjected to the utmost scrutiny".[21] It observed that the decision in question impacted upon the potential continued entitlement to weekly payments of the disabled worker and related rehabilitation obligations, and could be fairly characterised as a "decision on a claim for compensation" giving rise to a right of review even though a s 36 notice had not been issued. In so concluding the Full Tribunal observed that the employer would have a right of review and that it would be incongruous if the worker did not also have such a right in the same circumstances.[22]
8. In Hammer the Full Tribunal held that the phrase "decision on a claim for compensation" included a decision which extended beyond the acceptance, rejection or quantification of a particular claim, as in Davidson. However, it qualified this observation by noting that the phrase did not encompass any[23] decision connected with the receipt of compensation, as otherwise there would have been no need for Parliament to specify the other categories of reviewable decisions in clauses (b) to (e) of s 89A(1) of the Act. It held that a decision by an employer that pursuant to s 40(3) of the Act its liability to grant annual leave to a worker was deemed to have been satisfied was not a decision on a claim for compensation and was thus not reviewable.
9. If one accepts, as I have, that the Act presents no impediment to a worker requesting that a compensating authority discontinue weekly payments on a consent basis, or to the compensating authority acting upon that request, then, putting to one side for the moment any restrictive effect on the scope of the review right under s 89A(1)(a) due to the more specific category of reviewable decision under s 89A(1)(c), it is my view there would be no difficulty in categorising a decision by the compensating authority to decline such a request as a "decision on a claim for compensation". It is a decision to not cease making payments when it is asserted that grounds exist for doing so. It is a decision that affects the rights and entitlements of the parties, even though in the unusual context of the worker requesting discontinuance and the self-insured employer rejecting that request.
10. However, on the basis of the observations of the Full Tribunal in Hammer, and an earlier decision of a single member in Langley v WorkCover Corporation/GIO Australia,[24] the respondent contended that the phrase "decision on a claim for compensation" in s 89A(1)(a) must be read down so that it did not encompass decisions described in clauses (b) to (e) of s 89A(1). It submitted that by providing for a specific right of review with respect to a decision "to vary, suspend or discontinue weekly payments", Parliament intended that the only decisions dealing with weekly payments capable of review were those which fell within s 89A(1)(c). The contention was that the converse of a decision to discontinue weekly payments, being a decision not to discontinue weekly payments, or to continue weekly payments, was made under s 36 of the Act, but did not fall within either clause (a) or (c) of s 89A(1), and was thus not reviewable.
11. The worker submitted that the respondent's contention should be rejected in that it would result in a disparity of review rights. Accepting that in this case the disputed decision was that of a self-insured employer, the worker submitted that where a decision of the nature now in dispute was made by a compensating authority on behalf of an employer, it could be the subject of a request by that employer for a review by the compensating authority under s 36(8) of the Act, on the basis that reasonable grounds existed for discontinuance, and that it turn, the compensating authority's decision on such a review was a reviewable decision under s 36(12). The worker submitted that it would be incongruous if an employer was able to seek a review of a decision of a compensating authority not to act upon a request for discontinuance based upon the consent of a worker, whilst a worker could not do so.
12. I am not persuaded that this contention assists the worker's argument. Parliament explicitly provided for an employer's right of review of a compensating authority's decision on discontinuance or reduction of weekly payments, not only by enacting subsections (8) to (12) of s 36, but also by making it clear by s 89A(1)(d) of the Act that a decision by a compensating authority giving rise to a right of review under s 36(12) was a reviewable decision. The inclusion of such a specific provision is equally supportive of the respondent's position that Parliament intended that only an employer have a right to review a decision to discontinue, and that a worker was not to have such a right of review.
13. However, whilst the respondent makes the valid point on the basis of the comment in Hammer that the scope of the phrase "decision on a claim for compensation" must be interpreted bearing in mind that more specific review rights are given by clauses (b) to (e) of s 89A(1), the submission that no challenge to a decision relating to discontinuance can be made by a worker unless it falls within clause (c) of s 89A(1) is not consistent with the approach taken in Davidson, or with review rights given under some of the other provisions of the Act.
14. Although the disputed decision in Davidson had the potential to affect the worker's rights by ultimately leading to a discontinuance, the Full Tribunal nevertheless considered it to fall within the category of a "decision on a claim for compensation", notwithstanding that there was a specific right to review a decision to discontinue under s 89A(1)(c) of the Act. That is, s 89A(1)(c) was not considered to cover the field in relation to discontinuance, such that any decision with potential or actual impact on the right to continuing weekly payments could only be challenged under that provision. It is arguable on the approach taken in Davidson that resort can be had to s 89A(1)(a) of the Act to seek a review of a decision relating to weekly payments which does not fall within the precise terms of s 89A(1)(c). That is, by reference to this case, it is arguable that a decision "to continue", or "not to discontinue", whilst not being reviewable under clause (c), is reviewable under clause (a), in that clause (c) does not cover the field.
15. Further, if the respondent's contention was correct, certain decisions affecting the entitlement to weekly payments under Division 4 of Part 4 of the Act, which are undoubtedly reviewable, would not fit within any category of reviewable decision under s 89A(1) of the Act.
16. For example, ss 37, 38 and 39 of the Act contemplate the conduct of reviews which may result in decisions to adjust or discontinue weekly payment entitlements. Under s 37, the compensating authority may on its own initiative, or at the request of the worker, adjust the calculation of the average weekly earnings of a worker on specified grounds. The decision may be to either make an adjustment up or down or to decline to make any adjustment. Under s 38, the compensating authority may on its own initiative, or at the request of the worker, review the amount of weekly payments having regard to any change in the worker's capacity for work, and may discontinue or adjust weekly payments up or down to reflect any finding that the worker's entitlement in that regard has ceased, increased or decreased. Under s 39, the compensating authority must make economic adjustments to weekly payments.
17. Each section contains a provision requiring that notice be given of any decision on review, and that the worker and the employer be advised of review rights with respect to the decision.[25] Any decision to discontinue weekly payments, or adjust them by reducing the entitlement, would have to be effected under either s 36(1)(i) or s 36(2)(e) of the Act, with notice being given in writing under s 36(3) of the Act. Such decisions would appear to fall within s 89A(1)(c), being decisions to vary or discontinue. However, a decision emanating from a review under any of ss 37, 38 or 39 could be a decision not to adjust weekly payments which the worker may wish to challenge. On the respondent's contention, that would not be a reviewable decision under s 89A(1)(c), and resort could not be had to s 89A(1)(a), because the only decisions on weekly payments which are reviewable are those described in s 89A(1)(c).
18. In the case of decisions made under ss 37, 38 or 39, the rights of review must be referrable to a category of reviewable decision under s 89A(1). This may be contrasted with s 28B, where the specific right of review in relation to rehabilitation and return to work plans on the ground of unreasonableness is conferred by that section itself, rather than s 89A(1), as is recognised by note 3 to s 89A. The respondent's contention proposes a construction of s 89A(1) which is too narrow. It is strongly arguable that if the decision now in question does not fit within the category of decisions in s 89A(1)(c), it is reviewable as a "decision on a claim for compensation".
19. My conclusion is that it is arguable as a matter of law that the Tribunal has jurisdiction to proceed to hear the dispute. That being so, the question is whether there is an arguable case on the facts as to why the discretion of the respondent not to discontinue payments should be overturned. In my view it cannot be said that the worker has no arguable grounds in this respect.
20. The Tribunal will first have to determine whether the worker gave genuine consent to a discontinuance. That consent would certainly appear genuine given the terms of the written consent and the worker's confirmation of his wish in this respect as set out in his affidavit.
21. The respondent contended that, having regard to the provisions of the Education Act 1972 and the Education Regulations 2012, the worker's assertion that he had an entitlement to what was variously described as "holiday pay" or "annual leave" was misconceived, in that there was no statutory entitlement in that regard. Further, it was contended that there was no contractual entitlement to holiday pay which the worker was able to demand be paid to him instead of compensation payments.
22. Be that as it may, Ms Braddick deposed that whilst teachers do not receive recreation leave, the practice of the respondent for many years has been to pay salary during school closure periods. The worker suggested it would be surprising if there was no entitlement in this regard. The matter was not fully argued before me. In my view the issue of whether there is an enforceable entitlement to payment of salary during the school closure period in question which exceeds the worker's compensation entitlement is a matter to be determined on the facts. Evidence needs to be taken and the statutory and industrial regulation of terms and conditions of teacher employment must be considered.
23. Thus it cannot be concluded that the worker has no arguable case that he has an entitlement to payments during the school closure period in excess of the combined total of his 0.5 salary and weekly payments. If he establishes such an entitlement, it does not necessarily mean that the discretion of the respondent to decide not to discontinue his weekly payments should be interfered with, but it arguably provides a ground to contend for such an outcome. The question should be decided after a consideration of all the evidence.

1. The application by the respondent for an order striking out the worker's notice of dispute on the ground that the decision under dispute is not a reviewable decision is dismissed.
2. I will now hear from the parties as to how the hearing of the dispute is now to progress.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.

It is the practice of this Tribunal to publish its reasons for decision in full on the Internet. If any party or person contends that these reasons for decision should not be published in full the party or person must make an application within seven days of the delivery of these reasons. The application shall be by an Application for Directions with a supporting affidavit and should be addressed to the presiding member(s). If no such application is lodged within the time specified these reasons will be published in accordance with the Tribunal's usual practice.

[4] Presumably intended to be a reference to 23/01/2012.

[5] The notice of dispute was lodged outside the time required by the Act. Oral application was made at the hearing for an extension of time. The application was left on the basis that the issue would be addressed in due course in the event that the notice of dispute was allowed to stand.

[6] Paras 16 - 18 of Ms Braddick's affidavit.

[9] [2012] SAWCT 9.

[10] [1964] HCA 69; (1964) 112 CLR 125 at 129.

[11] [1993] HCA 57; (1993) 177 CLR 598 at 602.

[12] Mason CJ, Deane and Dawson JJ at 602 - 603.

[13] [2011] SAWCT 3 at [22]- [26].

[14] [2000] SAWCT 32.

[15] [2010] SAWCT 5.

[17] See, for example, The New Shorter Oxford English Dictionary (1993) at p 484.

[19] [2000] SAWCT 32.

[20] [2009] SAWCT 8.

[24] [1998] SAWCT 4.

[25] Sections 37(8), 38(7) and 39(3) of the Act.