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[1998] SAWCT 42
General information, not legal advice.
Workers Compensation Tribunal (SA)
1998-06-26
President Judge J, Commission J
Original judgment source is linked above.
The application succeeds. The notices and the decision are set aside. The order of the Tribunal is for the worker's entitlement to be restored from the date of the purported decision taking effect.
Parties are advised that if a party wishes to appeal against any part of this decision which raises a question of law such appeal must be filed with the Registrar in accordance with Form 11 within 14 days of the delivery of this decision and must be served on all parties.
McAvoy
B.T. and L.R. Churcher
Kioa v. West [1985] HCA 81; (1985) 159 C.L.R. 550.
Commissioner of Police v. Tanos [1958] HCA 6; (1958) 98 C.L.R. 383.
Ainsworth v. Criminal Justice Commission [1992] HCA 10; (1992) 66 A.L.J.R. 271.
Mobil Oil Australia Pty. Ltd. v. The Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 C.L.R. 475.
Ridge v. Baldwin [1963] UKHL 2; (1964) A.C. 40.
Chen v. Minister for Immigration [1994] FCA 985; (1964) 48 F.C.R. 591.
Karger v. Paul [1994] SASC 4571; (1984) 62 S.A.S.R. 229.
`In respect of an application properly so made, s60(3) says: "The Corporation may, if satisfied that it is appropriate to do so, register the employer ... as an exempt employer ...". This subsection, by its terms, vests and unfettered discretion upon the Corporation. It is, however, a discretion which may only be exercised lawfully "according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, or to confine himself": per Kitto J in R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR. 177 at 189. Speaking of a discretion conferred in general terms, Brennan J said in Re Becker and Minister for Immigration and Ethnic Affairs (supra) at 473:
"The subject-matter, scope and purpose of the statute conferring the discretion may mark the boundary of relevance (cf Murphyores Inc Pty Ltd v Commonwealth [1976] HCA 20; (1976) 50 ALJR 570 at 579) but within the boundary the honest decision-maker may legitimately fashion his views and determine the exercise of his powers without constraint. Where a policy-maker forms a policy to govern or effect the exercise of his statutory discretion, the policy must conform to law. Otherwise decisions taken pursuant to the unlawful policy may be set aside .... The tribunal which reviews a decision taken pursuant to an unlawful policy could not affirm the decision - at all events, not for the reasons which led to the making of the decision."'
`The stringent requirement of the observance of the rules of natural justice by public officers and authorities which exercise statutory powers has been frequently restated in binding authority of the High Court of Australia and of this Court. Barwick CJ in Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at 109-110, put it in these words:
In J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, the High Court reminded this Court of the operation of the fundamental and universal rule and of the stringency of the requirement that statutory derogations from it must, to be effective, be expressed in clear and unambiguous terms. These are the foundations upon which statute law is made. It is as well to state this fundamental principle at the outset of this judgment. It must remain at the forefront of attention as the Court considers the application of the principle to the particular case now before it.'
(1976) 50 ALJR 570
(1987) 162 CLR 447
(1976) 136 CLR 106
(1985) 159 CLR 550