Appeal by worker - Worker disputing correctness of decision of learned Deputy President to strike out an application for expedited determination - Held learned Deputy President correct in determining that no reviewable decision subject of Notice of Dispute - Further contention that learned Deputy President in error in striking out Notice of Dispute by worker in respect of a computer printout supplied to WorkCover by exempt employer purporting to provide details of estimated liability or employer to worker and identifying an outstanding liability of $60,632.78 - Held: No error on part of learned Deputy President in concluding that no reviewable decision pursuant to s 89A of Act - Appeal dismissed - Ss 97B(3), 97B(1)(b), 97B(3)(a), 97B(3)(b), 89A - Workers Rehabilitation and Compensation Act 1986

Commonwealth Trading Bank v Inglis and Another [1974] HCA 17; (1974) 131 CLR 311

Wear v. WorkCover Corporation/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77

DJL v. The Central Authority [2000] HCA 17; (2000) 201 CLR 226South Australian Housing Trust v. State Government Insurance Commission (1989) 51 SASR 1

Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 71 ALR 457

Hunter v. Leahy [1999] FCA 1075

Horvath v. Commonwealth Bank of Australia [1999] FCA 504

Horvath v. Pattison [1999] FCA 924

Ebert v. Birch [1999] EWCA Civ 1130

Parsons v Martin [1984] FCA 408; (1984) 58 ALR 395

Sandhurst Trustees Ltd v. Gallerie Investments Pty Ltd & Ors [2003] SASC 46

D'Emden v. Pedder [1904] HCA 1; (1904) 1 CLR 91

Pelechowski v. Registrar, Court of Appeal [1999] HCA 19; (1999) 162 ALR 336

Grassby v. R [1989] HCA 45; (1989) 168 CLR 1

Sydney Ports Corporation v Collins [2003] NSWCA 28; (2003) 56 NSWLR 232

Cross Respondent: Ms R Layton QC, with her Mr R Bonig

1 These are appeals by Mitsubishi Motors Australia Ltd ("the employer") and Kazimir Kowalski ("the worker") from a decision of a learned Deputy President of the Tribunal delivered on 3 February 2003. In that decision which flowed from an Application for Directions filed by the employer the learned Deputy President struck out a Notice of Dispute filed by the worker on 23 August 2002 but declined to accede to the employer's application. The order sought by the employer is in the following terms (AB 1):-

"That the applicant be not permitted to file in this Tribunal any application or other document including any subpoena or summons to witnesses either in this action or any other action against the respondent or any corporation related to the respondent or any employee or agent of the respondent, without the leave of the President of this Tribunal. ..."

2 The question of law raised by the employer's appeal involves an examination of the express or implied powers of the Tribunal. The learned Deputy President stated the matter in the following terms (in [2003] SAWCT 4 at paras 2 - 5):-

"2 There is no doubt that the Tribunal possesses the jurisdiction to grant summary relief in relation to a Notice of Dispute if the proceedings are doomed to fail. It is simply a question whether on the material provided it is appropriate to grant that relief. I will return to that matter later.

3 I also think it is clearly within the jurisdiction of the Tribunal, in an appropriate case, to impose restrictions on parties in respect of proceedings pending before it, regarding the making of applications in respect of those proceedings and the filing of documents.

4 If I were to resolve to grant the employer the summary relief that it seeks in respect of the worker's Notice of Dispute that is the subject of these proceedings a consideration of that question becomes academic. Again, I will return to this later.

5 The more vexed question is whether it is within the jurisdiction of the Tribunal to make an order restraining a person from commencing new proceedings against another person without leave of the Tribunal."

3 His Honour then went on to consider Rule 10(1) of the Workers Compensation Tribunal Rules 2001 ("the Rules"). He concluded this Rule operated only after proceedings were instituted and could not support the order sought. Beyond the Rules of the Tribunal he concluded, on the authority of Commonwealth Trading Bank v Inglis and Another [1974] HCA 17; (1974) 131 CLR 311, that such a power could not be implied (at paras 8, 12, 27). The exempt employer disputes that conclusion.

4 Reference was made at the outset of Ms Layton QC's argument to the Rules of the Tribunal. Rule 10(1) referred to by the learned Deputy President was one of a number of Rules disallowed by Parliament (South Australian Government Gazette, 3 April 2003 p 1279). However certain of those Rules, including Rule 10(1) were re-promulgated and allowed by Parliament (South Australian Government Gazette, 8 May 2003). Rule 10(1) is in the following terms:-

"Subject to any express provisions of the Act and the Rules, the President may assign any proceedings to any Member of the Tribunal as may seem appropriate and may alter that assignment in order to resolve the proceedings more effectively. If the President is satisfied that a proceeding is vexatious, is an abuse of process or that there is other good reason such as the failure of the party lodging the proceedings to purge a contempt of the Tribunal or to pay a fine imposed as a result of a contempt, the President may decline to assign the proceedings and if the proceedings have already been assigned may withdraw that assignment and may direct the Registrar to strike out the proceedings."

5 Ms Layton QC referred to Rule 10(1) as evidence of an overall legislative intent. She employed it in her argument only to the degree to which it informs us what powers ought to be implied (appeal tr 32). Rather than indicating the outer limits of the Tribunal's power it supports a legislative intent that gives the Tribunal wide authority to control its own proceedings.

6 The Tribunal's powers, whether expressed or implied, must be considered in the context of the scheme provided in the Act for resolving disputes: c.f. Wear v. WorkCover Corporation/Allianz Australia Workers Compensation (SA) Pty Ltd (Greyhound Pioneer Australia Ltd) [2001] SAWCT 77. The Tribunal is constituted of a Full Bench, a single Presidential Member or a single Conciliation and Arbitration Officer (s 78). It has the jurisdiction conferred by statute (s 79). The President is its principal Judicial Officer (s 80(2)). The right to self representation in proceedings is assured by s 85B. The President may make Rules for the Tribunal including those necessary or expedient for the effective and efficient operation of the Tribunal, a matter referred to by the learned Deputy President in his decision, (s 88E(g)). A privative clause gives finality to the Tribunal's decisions (s 88I).

7 The Act provides that certain classes of decisions are reviewable (s 89A). That includes a decision on "a claim for compensation". The persons who may exercise the right of review include those who are directly affected by "the decision" (s 90). The relevant compensating authority, having reconsidered the disputed decision (s 91) the "matter" must be referred for conciliation (s 91A). In default of settlement at that stage the dispute must be referred to the Tribunal for arbitration or judicial determination (s 92D). The Tribunal must then make a determination of the disputed claim (s 94). The Tribunal moreover must re-hear the matter in dispute and decide the dispute without regard to decisions taken in earlier proceedings (s 94C). It must then hand down its decision as soon as reasonably practicable (Rule 27). Powers are given to facilitate fair and expeditious hearings (Rule 21) and to stay proceedings in given circumstances(Rule 21(5)(a)(xix) and (xx)).

8 The core principles to be considered in an analysis of this type are set out in DJL v. The Central Authority [2000] HCA 17; (2000) 201 CLR 226. There the High Court was concerned inter alia with the power of the Full Court of the Family Court to re-open its orders. The Family Court is created by the Family Law Act 1975 (Cth) and its jurisdiction is, like this Tribunal, provided by express provisions (see para 24). The Court stated the rule as follows, (para 25):-

"The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is `unable to draw upon the well of undefined powers' which were available to those courts as part of their `inherent jurisdiction' (Grassby v The Queen [1989] HCA 45; (1989) 168 CLR 1 at 16. See also Pelechowski v. Registrar, Court of Appeal [1999] HCA 19; (1999) 198 CLR 435 at 451-452). The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute `has powers expressly or by implication conferred by the legislation which governs it' and `[t]his is a matter of statutory construction'; it also has `in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred' (Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at 241. The judgment was that of Bowen CJ, Northrop and Toohey JJ.) It would be inaccurate to use the term `inherent jurisdiction' here (R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1 at 7) and the term should be avoided as an identification of the incidental and necessary power of a statutory court (Parsons v Martin [1984] FCA 408; (1984) 5 FCR 235 at 241)."

9 However Ms Layton QC argued as those principles had to operate in a myriad of circumstances the correct answer to the question required a close examination of the many ways in which the superior courts had applied them. She referred to South Australian Housing Trust v. State Government Insurance Commission (1989) 51 SASR 1. The facts in that case were that a young child was badly burned by a defective stove in a home leased to her mother by the Housing Trust ("the Trust"). The Trust maintenance inspector had been notified of the defect prior to the child suffering the injury but had failed to effect any repairs or attempt to remove that risk. The Trust was found liable in negligence for the child's injuries. The Trust then sought indemnity under a policy of insurance. The insurer raised in its defence a breach of conditions of the policy. Despite the outcome in the first proceedings adverse to the Trust that it knew about the risk before the child was hurt, in the second proceedings the Trust sought to put the insurer to proof of that knowledge. The trial judge found a breach of the provisions of the insurance policy, namely that the Trust inter alia failed to take reasonable precautions to prevent injury from known risks.

10 On appeal the Full Supreme Court concluded the knowledge of the maintenance inspector was not of the requisite type to give rise to a defence under the indemnity policy. The employees who had the knowledge were not vested with responsibility in respect to potential claims and that was needed to constitute any breach. In the course of his reasons for decision, King CJ dealt with the matter of the Trust being able to re-litigate the issue of knowledge and it is these remarks Ms Layton QC relies on. His Honour said (17 - 18, 19):-

"... The basis of the learned trial judge's decision to act upon the findings of Legoe J rather than his own view of the matter, was that to permit the appellant to depart in these proceedings from the findings made against it in the other proceedings, would be an abuse of the process of the Court.

The rules of law which regulate the circumstances in which a party is precluded from asserting facts in a subsequent action by reason of a prior judgment in another action are to be found in the branch of the law relating to estoppel by judgment. Where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This is the rule relating to res judicata or cause of action estoppel. A party is also precluded from setting up in subsequent proceedings a state of fact or law which has been determined in a contrary sense in other proceedings between the same parties or their privies, see generally Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 597 per Gibbs CJ, Mason J and Aickin J. The appellant is not precluded by these rules from asserting in the present action a different version of the facts from that found in the other action, the cause of action and parties to the two actions being different.

There can be no doubt that, quite apart from any specific legal rules, a court has power to prevent an abuse of its processes. This principle is referred to by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529 at 536 as concerning `the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people'. There are a number of instances in the books of this principle being utilised to prevent a party from relitigating issues which have been decided against that party in other proceedings, notwithstanding that such relitigation was not precluded by the rules relating to estoppel by judgment. ... (In Reichel v. Magrath (1889) 145 AC 665) [t]he House of Lords held that there was an inherent jurisdiction in the court to strike out the statement of defence as frivolous and vexatious and an abuse of the process of the court and to enter judgment accordingly. A perusal of the reasons of the law Lords shows that the basis of this decision was that the appellant sought to raise in the proceedings the very same question which the court had decided in a separate action and that he had `not a shadow of defence' to the action. ...

The cases referred to above in which the inherent power of the court to prevent an abuse of its process was used to preclude a party from relitigating matters previously decided against him, were all obvious cases in which it was sought to misuse legal procedures in an unacceptable way. ..."

11 Ms Layton QC next referred to Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 71 ALR 457. That concerned a Federal Court action seeking damages for conduct in breach of s 52 of the Trade Practices Act 1974. S 23 of the Federal Court Act conferred on the Federal Court a broad power to make orders of such kinds including interlocutory orders as the Court, "thinks appropriate". However such power was only "in relation to matters" in respect of which jurisdiction had been conferred upon the Federal Court and which were appropriate to the exercise of that jurisdiction. An order was made requiring the defendant to provide security in the amount of $3,000,000 in a form approved by the Registrar of the Court. That order was to operate until the claim was heard and determined.

12 On appeal, the High Court ruled the order went beyond any authority implicitly vested in the Federal Court by s 23 or otherwise. Deane J, with whom the majority agreed, adopted the following statement by Bowen CJ in the Court below, (464):-

"In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words `inherent jurisdiction'. Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers. In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred. The implied power for example to prevent abuse of its process, is similar to, if not identical with, inherent power."

13 Ms Layton QC argued Commonwealth Trading Bank v. Inglis (above cited) which the learned Deputy President regarded as decisive in the matter should be distinguished. That was an action brought against the bank in the High Court's original jurisdiction. The bank was successful in its defence and the action was dismissed. An appeal was lodged against that decision. The bank sought an order from the Court that no legal proceedings be instituted or applications permitted to be made in existing proceedings without leave of a Justice of the Court. This was on the ground that the plaintiff was vexatious. The High Court Rules, Order 63 Rule 6(1), contained provision empowering the Court, "if satisfied that a person ... instituted vexatious legal proceedings ... [to] order that he shall not, without the leave of the Court ... begin any action, appeal or other proceeding in the Court".

14 It was accepted that in the matter before us there was no equivalent provision to Order 63 Rule 6(1). It was in this context the bank, in Inglis, argued for an inherent jurisdiction to make orders of that kind, "in extreme circumstances". Their Honours rejected that argument and stated the following, (313, 314-315):-

"... We are of opinion that different considerations apply to a restraint on the making of applications in existing proceedings and to the instituting of new proceedings. ... The application is not framed so as to limit such future proceedings to proceedings of the same kind as those that have been previously brought or to proceedings against the applicant or against other specified persons who have already been sued by the respondents. It refers to any legal proceedings against any person.

Counsel for the applicant was unable to refer the Court to any authority for the making of an order of that kind in the exercise of the Court's inherent jurisdiction. We have been unable to find any reported decision or dictum which affirms the existence of the power to do so. ...

... It is true that there are statements of high authority referring to the power of the court to prevent abuse of its process. But these statements have been made in cases in which the court was concerned with actions which had been instituted in the court and were pending therein. ...

In our opinion, it is not surprising that the courts do not appear (so far as we have been able to discover) to have taken the further step of intervening in a summary way to prevent the commencement, except by leave, of actions and other proceedings by a particular person or persons but have limited themselves to exercising their powers in relation to proceedings which have been taken in a court and have thus been placed under its control. It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the court's process in cases where it was shown to be probable that a person would continue bringing groundless proceedings**.** But, in our opinion, it is apparent that the courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority. ..."

15 It was the subsequent remark which Ms Layton QC says distinguishes this ambiguity from applying to the situation before us. The Court stated (318):-

"... In our opinion, the nature of such provisions and the history of their introduction show clearly that they were intended as grants of an additional power. It is unacceptable, in our opinion, to say, as the applicant submits, that the enactment of such a provision as that contained in O. 63, r. 6 leaves unaffected an inherent power which the court is said to have to make an order of the kind for which that rule provides. ..."

16 We will return later in these reasons to the way in which this applies to the case before us. Inglis was examined by French J. in Hunter v. Leahy [1999] FCA 1075. That case concerned an order of the Federal Court that the bankrupt Hunter not be permitted to file in the Federal Court any application in this or any other matter without the leave of a Judge of the Court. French J varied that order so that Hunter was prevented from making any application without leave of a Judge where the application related to the matter earlier decided by Sheppard J or in which Mrs Webb or any of the respondents therein were named as respondents. That form of order of course is essentially the order Mitsubishi seeks in the case before us.

17 His Honour examined whether such an order was within the powers of the Federal Court. Order 21 Rule 1 permitted a vexatious litigant order to be made on the application of the Attorney General or the Registrar of the Court. Order 21 Rule 2 dealt with vexatious proceedings against a particular person, "habitually and persistently", pursued, "without reasonable grounds". Order 21 Rule 5 provided that if an order was made under Rules 1 or 2 leave to institute or continue proceedings was forbidden until the Court was satisfied the proceedings were not an abuse of process and there existed prima facie grounds for the proceedings. Lastly Order 46 Rule 7A permitted the Registrar to refuse to accept or issue documents which on their face constituted an abuse of process of the Court or were frivolous or vexatious and alternatively to seek a Judge's direction in respect to the acceptance or issue of such documents. However despite the existence of these provisions the order under examination had not been made using any of these express powers.

18 His Honour stated (para 14) that the fact that the order was not reliant on any of these expressed powers did not mean that it was beyond power. The Rules were no more than an expression of the otherwise existing power of the Court to protect its own procedures against abuse. French J went on to refer to the general power under s 23 vesting power in the Court in relation to matters in which it has jurisdiction, "to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate". He then stated (para 14):-

"It is accepted that courts of law and equity have general powers now accepted as an established part of their armory to prevent the abuse or frustration of their processes in relation to matters coming within their jurisdiction. The power to grant such relief in relation to a matter in which the Federal Court has jurisdiction is conferred expressly by s 23 of the Act - Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 623, Deane J. As Deane J went on to say in that case:

`Indeed, even in the absence of the provisions of s 23 the Federal Court would have possessed power to make such orders in relation to matters properly before it as an incident of the general grant to it as a superior court of law and equity of the jurisdiction to deal with such matters'."

19 His Honour then dealt with the specific circumstances before him in the following terms (paras 16, 17):-

"16 It seems however that s 23 and the implied incidental power are not to be taken as authorising the making of an order as widely expressed as that made by Sheppard J in Commonweatlh Trading v Inglis [1974] HCA 17; (1974) 131 CLR 311 the High Court held that it had no power to make an order that no legal proceedings should be instituted by the respondents in that case without leave of a Justice of the Court. ...

Their Honours held that the making of unwarranted and vexatious applications in an action pending in the court was a matter over which there was an inherent power in the court to exercise control. There was an essential difference in their Honours' opinion between regulating the conduct of such an action so as to prevent the court's process from being abused on the one hand and impeding a particular person in the exercise of a right of access to the court on the other hand. ...

17 I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court. As in the Wentworth case the touchstone of the Court's power must be substance rather than form. I think therefore that although on the authority of Inglis, Sheppard J's order was too widely cast, it can be recast to meet the difficulties posed by Mr Hunter's continued attempts to relitigate the issue on which he has thus far been unsuccessful. I therefore propose to vary the order of Sheppard J accordingly."

20 The topic of implied powers was examined in Horvath v. Commonwealth Bank of Australia [1999] FCA 504. Weinberg J made an order that Horvath be forbidden, without the leave of the Court, to institute in the Federal Court any proceedings against a number of specified persons including the Commonwealth Bank. In his judgment His Honour related the extraordinary extent of the litigation taken by Horvath over an issue well and truly resolved. His Honour held that Inglis was authority rejecting a contention that the High Court had inherent power to restrain a person from commencing new proceedings without leave of the Court (para 95). However in Horvath, the bank sought orders pursuant to Federal Court Rules Order 21 Rule 2 (referred to above). Therefore as these were express powers, Weinberg J had to determine whether Horvath had "habitually and persistently and without any reasonable grounds" instituted vexatious proceedings against specific persons. His Honour found that circumstance made out (para 109). The decision is important for His Honour's understanding of the true rule in Inglis.

21 In Horvath v. Pattison [1999] FCA 924 Horvath sought leave from the effect of the order of Weinberg J. The leave was sought to litigate matters thoroughly resolved by previous judgments (para 7). While the Court was concerned to examine a related matter, namely whether an application for annulment fell within the embargo, Finkelstein J made some relevant observations. He stated (paras 15 - 17):-

"15 In Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311, the High Court held that a court has no inherent jurisdiction to restrain a person from commencing a new proceeding without the leave of the court. It could only do so if there were appropriate legislation or rules of court permitting such an order to be made. Of course, it was accepted by the High Court that a court does have inherent power to prevent an abuse of process in pending proceedings. There are a number of examples where that power has been exercised by the making of an order preventing a party instituting an interlocutory application of one type or another without the leave of the court.

16 In Grepe v Loam [1888] 37 ChD 168, after judgment in an action had been given, the court restrained the making of applications to have the judgment set aside or orders inconsistent with the judgment. It was considered that those applications were made `in the action' although after judgment.

17 In my opinion, the proposed application to annul the bankruptcy is, by parity of reasoning, an application in the bankruptcy proceeding and in my view the court has an inherent power to restrain it. Further, I am of the view that that power should be exercised in this case."

22 The point of this dicta as well as that of French J and Weinberg J, for present purposes, is to reinforce the outer permissible limits of implying such a power. However Ms Layton QC has relied on the decision of French J in Hunter v. Leahy (above cited), in the following respects; firstly that his Honour's statement that express provisions do not define the outer limits but rather are merely, "an expression of the power of the court generally to protect its own procedures against abuse". Secondly that French J states at para 17 that Inglis does not constrain the inherent jurisdiction or the implied or incidental power of a court to prevent the institution of proceedings seeking to relitigate matters determined in earlier proceedings. Finally that the only concern his Honour had with the extent of any implied power was to imply one in terms that forbad any litigation to be taken in the Federal Court as distinct from one that forbad litigation on the particular topic already traversed and against specified litigants. Therefore on Ms Layton QC's argument French J is clear authority for the exempt employer's argument.

23 Ms Layton QC also relied on the reasons in Ebert v. Birch [1999] EWCA Civ 1130. That case involved an examination of the inherent jurisdiction of the High Court in England to prevent the initiation of civil proceedings likely to constitute an abuse of process of the Court. The Master of the Rolls Lord Woolf records that it was not disputed the Court had an inherent jurisdiction to prevent further applications being made without the leave of the Court in proceedings already before the Court. The only issue was whether the Court's jurisdiction extended to orders prohibiting new proceedings being commenced without leave of the Court. The context of the analysis included extensive provisions dealing with vexatious litigants in s 42 of the Supreme Court Act (UK) 1981. These provisions were similar to those in the Federal Court Act and Rules. His Lordship observed s 42 by its express terms enabled considerably wider orders to be made than contemplated by the term a "Grepe v. Loam" order, though those provisions came with certain safeguards, viz. only the Attorney General could issue such proceedings.

24 It was conceded before the Court of Appeal in Ebert that the existence of statutory power to make an order did not prevent the Court exercising its inherent jurisdiction. Such authority existed apart from any express power. The inherent jurisdiction remained alongside the statutory jurisdiction albeit restricted so as not to dilute the statutory provision.

25 Having considered the decision of Inglis the Master of the Rolls said:-

"... We prefer to approach the issues from a standpoint of principle. Doing so, the starting point must be the extensive nature of the inherent jurisdiction of any court to prevent its procedure being abused. We see no reason why, absent the intervention of a statute cutting down the jurisdiction, that jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated. ...

In relation to specific anticipated proceedings both in this jurisdiction or abroad, the court can and does grant an injunction to stay the proceedings. Where the injunction is in relation to foreign proceedings, the jurisdiction is not exercised by interfering with the foreign court. Instead, the injunction is granted against an individual and is enforceable personally against that individual. The ability of the court to operate in this way when the proceedings are only anticipated is no more than an example of the court being prepared to protect an applicant from anticipated damage when that damage is sufficiently imminent and serious. The court undoubtedly has the power to stay or strike out vexatious proceedings when they are commenced under its inherent power. We can see no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings.

The making of an extended Grepe v Loam order or a Grepe v Loam order in its usual form does involve a serious inhibition on a prospective litigant exercising his normal rights of access to the courts. However, the extent of this interference should not be exaggerated. First it is only an inhibition for bringing proceedings without the leave of the court. If the proceedings are arguably meritorious leave will be forthcoming. Secondly, the court will not make an order unless there is serious grounds for doing so and if there are no serious grounds, the order will be capable of being set aside on appeal."

26 Despite these forceful and attractive arguments addressed to us by Ms Layton QC, we are not persuaded that the Tribunal has the implied power suggested to make an order of the type sought. As stated repeatedly by the authorities, this is a matter of statutory construction. In approaching the task of interpretation we are to assume the Tribunal is meant to be vested with such powers as are necessary and incidental to the exercise of the jurisdictional powers so conferred: see Parsons v Martin [1984] FCA 408; (1984) 58 ALR 395 at 401. But the cases which have been urged upon us, whilst supportive of wide power, have a quite different statutory and rule context. Invariably the consideration is of superior courts of record c.f. Sandhurst Trustees Ltd v. Gallerie Investments Pty Ltd and Ors [2003] SASC 46 at paras 42 - 47. Moreover the rule laid down in Inglis which denies a jurisdiction extending to prospective actions is to be understood in the context of the statement of Griffith CJ in D'Emden v. Pedder [1904] HCA 1; (1904) 1 CLR 91 at 110, namely:-

"... where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective. This is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants of power, whether by unwritten constitution, formal written instrument, or other delegation of authority, ..."

27 In Pelechowski v. Registrar, Court of Appeal [1999] HCA 19; (1999) 162 ALR 336 the High Court considered implied powers enjoyed by the District Court of New South Wales in respect of execution and enforcement of its judgments. The majority adopted the statement of Dawson J in Grassby v. R [1989] HCA 45; (1989) 168 CLR 1 at 16 that an inferior court has by way of necessary implication such powers as it requires for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction" (348). The majority added the following (para 51):-

"The term `necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker [1849] EngR 223; (1849) 3 Ex 242 at 255-6; [1849] EngR 223; 154 ER 833 at 838-9, namely, as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided (to the court) in Div 4 of Pt 3 of the District Court Act. In this setting, the term `necessary' does not have the meaning of `essential'; rather it is to be `subjected to the touchstone of reasonableness' State Drug Crime Commission of NSW v Chapman (1987) 12 NSWLR 447 at 452. See also Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 450; Proprietors Units Plan No 52 v Gold [1993] FCA 385; (1993) 44 FCR 123 at 126; [1993] FCA 385; 116 ALR 638; Dockray, `The Inherent Jurisdiction to Regulate Civil Proceedings' (1997) 113 Law Quarterly Review 120 at 130-1."

28 The way the Workers Rehabilitation and Compensation Act 1986 is framed contemplates a set of processes and decisions which must occur before the Tribunal's jurisdiction is capable of being enlivened: see Sydney Ports Corporation v Collins [2003] NSWCA 28; (2003) 56 NSWLR 232 at 237, 242. Until these events occur there is no authority vested in the Tribunal. The Tribunal, once vested with jurisdiction, has a limited mandate i.e. to hear and determine the specified dispute. This makes it quite different from the situation of a superior court of law and equity, the usual paradigm for the rule.

29 Also there is the question of the Inglis authority. What is the ratio of that decision binding on us? Does it deny an order forbidding proceedings unless it confines itself to the same kind and subject matter and parties as argued by Ms Layton QC? Or does it deny the implication of any power to embargo prospective proceedings? The statements of their Honours in Inglis, set out above (in para 14 hereof) suggests the latter. This conclusion conforms with the expression of the rule in Inglis, particularly by Weinberg J in Horvath and Finkelstein J in Horvath. Finally notwithstanding Ebert we are clearly bound to follow Inglis.

30 But quite determinative in our opinion is the necessary effect of Rule 10(1) of the Tribunal's Rules. The control of the matter of the vexatious litigant in this Tribunal is vested in a person designated by Parliament, the President of the Tribunal. That rule would be at best optional if the implied power extended to the degree suggested by Ms Layton QC. That could hardly have been the intent of Parliament in allowing the Rule in this form and in such specific terms. Whatever may have been the case prior to the making of the Rule it is now to be seen as in substitution of any other authority. To conclude otherwise would be to dilute the legislative purpose. That is the point made by the Court in Inglis.

31 The Notice of Dispute filed by the worker on 23 August 2002 identified the following as the decision of the appellant which he wished to dispute:-

"1. Information provided by MMAL to WorkCover printed on 26-7-02 (1 page).

2. Page 13 and 14 of WCT decision [2002] SAWCT 76."

32 The description of the decision is somewhat cryptic however the learned Deputy President did his best to make sense of it and concluded as follows (at AB 351) as to what the worker was referring to:-

"15 The information to which the notice refers comprises of a computer print out that was supplied by the WorkCover Corporation which purports to provide details of the estimated liability of the employer to the worker and which purportedly identifies an outstanding liability of $60632.78 and which was last updated on 24 July 2001.

16 The reference to the judgment [2002] SAWCT 76 concerns its treatment of an action filed in this Tribunal, being action number 132 of 2002 which is described in the judgment of the learned President at par 41 of the judgment as: `The appellant applied for an expedited decision on 10 January 2002 relating to his back injury in May 1989. He claimed that the respondent had not discontinued his "legally entitled weekly payments" of income maintenance (pursuant to s 36 of the Act) and had not paid a s 43 lump sum to him and he sought such payment' The learned President ordered that the application be struck out. The others members of the Full Bench concurred with that decision.

17 Although it might have been better expressed, what emerges from the Notice of Dispute and the submissions that the worker made before me is that the worker is contending is (sic) that he has an undetermined claim in relation to weekly payments of income maintenance and a s 43 lump sum in respect of a back injury allegedly sustained by him in the course of his employment with the employer in May 1989; that the employer had failed to determine those claims; that he had properly invoked the jurisdiction conferred upon the Tribunal pursuant to s 97 of the Act which enables a worker or employer who believes that there has been undue delay in deciding a claim to apply to the Tribunal to determine a matter; and that the decision of the Full Bench of the Tribunal as reported in [2002] SAWCT 76 to strike out his application for expedited decision was a decision by the Tribunal for the purposes of s 97B of the Act. Hence, he argues that pursuant to s 97B(3) of the Act that decision has to be treated as a decision of the employer and therefore pursuant to s 97B(3)(b) it is a reviewable decision. It seems that the computer print out was placed before the Tribunal as evidence of an acknowledgment by the employer that it has an undischarged liability in respect of this alleged injury."

33 The learned Deputy President observed, rightly in our respectful view, that it was not his place to question the correctness or otherwise of the decision of the Full Bench to strike out the worker's application for expedited decision in action no 132 of 2002. Rather his role was limited to deciding whether it could be characterised as a decision on an application for expedited determination of the type contemplated by s 97B(3). We interpolate that pursuant to s 97B(1)(b) the Tribunal may decide the matter itself on an application for expedited determination and if it does so the decision is to be treated as a decision of the relevant compensating authority (s 97B(3)(a)) and is a reviewable decision; s 97B(3)(b).

34 The learned Deputy President reached the conclusion that s 97B(3) refers to a decision by which the Tribunal has stood in the shoes of the relevant compensating authority and determined either to accept or reject a claim and that the provision can have no application to a decision made by the Tribunal to strike out an application for expedited decision. He accordingly determined that there was no reviewable decision that was the subject of the Notice of Dispute. In our respectful view a plain reading of the provisions of s 97B leads to the conclusion that the decision of the learned Deputy President in this respect was indubitably correct.

35 As to the first matter referred to in the Notice of Dispute characterised by the learned Deputy President in par 15 of his reasons for decision referred to above, it is clear that it is not a reviewable decision pursuant to s 89A of the Act; in particular on any view of the facts it is not a decision in response to a claim for compensation made by the worker against the appellant. At best it is, to adopt the words of the learned Deputy President, simply a computer print out supplied by the appellant to the WorkCover Corporation purporting to provide details of the estimated liability of the appellant to the worker.

36 In the result for the reasons expressed above we are of the view that both appeals should be dismissed. We order accordingly.