The worker disputed a determination made by the employer in its asserted capacity as a "self-insured employer" to reject a claim for compensation - After referral of the dispute for judicial determination the worker raised a preliminary issue as to the validity of the decision on the basis that the employer was not a self-insured employer at any relevant time and had no delegated powers to determine a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 - Held that whether or not the employer was a self-insured employer was not a jurisdictional fact of which the Tribunal had to be satisfied before proceeding to determine the dispute - Further that the Tribunal did not have jurisdiction to determine the status of the employer in this regard or to make the orders sought by the worker - S 3, Part 5, Part 6A, Schedule 1 of the Workers Rehabilitation and Compensation Act 1986; Ss 36 - 42, 82 of the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008.

Roberts v GM Holden Ltd [2010] SAWCT 28

Roberts v GM Holden Ltd [2010] SAWCT 47

R v Bleby; ex parte The South Australian Public Service Board (No. 1) (1974) 9 SASR 321

R v Blakeley; ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia ([1950] HCA 40; 1950-51) 82 CLR 54

Gomez-Soto v Unisure Pty Ltd (Flinders University) [2005] SAWCT 45

Timbarra Protection Coalition Inc v Ross Mining NL and Others [1999] NSWCA 8; (1999) 46 NSWLR 55

Rundle v WorkCover/Vero Workers Compensation (SA) Ltd [2006] SAWCT 12

Langley v WorkCover Corporation [1998] SAWCT 4

Dunstan v State of South Australia [1998] SAWCT 48

Mitsubishi Motors Australia Ltd v Warren [1999] SAWCT 88

DJL v The Central Authority [2000] HCA 17

Mitsubishi Motors Australia Ltd v Kowalski [2003] SAWCT 100

WorkCover Corporation v Blocki [2009] SAWCT 9

Jacobs v One Steel Manufacturing Pty Ltd & WorkCover Corporation of South Australia [2006] SASC 32

1. The employer General Motors Holden Limited ("GMH") issued a determination dated 31 August 2009 with respect to a claim for compensation made by its then former employee Mr Jason Roberts ("the worker"). The determination accepted a claim for a period of income maintenance from 23 July 2009 to 23 August 2009. It rejected a claim for income maintenance beyond 23 August 2009 on the basis that the worker was fit for modified duties which would have been provided to him but for an alleged breach of mutuality and the termination of his employment for serious and wilful misconduct.
2. The determination was disputed by notice dated 16 September 2009. The notice set out a number of grounds for dispute which mainly related to the merits of the decision but included as assertion that the determination was invalid due to a failure to comply with the regulations. A preliminary issue on the validity of the determination was raised by the worker and rejected by the Tribunal. [1] The matter was then listed for trial. The worker subsequently conceded a breach of mutuality. Nevertheless, a number of issues remain for determination, including whether and to what extent the worker has been incapacitated since 24 August 2009, and the amount of any income maintenance entitlement in light of an asserted failure by GMH to set a designated weekly earnings figure in the determination.[2]
3. In addition the worker raised a further preliminary issue which the parties have agreed should be determined before other issues are dealt with. The disputed determination asserted in the first sentence: "General Motors Holden Limited is a self insurer for the purpose of the Workers Rehabilitation and Compensation Act 1986 (the Act)." The issue is whether, as at the date of the determination, or at any time after that date, GMH was a self-insured employer for the purposes of the Act.[3] The worker contended that it was not, and had no power under the Act to make the determination. The worker sought an order from the Tribunal that the determination be set aside as invalid.
4. GMH contended that the relief now sought by the worker was beyond the statutory jurisdiction of the Tribunal, which it submitted was limited to the determination of disputes over reviewable decisions, and did not extend to the making of a declaration as to whether or not GMH was a self-insured employer with delegated powers. In the alternative, if the Tribunal had jurisdiction to address the issue, GMH contended that at all relevant times it was an actual or deemed self-insured employer within the meaning of the Act with power to make the decision in dispute.
5. WorkCover Corporation ("the Corporation") intervened in the proceedings and supported the position of the employer that GMH was, at all relevant times, a self-insured employer.

Legislative amendments to employer registration provisions

1. There was no dispute that, under the provisions of the Act as it stood immediately before 1 July 2008 ("the Pre-amendment Act"), GMH was an "exempt employer" and was "registered by the Corporation as an exempt employer in pursuance of Division 1 of Part 5".[4]
2. Division 1 of Part 5 (ss 59 - 62A) of the Pre-amendment Act dealt with "Registration of employers". Section 60 allowed certain employers to apply to the Corporation for registration as an exempt employer. Where such application was made, and subject to the Corporation being satisfied as to certain matters, the Corporation had power to register the applicant employer as an exempt employer under the conditions set out in the Act. These included that registration be for an initial period not exceeding three years with a right to apply for renewal of registration for similarly limited periods. Section 62 provided that an application for registration as an exempt employer must be made in the prescribed manner and form and must be accompanied with the prescribed information and fee.
3. Under Division 2 of Part 5 of the Pre-amendment Act certain powers and discretions of the Corporation exercisable in relation to workers of an exempt employer were delegated to the exempt employer including powers under ss 35, 36 and 53 of the Act in relation to weekly payments, discontinuance of weekly payments and determination of claims respectively.
4. The Pre-amendment Act was extensively amended by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 ("the Amendment Act"). The amendments came into effect at various stages on and after 1 July 2008. They included amendments to the scheme for registration of employers under Part 5 of the Act. These came into effect on 1 July 2008.
5. For the most part the amendments simply substituted the word "self-insured" for "exempt",[5] but there were also some administrative changes. For example, an amendment to s 60 of the Act relating to conditions of registration introduced the requirement that a self-insured employer comply with any code of conduct for self-insured employers determined by the Corporation. An amendment to s 62 required that an application by an employer for registration as a self-insured employer be made in the "designated" manner and form, as opposed to the previous requirement that an application for registration as an exempt employer be made in the "prescribed" manner and form.
6. Consistent with the extensive changes to the entitlement to compensation by way of income maintenance introduced by other provisions of the Amendment Act, the delegated powers and discretions conferred on self-insured employers from 1 July 2008 were expanded to encompass ss 35A, 35B and 35C as well as ss 35, 36 and 53 in their now amended form.

1. The disputed determination was tendered in evidence before the Tribunal, together with other material relating to the status of GMH, most of which was annexed to an affidavit sworn by Ms Pecorelli, an employee of the Corporation described as "Manager Self-Insured Return to Work Services".
2. The affidavit set out general information as to the governance and regulation of self-insured employers, and recorded Ms Pecorelli's understanding of the rationale for the change in description of "exempt employer" to "self-insured employer" made by the Amendment Act. She suggested the change was intended to adopt a neutral description for this category of employer which discarded overtones of separation and privilege and was more consistent with the scheme of the Act. Ms Pecorelli asserted that there was no impact in any practical sense as a result of the change. She stated that employers registered as "exempt employers" before 1 July 2008 were automatically considered by the Corporation to be self-insured employers from that date.
3. Documents annexed to the affidavit included correspondence between the Corporation and GMH which revealed an apparent acceptance by those parties that GMH had transitioned from the status of exempt employer to self-insured employer as from 1 July 2008. They also indicated that applications by GMH since that time for renewal of what was considered to be its status as a self-insured employer had been made and acceded to by the Corporation over periods of time which appeared to include the date of the disputed determination.
4. The affidavit also annexed a document issued by "WorkCover SA" bearing the date 11 March 2011 and signed by a Mr Beard, "Senior Technical Adviser", which stated as follows:

"This is to certify that GM Holden Limited has been registered as a self-insured employer under the Workers Rehabilitation and Compensation Act 1986 since 30 September 1987 for the period up to 30 September 2011".

1. The worker contends that before proceeding further with this matter, the Tribunal must be satisfied not only that there has been a "decision" on a claim for compensation, but also that, consistently with the assertion made by GMH in its determination, the decision was made by a self-insured employer with delegated power to do so. This is a submission that one of the jurisdictional facts which must be satisfied before the Tribunal is able to proceed to determine the dispute is that GMH was, in fact, a self-insured employer at the time it made the disputed decision.
2. I do not consider the Tribunal is required or empowered to determine the status of GMH as a jurisdictional fact. Before setting out my reasons, I observe that neither the relevant legislation nor the documents tendered provide a direct and simple answer as to status of GMH which would foreclose the question now raised by the worker.
3. The Amendment Act contains no express deeming provision to the effect that an employer registered as an exempt employer immediately before the relevant provisions of the Amendment Act came into force is to be taken to be an employer registered as a "self-insured employer" on and from 1 July 2008. The absence of such a provision is to be contrasted with cl 3 of Schedule 1 of the Act which, with respect to the introduction of the concept of the "exempt employer" on the "appointed day" being 30 September 1987, provided:

"An employer in respect of whom a certificate of exemption was in force under Division 2 of Part 10A of the repealed Act[6] immediately before the appointed day shall be deemed to have been registered, on the appointed day, as an exempt employer under this Act."

1. There are transitional provisions contained in Schedule 1 of the Amendment Act. These provide that a self-insured employer "includes an exempt employer (being the term previously used under the principal Act)".[7] However, the introductory words to the Schedule limit the application of the deeming provision to the subject-matter of Schedule 1, being the identification of the various operative dates of the amendments effected by the Amendment Act. Schedule 1 of the Amendment Act has no application to Part 5 of the Act.
2. Further, neither the views expressed by Ms Pecorelli in her affidavit nor the material attached to it or otherwise tendered in these proceedings establish that GMH was a self-insured employer at any time. The assumption of both GMH and the Corporation that GMH underwent what might be described as a "seamless transition" from the status of registered exempt employer to registered self-insured employer is unsurprising given the apparent reason for and the context of the amendments to Part 5 of the Act. However, it cannot be accepted that such a transition occurred, whatever the assumptions and subsequent actions of those parties, unless that transition was provided for by the legislation or regulations made under it.
3. In addition, there is no evidentiary provision in the Act, in the nature of that contained in s 120A(1) relating to the certification of a person as an employer, which requires a purported certificate of registration of GMH as a self-insured employer be taken as evidence of registration as a self-insured employer in any proceedings in the absence of proof to the contrary. The document signed by Mr Beard, referred to above, cannot be accepted as conclusive evidence that GMH was a self-insured employer at any time.
4. The worker contended that, in these circumstances, once the asserted status of GMH as a self-insured employer was challenged, it was incumbent on the Tribunal to determine whether GMH had power to make a decision on a claim for compensation, and that the Tribunal had jurisdiction to satisfy itself of that matter as part of the determination of the disputed decision.

23 The worker submitted that, in the course of such a determination, the Tribunal should find that no application for registration as a self-insurer has ever been made by GMH or granted by the Corporation. Further that the general transitional provisions contained in regulations made in conjunction with the proclamation of the Amendment Act did not apply to the present circumstances so as to deem GMH to be a self-insured employer for the purposes of the disputed determination. Alternatively, the worker submitted that if the regulations did apply, the Tribunal should find that the regulations are invalid because they were made on a date before the commencement of the legislation enabling the regulations, and were thus made contrary to restrictions on their operation set out in that legislation.[8]

1. GMH contended that the jurisdiction of the Tribunal is limited by statute to determination of a dispute lodged with respect to reviewable decisions. It submitted that the disputed determination was properly before the Tribunal as it was a decision on a claim for compensation. GMH contended that by challenging its status as a self-insured employer with delegated power to make the decision, the worker sought a review of an earlier administrative decision which was not a decision on a claim for compensation, and also sought declaratory relief beyond the power of the Tribunal. GMH submitted that the Tribunal should proceed on the basis that it was a self-insured employer at all material times with power to make the disputed determination unless and until a court of competent jurisdiction decided otherwise.
2. In the alternative, in the event that I determined that it was appropriate for the Tribunal to inquire into the status of GMH as a self-insured employer, GMH and the Corporation made detailed submissions on the scope and effect of the transitional regulations and their validity. Given the decision I have reached on the jurisdictional fact issue, it is not necessary for me to address these alternative submissions.
3. The worker has the option of directly challenging the asserted status of GMH as a self-insured employer and the validity of any decisions it purported to make in that capacity by means of a summons for judicial review in the ordinary courts. The fact that the worker has this option does not of itself mean that a challenge on the same basis may not be made heard and determined by the Tribunal. The question is whether the dispute resolution jurisdiction of the Tribunal permits it to determine that challenge.
4. Before embarking on any proceeding the Tribunal must be satisfied that it has jurisdiction. If its jurisdiction is challenged, the Tribunal must hear the argument and decide the point expressly: R v Bleby; ex parte The South Australian Public Service Board (No. 1).[9] In so doing, the Tribunal will be conducting an inquiry on a matter collateral to the merits of the disputed decision, namely whether the jurisdictional facts which are necessary to enliven its jurisdiction exist: R v Blakeley; ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia.[10]
5. The proper construction of the empowering statute will determine the jurisdictional facts of which the Tribunal must be satisfied. In this context the Full Tribunal in Gomez-Soto v Unisure Pty Ltd (Flinders University)[11] adopted a statement of general principle by Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL and Others[12] as follows:

"Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply."

1. Under s 79 of the Act the Tribunal has the jurisdiction conferred by statute. The dispute resolution jurisdiction is conferred by Part 6A of the Act. A dispute will arise when a person with a direct interest in a "reviewable decision" lodges a notice of dispute with the Registrar of the Tribunal under s 90(1). Section 89A lists the decisions that are reviewable in this regard.
2. Upon receipt of a notice of dispute, the Registrar is required by s 90B to send copies of the notice of dispute to other parties to the dispute, including the "relevant compensating authority", which under s 89 means, "if the decision is made by a self-insured employer - the self-insured employer". If the dispute is not resolved at conciliation, it must be referred to the Tribunal under s 92D of the Act for judicial determination.
3. After hearing the disputed claim, the Tribunal must decide the dispute without reference to decisions taken in earlier proceedings. The power of the Tribunal in this regard is not specified, but must be taken to include such powers as are necessary to determine the dispute, whether by upholding the disputed determination, or by varying it or setting it aside. In this context it has been accepted that the Tribunal has power, including on a summary judgment application, to determine whether a disputed decision is irregular for non-compliance with statutory criteria, and if so whether a discretion should be exercised to set aside such a decision on the basis of that irregularity: Rundle v WorkCover/Vero Workers Compensation (SA) Ltd.[13]
4. Thus the jurisdiction expressly conferred by the Act upon the Tribunal following referral of a dispute for judicial determination is that of determining a dispute over a reviewable decision. One of the categories of reviewable decisions set out in s 89A of the Act is "a decision on a claim for compensation".[14] On its face, the decision by GMH which is in dispute in these proceedings is a "decision" which was made "on a claim for compensation".
5. However, the worker contends that one of the jurisdictional facts of which the Tribunal must be satisfied before it proceeds is whether the disputed decision was validly made by a self-insured employer with delegated powers and discretions under s 63 of the Act. If the Tribunal is unable to satisfy itself of this fact, the worker contends that the decision in dispute should be regarded not to be a "decision" at all, whether on a claim for compensation or otherwise, and thus to be unable to form the basis of a dispute which enlivens the jurisdiction of the Tribunal.
6. There can be no doubt that the Tribunal is entitled to go behind the documents or actions said to evidence a decision on a claim for compensation, or the circumstances of any inaction as the case may be, in order to satisfy itself that, as a matter of fact, there has been a decision, and that any such decision is a decision on a claim for compensation.[15] This is an inquiry relating to the issues raised between the parties in the proceedings before the Tribunal. The outcome, whether it be a conclusion that there is or is not a dispute over a reviewable decision under s 89A of the Act, is confined in its effect to the parties before the Tribunal, and does not determine any issue at large which may also affect third parties.
7. I do not consider that the limited jurisdiction conferred on the Tribunal either requires or entitles it to make any inquiry as to jurisdictional facts beyond these parameters. In particular, the status of GMH as an exempt employer is not a jurisdictional fact the existence of which the Tribunal must be satisfied before it proceeds to determine the dispute before it. This conclusion follows from the scheme of the Act, the restricted mandate of the Tribunal, and the limited extent to which it has been considered permissible for the Tribunal to determine collateral challenges during the course of the determination of a dispute.
8. As to the scheme of the Act, it has been noted above that Part 6A sets out the dispute resolution jurisdiction of the Tribunal. The reviewable decisions listed in s 89A encompass the following: decisions on a claim for compensation (including determination of claims under Part 4 Division 8 of the Act and of expedited claims under Part 6B); decisions about the provision of rehabilitation services (under Part 3 Division 1 "Rehabilitation Services"); and decisions to vary, suspend or discontinue weekly payments, or to consider an employer's application for review of payments, or to disallow or reduce a charge for medical services (under Part 4 "Compensation").
9. The jurisdiction thus specified does not include the determination of any disputes over decisions on matters relating to the operation of Part 5 of the Act, which concerns "Registration and Funding" of employers. The provisions in this regard appear to comprise a self-contained code. Section 59 of Division 1 requires that all employers who employ a worker must be registered by the Corporation. Sections 60-62A of Division 1 provide for applications by employers for status as self-insured employers and terms upon which such applications may be granted by the Corporation. Section 62A permits a Ministerial appeal in relation to such decisions. Division 2 addresses the delegation of powers to self-insured employers, Division 3 establishes the Compensation Fund, and Divisions 4-8 inclusive relate to levies and administrative matters, and establish a self-contained system for review of decisions of the Corporation in relation to levies.
10. The Tribunal has no part in the review procedures established under Part 5 of the Act and has no express jurisdiction in that regard under Part 6A of the Act. Nor does it have an implied jurisdiction. The Tribunal has implied powers, but their scope is necessarily constrained. The general principle in this regard as stated by the High Court in DJL v The Central Authority[16] is:

"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'...it would be inaccurate to use the term 'inherent jurisdiction' here...and the term should be avoided as an identification of the incidental and necessary power of a statutory court."

1. The Tribunal has applied this principle to the analysis of the scope of its jurisdiction in Mitsubishi Motors Australia Ltd v Kowalski.[17] The Full Tribunal observed:.

"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..."[18]

1. The limitations on the extent of the implied jurisdiction must necessarily reflect the limitations on the jurisdiction expressly conferred. The exercise of such powers has generally concerned the jurisdiction of the Tribunal to control its own processes, whether by means of summary judgment, or the making of orders controlling an abuse of process, or determination of matters incidental to primary issues before it: for example, whether a redemption agreement has been made which affects the quantum of a claimed income maintenance entitlement: WorkCover Corporation v Blocki.[19]
2. In addition, the jurisdictional limitations of the Tribunal are reflected in the uncertainty over the extent to which the Tribunal is entitled to determine collateral challenges raised during dispute proceedings. Accepting that the matters now raised by the worker arguably involve a collateral challenge consistent with that concept as explained by McHugh J in Ousley v The Queen,[20] namely a challenge to the validity of the disputed decision as an incident in determining the dispute over the merits of the rejection of the worker's claim, the authorities suggest a conservative approach should be adopted with respect to the Tribunal's ability to deal with such a challenge.
3. The Full Supreme Court of South Australia most recently considered such issues in Jacobs v One Steel Manufacturing Pty Ltd & WorkCover Corporation of South Australia.[21] The initial proceedings before the Tribunal involved a determination of the costs entitlement of the worker against his employer following an earlier determination of the Tribunal on a disputed claim for compensation. The extent of the costs entitlement had to be determined in accordance with principles set out in the Workers Compensation Tribunal Rules. In the course of the proceedings, the worker challenged the validity of certain of the rules relating to costs. The matter was referred to the Full Bench of the Tribunal which stated a case to the Supreme Court on whether the Tribunal had jurisdiction to determine the validity of the rules in question and whether the rules were valid.
4. In separate judgments Debelle J and Besanko J[22] decided that the Tribunal had jurisdiction to determine the validity of the challenged rules as a collateral issue in the determination of the costs entitlement of the worker. Their decision was made in the context that the challenge to the relevant rules was confined to the limited ground that they either exceeded the scope of the empowering legislation, or were inconsistent with regulations made under the Act with respect to dispute resolution.[23]
5. Besanko J also observed that a relevant consideration was that the challenged rules were a product of a legislative act, not an administrative decision, and that the law had not reached the stage where a question as to whether a collateral challenge was permitted could be answered by reference to a general principle that applied in the case of all legislative and administrative acts.[24] He set out a number of factors which had been identified in the authorities and the academic literature which might be relevant in deciding the question.[25] I do not need to set them out here. Some of the considerations would favour allowing the present challenge, others would not. An important consideration is whether there are any statutory provisions bearing one way or another on whether a collateral challenge should be permitted. Whilst the Act contains no explicit provisions in this regard, it is my view, for reasons given above, that the scheme of the Act weighs heavily against the Tribunal having the role of determining an issue such as the status of GMH as a self-insured employer.
6. This conclusion is reinforced by consideration of the specific orders the worker seeks from the Tribunal. These are that GMH was not a self-insured employer for the purposes of the Act and was not delegated the powers and discretions of the Corporation under s 63 of the Act at any relevant time including when the disputed decision was made or reconsidered.[26] Orders of this nature assume the Tribunal has a statutory power equivalent to s 31 of the Supreme Court Act to make a general declaration of right as to the status of GMH as a self-insured employer. It obviously has no such jurisdiction. Such orders would involve more than an incidental or collateral finding by the Tribunal in the course of determining the worker's ultimate entitlement under the Act, and potentially would impact upon on the validity of all decisions made by GMH in its asserted capacity as a self-insured employer since 1 July 2008.
7. A collateral challenge of this nature does not fall within the jurisdiction of the Tribunal, and if the worker is to pursue the matter, he should do so in judicial review proceedings in which he is required to address the protective mechanisms associated with such proceedings, including any time limitation issues which arise having regard to the time the decision complained of was made.

1. I do not have jurisdiction to determine whether GMH was a self-insured employer for the purposes of the Act at the time of the disputed decision or at any time. The status of GMH in this regard is not a jurisdictional fact of which the Tribunal must be satisfied before it can proceed to determine the dispute now before it.
2. In these circumstances it is not necessary or appropriate that I address the detailed and considered submissions made by the parties as to their alternative positions in the event that I found I had jurisdiction to determine the preliminary point.
3. I therefore decline to make any decision on the preliminary point raised by the worker. I propose to proceed with the determination of the remaining issues in dispute and will hear further from the parties in that regard.

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.

[1] Roberts v GM Holden Ltd [2010] SAWCT 28 where the worker's application for summary judgment on the ground that the disputed decision was an invalid determination to discontinue income maintenance payments was dismissed by the Tribunal with a subsequent appeal also being dismissed - Roberts v GM Holden Ltd [2010] SAWCT 47.

[2] As set out in the worker's statement of issues dated 24 February 2007 - item 1 in the Book of Documents Exhibit W1.

[3] Para 3 of the worker's statement of issues.

[4] Thus being an exempt employer as defined in s 3 of the Pre-amendment Act.

[5] Under ss 36 - 41 of the Amendment Act, with a corresponding substitution of the phrase "exempt employer" in s 3 Interpretation by the phrase "self-insured employer".

[6] Referring to the Workers Compensation Act 1971.

[8] The worker was here referring in particular to s 82 of the Amendment Act and the limited power under that section to make transitional regulations and to the Workers Rehabilitation and Compensation (General) Variation Regulations 2008 ("the Variation Regulations") which by cl 9 added a general regulation entitled "Transitional Provision - references to exempt employers" which provided:

"A reference in a statutory instrument, any other kind of instrument, or a contract, agreement or other document to an exempt employer will have effect as if it were a reference to a self-insured employer."

[9] [1974] 9 SASR 321 at 325 per Bray CJ with reference to the jurisdiction conferred by statute on the Industrial Court.

[10] [1950] HCA 40; (1950-51) 82 CLR 54 per Latham CJ at 71; Fullagar J at 91.

[11] [2005] SAWCT 45 at [9].

[12] [1999] NSWCA 8; (1999) 46 NSWLR 55 at 64

[13] [2006] SAWCT 12.

[15] There are many examples - see Langley v WorkCover Corporation [1998] SAWCT 4; Dunstan v State of South Australia [1998] SAWCT 48; Mitsubishi Motors Australia Ltd v Warren [1999] SAWCT 88.

[16] [2000] HCA 17 at [25] per Gleeson CJ, McHugh, Gummow and Hayne JJ - citations omitted.

[17] [2003] SAWCT 100.

[19] [2000] SAWCT 9.

[21] [2006] SASC 32.

[23] Debelle J at [14]; Besanko J at [90].

[26] Worker's outline of submissions [18] and [19].