JUDGMENT OF: His Honour President Judge WD Jennings, His Honour Deputy President Judge JP McCusker, Her Honour Deputy President Judge HW Parsons

Appeal - Worker lodged Notice of Dispute challenging Rehabilitation and Return to Work Plan after expiration of plan - Compensating authority asserted as plan had expired the Tribunal had no jurisdiction to entertain Notice of Dispute - Application made for summary relief - Deputy President refused such application - Alleged breach of mutuality - Whether refusal of application constituted a "decision" for the purposes of s 86(1) of the Act - Case law discussed - Found there was no "decision" therefore appeal incompetent - Appeal dismissed - S 28B, s 36, s 36(1)(f), s 86(1) Workers Rehabilitation and Compensation Act 1986.

Winnall v Department of Education and Children's Services JD5/1997

Winnall v State of South Australia (Department of Education and Children's Services) JD55/1997

Alexander v WorkCover/Commercial Union Workers Compensation Pty Ltd (Adia Centacom Health Staff Pty Ltd) JD95/1998

Fancourt & Another v. Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

General Steel Industries Inc v Commissioner for Railways (NSW) & Others [1964] HCA 69; (1964) 112 CLR 125

Reality Cinema Pty Ltd v Canbet Ltd [2002] SASC 62

Clarkin v B & P Delvizis and B & L Petridis (t/as Terrace Café T56 Myer) 1994 61 SAIR 364;

Webster v Lampard [1993] HCA 57; (1993) 67 ALJR 886

Hocking v State of South Australia (1981) 48 SAIR Pt 2 158

Australian Nursing Federation SA Branch v Australian Liquor, Hospitality and Miscellaneous Workers Union South Australian Branch [2003] SAIRComm 26

Renal Technologists, Government Hospitals (Appeal) Case (1978) 45 SAIR Pt 1 495

Mitsubishi Motors Australia Ltd v Warren JD88/1999

Australian Broadcasting Tribunal v Bond & Others [1990] HCA 33; (1990) 170 CLR 321

Re Oscar [2002] NSWSC 887

Keylink v Ergoline [1999] SASC 483

WorkCover Corporation/Mercantile Mutual Insurance (SA Workers Compensation) Ltd (Australian Fashion Centre Pty Ltd) v Polak [2002] SAWCT 124

1 The respondent challenges the competency of this appeal. That in turn depends on a question of statutory construction. What is the extent and meaning of the words, "a decision of the tribunal", appearing in s 86(1) of the Workers Rehabilitation and Compensation Act 1986 ("the Act")?

2 The worker gave Notice of Dispute on 4 June 2002 (AB 9). It challenged the Rehabilitation and Return to Work Plan ("the Plan") for the period 14 December 2001 to 14 March 2002. The appellant took an Application for Directions dated 8 July 2002. It asked that the worker's Notice of Dispute be struck out because the Plan, in the circumstances, was now beyond examination, its term having ended on 14 March 2002. The appellant relied on Winnall v Department of Education and Children's Services JD5/1997 and on appeal in JD 55/1997 (Winnall v State of South Australia (Department of Education and Children's Services)).

3 The worker had been employed as a Sales Assistant in a city store when she suffered an injury to her right arm and shoulder. Her claim for compensation in this regard was accepted. In February 2002 the appellant gave the worker notice of its intention to discontinue income maintenance payments for breach of mutuality. The breach alleged was described as a refusal to meet the obligations of the Plan.

4 The training arranged pursuant to the Plan was a Pharmacy Guild training course of 10 weeks. The worker completed just three days of the course and said she was unable to continue because of her disability. She attributed her inability to the demands of the training course. She said it had no rehabilitative value. In response to the notice of February 2002 the worker gave notice of March 2002 denying any breach of mutuality. The matter was then referred on for hearing.

5 The Notice of Dispute dated 4 June 2002 was therefore meant to be collateral to the Notice of March 2002. It was to bolster her defence to the Corporation's s 36 notice of February 2002. Citing Alexander v WorkCover/Commercial Union Workers Compensation Pty Ltd (Adia Centacom Health Staff Pty Ltd) JD95/1998, the worker argued this Notice was a necessary platform to enable her to contend the terms of the Plan were unreasonable and for the Plan to be the subject of examination. The only way the Act allowed such examination was pursuant to s 28B of the Act.

6 The Deputy President refused the Corporation's application for summary dismissal of the 4 June 2002 Notice. He dealt with the arguments in the following way (par 17 - 18):-

"17 What the Tribunal decided in Winnall was that a s 28B review was not the appropriate forum to debate the appropriate level of payment for a worker on a rehabilitation and return to work plan. I am not persuaded that the Tribunal's further ruling that because the rehabilitation and return to work plans were no longer on foot there was no effective remedy the Tribunal could provide should be taken as establishing an immutable principle that the Tribunal's jurisdiction in relation to s 28B disputes ends with the passing of the expiry date of the plan.

18 It seems to me to be inconsistent for the respondent to contend, as it does here, that the Plan `ceases to exist and the jurisdiction to entertain complaints about it no longer exists' (tr 14), yet at the same time urge the Tribunal to entertain complaints about alleged breaches of the Plan by the worker in support of its s 36 Notice."

7 The Deputy President records the worker's argument that if the worker wished to contend the Plan was unreasonable from its inception the only way she could do so on the authority of Alexander's case was by invoking a review under s 28B of the Act. Further, that it was innate to the case the worker wished to argue that the mutuality issue involved an examination of the reasonableness of the Plan. The crucial difference with Winnall lay in the fact that in the case before us, the worker was not seeking that the Tribunal modify or alter the Plan, a matter expressly pointed to by the Tribunal in Winnall. In short, the worker took the proceedings to ensure she could properly and fully raise her answer to the Corporation's allegations on the mutuality issue. No-one suggested the ultimate question was other than whether she had been in breach of her obligation under s 36(1)(f) of the Act. The Deputy President concluded that the worker should be free to mount these arguments. He dismissed the application for summary relief.

8 We observe in passing that the approach to the issue of a summary order taken by the Deputy President implicitly accords with the case law: see Fancourt & Another v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87 at 99; General Steel Industries Inc v Commissioner for Railways (NSW) & Others [1964] HCA 69; (1964) 112 CLR 125 at 128/9; Reality Cinema Pty Ltd v Canbet Ltd [2002] SASC 62; Clarkin v B & P Delvizis and B & L Petridis (t/as Terrace Café T56 Myer) 1994 61 SAIR 364; Webster v. Lampard [1993] HCA 57; (1993) 67 ALJR 886. In the latter case, the majority (Mason CJ, Deane and Dawson JJ) stated (at 888):-

"... The power to order summary judgment must be exercised with `exceptional caution' and `should never be exercised unless it is clear that there is no real question to be tried'. ..."

That noted, the principal argument of Mr Black, counsel for the worker, was that there was no decision for the purposes of s 86(1) of the Act. The refusal of the Deputy President to accede to the appellant's application that the worker's action be summarily dismissed did not involve a decision of the Tribunal in the requisite sense. Rather the application remained for later resolution and decision.

9 We refer to the situation under comparative legislative enactment. The right to appeal under the Workers Compensation Act 1971 ("the 1971 Act") was contained in s 45. That provided that "an appeal shall lie from any order or decision of the Court to the Full Industrial Court and any such appeal may be by way of rehearing". As with the current legislation "decision" was not defined. As is evident, the wording of s 45 of the 1971 Act was in essentially the same terms as the current provision, s 86(1).

10 This provision was examined by the Full Industrial Court in Hocking v State of South Australia (1981) 48 SAIR Pt 2 158. The employer, by general application, had sought an order pursuant to s 70 (maim's table) or in the alternative s 72 (redemption). At the close of the employer's case the worker's counsel submitted no case to answer. Also that the application under s 72 be dismissed because no election referred to in s 70(1) had been made. The trial Judge ruled there was a case to answer and declined to strike out the alternative claim. On appeal by the worker the employer contended there was no "order or decision" from which an appeal could lie pursuant to s 45.

11 The majority (Olsson P and Layton J) upheld the employer's argument and concluded the purported appeal was incompetent. Layton J stated her opinion as follows (at 169, 171 - 172):-

"In my view, the law on this question is quite clear and principles have been clearly enunciated both by the Honourable Justice Wells in Normandale v. Forrest (1972) 4 SASR 6 and further by the Industrial Commission in Appeal Session in Renal Technologists, Government Hospitals (Appeal) Case (1978) 42 SAIR Part I 495.

... Although the words used in section 45 of the Workers Compensation Act refer to `order or decision', that particular point has already been considered by the Industrial Commission in Appeal Session in the Renal Technologists Case (supra). In that case the Commission held that the Commissioner in deciding that he had jurisdiction to entertain the award and in further exercising his discretion pursuant to the Industrial Conciliation and Arbitration Act was not giving a `decision' which was properly the subject of an appeal in that it did not purport to finally decide the substantive rights between the parties. ...

... it is clear in my view that the words `order or decision' in section 45 of the Act covers orders which decide the substantive rights of the parties and in my view the learned Judge's ruling of a case to answer in the case at bar is no more than a step in the hearing and is a `juridical process(es) involved in order to determine whether a right ... exists' and is not in itself a ruling which is an `order or decision' from which an appeal may properly lie."

12 We refer to the position concluded by the Full Commission to date and on the authorities. In Australian Nursing Federation SA Branch v Australian Liquor, Hospitality and Miscellaneous Workers Union South Australian Branch [2003] SAIRComm 26, the Full Commission examined the meaning of the word "determination" in s 207 of the Industrial and Employee Relations Act 1994 ("the Industrial Act"). That provided for an appeal to lie to the Full Commission against "a determination of the Commission constituted of a single Member". The facts there concerned a Member of the Commission in compulsory conference referring the subject matter of a notified dispute to arbitration under s 202(1) of the Industrial Act. The Full Commission followed Renal Technologists, Government Hospitals (Appeal) Case (1978) 45 SAIR Pt 1 495 and concluded that "determination" meant a decision which finally disposed of the proceedings and finally fixed the rights of the parties thereto (at par 17).

13 Mr Stanley, counsel for the appellant, contends the authority of this Tribunal in Mitsubishi Motors Australia Ltd v Warren JD88/1999 is binding and set the rule we had to follow (tr 20). That case involved the refusal of a Deputy President to order the worker to submit to a medical examination arranged by the exempt employer. The Full Tribunal ruled this was a decision meeting the features required by s 86(1) of the Act. The relevant parts of the decision stated (at 3 - 4):-

"The words `a decision' have potentially a range of meanings. At one extreme, they could mean `a decision that finally disposes of the issues in dispute between the parties'. At the other, they could mean `any decision made by a Presidential Member'. (In both instances, it is subject of course to the qualification that an appeal lies only on a question of law.)

There are decisions that a Presidential Member can make that do not finally dispose of the issues in dispute between the parties that, if made as a result of an error of law, could result in a real injustice being suffered by the aggrieved party. Given that Parliament has not prefaced the word `decision' with the definite article `the', nor has it in any other way indicated that it has intended the right of appeal only to lie against a final judgment or order of the Tribunal, we think that the words `a decision' should be given a broad interpretation. This was the approach taken by the majority of the Full Supreme Court in Mitsubishi Motors Australia Ltd v. Stone (1994) 179 LSJS 211, which dealt with the meaning of the words `a decision' in section 97 of the Act as it stood on 8 April 1991 following amendment of the Act by Act No 4 of 1991. In his judgment His Honour Justice Prior applied Harrington v. Harrington (1979) 22 SASR 449 and Normandale v. Forrest (1972) 4 SASR 6 and concluded that `a decision' refers to more than a final order disposing of the substantial dispute arising between the parties.

However, His Honour then went on to say that the expression did not embrace all orders in the course of arriving at a final decision. In the context with which he was concerned, he said that the words did not apply to `all interim and provisional orders, orders directed to matters of procedure incidental to a hearing, orders that are merely incidental or ancillary orders or mere rulings' (supra p. 219). ... This leads us to conclude that Parliament only intended an appeal to lie against those decisions made by a Presidential Member which concern a question of law and which either conclusively deal with the issues in dispute between the parties or which, if made erroneously, will result in a real injustice to the aggrieved party if allowed to stand. ..."

14 Mr Stanley argued the ruling by the Deputy President here met that test. The ruling involved a conclusion of law at odds with authority which conclusively dealt with the point. In Winnall the worker was placed under a return to work plan which he continued for some ten months. At that point, but unrelated to the return to work plan, his payments were reduced to 80 per cent pursuant to s 35(1)(b)(ii) of the Act. Four months later he was certified fit for his usual duties. A s 36 Notice was issued stating that he ceased to be incapacitated from work. The worker gave two Notices, the second disputing the return to work plan claiming it imposed an unlawful obligation on him to perform employment duties for less than the lawful rate. The employer succeeded in its application to have that Notice struck out summarily. The Tribunal concluded it was not within the limited scope of a review of a rehabilitation and return to work plan to challenge the nature of the payments being made.

15 The Full Tribunal in Winnall (JD55/1997) stated that while the Deputy President had not expressly said so, lack of jurisdiction on the part of the Tribunal formed the foundation of his decision. The Tribunal stated (at 5, 6):-

"... section 28A gives WorkCover the discretion to establish such a plan for a worker if certain conditions apply, including that the worker is receiving compensation by way of income maintenance. In the preparation of a plan the worker must be consulted. The plan is binding on the worker who must obey obligations imposed by it.

Section 28B gives the worker a right to apply for a review of a decision to establish a rehabilitation and return to work plan at a provision of such a plan on the grounds of unreasonableness. On review the plan can be modified, so that it does not impose unreasonable obligations.

It would appear that the Notice of Dispute issued in relation to the rehabilitation plans put in place for the worker was prompted by the action of the respondent to reduce the worker's weekly payments of income maintenance to 80% in May 1996.

When stripped to essentials the gravamen of the worker's complaint is not dissatisfaction with the nature or content of the plans with which it would appear he was in agreement but rather with the level of payment he received whilst participating in the plans, in particular after May 1996 when his notional weekly earnings were reduced to 80% of their former level. Again it seems to us and consistent with what we have said above, that a section 28B review is not the appropriate forum for debating the appropriate level of payment for a worker on a rehabilitation plan. The fact remains that when he entered into the plan the appellant was in receipt of weekly payments pursuant to the Act which weekly payments could only be discontinued or reduced in accordance with sections 36 or 38A of the Act or varied pursuant to sections 38 and 39 which it will be recalled Olsson J described in the G.M.H. Case [General Motors-Holden's Automotive Ltd v. Workers Rehabilitation and Compensation Corporation (1990-91) 55 SASR 395] as constituting a comprehensive statutory code as to the manner and circumstances in which weekly payments once determined may be varied.

In light of the above we also are of the view that the learned Deputy President at first instance was correct in his conclusion that given the plans were no longer on foot there was no effective remedy that the Tribunal could provide. As Mr Telfer, counsel for the respondent submitted, by the time of the issue of the worker's notice of dispute the plan had run its course. ...."

16 Mr Stanley reiterated his contention that pursuant to s 28B of the Act an application for review could only be brought while the Plan was still on foot. There was nothing that could be otherwise effectively done by way of any order on the application. It was meaningless to seek modification of a plan once it had ceased its term (Outline of Submissions of the Appellant par 2.2 - 2.4, tr 25). He added there was a real prejudice to his client in the cost and effort involved in taking the matter further when the result was indisputable. That created the real injustice referred to in Warren (tr 25).

17 Both counsel made some reference to Australian Broadcasting Tribunal v Bond & Others [1990] HCA 33; (1990) 170 CLR 321. That case concerned the Administrative Decisions (Judicial Review) Act 1977 (Cth). Mason CJ, with whom Brennan and Deane JJ concurred, examined the various potential meanings that could be given to the term "decision" (at 335 - 336). Mason CJ's conclusion was formed by the legislative context of that particular case. He stated (at 337 - 338):-

"The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable `decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. ...

If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. ...

My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v. Costigan (1982) 59 FLR 184 at 197 when he said that `it may well be that the word "decision" means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'. However, I would not wish for myself to place emphasis on the words `of itself' in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made."

18 Mr Stanley emphasised the Bond decision should be understood as concerned with particular legislation in a particular context (tr 22). He also pointed to distinct aspects of the legislative scheme in the Administrative Decisions (Judicial Review) Act 1977 (Cth) including a right of review of "conduct engaged in for the purpose of making a decision" as well as a "decision" (tr 23). This confined the limits of the word "decision" when used in that legislation (tr 24).

19 When approaching the legislative scheme in the workers compensation legislation it is worth emphasising the fact that the Full Tribunal has no supervisory role as provided in the Supreme Court. That Court's jurisdiction to grant prerogative relief is not appellate in nature but involves an exercise of primary jurisdiction: Re Oscar [2002] NSWSC 887. We have no such power and can only exercise this jurisdiction when the legislative conditions are satisfied. The point being the Full Tribunal has only such power to interfere as the Act allows in s 86(1).

20 The proposition as expressed in Warren does suggest a test that is broader than that described in Hocking. On the other hand the approach described by Mason CJ in Bond conforms to a far greater extent with the Warren reasoning. Bond and Warren allow the test to be satisfied in cases other than by a test of finally deciding the substantive rights of the parties.

21 In this regard we suggest it is instructive to examine the approach to a similar situation provided by the decision of Doyle CJ in Keylink v Ergoline [1999] SASC 483. That case involved an appeal from a refusal of the Master to set aside a statutory demand on an application taken pursuant to s 459h of the Corporations Law, though the amount of the statutory demand was varied pursuant to subs (4). S 50(2) of the Supreme Court Act 1935 provides for an appeal to lie to a Judge against a judgment, order, direction or decision of a Master. The issue described by the learned Chief Justice was whether the Master's refusal was "a final finding, decision, direction, award or judgment" (see par 18).

22 The Chief Justice noted s 50(1) of the Supreme Court Act makes a distinction between appeals against final orders and appeals against interlocutory orders. That distinction was not expressed in Rule 106.05 of the Supreme Court Rules, but His Honour assumed the language of the Rule intended the same notion. He stated (par 24):-

"My view is that the right in issue in the proceedings was the right to challenge the validity of the statutory demand, or, putting it a little differently, that the matter that was in issue was the validity of the statutory demand. My view is that the Master has finally determined that matter, because he has determined that the statutory demand is to continue to have its statutory effect. That issue is now concluded, as between the parties, subject to an appeal. Whatever the significance might be of the ability to bring a further application within the 21 day period, that period had expired and so no further application could be made. It is therefore my view that the order, as made, finally determined the right of the plaintiff to have the statutory demand set aside. Once the 21 days had expired, no further challenge to the validity of the demand could be made. The Order as made finally determined the validity of the statutory demand."

23 Employing an equivalent approach while we agree with Mr Stanley Warren correctly describes the test, in the given circumstances this is not a "decision" for the purposes of s 86(1) of the Act. The issue in the proceedings, agreed by the parties, was whether the worker was in breach of her obligation under s 36(1)(f) of the Act. The worker wished to argue there was no breach of mutuality (viz WorkCover Corporation/Mercantile Mutual Insurance (SA Workers Compensation) Ltd (Australian Fashion Centre Pty Ltd) v Polak [2002] SAWCT 124). In developing that argument the worker wished to contend the Plan was unreasonable. That was part of her case. The proceedings taken were to ensure she was free to mount that argument, (though whether she needed to is debatable). The employer sought to have those proceedings struck out. The Deputy President refused to make such an order and determined the matter should proceed, indicating the reasonableness of the Plan may be a relevant consideration on the mutuality issue. On that basis there was no finality. But neither was there injustice employing that broader concept described in Warren.

24 Therefore there was no decision in the sense in which that word is used in s 86(1) of the Act. As there was no decision the appeal is incompetent. The worker's challenge to jurisdiction succeeds. The appeal is dismissed.