WORKCOVER & ANOR v BHP P/L; JAGERMANN v WORKCOVER No. SCGRG-98-1250, SCGRG-98-1434 Judgment No. S194 [1999] SASC 194

Supreme Court of SA|1999-05-13|Before: Doyle CJ, Martin JJ, Bhp P

For the reasons given earlier, I would not answer question (a) beyond that.

"Whether section 110 of the WRC Act empowers an authorised officer to erect or otherwise effect the erection of scaffolding in a workplace ..."

The special case provides no information about the nature of the scaffold that was erected in the pellet plant. The nature of the scaffold erected, and the circumstances under which it was erected, are important matters when considering whether, in the exercise of the powers conferred by the section, a scaffold may be erected. The answer to a question as general as that posed may be misleading. For that reason I would decline to answer question (b).

"(c) Whether Zockel falls within the meaning of the term "assistant" as that term is used in section 110(7) of the WRC Act; and

(d) Whether Ilisevic falls within the meaning of the term "assistant" as that term is used in section 110(7) of the WRC Act ...."

I have set out the terms of subsections (7) and (8) above. As well, subsection (9) makes it an offence to hinder or obstruct an authorised officer or to refuse or fail to comply with a requirement under the section. Subsection (10) makes it an offence for an authorised officer, or a person assisting an authorised officer, unreasonably to hinder or obstruct an employer in the running of his business, to address offensive language to the employer or to assault the employer.

According to the Macquarie Dictionary an assistant is one who assists a superior in some office or work. But other dictionaries, including the Shorter Oxford English Dictionary, give the meaning as one who is present, one who takes part and is a helper. In the context in which it appears, I consider that "assistant" should not be read as referring only to someone who is, as it were, an unskilled subordinate to and assistant of an authorised officer. It is readily foreseeable that the inspection of a workplace, the inspection of records, the taking of measurements and the carrying out of tests may call for specialised knowledge that an authorised officer might not possess. There is no reason why the reference to "assistants" should not be read as extending to experts whose assistance the authorised officer might require to enable the authorised officer effectively to exercise the relevant power conferred by s110(1). Even relatively simple matters such as the taking of photographs might require the exercise of expertise by a photographer, or the expertise of an engineer, familiar with the nature of the plant or equipment photographed, to advise from which angle or perspective the plant should be photographed. So, in a particular case, might the taking of measurements of a complex piece of machinery. The examination of documents and records, and in particular financial records, might require the skills of a qualified accountant.

Having regard to the nature of the powers to be exercised, and the matters in relation to which they are exercised, I consider that an assistant may be an expert who accompanies the authorised officer, provided that the expert accompanied the authorised officer to assist the authorised officer in the execution of a power conferred by s110(1). The expert cannot, under the guise of being an assistant, accompany the authorised officer if the expert does so other than to assist an authorised officer.

My understanding is that Dr Zockel accompanied the authorised officer and used his expertise as an engineer to inspect the place where Mr Ilisevic worked, and to comment on the safety of the procedures that were followed. It is unclear whether or not Dr Zockel was required to advise the authorised officer, and through him the Corporation, whether safe practices were followed. As long as Dr Zockel was assisting the authorised officer to inspect the workplace, by assisting him to give advice in connection with the potential recovery claim, his presence at the pellet plant was authorised by s110(8). It does not matter that the result of Dr Zockel doing this may be that, in due course, he will be able to give expert evidence in any action brought by the Corporation. In the end, each case must turn on its own facts. The limited facts provided make it difficult to answer question (c). However, I would answer question (c) as follows:

"If Dr Zockel was engaged to assist the authorised officer to inspect the furnace area of the pellet plant, by providing expert advice to the authorised officer on the proper procedures to be followed for the safe performance of the work performed by Mr Ilisevic, such advice being given to enable the authorised officer to report to the Corporation in connection with a possible claim under s54(7) of the Act, Dr Zockel was entitled to enter and to inspect the pellet plant with the authorised officer."

I turn now to question (d). In my opinion the authorised officer was entitled to have the assistance of Mr Ilisevic, for the purpose of Mr Ilisevic explaining to him what Mr Ilisevic was doing when he was injured and how he came to be injured. I would answer question (d) as follows:

"If Mr Ilisevic was asked to assist the authorised officer to inspect the furnace area of the pellet plant, by informing the authorised officer and Dr Zockel how Mr Ilisevic suffered the injury for which he was paid compensation, such information being given to enable the authorised officer to report to the Corporation in connection with a possible claim under s54(7) of the Act, Mr Ilisevic was entitled to enter and to inspect the pellet plant with the authorised officer."

Neither answer may prove sufficient to dispose of the dispute between the parties, but on the available information I cannot be any more specific. For the reasons given earlier I decline to answer questions (e) and (f).

The facts stated in the Special Case are sparse indeed, and the questions are again expressed too generally.

Dr Jagermann is a legally qualified medical practitioner practising as a specialist psychiatrist. He has consulting rooms at North Terrace in Adelaide. An authorised officer has written to his solicitors. The relevant part of the letter is as follows:

"The Corporation has been conducting enquiries and investigations into Dr Jagermann's rendering of services to injured workers who are in receipt of benefits under the Workers Rehabilitation and Compensation Act.

I now wish to take this opportunity of making a formal request to interview your client, Dr Karl Jagermann, concerning accounts that have been rendered to the WorkCover Corporation for treatment allegedly rendered to injured workers. This interview would primarily relate, but not necessarily limited (sic) to patients, ...."

By his solicitors, Dr Jagermann has declined to be interviewed.

Neither the letter nor the Special Case give any indication of the matters to which the questions are likely to relate, or of the purpose for which they are being asked. It is unsatisfactory that the Court should be asked to answer questions about the scope of s110 on such an uncertain factual basis.

To avoid the proceedings being rendered futile, the Court gave the parties the opportunity to submit an agreed statement to the Court identifying the purpose of which the authorised officer proposed to exercise the powers conferred on him by s110 of the Act.

The parties have informed the Court that it is agreed that the authorised officer seeks to exercise the powers conferred by s110 for the purpose of investigating whether Dr Jagermann has committed offences against s120(1) of the Act in connection with the provision of medical services by Dr Jagermann to the two patients named in the letter. The possible offences that are to be investigated involve the dishonest obtaining or claiming of a payment or benefit under the Act. I am content to proceed on that basis.

The parties have also informed the Court that the authorised officer wishes to exercise the powers conferred by s110 of the Act with a view to the Corporation determining whether Dr Jagermann has charged the relevant patients more than they are entitled to claim under the Act for the provision of a service in respect of which compensation is payable. The authorised officer also wishes to investigate whether services provided by Dr Jagermann were inappropriate or unnecessary. The significance of these matters is that the Corporation is entitled to reduce the amount of the charge made to a worker if it exceeds the amount that the worker is entitled to claim, and the Corporation may disallow a charge for a service if the service was provided inappropriately or unnecessarily: see ss32(4) and(5) of the Act. When the matter was argued before the Court no specific reference was made, as I recall it, to these provisions. Not having had the benefit of submissions about issues that might arise under these provisions, I propose to answer such of the questions as can be answered without reference to these possible reasons for the exercise of the powers conferred by s110.

If the purpose for which questions are to be asked of Dr Jagermann is the investigation of the possible commission by Dr Jagermann of an offence against s120(1) of the Act, my opinion is that that is a purpose for which questions may be asked under s110(1). Although, as I understood his submissions, counsel for BHP would have argued otherwise, counsel for Dr Jagermann did not dispute that that purpose was a purpose falling within s110(1).

The submission by counsel for the doctor is that each of the powers conferred by s110(1) may be exercised only at a workplace, and moreover at a workplace at which or in relation to which some issue has arisen, relevant to the Act, between an employer and an employee. It is submitted that it is not established that the doctor's consulting rooms are a workplace, and that in any event there is no evidence that any issue between an employer and an employee and relevant to the Act has arisen at or in relation to his consulting rooms.

It is submitted that the powers conferred by s110(1) must be interpreted in this restrictive fashion because otherwise an authorised officer could enter all sorts of places, such as a hospital, doctors' rooms, a solicitor's office, and claim to exercise the power to require the production of records and the answering of questions. The point is made that unless the power is limited as suggested, an authorised officer could visit a doctor's room and require the doctor to answer questions about the patient whom the doctor is treating, if the patient has made a claim for compensation. An authorised officer could enter a solicitor's offices, and could require a solicitor to answer questions about his or her client, although it is acknowledged that a solicitor would be entitled to rely upon legal professional privilege: see s110(3)(a).

The submission here advanced is much the same as the submission advanced for BHP. It is that a statute should not be interpreted as interfering with common law rights and freedoms unless plain words are used. The principle is well established. A number of the cases which refer to the principle are referred to in Pearce and Geddes Statutory Interpretation in Australia (4th ed 1996) par5.22. However, while the principle is well established, it expresses a presumption or assumption with which one is to approach the terms of a statute. In the end the presumption or assumption must yield if the natural or ordinary meaning of the words used is clear.

In the present case it is clear beyond argument that Parliament has intended to interfere with common law rights. It has done so in terms. It is reasonable to assume that Parliament did not intend to interfere with those rights to any greater extent than it is necessary to give effect to the words used.

In my opinion the argument advanced by counsel for Dr Jagermann involves a misuse of the presumption referred to. Parliament has plainly authorised entry into "any workplace", as long as the entry is for the purposes of the Act. To read into the Act a further limitation, that the workplace must be one at which or in relation to which an issue under the Act has arisen between a worker and an employer, is not to give effect to any presumption against interference with common law rights. To impose the suggested limit would be all the more significant when one bears in mind that Parliament has already indicated its own limitation on the use of the power, namely, that it be for the purposes of the Act. There is the further difficulty that the meaning of the limitation is in any event obscure. I do not accept this argument.

Apart from that, the argument advanced by counsel for Dr Jagermann proceeds on what is, in my respectful opinion, a misreading of s110(1). The powers in subparagraphs (c) to (h) inclusive are not expressed as being able to be exercised only at a workplace. The meaning of the provision is that they can be exercised at any place, and there is every reason why that should be so. I agree that it is likely that in most cases the powers will be exercised at a workplace, but it would be surprising if Parliament had intended that they could only be exercised at a workplace. In any event, the manner in which s110(1) is expressed lends no support for the submission that all of the powers there conferred are available for exercise only after a workplace has been entered and while the authorised officer is present at a workplace.

This does mean that the powers conferred by s110(1) could be exercised in a manner that some would find surprising and that might be oppressive. Should that happen there may be means by which the exercise of the powers can be restricted. However, in my opinion the answer to that problem is not to be found by reading into the section limitations that fly in the face of the language used by Parliament. That is not to say that the presumption against interference with common law rights has no work to do in relation to the powers conferred by s110(1). It is only to say that the presumption does not give rise to the limitation upon the scope of the powers suggested by counsel for Dr Jagermann.

Question (a) in the special case is as follows:

"whether section 110(1)(g) of the WRC Act applies to Dr Jagermann in relation to his provision of services to workers claiming benefits under the WRC Act;"

The question as expressed cannot be answered. The reason is that while subparagraph (g) of the Act clearly applies to Dr Jagermann in relation to the provision of services to workers claiming benefits under the Act, whether it applies in a particular case will depend upon the purpose for which questions are asked of Dr Jagermann. To assist the parties, and to avoid the proceedings being futile, I would answer question (a) as follows:

"The power conferred upon an authorised officer by s110(1)(g) of the Act may be exercised to require Dr Jagermann to answer questions relating to the treatment by him of a patient if the questions are asked for the purpose of an investigation into the commission of an offence against s120(1) of the Act in connection with a claim for compensation under the Act by the patient. Dr Jagermann is not required to answer a question if the answer would tend to incriminate the practitioner of an offence."

Question (b) asks whether, if there is an affirmative answer to question (a), the authorised officer may enter Dr Jagermann's workplace, inspect things there, require the production of documents, examine and copy the documents and require Dr Jagermann to answer questions. In my opinion, on the sparse information given, it is inappropriate to decide whether Dr Jagermann's consulting rooms are a workplace, and inappropriate to decide whether the particular powers referred to may be exercised in the particular circumstances of this case. It may well be that they can be, but the difficulty is that the Court does not have before it information which makes it appropriate for the Court to state categorically that the relevant powers may be exercised in this particular case. The questions are expressed too generally. I would answer question (b) as follows:

"It is not appropriate to answer this question, however, the powers conferred by subparagraphs (c), (d) and (g) of the Act may be exercised at a place that is not a workplace."

For the reasons already given, it is inappropriate to answer question (c), which asks whether Dr Jagermann's rooms are a workplace. The parties did not ask the Court to answer question (d). It is inappropriate to answer question (e) because of its generality.

The Corporation v The Broken Hill Proprietary Company Limited

Question (a) Whether s110(1) of the WRC Act empowers an authorised officer (as defined in the WRC Act) to:

(ii) inspect the workplace, anything at the workplace and work there in progress;

(iii) require a person who has custody or control of books, documents or records relevant to any matter arising under the WRC Act to produce those books, documents or records;

(iv) examine, copy and take extracts from any such books, documents or records, or require an employer to provide a copy of any such books, documents or records;

(v) take photographs, films or video or audio recordings;

(vi) take measurements, make notes and records and carry out tests;

(vii) require (directly or through an interpreter) any person to answer, to the best of that person's knowledge, information and belief, any question relevant to any matter arising under the WRC Act;

(viii) require an employer to produce any document, or a copy of any document, that is required to be prepared or kept under the WRC Act,

in relation to an investigation by WorkCover into circumstances relating to any right of action or potential right of action which may be available to WorkCover pursuant to ss54(5) and (7) of the WRC Act.

Answer (a) The powers conferred by s110(1) may be exercised by an authorised officer for the purpose of assisting the Corporation to decide whether it should exercise the entitlement conferred by s54(7) of the Act to recover compensation paid by the Corporation to Mr Ilisevic.

Question (b) Whether s110 of the WRC Act empowers an authorised officer to erect or otherwise effect the erection of scaffolding in a workplace.

Question (c) Whether Zockel falls within the meaning of the term "assistant" as that term is used in s110(7) of the WRC Act.

Answer (c) If Dr Zockel was engaged to assist the authorised officer to inspect the furnace area of the pellet plant, by providing expert advice to the authorised officer on the proper procedures to be followed for the safe performance of the work performed by Mr Ilisevic, such advice being given to enable the authorised officer to report to the Corporation in connection with a possible claim under s54(7) of the Act, Dr Zockel was entitled to enter and to inspect the pellet plant with the authorised officer.

Question (d) Whether Ilisevic falls within the meaning of the term "assistant" as that term is used in s110(7) of the WRC Act.

Answer (d) If Mr Ilisevic was asked to assist the authorised officer to inspect the furnace area of the pellet plant, by informing the authorised officer and Dr Zockel how Mr Ilisevic suffered the injury for which he was paid compensation, such information being given to enable the authorised officer to report to the Corporation in connection with a possible claim under s54(7) of the Act, Mr Ilisevic was entitled to enter and to inspect the pellet plant with the authorised officer.

Question (e) Whether WorkCover may access and use the records referred to in paragraph 26 above for the purposes of the Act.

Question (f) Whether Dixon, Ilisevic and Zockel may be released from their confidentiality undertakings referred to in paragraph 25 above.

Question (a) Whether s110(1)(g) of the WRC Act applies to Dr Jagermann in relation to his provision of services to workers claiming benefits under the WRC Act.

Answer (a) The power conferred upon an authorised officer by s110(1)(g) of the Act may be exercised to require Dr Jagermann to answer questions relating to the treatment by him of a patient if the questions are asked for the purpose of an investigation into the commission of an offence against s120(1) of the Act in connection with a claim for compensation under the Act by the patient. Dr Jagermann is not required to answer a question if the answer would tend to incriminate the practitioner of an offence.

Question (b) Accordingly, whether Thompson in his capacity as an authorised officer of WorkCover is entitled pursuant to s110 of the WRC Act to:

(ii) inspect Dr Jagermann's workplace, anything at the workplace and work there in progress;

(iii) require Dr Jagermann or a person who has custody or control of his books, documents or records relevant to any matter arising under the WRC Act to produce those books, documents or records;

(iv) examine, copy and take extracts from any such books, documents or records, or require Dr Jagermann to provide a copy of any such books, documents or records;

(v) require Dr Jagermann to answer, to the best of his knowledge, information and belief, any question relevant to any matter arising under the WRC Act.

Answer (b) It is not appropriate to answer this question, however, the powers conferred by subparagraphs (c), (d) and (g) of the Act may be exercised at a place that is not a workplace.

Question (c) In the event that the Court determines that s110 of the WRC Act applies only to a workplace, whether the premises constitute a workplace for the purposes of the WRC Act.

Question (d) Whether s110(1)(g) overrides the common law right to silence of a person (including a treatment provider to workers claiming benefits under the WRC Act).

Question (e) Whether s110(10(g) overrides any obligations of medical practitioners to maintain their patients' confidentiality.

BLEBY J. I agree with the answers to the respective questions proposed by the Chief Justice and with the reasons he gives. However, it is with some reluctance that I agree that any answer should be given to questions (c) and (d) in the case stated in The Corporation v The Broken Hill Proprietary Co Ltd ("the BHP case") and to question (a) in Jagermann v The Corporation ("the Jagermann case").

The case stated can be a useful and cost saving tool in the right circumstances. However, it is not to be used for answering academic questions of law having either no apparent factual foundation, an inadequate factual foundation, no factual link to the facts stated, or for answering questions which are framed in so wide a fashion as to allow no useful answer at all. "It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case": Bass v Permanent Trustee Co Ltd [1999] HCA 9 at [56]. That case is a timely reminder of the obligations of those who would seek declaratory relief or relief by way of case stated on questions involving law and fact. See also Director of Public Prosecutions (SA) v B [1998] HCA 45; 72 ALJR 1175. It follows that a case stated can only be used to advantage where all the relevant facts are known and are not in dispute. The facts must be set out in clear and concise paragraphs with reference to any relevant documents being made, and the question or questions for decision formulated only be reference to those stated facts.

In the BHP case, questions (a) and (b) were quite unrelated to any of the facts which preceded them. It is not surprising that the answer proposed to question (a) is of limited compass, and that question (b) cannot be answered at all. By framing the questions by reference to the facts stated, the mind should become focussed on just what are the relevant facts, whether they are known and whether they are or are not in dispute. Upon mature consideration it may well become apparent that the case is inappropriate for the case stated procedure.

Questions (c) and (d) of the BHP case are related to the facts stated, but they take only a superficial consideration to realise that the facts stated are incomplete, hence the answers are conditional. They may only be of limited value and not relevant to the situation revealed by full investigation of the facts.

In the Jagermann case, question (a), whilst it relates to Dr Jagermann, does not identify the matters arising under the Act or the questions said to be relevant to such matters. We are asked to give a practical answer to a quite theoretical question.

Question (b) makes assumptions which are not established in the case stated, and which may never be established. In parts it suffers the same flaw as question (a).

Question (c) asks a question for which there are quite inadequate facts stated, and questions (d) and (e) are not related to the facts stated at all. It is not surprising that they are not answered.

It behoves solicitors and counsel before invoking this process to consider carefully the questions to be posed and whether they relate to a particular fact situation, whether the answer will give a clear answer to the legal consequences of that fact situation, and whether the facts are adequately stated and sufficiently comprehensive to enable the question to be answered. It also behoves a judicial officer, when stating a case, or when allowing one to go forward, to ensure that that process has been observed.

MARTIN J. I agree with the answers proposed by the Chief Justice and with his reasons.

There is a risk of the powers conferred by s110 being used in a manner that would be objected to, despite the limitations imposed by subsection (3). For example, they could be used to require a doctor, treating a worker who has claimed compensation, to produce the doctor's records and to answer questions about the worker. I have considered that, but in my opinion the potential unfair use of the powers does not provide a basis for reading down the scope of the powers in the manner suggested. It will be necessary to consider on a case by case basis cases in which it is said that the powers are being misused: on this point see Pioneer Concrete (Vic) Proprietary Limited v Trade Practices Commission [1982] HCA 65; (1983) 152 CLR 460 and Environment Protection Authority v Caltex Refining Co Pty Limited [1993] HCA 74; (1993) 178 CLR 477.

At a glance

Court

Decision date

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Judgment (75 paragraphs)

Cases Cited (4)