Workcover/Cgu (Duell's Furniture Removals Pty Ltd) v Davidson [2000] SAWCT 32

3 By Application for Expedited Decision filed on 21 December 1998 (Action Number 7282E/1998), the worker sought to invoke the special jurisdiction to expedite decisions provided for by Pt 6B of the Act. It was asserted that the Corporation had not made a decision as to whether or not it would consent to the worker's continued residence outside the State of South Australia and in the State of Queensland. Presumably the application was lodged with a view that the Tribunal would either give such directions as were necessary to expedite the determination of the matter or to decide the matter itself, as provided for by s 97B of the Act.

4 By Application for Directions filed on 4 May 1999, the worker sought the following directions:-

"(1) That the within proceedings proceed to judicial determination to be heard together.

(2) That the Registrar direct that the respondent claims agents reconsider their decision in Action Number 7248/1998N.

(3) That, if the respondents allege that the Tribunal does not have jurisdiction to hear either Action 7248/1998N or 7282/1998E, then the respondents be required to take out an application for directions in relation to that matter prior to the hearing of all matters.

(4) That the respondents be ordered to go dux litis in Action 3390/1998N.

(5) That the respondents be required to disclose all of the evidence upon which they based their conclusion of fact to justify the issuing of the s 36(1)(g) notice, the subject of Action 3390/1998N prior to the applicant being required to provide any statement or any Answer to any Notice to Admit herein.

(6) Such further order or orders as this Honourable Tribunal may deem appropriate."

5 The worker's Application for Directions came on for hearing before a learned Acting Deputy President and in respect thereof the following orders were made:-

(1) That Action Numbers 3390/1998, 7248/1998, and 7282/1998E, be heard together and that they proceed to immediate judicial determination.

It implicitly follows that the learned acting Deputy President thought it appropriate to invoke s 92D(3) of the Act directing that the various disputes be referred into the Tribunal for immediate judicial determination, rather than proceeding through the process of arbitration. In relation to Action Number 7282/1998E, as that matter did not relate to a Notice of Dispute, but rather concerned an Application to Expedite Decision, it is implicit that the learned acting Deputy President was simply saying that it was appropriate for the application to be referred to a Presidential Member of the Tribunal.

(2) That there be no order directing the Registrar to direct the Corporation to reconsider the decision that was the subject of Action Number 7248/1998.

The learned acting Deputy President made this ruling on the basis that it was beyond his jurisdiction to make such a ruling.

(3) That there be no an order in respect of the third direction sought.

The learned acting Deputy President made this ruling on the basis that he did not think that it would be a proper exercise of the Tribunal's function to grant the relief sought.

(4) That in Action Number 3390/1998 that the worker, not the Corporation be dux litis.

The learned acting Deputy President clearly considered that the most efficient way to conduct the hearings was for the worker, not the Corporation, to commence first.

(5) That no order be made in respect of the fifth direction sought.

Having noted that Deputy President Gilchrist had, by order made on 22 February 1999, directed the worker to file and serve a comprehensive statement within 28 days, he considered that there was no basis to relieve the worker of the obligation to obey that order and noted that the disclosure that the worker was seeking through this order would more appropriately be dealt with through an order for discovery.

6 The learned acting Deputy President made no further orders.

7 The Corporation appealed the rulings made by the learned acting Deputy President on the following grounds:-

"(1) That the Tribunal erred in law in finding that s 36(1)(g) of the Act provides the Corporation with a discretion to grant or withhold consent to a worker to reside outside the State.

(2) That the Tribunal erred in law in finding that the Corporation's decision to discontinue weekly payments to the worker pursuant to s 36(1)(g) of the Act was evidence of a decision to withhold consent to the worker residing outside the State.

(3) That the Tribunal erred in law in finding that the withholding of consent to reside outside the State is a reviewable decision pursuant to s 89A of the Act.

(4) That the Tribunal erred in law in finding the Notice of Dispute Action 7248/98N was within the jurisdiction of the Tribunal.

(5) That the Tribunal erred in law in finding that the worker's application for expedited decision Action Number 7282/98E was within the jurisdiction of the Tribunal."

8 The Corporation on appeal sought an order that the order of the Tribunal directing that Action Numbers 3390/1998, 7248/1998 and 7282/1998E be heard together and be dealt with by a Presidential Member of the Tribunal, be set aside.

9 It also sought an order that the determination of the Corporation dated 13 May 1998, being the subject of Action Number 3390/1998 be confirmed.

"(1) That the learned Deputy President erred in law in finding that the Tribunal had no jurisdiction to order the claims agent to comply with the processes of the Tribunal, especially the reconsideration process.

(2) That the learned Deputy President erred in law in failing to consider the application of r 1 of the Worker's Compensation Tribunal Rules and r 22 of the Supreme Court Rules to the matters before him, and in failing to rule on para 3 of the worker's Application for Directions dated 4 May 1999."

11 The relief that he sought on the appeal was firstly that he be granted an extension of time within which to file the Notice of Appeal, it being out of time. Secondly that the respondent, through an appropriate order, be directed to reconsider its decision in Action Number 7248/1998. Thirdly, that the respondent be directed to take out an Application for Directions in Action Numbers 7248/1998 and 7282/1998E, if it was asserting that the Tribunal does not have jurisdiction to hear either actions.

12 It is notable, that the Corporation has never filed an Application for Directions seeking an order that the Notices of Dispute filed in Action Numbers 3390/1998 and 7248/1998 be dismissed on the grounds that the matters sought to be agitated therein are not within the jurisdiction of the Tribunal. Nor, has it taken out any formal application to seek an order that Action Number 7282/1998E, be struck out, for like reasons.

13 Ideally that is what should have occurred, and we respectively suggest that if in the future a Presidential Member is dealing with interlocutory matters and is confronted with a challenge to the jurisdiction of the Tribunal to deal with the matters at large, the appropriate course would be to direct the party seeking to assert a want of jurisdiction to make a formal application to that effect, and to the extent that it is necessary, to file a supporting affidavit.

14 That did not occur here, but it is clear that much of the focus of the debate before the learned acting Deputy President was directed towards whether or not the Tribunal ultimately possessed the jurisdiction to deal with the matters that the worker sought to agitate.

15 Moreover, notwithstanding the absence of a formal application, once it was made clear to the learned acting Deputy President that the jurisdiction of the Tribunal to entertain the worker's Notices of Dispute and his Application for Expedited Decision was under challenge, it was incumbent upon him to be satisfied, at the very least, that there was a strong argument that he did in fact have jurisdiction to deal with these matters.

16 The jurisdiction of the Tribunal is limited to that which is conferred upon it by the Act. That being so, the remarks of Mustill J in Rothmans Ltd v Saudi Arabia [1981] 1 QB 368 at 376 are apposite. He said:-

"Where the statute is of this kind, it is immaterial whether the parties wish the court to try the action. It must disclaim jurisdiction, since to continue with the action would be contrary to law. Still less can one party by unilateral act confer on the court a jurisdiction which Parliament has said it should not have. Entry of an unconditional appearance does not preclude the defendant from raising the objection at a later stage, since it is the duty of the court not to entertain the dispute."

17 Kirby P (as he then was) said much the same in NEC Information Systems Australia Pty Ltd v Lockhart (1991) 101 ALR 95 at 97 and 98. He said:-

"When the summons was returned, however, the court pointed out that, whilst the Attorney-General's stance was properly communicated to the court (being in the nature of support of a submission) it remained for the court itself to be satisfied as to its jurisdiction. No court should exercise jurisdiction, at least where it is in contest, without being satisfied that there is jurisdiction to exercise."

18 There are some conflicting authorities as to the extent of an inquiry that the Court or in this case, the Tribunal, must undertake dealing with a challenge to jurisdiction which arises in the course of an interlocutory matter. Many of these authorities are collected and discussed by Gummow J in Empire Shipping Company Incorporation v Owners of the Ship "Shin Kobe Maru" [1991] FCA 499; (1991) 32 FCR 78.

19 In that case, His Honour suggested that the appropriate test was that "there was a strong argument for the opinion that the Court had jurisdiction" (supra 84). With respect, we are content to apply that as the test, but for the reasons which we are about to discuss, in this case, we are left in no doubt that the Tribunal possesses jurisdiction to deal with the matters before it.

20 The Corporation's submissions before the learned acting Deputy President, and its submissions before us, centred upon the premise that a decision made by a compensating authority to grant or to withhold consent to a worker to cease to reside in this State, was immune from review by the Tribunal. Hence it was said, that the only matters that could be agitated on a Notice of Dispute in respect of a determination made by a compensating authority to discontinue weekly payments in reliance upon s 36(1)(g)(i) was whether or not in fact the worker was resident outside the State and if so whether he or she in doing so, had or did not have the consent of the Corporation. It was said that the underlying premise to the Notices and the Application for Expedited Decision that the worker had lodged, was that a decision to grant or withhold consent to reside outside of the State was a reviewable decision and that accordingly, the Tribunal should have ruled that it did not have jurisdiction to deal with the Notices and the Application.

21 The learned acting Deputy President rejected the Corporation's submissions. He said:-

"... where absence of consent is being relied on by the Corporation to discontinue payments, the Tribunal is entitled to enquire as to the legitimacy of the Corporation's withholding of consent, just as the Tribunal can enquire whether there is a proper basis for the Corporation's asserted state of satisfaction in s 36(1)(b), s 36(2)(b) and s 36(2)(bb) matters, and just as it can in s 36(1)(e) cases ascertain for itself whether the worker's dismissal was justified on the basis of `serious and wilful misconduct'.

The socially remedial nature of the Act, the serious consequences of the exercise of the power to discontinue weekly payments pursuant to s 36 and the specific reference to the Corporation's consent in s 36(1)(g) suggest to me that Parliament intended the proper exercise of the Corporation's discretion to be a legitimate consideration of the Tribunal when considering s 36(1)(g) disputes. If this was not so, one wonders what purpose the words `without the Corporation's consent' serve, for without them the Corporation would clearly still have a discretion not to utilise the power to discontinue payments under s 36(1)(g)."

22 We should mention that at the outset of the appeal before us the worker challenged the jurisdiction of this Full Bench to entertain it. Reference was made to the decision of the Full Bench of the Tribunal in Mitsubishi Motors Australia Ltd v Warren JD88/1999 and the statement in that case that an appeal from a decision of a Presidential Member only lies against those decisions "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".

23 Notwithstanding the submissions by the worker, we are clearly satisfied that the decision of the learned acting Deputy President on the issue of jurisdiction clearly falls within this category. If the learned acting Deputy President erred in law in concluding, as he did, that the issues that the worker sought to agitate through the two Notices of Dispute and the Application for Expedited Decision were within jurisdiction, then the clear duty of this Full Bench is to correct that error and to bring these proceedings to an end.

24 We return to our consideration as to whether the learned acting Deputy President made an error in reaching the conclusions that he did.

25 The issue regarding the reviewability of a decision made by a compensating authority to agree to or withhold consent in the context of a worker ceasing to reside within this State, is not free from authority. There are a number of decisions of the Workers Compensation Appeal Tribunal that touch upon the point. In Coy v WorkCover (R and M Hoppe SA Steel Fixing Pty Ltd) A25/1997 it was held that advice given to a worker by the Corporation that approval would not be given for him to move to Queensland, was not a reviewable decision for the purposes of s 92(2)(a) of the Act, as it then was, because the advice was not a "decision to vary, suspend or discontinue weekly payments" for the purposes of s 95(2)(c) of the Act as it was at that time. In Radford v WorkCover Corporation (Spastic Centre of SA Incorporated) A27/1997, the Corporation resolved to invoke s 36(1)(g) on the basis of the worker's residence in the Australian Capital Territory without the Corporation's consent. In the course of the proceedings before it, the Workers Compensation Appeal Tribunal held that it was not competent for the worker to be challenging the fairness or otherwise of the Corporation's decision not to grant him consent. It was said at 6:-

"A review of a mala fide exercise of power is more properly invested in Courts charged with the judicial review of administrative action."

26 In Spiel v WorkCover Corporation/MMI (SA Mushroom Co Pty Ltd) A80/1997, the Workers Compensation Appeal Tribunal clearly proceeded on the basis that the only issues that could be agitated on an Application for Review concerning a s 36(1)(g) determination concerned the fact otherwise of residence outside of the State and the existence or otherwise of consent to do so.

27 Although due weight must be given to each of these decisions, they were made by single Presidential Members of the Workers Compensation Appeal Tribunal, and the principle of stare decisis does not compel us to follow them. See, for example, Dunstan v State of South Australia (Department of Education, Training and Employment) and the WorkCover Corporation JD48/1998 at 14.

28 S 36(1)(g) which provides a compensating authority with the capacity to discontinue weekly payments if "the worker is, without the [compensating authority's] consent (i) resident outside the State; or (ii) absent from the State for more than two months in any continuous period of twelve months" was introduced in a series of amendments extending the capacity of a compensating authority to discontinue weekly payments by amending Act No 35 of 1995.

29 Although it does not specifically say so, the provision clearly contemplates that if after the coming into operation of the amendment, a worker intends to reside outside of the State or intends to be absent from the State for a period of more than two months in a continuous period of twelve months, the worker must first apply to the compensating authority for consent to do so.

30 The overall scheme of the Act contemplates that the compensating authority, in the first instance, determines the fate of an initial claim for compensation and in the case of weekly payments, that it thereafter determines whether it is appropriate to discontinue, reduce or increase those payments, in accordance with the Act. In making those decisions the Corporation or exempt employer is not undertaking a role akin to that of a private person who could be expected to consult only his or her own interests. It is expected to act in a fair and evenhanded way that takes into account the rights, entitlements and interests of the worker. See, for example, Robins v Harbord and General Motors Holden [1994] SASC 4571; (1994) 62 SASR 229.

31 Notwithstanding Parliament's apparent trust in the capacity of a compensating authority to fairly determine a worker's rights and entitlements arising under the Act, Parliament has gone to great lengths to enable a compensating authority's determinations on such matters to be subjected to the upmost scrutiny. Workers, employers, and indeed any "person who has a direct interest in the dispute": s 89, have the right to dispute a decision that is declared to be reviewable pursuant to the Act. Upon lodgment of the Notice of Dispute the relevant compensating authority is obliged to reconsider the disputed decision in light of the matters set out in the Notice of Dispute: s 91(1)(b). If the disputed decision is confirmed or if the parties to the dispute are not satisfied with the variation made by the compensating authority, the Act provides for compulsory conciliation: s 91A. In that event, the parties are brought before an independent conciliator to whom, with limited exception, the parties must disclose all relevant evidentiary material in their possession: s 92(1)(b). The conciliator is obliged to confer with the parties to identify the issues in dispute, narrow the range of the dispute, and attempt to resolve it by agreement: ss 92A, 92B and 92C. If that process fails to lead to an agreement the dispute is then referred to an independent referee, namely an Arbitration Officer, to conduct an arbitration: s 92D(1)(a). In an appropriate case, the dispute can be referred directly to a Presidential Member of the Tribunal for judicial determination: s 92D(2). If a party is dissatisfied with the outcome of an arbitration, judicial determination is available: s 94(b). From there, is a right of appeal to the Full Bench of the Tribunal: s 86(1), and the capacity, in an appropriate case, for referral of the dispute directly to the Full Bench: s 94A(2).

32 Clearly in enacting these provisions, Parliament has intended for the decisions of compensating authorities to be subjected to the most painstaking review. Because of this, one would need to look for the clearest indication from Parliament to conclude that it intended particular decisions made by compensating authorities which directly concern workers' rights and entitlements, to be immune from that process. An obvious example is s 42A(9), which specifically declares certain decisions concerning the commutation of weekly payments not to be reviewable.

33 It is against this background, that the Corporation's submissions must be considered.

34 At first glance, a decision made by a compensating authority concerning a worker's residence or departure from the State would not appear to relate directly to a claim for compensation. But, further reflection reveals that in fact, that is all that it is concerned with. This must be so because the effect of granting consent is to sanction what might otherwise amount to a breach of mutuality, which of course may directly impact upon a worker's continuing right to weekly payments. The only effect of the withholding of the consent is that if the worker still chooses to reside outside of the State or live outside of the State for more than 2 months the compensating authority may accrue the right to discontinue the worker's weekly payments.

35 Given that such a decision has the potential to significantly effect the rights and entitlements of a disabled worker, it would be surprising for Parliament to have intended that such a decision would be immune from review, other than in the limited circumstances provided for by the common law, through an action for judicial review in the Supreme Court.

36 This leads us to conclude that a decision made by a compensating authority to withhold or grant consent for a worker to reside out of the State or live out of the State continuously for a period of 2 months, is not immune from review. Because, ultimately the effect of such a decision is to impact upon the potential continued entitlements to weekly payments of income maintenance to a disabled worker and/or his or her obligations in respect of rehabilitation and return work plans or programs, we think that such a decision can fairly be characterised as "a decision on a claim for compensation" for the purposes of s 89A(1)(a).

37 Having reached that conclusion, it then begs the question as to when the right to seek a review of that decision arises. Arguably the decision does not begin to take effect unless and until the compensating authority decides to invoke s 36, to effect the discontinuance of the worker's weekly payments. In a sense, that is true, but on the other hand, the decision can have serious implications before then. For example, from an employer's perspective, if consent is granted, it presumably will be unable to take steps to minimise its financial detriment as a result of the worker's disability through the offer of suitable duties. Such an offer could scarcely impact on the worker's entitlements if the worker has the Corporation's permission to be absent from the State for an extended period. An employer might have a very real interest in this because that might affect the levies that the employer is obliged to pay in accordance with s 66. Logic suggests that the employer should have the right to challenge that decision at that point. If an employer has the right to seek a review at that point of time, one might think it reasonable to assume that a worker similarly has the right to seek a review of a compensating authority's decision to withhold consent upon the making of its decision to do so. Quite aside from the notion that what might be fair for one party, should be presumed to be fair for the other, there are sound practical reasons why the decision ought to be reviewable by a worker at that time. If, for example, having gone through the dispute resolution process the worker knew that the Tribunal supported the compensating authority's decision to withhold consent, the worker would be in a much better position to evaluate whether his or her personal circumstances were so paramount that he or she needed to leave the State, notwithstanding the likelihood that this would result in the discontinuance of weekly payments. All of this leads us to conclude that the decision to grant or withhold consent becomes reviewable upon its making and that the worker or an employer does not have to wait until the decision is relied upon in subsequent initiatives such as the issue of a Notice of Discontinuance in accordance with s 36(1)(g).

38 It follows that the issues that the worker seeks to agitate in the Notices and the Application for Expedited Decision that he has filed are within the jurisdiction of the Tribunal to entertain, such that the learned acting Deputy President was right to have proceeded on that basis.

39 As to the orders ultimately made by the learned acting Deputy President, it seems to us that these were essentially matters calling for the exercise of his discretion. Nothing that has been put to us suggests that he made any error of law in his approach to these matters.

40 For these reasons, we dismiss both the appeal and the cross appeal.