Bond v WorkCover Corporation of South Australia and Allianz Australia WORKERS' Compensation (SA) Ltd

Case •

[2005] SASC 464

•

8 December 2005

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

BOND v WORKCOVER CORPORATION OF SOUTH AUSTRALIA AND ALLIANZ AUSTRALIA WORKERS' COMPENSATION (SA) LTD

Judgment of The Honourable Justice Gray

8 December 2005

STATUTES - BY-LAWS AND REGULATIONS - VALIDITY

The plaintiff, a professional footballer, lodged a claim for compensation with WorkCover. The claim was rejected on the ground that plaintiff was excluded from the operation of the Workers Rehabilitation and Compensation Act 1986 (SA) by operation of sub-regulations 5(11) and (12) of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999 (SA). The plaintiff sought a declaration that sub-regulations 5(11) and (12) were invalid. At issue was whether a statutory pre-condition to the promulgation of regulations, namely consultation with the Advisory Committee, had occurred and whether, even if consultation had not occurred, the regulations were nonetheless valid.

Consideration of legislative scheme and history - consideration of meaning of "consultation" - discussion of distinction between mandatory and directory legislative provisions.

Held:  The statutory requirement of consultation with the Advisory Committee prior to the promulgation of regulations had been complied with.  In any event, under the legislative scheme, a failure to consult with the Advisory Committee would not result in invalidity.  The application for declaratory relief dismissed.

Workers Rehabilitation and Compensation Act 1986 (SA) s 3(7), s 3(8), s 7, s 8, s 11; Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999 (SA) r 5(11, r 5(12); Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1987 (SA) r 4(4), r 4(5); WorkCover Corporation Act 1994 (SA) s 13; Subordinate Legislation Act 1978 (SA), referred to.
Epstein & Morton v The WorkCover Corporation of SA & Ors (2003) 86 SASR 561; Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111; Rollo v Minister of Town and Country Planning [1948] 1 All ER 13; Leichardt Municipal Council v Minister for Planning (1992) LGERA 306; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Briginshaw v Briginshaw (1938) 60 CLR 336; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Soneji [2005] UKHL 49; London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; Charles v Judicial Legal Service Commission [2003] 1 LRC 422; Attorney General's Reference (No 3 or 1999) [2001] 2 AC 91; British Columbia (Attorney General) v Canada (Attorney General; An Act respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41; Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693; New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630, considered.

BOND v WORKCOVER CORPORATION OF SOUTH AUSTRALIA AND ALLIANZ AUSTRALIA WORKERS' COMPENSATION (SA) LTD
[2005] SASC 464

Civil

GRAY J

Introduction

  1. The plaintiff, Shane Raymond Bond, a professional footballer, played in the Australian Football League from 1994 to 2001, including for the Port Power Football Club (“Port Power”) from 1997 to 2001.

  2. During the pre-season of 2000, Mr Bond sustained an injury to his left shoulder.  On 28 May 2000, he sustained an injury to the left knee.  As a result of these injuries, Mr Bond ceased playing professional football.

  3. On 15 August 2003, Mr Bond lodged a claim for compensation with The WorkCover Corporation of South Australia (“WorkCover”).  Upon receipt of the claim, WorkCover sought full details of the medical, financial and playing history of Mr Bond and details of the entitlements sought under the Act.  These details were provided to WorkCover in a letter from Mr Bond’s solicitor on 29 March 2004 in the following terms: 

A determination pursuant to Section 35 of the Act as to past weekly payments from 1 January 2001 to 26 March 2004 inclusive of interest to be paid as a lump sum in respect of the left shoulder and left knee injuries.

This figure has being [sic] calculated to include actual loss of match payments under our client’s 2001 playing contracts together with loss of ability to renegotiate further contracts containing entitlements which would have exceeded double the state average weekly earnings and taking into account actual earnings.

$98,000.00

A determination pursuant to Section 43 of the Act of a 14% permanent impairment to the left knee as diagnosed by Dr Davidson as well as an estimation of a 3% disfigurement in respect of surgical scars to the left knee which appeared as commentary in report of Dr Davidson.

$16,257.10

A determination pursuant to Section 43 of the Act of a 5% permanent impairment to the left shoulder as diagnosed by Dr Davidson.

$2,670.00

Account of Dr Davidson being fee for medical report

$415.80

TOTAL

$117,342.90

A determination pursuant to Section 35 of the Act as to continuing weekly payments from 27 March 2004.

$693.00

per week

This figure is calculated at 80% of the difference between double the state average weekly earnings of $1,790 and our client’s actual earnings of $924 gross per week (notional weekly earnings).

  1. On 12 August 2004, Allianz Australia Workers Compensation (SA) Ltd, (“Allianz”), as agent for WorkCover, made a determination in respect of the claim pursuant to section 53 of the Workers Rehabilitation and Compensation Act 1986 (SA). Allianz rejected the claim on the basis that sub-regulation 5(11) of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999 (SA) “(1999 regulations)” as amended, operated to exclude Mr Bond from the scope of the Workers Rehabilitation and Compensation Act.

  2. Sub-regulations 5(11) and (12) provide:

    (11) Pursuant to section 3(7) of the Act, but subject to subregulation (12), a worker who is employed by an employer to participate as a contestant in a sporting or athletic activity (and to engage in training or preparation with a view to such participation, and other associated activities) is, in relation to that employment, excluded from the application of the Act.

    (12)   Subregulation (11) does not apply to—

    (a)a person authorised or permitted by a racing controlling authority within the meaning of the Authorised Betting Operations Act 2000 to ride or drive in a race within the meaning of that Act; or

    (b)a boxer or wrestler employed or engaged for a fee to take part in a boxing or wrestling match.

  3. On 19 August 2004, Mr Bond lodged a Notice of Dispute in the South Australian Workers Compensation Tribunal challenging Allianz’s rejection of his claim.

  4. Mr Bond now seeks a declaration that sub-regulations 5(11) and (12) of the 1999 regulations are invalid.  WorkCover and its agent, Allianz, are the named defendants.

  5. It was agreed between the parties that but for sub-regulations 5(11) and (12), Mr Bond would be entitled to receive compensation for injuries sustained during the course of his employment as a professional Australian Rules football player.

    The Trial

    Evidence

  6. The matter proceeded to trial.  The Court has before it documentary material, which sets out the background to the promulgation of the 1999 Regulations.  Mr Bond’s case was that this material established that sub-regulations 5(11) and (12) had not been promulgated in accordance with the procedure provided for by the Workers Rehabilitation and Compensation Act and were therefore invalid.

  7. The Court received affidavit and documentary evidence at the hearing.  That evidence included the following:

    An affidavit of Luisa Jane Simone, a solicitor from the firm that acts for Mr Bond, dated 14 February 2005 exhibiting:

    -a copy of a decision of the Full Court of the Supreme Court of South Australia, Epstein & Morton v The WorkCover Corporation of SA & Ors;[1]

    [1] Epstein & Morton v The WorkCover Corporation of SA & Ors (2003) 85 SASR 561.

    -a copy of the plaintiff’s claim for compensation as lodged with WorkCover on 15 August 2003;

    -a letter sent by Ms Simone to the solicitors acting for WorkCover on 29 March 2004 detailing the entitlements sought by the plaintiff;

    -a copy of the determination of the plaintiff’s claim made by Allianz rejecting the claim to compensation on 12 August 2004;

    -a notice of dispute lodged at the Workers Compensation Tribunal by Ms Simone on 19 August 2004;

    -a notice sent by Allianz to Ms Simone on 30 August 2004 confirming its earlier determination rejecting the plaintiff’s claim;

    -a copy of the regulations as promulgated in 1999;

    -correspondence between Ms Simone and the solicitors acting for WorkCover relating to Ms Simone’s request for information regarding meetings of the Advisory Committee established under the Workers Rehabilitation and Compensation Act;

    -a Freedom of Information application prepared by Ms Simone on 23 March 2004 seeking from WorkCover minutes of the Advisory Committee, a list of all presiding members of the Advisory Committee from July 1994 and any reports of the Advisory Committee to the Minister;

    -WorkCover’s responses to the Freedom of Information application; and

    -a copy of the regulations as amended on 23 September 2004.

    An affidavit of Gregory Phillip King, a solicitor from the firm that acts for Mr Bond , dated 11 October 2005, exhibiting:

    -a List of Documents filed by the solicitors acting for WorkCover on 21 June 2005 to make discovery in the present proceedings;

    -the minutes of meeting number 53 of the Advisory Committee held on 24 February 1999;

    -the agenda for meeting number 54 of the Advisory Committee held on 19 April 1999;

    -a copy of an “Advisory Committee Note for Chairperson for Meeting on 19 April 1999”;

    -the minutes of meeting number 54 of the Advisory Committee;

    -the agenda for meeting number 55 of the Advisory Committee held on 23 June 1999;

    -a copy of an “Advisory Committee Note for Chairperson for Meeting on 23 June 1999”;

    -the minutes of meeting number 55 of the Advisory Committee;

    -a copy of the “Advisory Committee Outstanding Issues List” dated 25 August 1999;

    -the agenda for meeting number 56 of the Advisory Committee held on 30 August 1999;

    -a letter from the chairperson of the Advisory Committee to the Minister for Industrial Affairs dated 9 April 1996;

    -an extract of the minutes of a meeting of the Advisory Committee held on 4 October 1995; and

    -a bundle of documents said to exemplify documents in which advice was provided by the Advisory Committee to the Minister for Industrial Affairs in relation to proposed legislative changes.

    An affidavit of Brigid Anne Mahar, a solicitor from the firm that acts for Mr Bond, dated 17 October 2005, exhibiting:

    -a Cabinet Cover Sheet entitled, “Review of regulations under the Workers Rehabilitation and Compensation Act” dated 16 September 1999; and

    -a minute to the Premier from Cabinet from the then Minister for Government Enterprises dated 16 September 1999.

    An affidavit of Kathryn Sandra O’Donnell, Manager of Board Relations at WorkCover, dated 5 July 2005, exhibiting:

    -a facsimile, marked as sent by Jock Smibert to Keith Brown on 23 June 1999, including the chairman’s briefing notes for the meeting of the Advisory Committee held on 23 June 1999; and

    -a document headed, “To the Workers Rehabilitation & Advisory Committee - Regulation Review”, including what appears to be a draft of the proposed regulations, prepared for the Advisory Committee for their deliberations, marked with the handwritten words, “19.4.99 – item 7 – Attachment C”.

    An affidavit of John Austin Fountain, a member of the Advisory Committee throughout 1999, dated 7 July 2005, exhibiting:

    -the agenda for meeting number 54 of the Advisory Committee held on 19 April 1999;

    -a document headed, “To the Workers Rehabilitation & Advisory Committee - Regulation Review”, including what appears to be a draft of the proposed regulations, prepared for the Advisory Committee for their deliberations, marked with the handwritten words, “19.4.99 – item 7 – Attachment C”;

    -the minutes for meeting number 54 of the Advisory Committee; and

    -the minutes for meeting number 55 of the Advisory Committee.

    Extracts from the South Australian Government Gazette, including a list of the Ministry as constituted at 30 June 1999, a list of the Ministry as constituted at 28 September 1999 and an extract dated 30 October 1997, p1106 entitled, “Public Sector Management Act 1995 Sections 7 and 76: Alteration of Titles and Related Matters”.

  8. No oral evidence was called.  The trial proceeded on the basis of the affidavit and other documentary material.  There was no cross-examination of any deponent.

    Intervention of the State

  9. At the hearing, the Solicitor-General appeared on behalf of the State of South Australia as an intervenor in the litigation pursuant to the Attorney-General’s common law right to intervene in private litigation where it may affect the prerogatives of the Crown. There was no objection to his appearance.  The Solicitor-General made submissions supporting the validity of the regulations.

    Issue for Determination

  10. Initially, the only issue in dispute between the parties was whether or not the procedure established by the Workers Rehabilitation and Compensation Act for the promulgation of regulations had been adhered to. In particular, the plaintiff claimed that the requirement for consultation with the Advisory Committee pursuant to sub-section 3(8) of the Act had not been complied with.

  11. At the hearing, an additional issue was raised - whether or not the wording of sub-section 3(8) of the Workers Rehabilitation and Compensation Act stipulated that consultation was an imperative requirement.  This raised the question as to whether the consequence of no consultation would be invalidity.  In order to deal with these issues, it is first necessary to consider the structure of the Act and the relevant provisions.

    The Legislative Scheme 

  12. The stated purpose of the Workers Rehabilitation and Compensation Rehabilitation Act is to “provide for the rehabilitation and compensation of workers in respect of disabilities arising from their employment; and for other purposes”.

  13. Sub-sections 3(7) and (8) provide:

    (7)The regulations may exclude (either absolutely or subject to limitations or conditions stated in the regulations) specified classes of workers wholly or partially from the application of this Act.

    (8)A regulation under subsection (7) may only be made after consultation with the Advisory Committee.

  14. The Workers Rehabilitation and Compensation Advisory Committee was established by section 7 of the Act:

    (1)     The Workers Rehabilitation and Compensation Advisory Committee is established.

    (2)The Advisory Committee consists of nine members appointed by the Governor of whom—

    (a)     three (who must include an expert in rehabilitation) will be appointed on the Minister's nomination made after consulting with associations representing employers and with associations representing employees (including the UTLC); and

    (b)     three (who must include at least one suitable representative of registered employers and at least one suitable representative of exempt employers) will be appointed on the Minister's nomination made after consulting with associations representing employers; and

    (c)     three will be appointed on the Minister's nomination made after consultation with associations representing employees, including the UTLC.

    (3)One member of the Committee must be appointed by the Governor to preside at meetings of the Committee.

    The member is referred to in this Act as the presiding member of the Committee.

    The appointment must be made from among the members appointed under subsection (2)(a).

    The functions that the Advisory Committee is to perform are set out in section 8 of the Act:

    (1)     The functions of the Advisory Committee are—

    (a)     to advise the Minister on the formulation and implementation of policies relating to workers rehabilitation and compensation; and

    (b)     to advise the Minister (on its own initiative or at the request of the Minister) on—

    (i)proposals to make amendments to this Act, or to make regulations under this Act; and

    (ii)other legislative proposals that may affect the operation of this Act; and

    (c)     to investigate work-related injury and disease; and

    (d)     to report to the Minister (on its own initiative or at the request of the Minister) on any other matter relating to workers rehabilitation or compensation; and

    (e)     to carry out other functions assigned to the Advisory Committee by the Minister.

    (2)The Advisory Committee may conduct public meetings and discussions and may, with the approval of the Minister, conduct inquiries, on questions arising before the Advisory Committee.

    (3)The Advisory Committee may on its own initiative, and must at the direction of the Minister, consult and co-operate with the Corporation, other government authorities at a State or national level, representatives of industrial associations and other persons or bodies.

    (4)The Advisory Committee may, with the approval of the Minister, establish subcommittees to assist the Committee.

    (5)A subcommittee may, but need not, consist of, or include, members of the Advisory Committee.

    Section 11 provides guidance as to how the Advisory Committee is to conduct its proceedings:

    (1)Meetings of the Advisory Committee must be held at times and places appointed by the Committee, but there must be at least six meetings per year.

    (2)     Six members of the Advisory Committee constitute a quorum of the Committee.

    (3)The presiding member of the Advisory Committee will, if present at a meeting of the Committee, preside at the meeting and, in the absence of the presiding member, a member chosen by the members present will preside.

    (4)A decision carried by a majority of the votes of the members present at a meeting of the Advisory Committee is a decision of the Committee.

    (5)Each member present at a meeting of the Advisory Committee is entitled to one vote on a matter arising for decision by the Committee, and, if the votes are equal, the person presiding at the meeting has a second or casting vote.

    (6)The Advisory Committee must ensure that accurate minutes are kept of its proceedings.

    (7)The Advisory Committee may open its proceedings to the public unless the proceedings relate to commercially sensitive matters or to matters of a private confidential nature.

    (8)Subject to this Act, the proceedings of the Advisory Committee will be conducted as the Committee determines.

  15. Section 13 of the WorkCover Corporation Act 1994 (SA) sets out the functions of WorkCover.  It provides that one of its functions is to, in effect, consult and advise the relevant Minister:

    (1)     The functions of the Corporation are—

    …

    (o)     to report to the Minister (on its own initiative or at the request of the Minister)—

    (i)on the adequacy, operation, administration or enforcement of legislation for which the Corporation is responsible; or

    (ii)on any matter relevant to the performance of its functions or any Act administered by the Corporation; and

    (p)     to report to the Minister on any matter referred to the Corporation by the Minister;

  1. The legislative provisions set out above, in particular sections 7 and 8 of the Workers Rehabilitation and Compensation Act, establish that the role and function of the Advisory Committee is as an advisory committee to the Minister.  It has no other role or function.  As such, when the members of the Committee consider an agenda item at a meeting, they do so upon the understanding that the effect of that consideration is, in the end, that the Committee has been consulted upon that issue.  Mr Fountain’s affidavit provides an indication that members of the Committee understood this to be the case and acted on that basis when performing their functions as Committee members. 

  2. Mr Fountain was a member of the Advisory Committee from 1 July 1994 and throughout 1999.  In his affidavit of 7 July 2005, he states that “[t]he primary role of the Advisory Committee was to advise the relevant Minister on Workers Compensation & Rehabilitation issues”.  He later noted that it was his “understanding or interpretation of the function of the Advisory Committee, that the Committee was party in the consultative process”. 

    The Relevant Regulations

  3. When Mr Bond applied to WorkCover for compensation on 15 August 2003, sub-regulations 5(11) and (12) of the 1999 Regulations provided:[2]

    (11)Pursuant to section 3(7) of the Act, but subject to subregulation (12), a worker who is employed by an employer to participate as a contestant in a sporting or athletic activity (and to engage in training or preparation with a view to such participation, and other associated activities) is, in relation to that employment, excluded from the application of the Act.

    (12)   Subregulation (11) does not apply to—

    (a)     a person authorised or permitted under the Racing Act 1976 to ride or drive in a race as defined in that Act; or

    (b)     a boxer or wrestler employed or engaged for a fee to take part in a boxing or wrestling match.

    [2] Minor amendments to regulation 5(12) took effect on 23 September 2004.  The substance and effect of the regulation remains unchanged. 

  4. Sub-regulations in terms similar to sub-regulations 5(11) and (12) of the 1999 Regulations, with the effect of excluding professional sportspersons from the scope of the workers’ compensation scheme, has been in existence from 1991 until the present day.

  5. The Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1987 “(1987 Regulations)” were promulgated on 6 August 1987.  In their original form, those regulations did not contain a provision in terms similar to sub-regulations 5(11) and (12).

  6. In 1991, the 1987 Regulations were amended to include sub-regulations 4(4) and (5), referring to professional sportspeople.  At that time, sub-sections 3(7) and (8) of the Workers Rehabilitation and Compensation Act provided:

    (7)    The regulations may exclude (either absolutely or subject to limitations or conditions stated in the regulations) specified classes of workers wholly or partially from the application of this Act.

    (8)    A regulation under subsection (7) cannot be made unless the board, by unanimous resolution of the members present at a meeting of the Board, agrees to the making of the regulation (but this requirement does not extend to a regulation revoking, or reducing the scope of an exclusion).

  7. Pursuant to the provisions of the Subordinate Legislation Act 1978 (SA), the 1987 Regulations were initially due to expire on 1 September 1998. However, the expiry date was extended to 1 December 1999. Therefore, the 1987 Regulations remained in force until the 1999 Regulations came into operation on 1 December 1999.

  8. Sub-regulations 4(4) and (5) of the 1987 Regulations (which had been introduced in 1991) were revoked and substituted with sub-regulations 5(11) and (12) of the 1999 Regulations.  The wording of sub-regulations 5(11) and (12) in the 1999 Regulations was identical to that in sub-regulations 4(4) and (5) of the 1987 Regulations (as amended in 1991).

    An Earlier Challenge

  9. In 1987, sub-section 3(8) of the Workers Rehabilitation and Compensation Act made it unlawful to make regulations without the unanimous approval of the WorkCover Board. In 1994, Part 2 of the Act, the part creating the Advisory Committee, was introduced. Sub-section 3(8) of the Act was amended to make it unlawful to promulgate regulations in the absence of consultation with the Advisory Committee. The 1999 Regulations were promulgated on 25 November 1999. At that time, sub-sections 3(7) and (8) of the Workers Rehabilitation and Compensation Act provided:

    (7)    The regulations may exclude (either absolutely or subject to limitations or conditions stated in the regulations) specified classes of workers wholly or partially from the application of this Act.

    (8)    A regulation under subsection (7) may only be made after consultation with the Advisory Committee.

  10. In Epstein v WorkCover Corporation of South Australia,[3] the Full Court held that the Workers Rehabilitation and Compensation Act, as in force in 1987, evinced an intention that regulations made otherwise than in compliance with sub-section 3(8) of the Act should be invalid. Besanko J identified four factors that indicated that Parliament had intended that a failure to comply with sub-section 3(8), as in force in 1987, should invalidate regulations purportedly made pursuant to that section:

    -The wording of sub-section 3(8) — “cannot … unless” — was imperative;

    -The subject matter of the power in sub-section 3(7) was very significant;

    -The body which had to agree (the WorkCover Board) occupied an important position under the Act; and

    -The question of whether the requirements of sub-section 3(8) had been met was capable of being determined relatively easily.

    [3] Epstein (2003) 85 SASR 561 at [49]-[52] (Besanko J, with whom Prior and Bleby JJ agreed).

  11. Between 1987 and 1999, the language of sub-section 3(8), as well as its requirement, was changed. The effect of this change will be discussed in depth below when consideration is given to whether or not the requirement for consultation in sub-section 3(8) is mandatory.

    Factual Findings

    Meetings of the Advisory Committee

  12. The first meeting of the Advisory Committee for 1999 referred to in the evidence occurred on 24 February 1999.  It is apparent from the minutes of that meeting that no discussion of a regulation review took place.  The minutes contain no reference to sub-regulations 5(11) and (12).

  13. The next meeting of the Advisory Committee occurred on 19 April 1999.  The Agenda for that meeting included at item 7, “Regulation Review - Attachment C”.  It was agreed between the parties that “Attachment C” was the document headed, “To the Workers Rehabilitation & Advisory Committee - Regulation Review”.  During the course of submissions, this document was referred to as the “Madigan Report”.

  14. The Madigan Report expressly stated that its purpose was to inform the Advisory Committee of:

    Proposed changes to the regulations 179 of 1987 (Claims and Registration) and 232 of 1987 (General) as set out in the attached draft regulation documents; and

    The proposal to seek an extension of the expiry date for regulation 233 of 1987 (Review and Appeals).

    Having given a broad overview of the nature of the review that the Advisory Committee was required to undertake, the Madigan Report concluded with the following recommendations to the Advisory Committee:

    It is recommended that the Committee:

    Note the proposed changes to the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 179 of 1987, and Workers Rehabilitation and Compensation (General) Regulations, 232 of 1987;

    Note the proposal to seek a further one year extension of the Workers Rehabilitation and Compensation (Review and Appeals) Regulations, 233 of 1987; and

    Provide advice to the Minister on the proposed actions.

  15. Attached to the Madigan Report for the consideration of the Advisory Committee was a copy of the draft 1999 Regulations.  The draft regulations were marked in a way that disclosed those parts of the 1987 Regulations that were to be re-enacted and those parts that were amended or were new.  In other words the Advisory Committee had before it proposed regulations that disclosed the confirmation of sub-regulations 4(4) and (5) without amendment.  What were to become sub-regulations 5(11) and (12) were included in the draft as sub-regulations 4(4) and (5) and the wording was identical to that of sub-regulations 5(11) and (12) as they had been since they were introduced in 1991. 

  16. In the Advisory Committee Note for Chairperson for Meeting on 19 April 1999, the following is recorded in relation to agenda item 7, the Regulation Review:

    This issue was raised by Gary Dayman, who suggested that it could go to the Committee notwithstanding that the matter will not be considered by the WorkCover Board until May.

    The paper advises of the proposal for changes to the Claims and Registration Regulations and the General Regulations and to seek a [sic] extension of the expiry date (pursuant to the Subordinate Legislation Act) in relation to the Review and Appeals Regulations.

    Endorsement/advice to be provided to the Minister.

  17. The nature of the discussion that took place at the April meeting regarding the Regulation Review was recorded in the minutes:

    Keith Brown advised that as the paper is yet to be considered by the WorkCover Board, it does not represent the formal position of WorkCover.

    Gary Madigan said that WorkCover is in the process of seeking the views of stakeholders on the paper.  A late change to the amendments is the provision for the electronic lodgement of prescribed forms, which will become a reality well within the lifetime of the regulations.

    Les Birch advised that there is a meeting of the UTLC tomorrow to determine its position and that he would forward comments to Gary Madigan.  Whilst he did not envisage a great deal of disagreement, he foreshadowed continuing opposition to the current interpretation of 16A (lump sum payments for two or more disabilities).  He added that this opposition is likely to continue in Parliament.

  18. An Advisory Committee Outstanding Issues List dated 28 May 1999 included as an outstanding issue before the Committee the “Regulation Review Process”.  It noted that the issue had first been discussed in April 1999 and that the discussion had been deferred to June 1999.

  19. The next meeting of the Advisory Committee was held on 23 June 1999.  Under item 3, “Business Arising”, on the agenda for that meeting appeared the item, “Regulation Review”.  The Regulation Review was also referred to in the Advisory Committee Note for Chairperson for the June meeting:

    3.1 Regulation Review

    A paper was distributed prior to the April 1999 to:

    ·Note the proposed changes to the WRC&C (Claims and Registration) Regulations 179 of 1987 and WRC&C (General) Regulations, 232 of 1987; and

    ·Note the proposal to seek a further one year extension of the WRC&C (Review and Appeals) Regulations, 233 of 1987.

    At this time the paper had not been considered by the WorkCover Board and Gary Madigan advised that stakeholders were being consulted.

    Les Birch said he would provide comments to Gary Madigan, following a meeting of the UTLC on 20 April.

    Gary Madigan and Kym Coulter attending the meeting to provide advice/update.

  20. Under item 3.1 in the minutes of the June meeting, the discussion that occurred in relation to the Regulation Review is recorded in the following terms:

    In relation to the paper discussed at the April meeting, Keith Brown advised that the WorkCover Board has now agreed to the proposed changes to the WRC&C (Claims and Registration) Regulations and the WRC&C (General) Regulations and to seek a further one year extension of the WRC&C (Review and Appeals) Regulations.

    In response to the query of Les Birch, Keith Brown said that a copy of the document approved by the Board would be circulated to members.

    The minutes also record that Advisory Committee member, John Fountain, a deponent in these proceedings, was not present at the June meeting. 

  21. An Advisory Committee Outstanding Issues List dated 25 August 1999 included as an outstanding issue the “Regulation Review Process” and recorded its status as “Business Arising”.

  22. The agenda for the meeting of the Advisory Committee to be held on 30 August 1999 included, under the “Business Arising” item, “Regulation Review Attachment B”.  Among its records WorkCover located a copy of the draft Workers Rehabilitation and Compensation (Claims and Registration) Regulations with “Attachment B” written in handwriting on the first page.  Parties agreed that this supported the inference that the document that accompanied the agenda for the meeting of 30 August 1999 comprised the regulations appended to the Madigan Report without the text of the report itself.  I accept that this was the position.

  23. The minutes for the August 1999 meeting were never located.  A document bearing the handwritten notation, “Attachment B 30.8.99 – papers sent but meeting cancelled” found among WorkCover’s records supports a finding that the August 1999 meeting did not took place.  Mr Smibert, who identified the handwritten notation as having been made by him, confirmed this. 

  24. Mr Fountain’s affidavit specifically addressed the Regulation Review undertaken by the Advisory Committee in 1999 in the following terms:

    Mr Gary Dayman was involved in WorkCover Corporation policy at a high level and his input was important in terms of apprising the Committee of WorkCover Corporation’s view on a range of issues.

    In addition, Mr Dayman appeared to me to have a good understanding of a number of technical procedural issues.  I have a recollection of Mr Dayman mentioning the need for the Advisory Committee to be consulted in relation to the Regulation Review which took place in 1999.

    I do not know how the Regulation Review came to be on the Agenda of the Advisory Committee in 1999 however I assume it was put there by a person or persons from within WorkCover Corporation.

    There were a number of issues, like the Regulation Review, which came to the Advisory Committee apparently without being raised by a member or members of the Advisory Committee or the Minister.

    …

    I am unaware whether formal reports or documents went back to either WorkCover Corporation or the Minister after Advisory Committee meetings, but I understood that the Minister was kept informed by the provision of Minutes of the meetings.

    The major issue before the Committee discussed in 1999, as I recall it, was the review of the dispute resolution regime under the Workers Rehabilitation & Compensation Act.  A new dispute resolution regime had been introduced in mid-1996.

    I have an independent recollection of the Regulation Review being briefly discussed by the Advisory Committee in 1999, both before and after my reading of the Minutes and Agendas of the Advisory Committee in 1999.

    One of the worker or union representatives on the Advisory Committee took issue with a Regulation which caused a reductive formula to be applied to each successive amount of lump sum compensation a disabled worker received pursuant to Section 43 of the Workers Rehabilitation & Compensation Act.

    Other than the discussion of the Regulation referred to in the previous paragraph, which is now Regulation 25 of the Workers Rehabilitation & Compensation (General) Regulations, I can recall no dispute or disagreement about any Regulation contained in [the Madigan Report].  It was apparent from the briefing paper … that considerable consultation had taken place with stakeholders.

    During 1999, the Advisory Committee had a practice of considering every Agenda item on the paper.  If the item was not discussed at the particular meeting in question, it was carried over to the next meeting.  I cannot recall a particular issue that was simply skipped over, and not discussed at the 19 April 1999 meeting or carried over to the next meeting.

    In my view, it is fair to say that if the Minutes of a particular meeting indicate that there was no objection or questioning regarding an issue on the Agenda, it was safe to assume that the issue was treated as non-contentious by the Advisory Committee.

    Dealing specifically with the Regulation Review, it is my recollection that other than the objection …to what is now Regulation 25 of the Workers Rehabilitation & Compensation (General) Regulations, there was no objection or complaint about any of the other Regulations and it could be said that the other Regulations were treated as being acceptable by members of the Advisory Committee.

    As far as I am aware, there was no practice by any member of the Advisory Committee to write to the Minster or to WorkCover Corporation about policy or legislation that the Advisory Committee approved of, or at least did not object to.

    …

    Any concerns of any members of the Advisory Committee about any issue were usually noted in the Minutes.

  25. No evidence was tendered indicating that the Regulation Review had been considered or discussed at any other meeting of the Advisory Committee.  Nor was there any evidence that the Advisory Committee had formally acknowledged its consideration of the proposed 1999 Regulations or otherwise provided any report or other feedback to the Minister regarding the 1999 Regulations. 

  26. Counsel for Mr Bond referred to evidence that on other occasions in relation to other topics upon which it had been consulted, the Advisory Committee had made some kind of formal recognition, either in minutes or by letter to the Minister, that it had been consulted about a particular topic.  It was suggested that the lack of such evidence with respect to the regulations under challenge, established that there had not been consultation.

  27. This submission should be rejected.  No practice was established by this evidence.  No established procedure or process was identified.  The fact that such evidence may exist in particular circumstances does not establish that there was no relevant consultation with respect to the regulations under challenge.

    Meaning of “consultation”

  28. The meaning of “consultation” was considered by the Privy Council in Port Corporation v Attorney-General of Mauritius.[4] In that case, the Privy Council was asked to determine whether the Governor in Council of Mauritius, in deciding to alter the boundaries of Port Louis, had complied with sub-section 73(1) of the Local Government Ordinance, 1962, of Mauritius, which provided:

    The Governor in Council may by Proclamation alter the boundaries of any town, district or village, after consultation with the local authority concerned.

    The Privy Council advised:[5]

    [T]he nature and object of consultation must be related to the circumstances which call for it. The situation to which section 73(1) relates is clear. If there is a proposal to alter the boundaries of a town, or the boundaries of a district, or the boundaries of a village, such alteration must not be made until after consultation with the local authority concerned. It follows that the local authority must know what is proposed before they can be expected to give their views. This does not however involve that the local authority are entitled to demand assurances as to the probable form of the solutions of the problems that may be likely to arise in the event of there being an alteration of boundaries. The local authority must be told what alterations of boundaries are proposed. They must be given a reasonable opportunity to state their views. They might wish to state them in writing or they might wish to state them orally. The local authority cannot be forced or compelled to advance any views but it would be unreasonable if the Governor in Council could be prevented from making a decision because a local authority had no views or did not wish to express or declined to express any views. The requirement of consultation is never to be treated perfunctorily or as a mere formality. The local authority must know what is proposed: they must be given a reasonably ample and sufficient opportunity to express their views or to point to problems or difficulties: they must be free to say what they think.

    [4] Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111.

    [5] Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 at 1124.

  1. In an earlier decision of the House of Lords, Rollo v Minister of Town and Country Planning,[6] Bucknill LJ had defined “consultation” in similar terms:[7]

    A certain amount has been said as to what consultation means.  In my view, … it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice, and, on the other hand, a sufficient opportunity must be given to the local authority to tender that advice. 

    [6] Rollo v Minister of Town and Country Planning [1948] 1 All ER 13.

    [7] Rollo v Minister of Town and Country Planning [1948] 1 All ER 13 at 17.

  2. Both the above instances were referred to and applied by Sheller JA (with whom Priestly and Meagher JJA agreed) in Leichardt Municipal Council v Minister for Planning.[8]  Under consideration was a provision of the Environmental Planning and Assessment Act 1979 (NSW) which required the Director of Planning to “ensure that consultations” were held with various bodies in the preparation of an environmental study or a draft regional environmental plan. Sheller JA, having cited the English authorities referred to above, observed:[9]

    The parliament must be taken to have chosen the word “consultation” conscious of its use historically in this type of legislation.  In this case proper consultation … required that the Council know what was proposed before it was expected to give its views and that the Council be given a reasonable opportunity to state its views.

    [8] Leichardt Municipal Council v Minister for Planning (1992) 78 LGERA 306 at 335.

    [9] Leichardt Municipal Council v Minister for Planning (1992) 78 LGERA 306 at 338.

  3. “Consultation” for the purposes of sub-section 3(8) of the Act can be taken to occur when the Advisory Committee is made aware that it is being consulted about proposed regulations and where it is given a reasonable opportunity to express any views that it may have regarding the proposed regulations.

    Did consultation occur?

  4. The functions of the Advisory Committee are provided for in section 8 of the Act, which has been set out in full above. The terms of section 8 establish that, as its name suggests, the Committee’s primary function is as an advisory body to the Minister. In particular, the Committee was established to “advise the Minister on the formulation and implementation of policies relating to workers rehabilitation and compensation”.

  5. It is reasonable to infer that the members of the Advisory Committee would be aware of the terms of the sub-section 3(8) of the Act and its requirement that it be consulted regarding proposed regulations pursuant to sub-section 3(7).

  6. The fact of consultation should be considered in context. The motivation for the review of the 1987 Regulations undertaken by the Advisory Committee was statutory. As already observed, the 1987 Regulations were due to expire in December 1999. In this sense, the review can be viewed as a routine task that the Advisory Committee was required to undertake pursuant to sub-section 3(7) of the Act. As earlier observed, a provision in relevantly identical terms to sub-regulations 5(11) and (12) had already been in operation for some eight years. No amendment to these regulations was proposed. The Advisory Committee was not being asked to consider a new provision. In the circumstances, all that was required was that the Advisory Committee be informed of the proposed regulations and be given the opportunity to comment upon them if it so desired.

    Onus of Proof

  7. In an action for a declaration, the burden of proof is on the party seeking the declaration, in the present case, the plaintiff.

  8. In Jones v Sutherland Shire Council, Hutley JA said:[10]

    Where a person seeks a declaration, he has to prove all the facts which are necessary to enable that declaration to be obtained. This means that he takes upon himself to prove all the conditions necessary to be established, including matters which he could require the other party to prove, if he were the defendant. … In any event, in my opinion, a court should refrain from making a declaration as to the existence of a fact, when there is no evidence one way or other of the fact, though in certain other litigation, by reason of the burden of proof assigned by law to the other party, the person applying for the declaration might succeed in that contest.

    [10] Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 212-3.

  9. It is clear from the agendas and minutes of the Advisory Committee meetings held between April and August 1999 that the Committee was both aware that it was being consulted about proposed regulations and that it was given ample opportunity to provide feedback to the Minister, but that it apparently declined to do so.  Alternatively, on the evidence before the Court, Mr Bond  has failed to prove that the Advisory Committee was not consulted.

  10. In Briginshaw v Briginshaw, Dixon J discussed the nature of the civil onus in the following terms: [11]

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as result of a mere mechanical comparison of probabilities independently of any belief in its reality. … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

    [11] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.

  11. The question is therefore whether the evidence is sufficient to persuade the Court, on the preponderance of the evidence, that there was in fact no consultation.[12]  In the present case the serious consequences that would flow in the plaintiff’s submission from a conclusion that there had been no consultation would suggest that the heavier civil onus referred to in Briginshaw would apply.  That onus has not been discharged.

    [12] See Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 227 (Mahoney JA).

  12. In any event, even if the ordinary civil onus of proof on the balance of probabilities was applied, the plaintiff has failed to prove that consultation did not occur.

    The Consequences of a Lack of Consultation

  13. Even if the Advisory Committee had not been duly consulted regarding the 1999 Regulations, it does not necessarily follow that the 1999 Regulations are invalid. 

  14. As noted above, in 1994, sub-section 3(8) of the was amended and the requirement for “approval” by the WorkCover Board was substituted for the current wording of the sub-section, which provides that the Advisory Committee need only be consulted about proposed regulations.

  15. The plaintiff submitted that the words “may only” are imperative with the effect that the legislation must be interpreted as conferring power to make regulations excluding specified classes of workers only if the requisite consultation has occurred.  The plaintiff said that this interpretation was consistent with the purpose of the Environmental Planning and Assessment Act 1979 (NSW) as discussed in Leichardt Municipal Council, in that the Workers Rehabilitation and Compensation Act provides important rights to workers and as such, the exclusion of a class of workers from the application of the Act is significant. The plaintiff further submitted that in choosing the words, “may only” rather than simply “may”, the legislature evinced an intention to make consultation with the Advisory Committee prior to the promulgation of regulations obligatory. It was said that when consideration is given to the language of sub-section 3(8) and to the scope of the Act as a whole, it must be concluded that non-observance with the pre-condition of consultation prescribed in sub-section 3(8) would render the regulations in issue invalid.

  16. The defendants submitted that the difference in wording between the former sub-section 3(8) and the current sub-section 3(8) was such that the former stipulated that regulations could only be made with the approval of the Board and that the current sub-section merely requires that the Advisory Committee be consulted about the regulations prior to their promulgation.

  17. The change in form, from “cannot … unless” to “may only … if”, is not adequately explained by the change in the requirement of sub-section 3(8). It would have been natural enough to express the new requirement in the same form as the old sub-section 3(8), such that the section would have read:

    A regulation under subsection (7) cannot be made unless there has been consultation with the Advisory Committee.

  18. The word “cannot” tends to suggest an absence of power, and therefore an “indispensable precondition to the exercise of power”.  The word “cannot” suggests that non-compliance results in invalidity.  In contrast, “may only”, arguably uses permissive language, suggesting that there is a power to make regulations, but that the power is to be exercised only once consultation has taken place.  While still imperative in the sense that non-compliance is unlawful, “may only” suggests a power, which is to be performed only in certain circumstances, rather than a lack of power in the absence of those circumstances.

  19. While the subject matter of sub-section 3(7) is the same under the Workers Rehabilitation and Compensation Act as in force in 1999, the requirement of consultation is less onerous than that of unanimous agreement, and the chance of non-compliance with sub-section 3(8) affecting whether or not a regulation is made is greatly reduced.

  20. The issue is not whether proceeding to make the 1999 Regulations in the absence of consultation would be unlawful, but whether, in the event that the 1999 Regulations were unlawfully made, the failure to comply with sub-section 3(8) resulted in the invalidity of the 1999 Regulations. As was observed by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v Australian Broadcasting Authority:[13]

    An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.  Unfortunately, a finding of purpose or no purpose in these context often reflects a contestable judgment.  The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances.  There is no decisive rule that can be applied;  there is not even a ranking of relevant factors or categories to give guidance on the issue.

    [13] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91] per McHugh, Gummow, Kirby and Hayne JJ.

  21. That issue is to be determined by considering whether the legislation evinces an intention that regulations made without consultation should be invalid.  The question to be asked is:[14]

    whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.

    [14] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [93] per McHugh, Gummow, Kirby and Hayne JJ.

  22. Sub-section 3(8), as in force in 1999, is analogous to the provision considered in Project Blue Sky.  That provision was described by McHugh, Gummow, Kirby and Hayne JJ in this way:[15]

    Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it “is to perform” those functions “in a manner consistent with” the four matters set out in the section.

    [15] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [94]. (Emphasis added.)

  23. Likewise, sub-section 3(8), as in force in 1999, proceeds on the hypothesis that there is power to make regulations, and “regulates the exercise of functions already conferred” (by sub-section 3(7) and section 124 of the Workers Rehabilitation and Compensation Act), rather than imposing essential preliminaries to the exercise of the regulation-making power.[16]

    [16] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [94] (McHugh, Gummow, Kirby and Hayne JJ). (Emphasis added.)

  24. Furthermore, as McHugh, Gummow, Kirby and Hayne JJ said: [17]

    Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act.

    [17] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [97] (McHugh, Gummow, Kirby and Hayne JJ).

  25. A similar approach to statutory interpretation has been adopted in other common law jurisdictions.  The position in the United Kingdom was recently reviewed by the House of Lords in R v Soneji,[18] where Lord Steyn observed:[19]

    A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.

    [18] R v Soneji [2005] UKHL 49.

    [19] R v Soneji [2005] UKHL 49 at [14].

  26. In 1980, Lord Halisham’s judgment in London & Clydeside Estates Ltd v Aberdeen District Council[20] introduced a new approach to statutory interpretation into English law to that which had until then been the prevailing view:[21]

    When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority (as it certainly would have been here) to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act. In such cases, though language like 'mandatory,' 'directory,' 'void,' 'voidable,' 'nullity' and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.

    In Soneji, Lord Steyn described Lord Halisham’s judgment as “an important and influential dictum”,[22] explaining its effect on the English law of statutory construction in the following terms:[23]

    It led to the adoption of a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. In framing the question in this way it is necessary to have regard to the fact that Parliament ex hypothesi did not consider the point of the ultimate outcome. Inevitably one must be considering objectively what intention should be imputed to Parliament.

    [20] London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182.

    [21] London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at 189E – 190C.

    [22] R v Soneji [2005] UKHL 49 at [15].

    [23] R v Soneji [2005] UKHL 49 at [15].

  27. In Wang v Commissioner of Inland Revenue,[24] the Privy Council adopted Lord Halisham’s dictum.[25]  That case concerned a legislative provision that imposes a time requirement.  Lord Slynn of Hadley gave the judgment of the Privy Council.  In doing so, he stated that, when asked to consider an alleged failure to comply with a time provision, their Lordships considered it better to avoid the words “mandatory” and “directory” altogether and to ask two questions.[26]

    -whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time.

    -if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?

    These questions could readily apply to other types of legislative provisions where the issue of whether the provision attempts to impose a mandatory or directory requirement arises, such as, for example, those under consideration in the present case.

    [24] Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286.

    [25] See also Charles v Judicial Legal Service Commission [2003] 1 LRC 422, another decision of the Privy Council where the reasoning was along similar lines as Lord Halisham’s observations and Wang.

    [26] Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1296D.

  1. The decision of the House of Lords in Attorney General's Reference (No 3 of 1999)[27] is of similar affect to Wang.  In that case, the House considered a legislative provision, which provided that if a defendant is cleared of an offence fingerprints or samples taken from him in the investigation of the offence must be destroyed.  Following a breach of this duty, a DNA profile obtained from swabs taken from a rape victim was found to match that of the defendant.  The defendant was charged and convicted.  The Court of Appeal quashed the conviction.  The House of Lords reversed the decision of the Court of Appeal. 

    [27] Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91.

  2. In declining to apply the mandatory/directory distinction, the House adopted the reasoning of Lord Hailsham, concentrated on the consequence of non-compliance, and addressed the question: what, in the light of the consequences, must Parliament be taken to have intended?  The House held that in such circumstances, the Parliament would have intended that a breach of the provision would render the prosecution invalid.[28]  In Soneji, Lord Steyn described Attorney General’s Reference (No 3 of 1999) as a “strong decision” as it involved a rejection of the mandatory/directory distinction in the face of explicit imperative language.[29]

    [28] Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91 at 117-118 (Lord Steyn); 120-121 (Lord Cooke of Thorndon); and 121 (Lord Clyde). Lord Hobhouse of Woodborough agreed, at 125-126 and Lord Hutton concurred in the result.

    [29] R v Soneji [2005] UKHL 49 at [18].

  3. Lord Steyn then cast his review of the relevant case law further a field.  In doing so, he referred to the High Court of Australia’s decision in Project Blue Sky, adopting the remarks referred to earlier.  Lord Steyn commented:[30]

    This reasoning contains an improved analytical framework for examining such questions. In the evolution of this corner of the law in the common law world the decision in Project Blue Sky is most valuable.

    [30] R v Soneji [2005] UKHL 49 at [21].

  4. A similar approach to the question of statutory construction has been adopted in Canada.  In British Columbia (Attorney General) v Canada (Attorney General; An Act respecting the Vancouver Island Railway (Re),[31] the Supreme Court of Canada strongly criticized the mandatory/directory distinction.  In Society Promoting Environmental Conservation v Canada (Attorney-General),[32] this development was taken a stage further by the Federal Court of Appeal.  Relying on Lord Hailsham's dictum, Evans JA gave the primary judgment for the court with Strayer JA concurring in the result and reasoning on this point.  Strayer J observed:[33]

    [T]he more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity.

    [31] British Columbia (Attorney General) v Canada (Attorney General; An Act respecting the Vancouver Island Railway (Re) [1994] 2 SCR 41.

    [32] Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693

    [33] Society Promoting Environmental Conservation v Canada (Attorney-General) (2003) 228 DLR (4th) 693 at [35].

  5. Parallel developments have also taken place in New Zealand.  In New Zealand Institute of Agriculture Science Inc v Ellesmere County.[34] Cooke J, speaking for the Court, observed:[35]

    Whether non-compliance with the procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance.

    [34] New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630.

    [35] New Zealand Institute of Agriculture Science Inc v Ellesmere County [1976] 1 NZLR 630 at 636.

  6. Accordingly, the common law across the United Kingdom, Canada, Australia and New Zealand is generally aligned in the approach to be taken to the interpretation and application of legislative provisions that impose some form of requirement as a precondition to compliance. 

  7. Applying this approach, non-compliance with the requirement imposed by sub-section 3(8) of the Workers Rehabilitation and Compensation Act will not render regulations promulgated pursuant to sub-section 3(7) invalid. It is unlikely that the Parliament would have intended that sub-regulations 5(11) and (12), having stood unchallenged for many years, should be rendered invalid because of a failure to consult, where, had consultation taken place, there would have been power to make the regulation, even if the Committee had opposed it.

    Conclusion

  8. The claim for declaratory relief is dismissed.


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Cases Cited

6

Statutory Material Cited

1

Smith v Wyong Shire Council [2003] NSWCA 322
Briginshaw v Briginshaw [1938] HCA 34
Briginshaw v Briginshaw [1938] HCA 36