Campbell v M & I Samaras P/L & 2 P/L & 3 P/L & Employers Mutual Ltd; Yaghoubi v BDS People P/L & Employers Mutual Ltd - [2011] SASCFC 58

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CAMPBELL v M & I SAMARAS P/L & 2 P/L & 3 P/L & EMPLOYERS MUTUAL LTD; YAGHOUBI v BDS PEOPLE P/L & EMPLOYERS MUTUAL LTD
[2011] SASCFC 58
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice White)
27 June 2011
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - APPEALS, JUDICIAL REVIEW AND STATED CASES - QUESTION OF LAW - PARTICULAR CASES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - GENERALLY
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE - NATURE AND EXTENT OF JUDICIAL POWER - CONFERRAL ON STATE COURTS
The Full Bench of the Workers Compensation Tribunal referred questions of law in two proceedings for the opinion of the Supreme Court pursuant to section 86A of the Workers Rehabilitation and Compensation Act 1986 (SA) – the question in each proceeding relates to the scope and application of Part 6C of the Act, being the provisions relating to Medical Panels – the Attorney-General intervened in the proceedings.
Whether a compensating authority may refer a medical question to a Medical Panel at any time prior to a matter being referred into the Tribunal for judicial determination – whether the compensating authority has power to so refer once a matter has been referred into the Tribunal for judicial determination pursuant to section 92D of the Act – whether Part 6C of the Act impermissibly confers judicial power upon a non-judicial body such that the Part is invalid – whether reference to “body or person” in section 98H(4) of the Act, which requires that the opinion of a Medical Panel on a medical question referred to it “is to be adopted and applied by any body or person acting under this Act and must be accepted as final and conclusive”, includes the Tribunal – whether section 98H(4) impermissibly impacts on the Tribunal’s judicial role.
Consideration of approach to legislative provisions enacted but not yet in force.
Held:
(1) (The Court): It is implicit in Part 6C of the Act that the Tribunal and compensating authorities have power to refer medical questions to a Medical Panel.
(2) (Gray and Sulan JJ): That power may be exercised by a compensating authority both before and after a matter has been referred to the Tribunal for judicial determination.
(White J in dissent): A compensating authority’s power to refer medical questions to a Medical Panel after a worker has lodged a notice of dispute may be exercised only for the purposes of any further determination or re-determination of a question or matter in relation to the claim of a claimant worker for which the authority has responsibility. It may not exercise the power simply for the purpose of gathering evidence which may be adduced before the Tribunal.
(3) (The Court): Properly construed, the reference in section 98H(4) to “body or person” does not include the Tribunal.
(4) (Gray and Sulan JJ): The Medical Panel is not impermissibly conferred judicial power by Part 6C of the Act, and further there remains a genuine adjudicative function to be undertaken by the Tribunal independent of the executive and legislature and in no way directed or participated in by either.
(White J): On a proper construction of Part 6C, the validity of its provisions does not arise, and it is both unnecessary and undesirable to address such issues in the context of the present questions of law reserved.
(4) (Gray and Sulan JJ): Having regard to the terms of section 9 of the Crown Proceedings Act 1992 (SA) the role of WorkCover Corporation is different from that of the Crown in the within proceedings, in circumstances in which the validity of legislation is challenged and where WorkCover Corporation was not represented in the hearing before the Full Court.
Workers Rehabilitation & Compensation Act 1986 (SA) Pt 6C, ss 30, 32, 35, 35A, 35C, 36, 43, 43A, 46, 51, 52, 53, 54, 59, 60, 64, 80, 81, 84, 84A, 84B, 85, 85A, 85B, 86, 86A, 87A, 88, 88A, 88B, 89, 90, 90B, 91, 91A, 92, 92A, 92C, 92D, 94C, 98, 98A, 98B, 98E, 98F, 98G, 98H, 98I and 110; Crown Proceedings Act 1992 (SA) s 9; WorkCover Corporation Act 1994 (SA) s 13; WorkCover Corporation (Claims Management Contractual Arrangements) Regulations 2005 (SA) reg 4; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA); Workers Compensation Tribunal Rules 2009 (SA) r 23; Acts Interpretation Act 1915 (SA) s 4; Accident Compensation Act 1985 (Vic) s 68; Judiciary Act 1903 (Cth) s 39(2) and s 78A, referred to.
Yaghoubi v Employers Mutual Ltd [2010] SAWCT 26; Robbins v Harbord (1994) 62 SASR 229; The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228; New South Wales v Commonwealth (1990) 169 CLR 482; Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237; State of Queensland v Central Queensland Land Council Aboriginal Co (2002) 125 FCR 89; Lianos v Inner & Eastern Health Case Network [1999] VSC 307; Nicholas v The Queen (1998) 193 CLR 173; Huddart, Parker and Co Pty Ltd v Moorhead (1909) 8 CLR 330; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Craig v Workers Compensation Tribunal and Anor (2004) 90 SASR 490; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) (2008) 234 CLR 532; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; K-Generation Pty Ltd v Licensing Court of South Australia (2009) 237 CLR 501; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; South Australia v Totani (2010) 242 CLR 1; Thomas v Mowbray (2007) 233 CLR 307; Thompson v Duffin (2009) 105 SASR 181; Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; Maurice Blackburn Cashman v Brown [2011] HCA 22; Kizon v Palmer (1997) 72 FCR 409; Pope v WS Walker & Sons Pty Ltd (2006) 14 VR 435; Baskerville v Lippett (1974) 9 SASR 575; Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552; Grassby v The Queen (1989) 168 CLR 1; Re Sterling: Ex Parte Esanda Ltd (1980) 44 FCR 125; Dunkel v Commissioner of Taxation (1990) 27 FCR 524; International Finance Trust Company Limited and Anor v New South Wales Crime Commission and Ors (2009) 240 CLR 319; Chonka v Palmer (1999) 92 FCR 303; R v Kaddour (2004) 61 NSWLR 378; McLeish v WorkCover/Employers Mutual Ltd (Australia Motors SA Pty Ltd) [2010] SAWCT 39; Cameron v WorkCover Corporation (1995) 62 SASR 21; Pashalis v WorkCover Corporation (1994) 63 SASR 71; Potter v Minahan (1908) 7 CLR 277; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; Wainohu v NSW [2011] HCA 24, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"body or person"

CAMPBELL v M & I SAMARAS P/L & 2 P/L & 3 P/L & EMPLOYERS MUTUAL LTD; YAGHOUBI v BDS PEOPLE P/L & EMPLOYERS MUTUAL LTD
[2011] SASCFC 58
Full Court: Gray, Sulan and White JJ
GRAY AND SULAN JJ:
Introduction

The Full Bench of the Workers Compensation Tribunal has referred questions of law in two proceedings for the opinion of this Court pursuant to section 86A of the Workers Rehabilitation and Compensation Act 1986 (SA).[1] The question in each proceeding relates to the scope of Part 6C of the Act, being the provisions relating to Medical Panels. The worker in each proceeding has also challenged the validity of Part 6C.
[1]    Also rule 293 of the Supreme Court Rules 2006 (SA). Section 86 of the Workers Rehabilitation and Compensation Act 1986 (SA) provides:
(1)A Full Bench of the Tribunal may refer a question of law for the opinion of the Full Court of the Supreme Court.
(2) Subject to subsection (2a), an appeal also lies on a question of law against a decision of the Full Bench of the Tribunal to the Full Court of the Supreme Court.
(2a) An appeal cannot be commenced under subsection (2) except with the permission of a Judge of the Supreme Court.
(3)On a reference or appeal under this section, the Full Court of the Supreme Court may—
(a)     decide the question of law;
(b)     refer the matter back to the Tribunal with directions the Full Court considers appropriate;
(c)     make consequential or related orders (including orders for costs).
Before this Court, the Attorney-General of South Australia intervened pursuant to both section 9 of the Crown Proceedings Act 1992 (SA) and section 78A of the Judiciary Act 1903 (Cth). The Attorney-General’s right to intervene was challenged. We deal with this later in these reasons.
The questions reserved, in combination with the challenge to the validity of Part 6C of the Workers Rehabilitation and Compensation Act, give rise to questions which may be reformulated as follows:[2]
-May a compensating authority refer a medical question to a Medical Panel established under Part 6C of the Workers Rehabilitation and Compensation Act at any time prior to a matter being referred into the Workers Compensation Tribunal for judicial determination pursuant to section 92D of the Act?
-May a compensating authority refer a medical question to a Medical Panel established under Part 6C of the Workers Rehabilitation and Compensation Act, once a matter has been referred into the Workers Compensation Tribunal for judicial determination pursuant to section 92D of the Act?
-If the answer to either or both questions is in the affirmative, does this amount to an impermissible conferral of judicial power upon a non-judicial body such that Part 6C of the Workers Rehabilitation and Compensation Act is invalid?
-If the answer to either or both of the first two questions above is in the affirmative, is the effect of section 98H(4) of the Workers Rehabilitation and Compensation Act such that the Workers Compensation Tribunal is required by section 98H(4) to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every respect of the Tribunal’s judicial role, of its defining characteristics as a court?
[2] These questions are drawn from the written outline of the Attorney-General.
Ali Ashgar Yaghoubi and Duncan Campbell are the workers in the within proceedings, and BDS People Pty Ltd and M & I Samaras Pty Ltd & 2 Pty Ltd & 3 Pty Ltd are the respective employers. It should be noted immediately that WorkCover Corporation, as the compensating authority, can and has entered into a contract or arrangement conferring power on Employers Mutual Ltd to manage and determine claims.[3] Employers Mutual Ltd is empowered to exercise WorkCover’s statutory functions, powers and discretions as may be necessary for the performance of its functions under the contract.[4] The delegation in effect permits Employers Mutual Ltd to act as principal under the Workers Rehabilitation and Compensation Act consistent with its delegation. Accordingly, Employers Mutual Ltd is the relevant compensating authority in these proceedings and we shall refer to them as such in these reasons.[5]
[3] WorkCover Corporation Act 1994 (SA), section 14(3); Workers Rehabilitation and Compensation Act 1986 (SA), section 17.
[4] WorkCover Corporation (Claims Management – Contractual Arrangements) Regulations 2005 (SA), regulation 4.
[5] Relevant compensating authority is defined in section 89 of the Workers Rehabilitation and Compensation Act 1986 (SA).
Both workers argued that on a proper construction of the relevant provisions of the Workers Rehabilitation and Compensation Act, a compensating authority is not empowered to refer medical questions to a Medical Panel, and in fact, that the Act does not empower anyone to refer medical questions. The compensating authority and the Attorney-General contended that the Act empowers compensating authorities and the Tribunal to refer questions to a Medical Panel.
The determination of the issues arising requires consideration of the provisions of Part 6C of the Workers Rehabilitation and Compensation Act and an analysis of the powers and functions of Medical Panels.
Background Facts – Mr Yaghoubi
Mr Yaghoubi claimed to have suffered an accident at work on 21 October 2008 leading to a left shoulder, neck and back injury. He made a further claim in respect of an injury to his back and left knee sustained in the course of his employment on 7 November 2008.
Mr Yaghoubi asserted that he has been unable to work since November 2008. He claimed an alleged incapacity for work as a result of the injuries sustained in the two incidents. He has not received any workers compensation payments at all.
Mr Yaghoubi first advanced his claims in December 2008. The compensating authority conducted an investigation into the claims, obtained medical and other reports and, by two separate determinations both dated 21 May 2009, rejected the claims. Mr Yaghoubi disputed the determinations. On 29 May 2009, the compensating authority reconsidered and confirmed both determinations.[6]
[6] Upon a notice of dispute being lodged with the Registrar of the Tribunal, the relevant compensating authority must have the disputed decision reconsidered by a “suitable person”: Workers Rehabilitation and Compensation Act 1986 (SA), section 91. If the decision is confirmed and the dispute is not withdrawn the Registrar must refer the matter to conciliation: Workers Rehabilitation and Compensation Act 1986 (SA), section 91A. The parties must participate in the conciliation process - it is a contempt of the Tribunal not to do so: Workers Rehabilitation and Compensation Act 1986 (SA), sections 92(1)(b), 92B(4).
In accordance with the provisions of the Workers Rehabilitation and Compensation Act, the disputes were referred for conciliation. Conferences were held before a conciliation officer in June, July, August and September 2009. On the third occasion, the suggestion was made by the compensating authority that the disputes be progressed by the reference of certain medical questions to the Medical Panel. The compensating authority prepared a list of questions proposed for referral and forwarded those questions to Mr Yaghoubi. Mr Yaghoubi later advised that he did not consider it appropriate to refer questions to the Medical Panel. The conciliation was unsuccessful.
On 7 September 2009, in accordance with the provisions of the Workers Rehabilitation and Compensation Act, the disputes were referred to the Tribunal for judicial determination.[7] On 29 September 2009, the proceedings came before Judge Hannon of the Tribunal for directions. Following a number of adjournments, the solicitors for the compensating authority prepared a draft certificate of referral of questions to the Medical Panel. On 1 March 2010, Mr Yaghoubi requested Judge Hannon to make directions and orders to facilitate the progress of the disputes to judicial determination. The compensating authority disagreed. It wished to proceed with the proposed referral to the Medical Panel. On 21 April 2010, the compensating authority issued a certificate of referral to the Medical Panel.
[7] According to the Act, if the conciliation process results in a settlement of the dispute then the conciliator may make a “determination or order” that gives effect to that settlement: section 92C(6). Such determination or order is a determination or order of the Tribunal: section 92C(7). If, however, the conciliation proceedings do not result in a settlement of the dispute then section 92D mandates that the conciliator must refer the dispute “into the Tribunal for judicial determination”: section 92D.
The medical questions in respect of which the opinion of a Medical Panel were sought were whether Mr Yaghoubi suffered the claimed disabilities, and if so, their nature and extent; whether the claimed disabilities arose out of or in the course of employment; and, whether the claimed disabilities resulted in an incapacity for work. The same questions arose in the disputes referred into the Tribunal for judicial determination.
The certificate of referral to the Medical Panel indicated that the underlying facts were in dispute. The referral records the compensating authority’s disagreement with the assertions of Mr Yaghoubi as to the occurrence of the injuries. The referral noted that co-workers had not witnessed and had no knowledge of Mr Yaghoubi’s alleged injuries. The referral further asserted that surveillance evidence indicated activity inconsistent with the alleged injuries, and that the balance of the medical evidence did not support the Mr Yaghoubi’s claims.
On 3 May 2010, Mr Yaghoubi swore an affidavit stating that he was aware that medical questions relating to his disputed claim had been referred to a Medical Panel, that he was aware that a date would be set for him to submit to an examination by the Medical Panel, and that he would not attend any such examination. The Medical Panel scheduled examinations on various dates, the last being 9 June 2010. Mr Yaghoubi has not attended for examination. In these circumstances it is unlikely that the Medical Panel will ever be in a position to form an opinion on the medical questions referred to it.
On 11 May 2010, the compensating authority filed an application seeking orders that the judicial determination proceedings be stayed unless and until Mr Yaghoubi attended the Medical Panel and submitted to examination in order to enable the Medical Panel to provide its opinion on the referral.
Mr Yaghoubi opposed the order for a stay and submitted that there was no express or implied power under the legislation enabling the compensating authority to refer a medical question to the Medical Panel for opinion where the medical question concerned or related to issues that arose in a dispute which had already been referred into the Tribunal for judicial determination.
Judge Hannon determined that there was implicit in Part 6C of the Workers Rehabilitation and Compensation Act power vested in the compensating authority to refer medical questions to a Medical Panel prior to the referral of a dispute into the Tribunal pursuant to section 92D of the Act. However, Judge Hannon accepted the submission that the power did not extend to a referral once the matter had been referred to the Tribunal. As a further consequence, the Judge found that the purported referral was not a valid exercise of power by the compensating authority under the legislation. Accordingly, Judge Hannon found that requests by the Medical Panel that Mr Yaghoubi meet with it or submit to a medical examination were not lawful requests and that Mr Yaghoubi was not obliged to comply.
The compensating authority appealed to the Full Bench of the Workers Compensation Tribunal. The Full Bench determined to state a case on a question of law for the opinion of the Supreme Court. The case stated, having referred to the factual history extracted above, provided:
Part 6C of the Act which comprises sections 98 to 98J was introduced into the Act by the Workers Rehabilitation & Compensation (Scheme Review) Amendment Act, 2008 (No. 17 of 2008) which was assented to on 19 June 2008.
Division 1 of Part 6C of the Act became operative from 2 October 2008 and provides for the establishment, constitution and procedures of Medical Panels.
Division 2 of Part 6C of the Act became operative from 1 April 2009 and provides for the functions and powers of Medical Panels (except for certain sub-sections of section 98E and section 98F(3)).
Pursuant to the Workers Rehabilitation & Compensation (Scheme Review) Amendment Act, 2008, Schedule 1, clause 16, “A medical question may be referred to a Medical Panel under Part 6C of the principal Act, as enacted by this Act, even if the medical question relates to a claim made or proceedings commenced before that enactment.”

The question of law referred by the Full Bench of the Tribunal to this Court is in the following terms:
Does the compensating authority have the power under the Act to refer the medical questions to a Medical Panel established under Part 6C of the Act, and if so is that power confined to a time prior to referral of a dispute for judicial determination pursuant to section 92D of the Act?
Background Facts – Mr Campbell
Mr Campbell made a claim for compensation under section 52 of the Workers Rehabilitation and Compensation Act. The claim was dated 9 August 2007 and was in respect of a bilateral inguinal herniae which allegedly occurred on or was first noticed by him on 23 January 2007. The claim was accepted for medical expenses and for a closed period of weekly payments on account of incapacity for work between 23 January 2007 and 29 September 2007.
Mr Campbell asserted that the disability resulted in permanent impairment and he sought an assessment of lump sum compensation for non-economic loss pursuant to sections 43 and 43A of the Workers Rehabilitation and Compensation Act.
The compensating authority arranged for Mr Campbell to be assessed for medico-legal purposes by Donald Reid, a consultant physician, for a permanent impairment assessment of Mr Campbell’s disability. Dr Reid assessed Mr Campbell on 6 July 2009 and reported on 9 July 2009. Mr Campbell’s solicitors arranged for him to be assessed for the same purposes by Gordon Ormandy, a general surgeon. Dr Ormandy assessed Mr Campbell on 1 September 2009 and reported on 8 December 2009. These two reports were in conflict in their assessment of impairment of Mr Campbell.
By decision dated 29 October 2009, under section 53 of the Workers Rehabilitation and Compensation Act, the compensating authority rejected Mr Campbell’s claim for lump sum compensation. This decision was disputed by notice of dispute dated 4 November 2009.[8] The disputed decision was confirmed upon a reconsideration determined on 13 November 2009 under section 91 of the Act. By reason of this confirmation, the dispute was referred for conciliation under section 91A of the Act.
[8] Pursuant to section 90 of the Workers Rehabilitation and Compensation Act 1986 (SA).
During the course of conciliation proceedings;[9] that is, after the dispute was referred for conciliation but before it was referred into the Tribunal for judicial determination,[10] the compensating authority referred certain medical questions relating to Mr Campbell’s claim to a Medical Panel by way of a certificate of referral to that Panel dated 12 January 2010.
[9] Pursuant to Division 4 of Part 6A of the Workers Rehabilitation and Compensation Act1986 (SA).
[10] Pursuant to section 92D of the Workers Rehabilitation and Compensation Act 1986 (SA).
The medical questions identified in the certificate of referral were whether Mr Campbell’s disability was permanent, and if it was, what the level of impairment, if any, Mr Campbell suffered as a consequence of the disability for the purposes of sections 43 and 43A of the Workers Rehabilitation and Compensation Act. These medical questions relate to matters that are the subject of the dispute.
Medical Panels SA advised Mr Campbell by letter dated 10 February 2010 that a medical examination by a Medical Panel was to take place on 17 February 2010. Mr Campbell wrote to Medical Panels SA by letter dated 12 February 2010 advising that he would not attend the Medical Panel examination unless ordered to do so by the Tribunal.
The dispute was referred into the Tribunal for judicial determination in early 2010. A conciliation conference was conducted before a conciliation officer on 4 February 2010 and, on the same day, that officer referred the matter to judicial determination. A directions hearing took place in the Tribunal on 11 March 2010 before Senior Judge Jennings. Thereafter, there were various attendances before Presidential members of the Tribunal.
By application for directions dated 10 May 2010, the compensating authority sought a stay of the proceedings unless Mr Campbell attended the Medical Panel and submitted to an examination to allow the Medical Panel to provide its certificate of opinion pursuant to section 98H(2) of the Workers Rehabilitation and Compensation Act. On 20 August 2010, Judge McCusker referred the application for a stay to the Full Bench of the Tribunal and directed that the Full Bench be constituted by the same members hearing the appeal in the matter of Yaghoubi.
The Full Bench determined to state a case on a question of law for the opinion of the Supreme Court. The case stated, having referred to the factual history extracted above, provided:[11]
Part 6C of the Act which comprises sections 98 to 98J was introduced into the Act by the Workers Rehabilitation & Compensation (Scheme Review) Amendment Act, 2008 (No. 17 of 2008) which was assented to on 19 June 2008.
Division 1 of Part 6C of the Act became operative from 2 October 2008 and provides for the establishment, constitution and procedures of Medical Panels.
Division 2 of Part 6C of the Act became operative from 1 April 2009 (except for certain sub-sections of section 98E and section 98F(3)) and provides for the functions and powers of Medical Panels.
Pursuant to the Workers Rehabilitation & Compensation (Scheme Review) Amendment Act, 2008, Schedule 1, clause 16, “A medical question may be referred to the Medical Panel under Part 6C of the principal Act, as enacted by this Act, even if the medical question relates to a claim made or proceedings commenced before that enactment.”
[11] Save for some immaterial differences, this extract is the same as in the matter of Yaghoubi.
The question of law referred by the Full Bench of the Tribunal to this Court is in the following terms:
Does the compensating authority have the power under the Act to refer the medical questions to a Medical Panel established under Part 6C of the Act in the circumstances of this case?
The Legislation
The Workers Rehabilitation and Compensation Act enacts a scheme designed to provide compensation to workers injured in work related incidents, and in particular to address their rehabilitation and return to the workforce. The initial decision as to whether the claim should be accepted rests with WorkCover, a corporation established by statute.[12] A worker who is dissatisfied with that initial decision can seek a reconsideration by WorkCover. If the dispute is not resolved at this time, the Act creates a process of conciliation. If at the end of the conciliation process the dispute continues, it is referred for judicial determination before the Workers Compensation Tribunal.
[12] WorkCover Corporation Act 1994 (SA).
Over time, the perception has developed that the process of resolution of disputes, and in particular rehabilitation and return to the workforce, has been hampered by competing medical opinions as to the nature and extent of disability sustained by a worker. This is part of the background to which the legislature enacted Part 6C of the Act establishing a Medical Panel process. This legislation followed on a review and in particular a study of interstate statutory provisions.
Before embarking on a consideration of the scope and validity of Part 6C of the Act, it is relevant to record that in recent times it has become commonplace for claimants seeking damages for personal injury in other jurisdictions to be required to submit for medical review by the other party to the litigation. In part, this process was designed to enable defendants to be properly informed about a claimant’s circumstances, in particular with a view to enhancing the prospect of early settlement.
Part 6C of the Act was introduced by the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 (SA). On the second reading, the Minister for Industrial Relations revealed that:[13]
[13] South Australia, Parliamentary Debates, House of Assembly, 28 February 2008, 2312 (The Hon. M J Wright).
… the overall objectives of the bill are simple: There are three:
•First, the bill aims to align South Australia’s scheme nationally while ensuring the state scheme is fair for injured workers particularly in terms of the critical elements of income maintenance, medical payments and non economic loss.
•Second, the bill amends the scheme in a way that is anticipated to restore its financial health and allow it to go on providing benefits at this level.
•Third, it is expected that the improved financial outlook for the scheme will also be able to be used to the benefit of the cost competitiveness of the state’s economy.
The bill is the outcome of the government’s decision last March to commission an independent review of the South Australian Workers Rehabilitation and Compensation Scheme. The decision to conduct the review was made against a background of a deterioration in the state of WorkCover’s compensation funds.
…
The board [of WorkCover] has also examined the design of the current scheme. In November 2006, the board submitted a package of proposals for changing the design of the scheme to the government. This precipitated the government’s subsequent decision to hold the review. The consultation processes supporting the review have been extensive with 76 written submissions received.
There are a number of factors which have been identified by WorkCover and by the review as contributors to the financial deterioration of the scheme. However, underlying these factors is one common element – a shift in culture away from injury management and return to work towards a culture of compensation. Reversing this culture is the key to restoring the financial health of the scheme while ensuring that injured workers have the best possible chance of resuming productive working lives.
The review to which the Minister referred became known as the “Clayton Review”. It was conducted on behalf of the State Government by Bracton Consulting Services Pty Ltd, of whom Mr Clayton was a senior officer. The terms of reference required the reviewers to consider proposals put to the Government by WorkCover for the improvement of the South Australian workers compensation scheme. One proposal advanced by WorkCover was for the establishment of Medical Panels based on an amalgam of features of the relevant Victorian and Queensland systems. The Clayton Review noted:
1.3.12        Decision making on medical issues
1.3.12.1             WorkCover recommendations and rationale
The WorkCover proposals are to amend the [Workers Rehabilitation and Compensation Act] to provide for the establishment of medical panels based on an amalgam of features of the Victorian and Queensland systems.
A significant proportion of disputes in the South Australian workers’ compensation scheme involved medical questions and such disputes can often become protracted with significant delays. The absence of an avenue for a definitive ruling on medical matters compounds this situation of disputation and delay. The WorkCover proposal contrasts this situation to that in Victoria where the establishment of medical panels provides fast decision making and remove the adversarial nature of a dispute where there is a disagreement between the worker, claims manager and employer.
1.3.12.2             Review’s recommended approach
The Review supports the establishment of medical panels as a means of focusing decision making on medical issues at a more evidence-based level and limiting the negative impact, in both social and economic terms, of a plethora of unproductive medical reports.
The Review had, first, to satisfy itself that there was, over most relevant specialities, a critical mass of practitioners of the requisite calibre and stamp that would allow, with reasonable confidence, a move to establish medical panels in the South Australian system. There are a range of models for medical panels, or even quasi-medical panels, in Australia with half of the Australian jurisdictions having some form of medical panel arrangement. The Review agrees with the position taken by WorkCover in the adoption of the Victorian model for medical panels together with the selection process for panel members that operates in Queensland.
The Review cannot emphasise strongly enough, however, the absolutely crucial importance, for the success of a medical panels, of the quality of the senior leadership, particularly the Convenor, and the choice of senior support staff.
It is appropriate to set out the relevant provisions of Part 6C of the Act in some detail, but before doing so, we will first, by way of overview, say something about Part 6C.
Part 6C comprises three divisions: Division 1, “Establishment and constitution”; Division 2, “Functions and powers”; and, Division 3, “Related matters”. Division 1 provides for the establishment of such Medical Panels as are necessary for the purposes of the Act, and makes provision for appointments to the Panels of legally qualified medical practitioners. The Division sets out the constitution of Medical Panels and the procedures of Medical Panels; those procedures broadly meaning that a Medical Panel may act informally and is not bound by the rules of evidence.
Division 2 prescribes what is encompassed by a “medical question” by reference to a broad range of questions which can arise in the application of the Workers Rehabilitation and Compensation Act. The Division provides that the function of a Medical Panel is to give an opinion on any medical question referred to it under the Act. Importantly, the Division further concerns the circumstances in which a person is to submit to examination by a Medical Panel or to answer questions so that the Medical Panel can determine any specified medical question. The Division governs how this process operates, including the “opinions” to be provided by the Medical Panel, which are contained in a “certificate”. The pertinent provisions of this Division are set out below.
Finally, Division 3 of the Act contains a provision which makes admissible a Medical Panel’s certificate in any proceedings under the Act.[14]
[14] Workers Rehabilitation and Compensation Act 1986 (SA), section 98I(1).
For present purposes the relevant provisions of Part 6C include those set out below.
Section 98E defines the term “medical question” to mean:
(a)     a question whether a worker has a disability and, if so, the nature or extent of that disability; or
(b)     a question whether a worker's disability—
(i)in the case of a disability that is not a secondary disability or a disease—arose out of or in the course of employment; or
(ii)in the case of a disability that is a secondary disability or a disease—arose out of employment or arose in the course of employment and the employment contributed to the disability; or
(c)     a question whether a worker's employment was a substantial cause of a worker's disability consisting of an illness or disorder of the mind; or
(d)     a question whether a worker has suffered a disability of a kind referred to in the first column of Schedule 2; or
(e)     a question whether a medical expense has been reasonably incurred by a worker in consequence of having suffered a compensable disability; or
(f)    a question whether a charge for a medical service should be disallowed under section 32(5); or
(g)     a question whether a disability results in incapacity for work; or
(h)     a question as to the extent or permanency of a worker's incapacity for work and the question whether a worker has no current work capacity or a current work capacity; or
(i)    a question as to what employment would or would not constitute suitable employment for a worker; or
(j)    a question as to whether a worker who has no current work capacity is likely to continue indefinitely to have no current work capacity; or
(k)     a question whether a worker who has a current work capacity is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work and, if not so incapable, what further or additional employment or work the worker is capable of undertaking; or
(l)    a question as to when a disability, other than noise induced hearing loss, that developed gradually first caused an incapacity for work; or
(m)    a question as to when and in what employment a worker with noise induced hearing loss was last exposed to noise capable of causing noise induced hearing loss; or
(n)     a question as to when a worker has ceased to be incapacitated for work by a compensable disability; or
(o)     a question as to what constitutes proper medical treatment for the purposes of section 36(1a)(c); or
(p) a question as to whether a disability is permanent and, if so, the level of impairment of a worker for the purposes of sections 43 and 43A; or
(q)     a question as to whether a provision of a rehabilitation and return to work plan imposes an unreasonable obligation on a worker; or
(r)    a question as to any other prescribed matter.
Section 98F deals with the functions of the Medical Panel:
(1)The function of a Medical Panel is to give an opinion on any medical question referred to it under this Act.
(2)The Corporation or the Tribunal may, at any time or from time to time, require a worker –
(a) who claims compensation under this Act; or
(b) who is in receipt of weekly payments of compensation under this Act,
to submit himself or herself for examination by a Medical Panel or to answer questions (or both) on a date and at a place arranged by the Convenor of Medical Panels so that the Medical Panel can determine any specified medical question.
(3)In addition, a medical question that constitutes or forms part of, or arises in connection with, a matter that is the subject of a dispute under Part 6A must be referred to a Medical Panel.[15]
(4)A Medical Panel may decide not to give an opinion on a particular medical question if it appears to the Medical Panel that the question relates to a matter that falls outside the range of matters that should be subject to determination under this Part.
[Emphasis added.]
[15] Subsection 98F(3) is yet to be proclaimed. We deal with this issue later in these reasons.
Section 98G concerns the powers and procedures of a Medical Panel on a referral:
(1)     A Medical Panel may ask a worker—
(a)     to meet with the Medical Panel and answer questions;
(b)     to supply copies of all documents in the possession of the worker which relate to the medical question to the Medical Panel;
(c)     to submit to a medical examination by the Medical Panel or by a member of the Medical Panel.
(2)A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying—
(a)     the disability or alleged disability to, or in respect of, which the medical question relates;
(b)     the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.
(3)A person or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that person or body to the Medical Panel.
(4)If a Medical Panel requests and the worker consents, a medical expert who has provided a medical service to a worker in relation to the relevant compensable disability must—
(a)     meet with the Medical Panel and answer questions; and
(b)     supply relevant documents to the Medical Panel.
(5)If a worker unreasonably refuses to comply with subsection (1) or in any way hinders an examination—
(a)     the worker’s rights to recover compensation under this Act with respect to the disability; or
(b)     the worker’s rights to weekly payments,
may be suspended by the Corporation until the examination has taken place in accordance with the requirements of the Medical Panel (and any weekly payments that would otherwise be payable during the period of suspension are forfeited).
(6)Any attendance of a worker before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present.
(7)Information given to a Medical Panel cannot be used in subsequent proceedings unless—
(a)     the proceedings are before the Tribunal or a court under this Act; or
(b)     the worker consents to the use of the information; or
(c)     the proceedings are for an offence against this Act.

Section 98H is dedicated to the “opinions” provided by a Medical Panel:
(1)A Medical Panel must form its opinion on a medical question referred under this Division within 60 days after the reference is made or such longer period as may be agreed by the Corporation or Tribunal (as the case requires).
(2)The Medical Panel to which a medical question is so referred must give a certificate as to its opinion.
(3)An opinion under subsection (2) must include a statement setting out the reason or reasons for the opinion provided by the Medical Panel.
(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any body or person acting under this Act and must be accepted as final and conclusive irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
As earlier mentioned, in the context of the resolution of the present dispute under Part 6A of the Workers Rehabilitation and Compensation Act, Employers Mutual Limited is a party to the dispute as the “relevant compensating authority”.[16]
[16] Workers Rehabilitation and Compensation Act 1986 (SA), section 89.
King CJ explained the function of the compensating authority in general terms in Robbins v Harbord.[17] That explanation was given in the context of a review and appeal system which has long since been replaced by the current system of conciliation and judicial determination, but nevertheless it remains applicable. King CJ explained that while the compensating authority is a party to proceedings with respect to a dispute,[18] it is not an ordinary party to litigation:[19]
The provisions for reviews and appeals are contained in Pt VI, Div VI. The Corporation or the exempt employer, as the case may be, is necessarily a party to a review or appeal. A consideration of the provisions to which I have referred above, however, makes clear that they are not ordinary parties to litigation. The decision by the Corporation or exempt employer in relation to a claim is not simply a decision by a private person or corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function. The function of the exempt employer is not distinguished from that of the Corporation. Both have the statutory function of investigating and determining claims for compensation. Neither is entitled in determining claims simply to consult its own interests. There must be proper grounds of rejection of a claim and they must be notified to the claimant. It follows, in my opinion, that the Corporation or exempt employer are not parties to a review or appeal in the ordinary role of litigant but as primary decision makers defending their primary decision against a person affected by the decision (s 95).
[17] Robbins v Harbord (1994) 62 SASR 229, 236.
[18] Now in accordance with section 89 of the Workers Rehabilitation and Compensation Act 1986 (SA).
[19] Robbins v Harbord (1994) 62 SASR 229, 236.
The conciliation process will facilitate the identification and clarification of the range of issues in dispute, and if the matter does not resolve during this process, the parties and the Tribunal may then address the means of progressing the resolution of the dispute. All appropriate means of dispute resolution should be explored. One question that may arise is whether the issues in dispute give rise to a “medical question”, as defined by section 98E, suitable for a referral for an opinion of a Medical Panel.
The dispute resolution process is governed by Part 6A of the Workers Rehabilitation and Compensation Act. The process there provided, quite apart from the role of Medical Panels, contemplates the following steps.
A person with a direct interest in a reviewable decision of the compensating authority, which includes the worker and the employer, may lodge a notice of dispute within one month or a longer period allowed by the Tribunal. The Registrar notifies the parties and the compensating authority of the dispute.[20] On receipt of the notice of dispute, the compensating authority must undertake an initial reconsideration in light of the matters set out in the notice of dispute.[21] Where that reconsideration results in a confirmation of the decision, or in a variation of the decision to the dissatisfaction of a party to the dispute, the Registrar must refer the dispute to conciliation.[22] The procedures governing conciliation proceedings require disclosure of relevant information, but prevent anything said or done being admissible in subsequent proceedings without all parties’ consent.
[20] See Workers Rehabilitation and Compensation Act 1986 (SA), sections 90, 90A and 90B.
[21] Workers Rehabilitation and Compensation Act 1986 (SA), section 91.
[22] Workers Rehabilitation and Compensation Act 1986 (SA), section 91A.
If the conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator presiding must, pursuant to section 92D of the Act, refer the dispute into the Tribunal for judicial determination. The Tribunal then must decide the dispute without regard to decisions in earlier proceedings.[23]
[23] Workers Rehabilitation and Compensation Act 1986 (SA), section 94C.
Part 6 of the Act contains provisions providing for the procedures of the Tribunal, the distribution of its business and rights of appeal. Appeals against decisions of a single member lie to the Full Bench of the Tribunal on questions of law only,[24] and appeals against decisions of the Full Bench lie to the Full Court of the Supreme Court on questions of law only.[25] It is to be accepted, as will be demonstrated by the discussion below, that the introduction of Part 6C of the Act relating to Medical Panels represents a marked change to the regime for the resolution of some disputes under the Act.
[24] Workers Rehabilitation and Compensation Act 1986 (SA), section 86(1).
[25] Workers Rehabilitation and Compensation Act 1986 (SA), section 86A(2).
Medical Panels
It is appropriate to say something more about Medical Panels and their function, role and operation as contemplated by the Workers Rehabilitation and Compensation Act.
There will be such number of Medical Panels as are necessary for the purposes of the Act. Members of a Medical Panel are drawn from a list of legally qualified medical practitioners appointed by the Governor to that list on the recommendation of the Minister.[26] A Medical Panel consists of up to five members.[27] Membership of a particular Panel and the number of members comprising the Panel lies within the discretion of the Convenor of Medical Panels.[28] The Convenor of Medical Panels is appointed by the Minister from the list of medical practitioners compiled and from which Medical Panels are formed.[29]
[26] Workers Rehabilitation and Compensation Act 1986 (SA), section 98(2).
[27] Workers Rehabilitation and Compensation Act 1986 (SA), section 98A(1).
[28] Workers Rehabilitation and Compensation Act 1986 (SA), section 98A(1).
[29] Workers Rehabilitation and Compensation Act 1986 (SA), section 98(8).
For the purposes of making recommendations, the Minister is required to take into account recommendations made by a selection committee which will have invited expressions of interest from medical practitioners and considered the same.[30]
[30] Workers Rehabilitation and Compensation Act 1986 (SA), section 98(3), (4) and (5).
A practitioner is appointed to the list for a period not exceeding three years on conditions determined by the Governor and may, on the expiration of the term, be re-appointed.[31] An appointee to the list can only be removed in limited circumstances and enjoys an immunity from liability.[32]
[31] Workers Rehabilitation and Compensation Act 1986 (SA), section 98(6).
[32] Workers Rehabilitation and Compensation Act 1986 (SA), sections 98(7), 98D.
A Medical Panel is formed for the purposes of a particular matter,[33] and does not have an ongoing existence as would a court of record. We agree with the Attorney-General that a Medical Panel duly formed for the purposes of a particular matter is not an extension of the Executive. Membership is not drawn from the public service. The terms and conditions upon which a particular medical practitioner is appointed to the list from which Panels are drawn, and in particular, the limited avenues for the removal of a practitioner from the list, taken with the discretion vested in the Convenor as to membership of a particular panel, ensures independence.
[33] Workers Rehabilitation and Compensation Act 1986 (SA), section 98A(1).
As earlier discussed, the function of a Medical Panel is to give an opinion on any referred medical question.[34] It is only if the Medical Panel considers that a particular question falls outside the range of matters that should be determined under Part 6C of the Act that it may decide not to provide an opinion.[35]
[34] Workers Rehabilitation and Compensation Act 1986 (SA), section 98F(1).
[35] Workers Rehabilitation and Compensation Act 1986 (SA), section 98F(4).
As we extracted earlier, “medical question” is broadly defined in section 98E of the Act. In any given case, a question may require findings as to fact, and expressions of opinion. With this background, it is to be accepted that the opinion on a question may amount to an opinion on the ultimate issue in a given case.
A Medical Panel must form its opinion on any medical question referred to it within 60 days.[36] The opinion is to be provided in the form of a certificate which must include a statement setting out the reasons for the opinion arrived at.[37] An opinion provided by a Medical Panel cannot be equated to the order or judgment of a court. It does not amount to a dispositive order and thus is not a decision that merges into judgment. In our view, the opinion is intended to supplement the process of the primary decision maker.
[36] Unless such longer period is agreed by the Corporation or the Tribunal: see Workers Rehabilitation and Compensation Act 1986 (SA), section 98H(1).
[37] Workers Rehabilitation and Compensation Act 1986 (SA), sections 98H(2), 98H(3).
As earlier mentioned, a Medical Panel is not bound by the rules of evidence, but may inform itself in any way it considers appropriate.[38] It may act informally and without regard to technicalities or legal forms.[39] It may engage consultants and seek expert advice as it considers necessary.[40] The Minister may issue guidelines as to procedures for the purposes of securing procedural fairness and the proper administration of the Medical Panels.[41] The Convenor of the Medical Panels may give directions regarding the arrangement of the business of the Panels and procedure, but such directions may not be inconsistent with any guideline issued by the Minister.[42] Subject to any guideline or direction, a Medical Panel may determine its own procedures.[43]
[38] Workers Rehabilitation and Compensation Act 1986 (SA), section 98B(1).
[39] Workers Rehabilitation and Compensation Act 1986 (SA), section 98B(2).
[40] Workers Rehabilitation and Compensation Act 1986 (SA), section 98B(3).
[41] Workers Rehabilitation and Compensation Act 1986 (SA), section 98B(5). Before any guidelines are issued the Minister must consult the Attorney-General: section 98B(6).
[42] Workers Rehabilitation and Compensation Act 1986 (SA), sections 98B(4), 98B(7).
[43] Workers Rehabilitation and Compensation Act 1986 (SA), section 98(9).
An act or decision of a majority of members of a Medical Panel constitutes the act or decision of the Panel.[44] A certificate incorporating the reasons of the Panel will contain only the majority view.
[44] Workers Rehabilitation and Compensation Act 1986 (SA), section 98(8).
The Attorney-General submitted that while the rules of natural justice apply to Medical Panels, they do not guarantee an oral hearing. We agree. There is nothing to suggest that the Medical Panel will proceed in a forum open to the public – the contrary appears to be more likely.[45] Representation before a Medical Panel is not provided for and, it was contended, may only be permitted in the discretion of the Medical Panel and in certain types of case. The Medical Panel has no power to administer an oath, to compel attendance or to compel answers to questions. There is no right to present a case or to examine or cross-examine a witness.
[45] Note also Workers Rehabilitation and Compensation Act 1986 (SA), section 98G(6).
Normally where a court is relieved of the obligation of having to comply with the rules of evidence, it is not to be taken as suggesting that such rules be ignored as of no account.[46] The same could be expected here. As mentioned, it is for the Medical Panel to determine whether or not the question referred is one that falls within the range of matters subject to determination under the Part. The Medical Panel has no power to punish for contempt. The Medical Panel operates largely in an inquisitorial fashion - informing itself as it considers appropriate, engaging consultants or expert assistance as it considers necessary, examining the worker and other medical experts itself.
[46] The King v War Pensions Entitlement Appeal Tribunal; Ex parte Batt (1933) 50 CLR 228, 256 (Evatt J).
The Power of Referral
It was accepted by all parties that the provisions of the Act relating to the establishment, functions and powers of Medical Panels in Part 6C of the Act do not confer an express power on the Tribunal, the compensating authority or any other body or person to refer a medical question to a Medical Panel.
The compensating authority submitted to this Court that, upon its proper construction, Part 6C of the Workers Rehabilitation and Compensation Act implicitly vests a power of referral in both the compensating authority and the Tribunal. It was contended that, properly construed, a referral could be made by the compensating authority both before or after the proceedings had been referred to the Tribunal for judicial determination.
Mr Yaghoubi and Mr Campbell submitted that there was no power, either express or implied, under the legislation enabling the compensating authority to refer a question for opinion to a Medical Panel. It was further submitted that if the construction contended for by the compensating authority was accepted, the consequence would be that the Medical Panel scheme enacted by the legislation would exceed the legislative competence of the State Parliament and as such, would be struck down.
Section 98F(3) as earlier extracted with emphasis, is not yet to be proclaimed. The section provides that a medical question that “constitutes or forms part of, or arises in connection with, a matter that is the subject of a dispute under Part 6A must be referred to a Medical Panel”. This is expressed to be a mandatory requirement.
Plainly subsection 98F(3), in that it has not been proclaimed, is not operative. The fact that subsection 98F(3) has not yet come into effect does not deny that it is part of the legislation. To put it another way, the provision is not “legally non-existent” or “in escrow”. It cannot be ignored entirely, and is to be viewed in its context. In our view, in the present instance, the subsection has some significance when reading the Act as a whole, and when construing the impugned provisions.
In New South Wales v Commonwealth,[47] legislation that had been enacted but was not yet in force, was challenged on the basis that it was a “law” of the Commonwealth. Although the question arises in quite a different context, the legislation was not treated by the High Court as legally “non-existent”. In fact, it appears settled that legislation not yet in force may be the subject of a challenge as to its constitutional validity.[48] As was concluded by Beaumont J in Queensland v CQLCAC,[49] enacted, yet not in force legislation, can have legal relevance in a number of contexts. An important distinction is to be drawn between the status in law of an Act yet to be proclaimed, and a mere Bill.
[47] New South Wales v Commonwealth (1990) 169 CLR 482.
[48] See Attorney-General (Vic) v Commonwealth (1945) 71 CLR 237; New South Wales v Commonwealth (1990) 169 CLR 482.
[49] State of Queensland v Central Queensland Land Council Aboriginal Co (2002) 125 FCR 89, [60].
Section 98F(2) provides the Corporation and the Tribunal with the power to require a worker to submit for examination by a Medical Panel. The legislation is explicit that that requirement may be exercised “at any time or from time to time”. No temporal distinction is drawn between the power of the Corporation and the power of the Tribunal in this respect. The purpose of the requirement is set out in the legislation – “so that the medical panel can determine any specified medical question”.
Section 98F(1) describes the function of a Medical Panel as being the provision of an opinion on any medical question referred to it under the Act. As we have earlier noted, it was accepted that Part 6C does not explicitly provide a power of referral. However, in our view it is implicit that there is a power of referral, both in the Corporation and the Tribunal. Other provisions in Part 6C support this conclusion.
A Medical Panel may ask, but not compel, a worker to meet the Panel and answer questions, supply copies of relevant documents, and submit to a medical examination.[50] With the consent of the worker the Medical Panel may also require a medical expert who has provided a medical service to the worker to meet with the Panel, answer questions and supply relevant documents.[51] Only the Tribunal or the Corporation may compel a worker to submit himself or herself to a Medical Panel for examination or to answer questions.[52] Information given to a Medical Panel cannot be used in subsequent proceedings unless the proceedings are before the Tribunal or a court, the worker consents, or the proceedings are for an offence against the Workers Rehabilitation and Compensation Act.[53]
[50] Workers Rehabilitation and Compensation Act 1986 (SA), section 98G(1). The sanction for an unreasonable refusal is that the Corporation may suspend certain rights to compensation and weekly payments until such time as an examination has taken place: Workers Rehabilitation and Compensation Act 1986 (SA), section 98G(5).
[51] Workers Rehabilitation and Compensation Act 1986 (SA), section 98G(4).
[52] Workers Rehabilitation and Compensation Act 1986 (SA), section 98F(2).
[53] Workers Rehabilitation and Compensation Act 1986 (SA), section 98G(7).
In summary, it is our view that given the absence of any express power of referral, the provisions of Part 6C of the Act can be understood to imply that both the Tribunal and the compensating authority have an implied power to refer medical questions to a Medical Panel. In our opinion, this construction is consistent with Parliament’s manifest intention that Medical Panels have a function to perform with respect to medical questions referred to them.
Such a conclusion is open having regard to the terms of sections 98F and 98H of the Act. Section 98F(2) allows the compensating authority or the Tribunal to require a worker to submit for examination by a Medical Panel so that the Medical Panel can determine “any specified medical question”. The “medical question” referred to must be taken to be a “medical question” which falls within the definitions in section 98E of the Act. In order for a Medical Panel to discharge the function of determination contemplated in section 98F(2), a document containing the information required under section 98G(2) must be submitted to a Medical Panel.
In order for the provisions of Part 6C to have any operation, it must necessarily be assumed that a power is vested in some entity to implement the referral under section 98G. It can be accepted that Parliament intended that the Tribunal or the compensating authority be vested with this power, given their power under section 98F(2) to require a worker to submit to an examination by a Medical Panel for the purpose of determining a specified medical question. Were it otherwise, the medical examination would be pointless as the Medical Panel would be unable to certify an opinion on the specified medical question.

The terms of section 98H point to the same conclusion. Section 98H(1) sets a time limit of 60 days for the formation by a Medical Panel of an opinion on a medical question which has been referred to it under Division 2 of Part 6C – comprising sections 98E to 98H. Such longer period is allowed “as may be agreed by the Corporation, or the Tribunal”. The need for the Medical Panel to seek agreement to an extension of time from either the Corporation or the Tribunal implies that either the Corporation or the Tribunal was an entity which had the power to refer the medical question to the Medical Panel in the first place.
Further support for this conclusion can be found in section 98H(2), which refers to the need for the issue of a “certificate” of opinion by the Medical Panel “to which a medical question is so referred”. Likewise it is supported by section 98H(4) of the Act which provides for the adoption and application of an opinion of a Medical Panel “on a medical question referred to the Medical Panel”.
Both the compensating authority and the Attorney-General submitted that a referral may be made at any time, including before or after the lodgement of a notice of dispute and before or after the referral of that notice into the Tribunal for judicial determination. In this respect, emphasis was placed on section 98F(2) and the words “at any time or from time to time” used in relation to the Corporation or the Tribunal being authorised to require a worker to subject for examination by a Medical Panel so that the Panel can determine a specified medical question.
To our minds, at any stage of the process commencing from the making of a claim to the end of conciliation, it may be readily accepted that the compensating authority could, if it so elected, refer a medical question to a Medical Panel, do so in the proper discharge of a function given to it under the Act; namely, to assist the resolution of an aspect of the dispute through the opinion of a Medical Panel as an alternative or an adjunct to a later judicial determination. It remains to consider whether the compensating authority may refer a question during the process of judicial determination by the Tribunal. We now turn to consider this question.
As observed above, once the dispute has been referred into the Tribunal for judicial determination, the process enters a distinctly different phase. The referral will have been made because the presiding conciliation officer had formed the view that proceedings had not resulted in agreement despite all reasonable efforts to bring the parties to the dispute to agreement. The Tribunal remains in control of the proceedings, but now by means of a presidential member. The purpose of the proceedings, at this time, is to progress resolution of the dispute by judicial determination.
The compensating authority at this stage primarily adopts the role of an adversarial party in contrast to its functions with respect to the earlier phases involving investigation, determination, reconsideration and conciliation in accordance with Part 6A Division 4 of the Act, which have been discharged.[54]
[54] However, to be recalled are the remarks of King CJ in Robbins v Harbord (1994) 62 SASR 229, 236.
It was submitted by Mr Yaghoubi and Mr Campbell that, if the compensating authority is to be taken to be able to exercise the implied power of referral of a medical question arising out of or related to a dispute which has already been referred for judicial determination, there arises the potential for a number of undesirable consequences. It was said that the Tribunal will have no power to prevent the compensating authority from making the referral to the Medical Panel. The Tribunal, it was said, would have only two options. It might accede to an application that it stay or adjourn the proceedings to await the Medical Panel opinion which, depending upon the stage of the proceedings, may result in a waste of time already expended on preparation for judicial determination, the incurring of unnecessary costs and a delay in the resolution of the dispute. Alternatively, it may continue with the proceedings and issue a judicial determination of the dispute, which may result in an outcome which conflicts with the opinion of a Medical Panel on the same issue. It was contended that that will also result in a duplication of time and resources and unnecessary costs.
It was further submitted that the potential for such outcomes is quite contrary to many of the objects of the Act. In particular, it was said that: it would not appear to be consistent with a system which has the objective of achieving a reasonable balance between the interests of employers and the interests of workers; it would not tend to promote the reduction of the economic cost to the community of employment related disabilities; it would detract from the efficient and effective administration of the scheme; it would neither provide an incentive to encourage efficiencies in dispute resolution procedures nor would it discourage abuses; and, it would not be conducive to a reduction in litigation and adversarial contests.
It was contended that other provisions of the Act illustrate that Parliament has explicitly vested the compensating authority with a range of powers to require a worker to submit to certain procedures in other contexts – for example, to comply with obligations under rehabilitation and return to work plans under section 28A, to submit to medical examinations for the purposes of a determination of a claim under section 53,[55] or a review of entitlements under section 38, and for the purposes of other provisions such as section 36(1a)(a)[56] and section 108.[57]
[55] Section 53 of the Workers Rehabilitation and Compensation Act 1986 (SA) sets out the procedures for the determination of a claim for compensation. In particular, section 53(2) provides that:
For the purpose of satisfying itself of the nature, extent or probable duration of a disability, the Corporation may require a worker to submit to an examination by a recognised medical expert nominated by the Corporation from a list of approved experts.
[56] Section 36(1a)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA) provides that a worker breaches the obligation of mutuality if that worker fails in certain circumstances to submit to a medical examination by a medical expert.
[57] Section 108 of the Workers Rehabilitation and Compensation Act 1986 (SA) addresses the circumstances in which an employer can request a medical examination.
There are practical constraints as to when a question may be referred. Sufficient facts must be known if cooperation of the worker is not provided such that an opinion addresses the true issue and is of value. Alternately, the referring party will need to be comfortable in its ability to prove any assumptions upon which it may seek a medical question be answered.
Such right of referral in the compensating authority would be subject to the implicit power that the Tribunal has to prevent the abuse of its own processes in addition to the rule making power. The Medical Panel cannot make dispositive orders. In no sense is the judicial determination process being bypassed unilaterally.
To the extent that a question is referred over objection, there is nothing to suggest that the objecting party may not put relevant material before the Medical Panel in addition to seeking to be heard on adverse matters. Further, there is nothing to prevent the Tribunal, which has control over its own processes, from referring a question back to the Medical Panel for clarification or elaboration.[58]
[58] Lianos v Inner & Eastern Health Case Network [1999] VSC 307.
In our view, the power of a compensating authority to refer a medical question to a Medical Panel established under Part 6C of the Workers Rehabilitation and Compensation Act exists once a matter has been referred into the Tribunal for judicial determination pursuant to section 92D of the Act.
This construction is consistent with section 98F(1) of the Workers Rehabilitation and Compensation Act in that that section refrains from identifying any narrowing purpose for which an opinion may be required. Quite clearly a medical opinion on a medical question may be every bit as useful during the reconsideration and conciliation phase as it may be in the course of a judicial determination. This construction is consistent with the legislative intent and addresses the mischief identified by the legislature. It is also conducive to timely and effective dispute resolution.
Impermissible Conferral of Judicial Power
We turn now to the third question as set out at the beginning of these reasons; that is, whether or not an ability to refer questions to a Medical Panel, in the circumstances as set out, amounts to an impermissible conferral of judicial power upon a non-judicial body rendering Part 6C of the Workers Rehabilitation and Compensation Act invalid.
In Nicholas, Gaudron J made the following observations in considering the question; what is judicial power:[59]
The difficulties involved in defining "judicial power" are well known. In general terms, however, it is that power which is brought to bear in making binding determinations as to guilt or innocence, in making binding determinations as to rights, liabilities, powers, duties or status put in issue in justiciable controversies, and, in making binding adjustments of rights and interests in accordance with legal standards. It is a power which is exercised in accordance with the judicial process and, in that process, many specific and ancillary powers are also exercised. …
[Footnotes omitted.]
In that decision, Brennan CJ cited Griffiths CJ in Huddart, Parker and Co v Moorhead who observed:[60]
[T]he words "judicial power" as used in s 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.
The Chief Justice went on to cite the following observations of Mason, Murphy, Brennan and Deane JJ in Fencott v Muller:[61]
… [t]he unique and essential function of the judicial power is the quelling of such controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.
[59] Nicholas v The Queen (1998) 193 CLR 173, [70].
[60] Huddart, Parker and Co Pty Ltd v Moorhead (1909) 8 CLR 330, 357.
[61] Nicholas v The Queen (1998) 193 CLR 173, [19] citing Fencott v Muller (1983) 152 CLR 570, 608.
In our view, a Medical Panel does not exercise judicial power. As much is clear from our reasons above.[62] In summary, a Medical Panel does not have an ongoing existence, its opinions do not amount to dispositive orders, it is not bound by the rules of evidence, it operates largely in an inquisitorial fashion and the content of the rules of natural justice as they apply to Medical Panels does not include an oral hearing.
[62] The position of the Medical Panels may be contrasted with that of the Tribunal; see Part 6 Workers Rehabilitation and Compensation Act 1986 (SA).
The Scope and Effect of Section 98H(4)
It is appropriate to now turn to the fourth question as set out at the commencement of these reasons relating to whether or not the Workers Compensation Tribunal by section 98H(4) of the Act is required to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every respect of the Tribunal’s judicial role, of its defining characteristics as a court. Consideration of this issue involves two questions. First, what is the proper construction of section 98H(4) of the Act, and second, so construed, does the operation of the section have any material impact on the Tribunal’s judicial role, such as to invoke considerations of Chapter III of the Constitution.
Section 98H(4) of the Workers Rehabilitation and Compensation Act provides:
For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any body or person acting under this Act and must be accepted as final and conclusive irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
The compensating authority submitted that “body or person” for the purposes of section 98H(4) does include the Tribunal. Mr Yaghoubi and Mr Campbell contended that so construed, the section impermissibly impacts on the Tribunal’s judicial role. The Attorney-General submitted that a “body or person” does not include the Tribunal. On this latter construction, it was said that the effect of the provision would be to require that those joined in an issue adopt and apply the Medical Panel’s opinion as part of their respective cases. In this way the undesirability of the decision maker being confronted by duelling experts is minimised.
The section considers the “question or matter” referred to in its opening words as a different issue to that subject of the “medical question”. The latter is antecedent to the former, hence the binding nature of the Medical Panel opinion is to be taken into account and more specifically to be “adopted and applied” “for the purpose of determining any question or matter” and is not necessarily decisive of the question or matter.[63] If this were not the case then the opening words of the section have no work to do. It would have been sufficient to bind all concerned to commence the section with the words, “The opinion of a Medical Panel …”.
[63] The same distinction is evident in the unproclaimed section 98F(3) of the Workers Rehabilitation and Compensation Act 1986 (SA). Further, section 98I of the Workers Rehabilitation and Compensation Act 1986 (SA) is consistent with this construction.
It is interesting to note that in a recent decision, the High Court made observations with respect to legislative provisions comparable to those the subject of the within proceedings. Those observations provide some support for conclusions expressed in these reasons. In Maurice Blackburn Cashman v Brown,[64] a plaintiff had made a claim under the Accident Compensation Act 1985 (Vic) against her employer. The Victorian Workcover authority had referred questions to a Medical Panel about the extent of the plaintiff’s impairment, the opinion of which Panel resulting in the plaintiff’s injury being deemed under the Act to be a “serious injury”. The plaintiff further commenced separate common law proceedings against her employer for damages. In those proceedings the employer denied that the plaintiff had suffered any injury, loss and damage. At issue, amongst other things, was whether section 68(4) of the Act precluded the employer from so denying. Section 68(4), provided that:
For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
[64] Maurice Blackburn Cashman v Brown [2011] HCA 22.
In a judgment of the Court,[65] the Court considered the scope of the words in section 68(4) “for the purposes of determining any question or matter”, and determined that the meaning of those words that should be adopted is “for the purposes of determining any question or matter arising under or for the purposes of the Act.”[66] It was on this basis for which the opinion of a Medical Panel on a medical question was to be adopted and applied and accepted as final and conclusive. The Court then observed:[67]
Once that step is taken, it is then clear that s 68(4) does not speak at all to the litigation of questions or matters that are not questions or matters arising under or for the purposes of the Act. More particularly, s 68(4) does not speak at all to an action for damages brought by a worker against an employer.
[65] French CJ, Hayne, Crennan, Kiefel and Bell JJ.
[66] Maurice Blackburn Cashman v Brown [2011] HCA 22, [34].
[67] Maurice Blackburn Cashman v Brown [2011] HCA 22, [35].
It is to be immediately observed that there are important distinguishing features between the legislation in Victoria and that in South Australia. In particular, it is to be noted that section 68(4) uses the phrase “court, body or person”, whereas section 98H(4) simply uses “body or person”. This has some significance in light of the review conducted of State, and in particular the Victorian, comparators prior to the enactment of Part 6C of the South Australian legislation, and further in light of the close consideration of the Clayton review at the same time, as mentioned earlier in these reasons.[68]
[68] Further, in relation to the issue addressed later in these reasons, although of limited significance given the differences in the cases and the legislation, it is noteworthy that recently in Maurice Blackburn Cashman v Brown [2011] HCA 22, when the concept of opinions of a Medical Panel being “adopted and applied” by any “court, body or person” and having to be “accepted as final and conclusive” by any “court, body or person”, no issue or comment as to constitutional validity appeared in the reasons for decision of the High Court.
It is not without significance that the Victorian model upon which section 98H(4) was based provided that “any court, body or person” was bound in the manner identified, thereby suggesting a deliberate decision being made on the part of the South Australian Parliament to exclude the Tribunal from the ambit of section 98H(4).
We accept that the words, “irrespective of who referred the medical question to the Medical Panel” are significant. They suggest an intent to prohibit any contention made by one body or person that they are not bound in the sense identified by virtue of the fact that they did not refer the medical question. This implication supports the proposition that it is those joined in an issue who are to be bound by the medical opinion.
The section only purports to be binding in relation to a “medical question”. The definition of a medical question does not have the effect that the opinion of the Medical Panel resolves the legal question that is the issue in which the parties are joined. It remains for those determining the question or matter to determine the legal question.
That a Medical Panel may give an opinion on the ultimate issue does not detract from this construction. It remains for the decision maker to determine whether or not the opinion should be accepted. Again, it might be that the opinion is binding upon the bodies or persons joined in the issue, and must be accepted as final and conclusive by them. But it can only be binding and conclusive as the opinion of the Medical Panel on the decision maker to the extent that the factual basis upon which the opinion is based is agreed, or the assumptions upon which it is based are subsequently proven. In this regard, it is important to note that a question may be referred despite facts and questions being disputed.[69] Further, the value of the opinion may also depend upon matters of law.
[69] Workers Rehabilitation and Compensation Act 1986 (SA), section 98G(2).
In our view, the above factors allow the conclusion in that the Medical Panel is a facility available to the parties to a dispute under the Workers Rehabilitation and Compensation Act, one which, if utilised, has the effect of minimising the undesirable alternative of “duelling experts”, prevents the proliferation of reports, and provides for a speedy and definitive ruling on medical matters.

Accordingly, although I regard s 98F(3) as being pertinent, I do not consider it to be decisive of the proper construction of s 98H(4) in this respect.
An indication that s 98H(4) does not encompass the Tribunal is obtained by a comparison with s 68(4) of the Accident Compensation Act 1985 (Vic) (the ACA). Section 68(4) was inserted into the ACA in 1997. It provides:
For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
(Emphasis added)
The only difference between s 68(4) and s 98H(4) is that the former refers to “any court, body or person” whereas the latter refers only to “any body or person”. It is plain that s 98H(4) was derived from s 68(4). This means that the legislature must have made a deliberate decision to omit the word “court” or any analogue of that word such as “tribunal”. I regard this as a strong indication that s 98H(4) is not intended to apply to the Tribunal.
Sub-sections 98G(2) and (3) contain a possible contrary indication. They impose obligations on “a person or body” referring a medical question to a Medical Panel.[113] For the reasons which I will give shortly, I consider that Part 6C implicitly authorises the Tribunal to make a referral to a Medical Panel. That being so, it might be thought that s 98G(2) and (3) indicate that the expression “person or body” does include the Tribunal. However, as noted above, the expression “person or body” is not a very apt way of referring to a court or tribunal. Sub-sections 98G(2) and (3) can be more naturally understood as imposing obligations on compensating authorities, ie, on the Corporation itself, on self-insured employers and on Claims Agents. This is explicable because the Parliament may well have taken the view that it was unnecessary or inappropriate for it to dictate to the Tribunal the kinds of documents and information which it must provide to a Medical Panel when making a referral.
[113] Section 98G(2) and (3) provide as follows:
(2)A person or body referring a medical question to a Medical Panel must submit a document to the Medical Panel specifying—
(a) the disability or alleged disability to, or in respect of, which the medical question relates;
(b) the facts or questions of fact relevant to the medical question which the person or body is satisfied have been agreed and those facts or questions that are in dispute.
(3)A person or body referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in the possession of that person or body to the Medical Panel.
If s 98H(4) did apply to the Tribunal, there would be a question as to whether it applied when the Tribunal heard a claim by a compensating authority under s 54(7) of the WRC Act. Section 54(7) entitles a compensating authority to recover from a third party who is liable to pay damages to an injured worker the amount of the compensation which it has paid under the Act. If s 98H(4) bound the Tribunal, it would mean that a third party tortfeasor who had had no input into the referral of the medical question at all would, in effect, be bound by the Medical Panel’s opinion. Such a denial of procedural fairness is so stark that one would not readily impute such an intention to the legislature. This is a third indication that s 98H(4) does not apply to the Tribunal.
It may be inappropriate to give much weight to the consideration just identified. In relation to s 68(4) of the ACA, the Victorian equivalent of s 98H(4), the Court of Appeal in Victoria has held that the word “any” in the opening words “for the purposes of determining any question or matter” is a reference to the determination of the claim or proceedings in connection with which the referral was made, and not otherwise.[114] The Court of Appeal reached this conclusion by reference to the purposive approach to statutory construction and by reference to the history of the ACA. Adopting this construction would mean that s 98H(4) would have no application to claims under s 54(7). It is unnecessary for present purposes to determine whether s 98H(4) (which does not have the same history as s 68(4)) should be construed in the same way.[115]
[114] Pope v WS Walker & Sons Pty Ltd [2006] VSCA 227 at [37]; (2006) 14 VCR 430 at 444.
[115] In Brown v Maurice Blackburn Cashman [2010] VSCA 206 the Court of Appeal in Victoria appears to have adopted a different construction of s 68H(4). I note that the High Court has granted special leave to appeal in relation to that decision.
I consider s 98I to be important in identifying the “body or person” to whom s 98H(4) is directed. Section 98I addresses the evidential use of a Medical Panel’s certificate. It makes the certificate “admissible” in any proceedings. That has the effect that the certificate may, subject to the court’s or Tribunal’s decision on any objection,[116] be admitted into evidence and used, along with any other evidence, in the proceedings. The principal kind of proceedings in which a certificate may be admitted will be proceedings in the Tribunal itself. If the Tribunal was obliged in any event by s 98H(4) to adopt and apply the opinion of a Medical Panel, there would be no point in the WRC Act providing, in addition, for the admissibility of the certificate in proceedings before it. Accordingly, I consider that s 98I is an indication that the Tribunal is not a “body or person” to which s 98H(4) refers.
[116] Baskerville v Lippett (1974) 9 SASR 575 at 584-5.
A number of practical difficulties would arise if s 98H(4) did bind the Tribunal. For example, s 98G(2) contemplates that the facts relevant to a medical question referred to a Medical Panel may remain in dispute at the time of the referral. The Medical Panel may not be able to resolve the dispute. As is well known, any expert medical opinion is only as good as the facts upon which it is based. If the Medical Panel proceeded on an incorrect or incomplete understanding of the relevant circumstances, its opinion may be of limited, if any, use. In such cases it is not to be expected that the Tribunal should be bound to adopt and apply the Panel’s opinion in a final and conclusive way in its determination of the dispute. Absent express words, s 98H(4) should not be construed in a way which produces that result.
Next, I consider it significant that, despite the introduction of Part 6C, the provisions in the WRC Act concerning the Tribunal remain intact. The legislature has continued the Tribunal in existence with all of its attributes as a court, including the independence, composition and status of a court. It is has continued in existence the Tribunal’s substantial jurisdiction in respect of the “reviewable decisions” identified by s 89A. Given the plain intention of the legislature in this respect, it is difficult to attribute to it an intention that the Tribunal’s independent exercise of its jurisdiction should be circumscribed by requiring it to give effect in some conclusive way to the opinion of a Medical Panel on the very same issues which it is required to hear and determine.
Finally, I note that by s 54(1) of the WRC Act, the entitlement of an injured employee to recover common law damages in respect of a work caused injury is (with the exception of injuries arising from the use of a motor vehicle) abolished. The scheme of rehabilitation and compensation contained in the WRC Act is provided in substitution. Absent clear words, I would not impute to the legislature an intention, having denied to workers this important common law right and the means of access to an independent court for the adjudication of disputes about such rights, an intention also to deny both workers and employers a means of adjudication by an independent tribunal of the rights and liabilities which the WRC Act establishes in substitution.
I refer in this respect to the principle that legislation should not be interpreted so as to interfere with the established rights and freedoms unless it does so in the clearest terms. This principle was stated by O’Connor J in Potter v Minahan[117] in the following terms:
[117] (1908) 7 CLR 277.
It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.[118]
[118] Ibid at 304.
Similarly, Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms[119] said:
[119] (1999) UK HL 33; [2000] 2 AC 115.
The principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.[120]
[120] Ibid at 131.
For these reasons, I conclude that, on the proper construction of Part 6C, s 98H(4) does not apply to the Tribunal. As indicated, it does apply to the Corporation, a self-insured employer and to a Claims Agent. Those entities must adopt and apply the opinion of a Medical Panel “for the purposes of determining any question or matter” for which they have responsibility under the WRC Act.
As noted earlier, if s 98F(3) was in force, and s 98H(4) did encompass the Tribunal, the questions identified in the submissions made on behalf of Messrs Campbell and Yaghoubi as to the validity of those provisions would arise, ie, as to whether those provisions would require the Tribunal to do something which is incompatible with the defining characteristics of a court capable of being vested with Federal jurisdiction.[121] It is not necessary or desirable presently to address those questions.
[121] State of South Australia v Totani [2010] HCA 39 at [62]-[66].
Who May Refer a Medical Question?
Both Messrs Campbell and Yaghoubi submitted that a compensating authority is not empowered to refer medical questions to a Medical Panel. The WRC Act had omitted altogether, they submitted, to empower anyone at all to refer medical questions to Medical Panels. This had the effect of making inoperative the whole scheme established by Part 6C.
Both Employers Mutual and the Solicitor‑General submitted that the WRC Act authorises compensating authorities and the Tribunal to refer questions to a Medical Panel.
Although the WRC Act does not in express terms identify who it is who may refer a question to a Medical Panel, I consider it reasonably plain that it authorises compensating authorities and the Tribunal to do so. The power of compensating authorities and the Tribunal in this respect is implicit in a number of provisions in the WRC Act.
First, it is plain that a Medical Panel can give an opinion only on those medical questions referred to it under the WRC Act (s 98F(1)). Absent a referral of a medical question, a Medical Panel has no function to discharge. It necessarily follows that the WRC Act contemplates some person or entity referring questions to a Medical Panel.
Sections 98F(2) and 98H(1) indicate sufficiently that it is a compensating authority or the Tribunal which may make the referral. Section 98F(2) specifies that the Corporation or the Tribunal may require a claimant worker to submit himself or herself to examination by a Medical Panel or to answer questions (or both) so that the Medical Panel can determine any specified medical question. This power seems naturally to be an incident to the power of the Corporation or the Tribunal to refer a medical question to a Medical Panel. There is no indication in the WRC Act that the Corporation or the Tribunal are given the power vested in them by s 98F(2) in order to facilitate the provision of the Medical Panel’s opinion in relation to questions referred by someone else.
Section 98H(1) provides that a Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or within such longer period as may be agreed by the Corporation or Tribunal (as the case requires). The fact that it is the Corporation or Tribunal who may agree a longer period strongly suggests that Part 6C contemplates them as the referring entities. Further, the fact that s 98H contemplates the Corporation or the Tribunal agreeing a longer period for the provision of an opinion indicates that they must be the referring entities. If the Act contemplated, in the case of the Tribunal, that it may, on the application of another, make an order extending the time within which a Medical Panel must form its opinion, it is unlikely that the word “agreed” would have been used. In addition, the words “as the case requires” at the conclusion of s 98H(1) strongly indicate that one or other of them must be the referring entity. It is the referring entity which can agree to an extension of time in relation to its own referral: it cannot make such an agreement in relation to the referral of another.
Finally, the empowerment of the Corporation (and hence of compensating authorities generally)[122] to refer a medical question to a Medical Panel is implicit in s 35C(3) of the WRC Act. Section 35C(2) authorises the Corporation to determine that a worker’s entitlement to weekly payments of compensation does not cease in specified circumstances. Section 35C(3)(b) imposes a fetter on the Corporation’s ability to refuse to make such a determination in the following terms:
[122] WRC Act s 63(1).
(3)     The Corporation —
(a)     …
(b)     must not refuse to make a determination under subsection (2) on the ground that the Corporation is not satisfied under the requirements of that subsection unless –
(i)the Corporation has referred the medical question whether, because of the disability, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further or additional employment or work, and if not so incapable, what further or additional employment or work the worker is capable of undertaking, for the opinion of a Medical Panel under Part 6C; and
(ii)the opinion of the Medical Panel is that the worker is not so incapable and specifies what further or additional employment or work the worker is capable of undertaking.
(Emphasis added)
It is implicit in the limitation on the Corporation’s power to make a determination adverse to a worker under s 35C(2) without first obtaining the opinion of a Medical Panel under Part 6C that the Corporation is capable of referring questions under Part 6C.[123] There is no reason to suppose that the Corporation’s power of referral is confined to the circumstances contemplated by s 35C(3).
[123] Grassby v The Queen [1989] HCA 45 at [4]; (1989) 168 CLR 1 at 16; Re Sterling; Ex Parte Esanda Ltd (1980) 44 FLR 125 at 130; Dunkel v Commissioner of Taxation (1990) 27 FCR 524 at 528.
Accordingly, I am satisfied that compensating authorities (and for that matter the Tribunal) do have implied power under the WRC Act to refer medical questions to a Medical Panel established under Part 6C.
The Time at Which a Referral May be Made
Both Employers Mutual and the Solicitor General emphasised that s 98F(2) authorises the Corporation or the Tribunal “at any time or from time to time” to require a claimant worker to submit himself or herself for examination by a medical panel, so that the Medical Panel can determine any specified medical questions. These words indicated, they submitted, both that more than one referral can be made in respect of the same claimant worker, and that a referral may be made at any time, including before or after the lodgement of a notice of dispute by a worker in the Tribunal, and before or after the referral of that notice into the Tribunal for judicial determination.
In addition, Employers Mutual and the Solicitor-General submitted that it would be conducive to the achievement of the objects of the WRC Act if a compensating authority may make a referral of medical questions even after a notice of dispute has been lodged with the Tribunal. They submitted that the opinion of the Medical Panel may, for example, assist in the conciliation of the dispute and, for that matter, in the resolution of those matters referred for judicial determination (many of which are resolved by agreement without any formal hearing).
Despite those considerations, I consider that the WRC Act contains a number of indications that the words “at any time” in S 98F(2) do not have the literal meaning for which Employers Mutual and the Solicitor-General contend.
One may commence by considering the position of the Tribunal as s 98F(2) does not draw any distinction between its position and that of a compensating authority. The words “from time to time” apply as much to the Tribunal’s powers of referral as they do to the powers of a compensating authority. Despite s 98F(2), it cannot sensibly be held that the Tribunal may refer medical questions to a Medical Panel even before a notice of dispute has been lodged with it under s 90. It is by the lodgement of that notice of dispute that the jurisdiction of the Tribunal is invoked. It is implicit therefore that a referral may be made only for the purpose of the discharge of some function or responsibility of the Tribunal. If this is so in the case of the Tribunal, it is but a short step to conclude that the same is true of the power of a compensating authority.
The determination of the time at which a compensating authority may make a referral of a medical question to a Medical Panel is also informed by a consideration of the use which may be made of the opinion once obtained.
It is trite law that a power vested by statute can be used only for the purposes for which it is conferred.[124] Having referred to this principle, Phillips JA in QBE Workers Compensation (Vic) Ltd v Freisleben[125] held that the implied power of referral of a medical question to a Medical Panel under the ACA could be exercised only for the purpose of discharging some function under the ACA.[126]
[124] Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 659, 664; Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 561.
[125] [1999] VSCA 207; [1999] 3 VR 401.
[126] Ibid at [36], 414.
The WRC Act identifies two uses for the opinion of a Medical Panel. First, s 98H(4) stipulates that the opinion is to be adopted and applied, and accepted as final and conclusive, “for the purposes of determining any question or matter”. For the reasons given earlier, s 98H(4) does not bind the Tribunal. It applies only to a compensating authority. That suggests naturally that a compensating authority may refer a medical question to a Medical Panel for the purpose of obtaining assistance in the determination of any matter or thing for which it has responsibility and, subject to any implication arising from s 98I, for that purpose only. In other words, s 98H(4) suggests that once the compensating authority has discharged its function under the WRC Act of determining, or re-determining in accordance with s 53(7), a worker’s claim, the implied power of referral may no longer be exercised.
Although this construction may be thought to confine a compensating authority’s power of referral, it is consistent with the limitation which the WRC Act imposes in s 53(2) on a compensating authority’s powers in relation to the medical examination of workers. That power may be exercised only for the purpose of a compensating authority satisfying itself “of the nature, extent or probable duration of a disability” in connection with its determination of a worker’s claim.

The second use of a medical opinion is indicated by s 98I(1). As noted earlier, s 98I makes the certificate containing the opinion admissible in evidence in any proceedings under the WRC Act. As the submission of the Solicitor‑General noted, s 98I(1) only makes the certificate admissible. It does not specify that the certificate must be admitted, nor that it should have any particular status once admitted.[127] The evidential value of any certificate admitted into evidence is to be assessed in the same way as any other evidence. The Medical Panel’s opinion may be of little, if any, value, for example, if it is based on an assumed set of circumstances not proved to the Tribunal’s satisfaction.
[127] Cf Baskerville v Lippett (1974) 9 SASR 575 at 584-585.
The manner of expression of s 98I and its place in Part 6C suggests that it is addressing an incidental matter in the statutory scheme concerning the opinions of Medical Panels. Those matters also suggest that s 98I is not to be understood as identifying a primary purpose for the obtaining of the opinion of a Medical Panel. For example, Div III in Part 6C (in which s 98I is located) is headed “Related Matters”, suggesting that it is concerned with consequential matters. Accordingly, I do not regard s 98I as enlarging the purposes for which a referral of medical questions may be made to a Medical Panel. Instead s 98I has the effect that, if in connection with its determination of a claim, a compensating authority has obtained a certificate containing a Medical Panel’s opinion, or the Tribunal itself has obtained such a certificate following a referral, that certificate may be tendered by any party in proceedings under the WRC Act.
The role of a compensating authority in proceedings before the Tribunal is not that of the ordinary private litigant engaged in adversarial litigation. In relation to the previous regime for review and appeal under the WRC Act, King CJ spoke of the Corporation’s role in review proceedings in Robbins v Harbord as follows:
The Corporation or the exempt employer, as the case may be, is necessarily a party to a review or appeal. A consideration of the provisions to which I have referred above, however, makes clear that they are not ordinary parties to litigation. The decision by the Corporation or exempt employer in relation to a claim is not simply a decision by a private person or corporation against whom a claim is made whether or not to admit or deny liability. It is a decision made in pursuance of a statutory function. The function of the exempt employer is not distinguished from that of the Corporation. Both have the statutory function of investigating and determining claims for compensation. Neither is entitled in determining claims simply to consult its own interests. There must be proper grounds of rejection of claim and they must be notified to the claimant. It follows, in my opinion, that the Corporation or exempt employer are not parties to a review or appeal in the ordinary role of litigant but as primary decision makers defending their primary decision against a party affected by the decision (s 95).[128]
[128] Robbins v Harbord (1994) 62 SASR 229 at 236.
The present statutory regime for review in the WRC Act is different in many respects from that considered in Robbins. Nevertheless, in my opinion, the above observations of King CJ remain a pertinent statement of the role of a compensating authority under the present regime. Understanding that a compensating authority does not have the role of an ordinary litigant but rather that of a primary decision-maker defending its primary decision provides some, albeit limited, support for the view that a compensating authority may not exercise its implied power of referral in relation to a matter once a worker has lodged a notice of dispute in the Tribunal concerning that matter.
There are other indications in the WRC Act that Parliament intends, once the jurisdiction of the Tribunal has been invoked, that it should be the Tribunal itself which should determine the medical questions involved, whether it is appropriate for any or all of those questions to be referred to a Medical Panel and, if so, to make the referral. Such a conclusion seems to follow naturally from the implied authority of the Tribunal to refer questions to a Medical Panel. It promotes consistency of approach. Parliament should not be taken to have intended, for example, that even though the Tribunal may determine that the referral of questions is inappropriate, a compensating authority may nevertheless make a referral, or, when the Tribunal does make a referral, that a compensating authority may make a simultaneous referral raising questions which the Tribunal has thought inappropriate, unnecessary or premature.
Section 98F(3) is pertinent in this respect. If proclaimed, it would require all medical questions arising in all proceedings before the Tribunal to be referred to a Medical Panel. One would not readily conclude that the legislature intended that one party to proceedings before the Tribunal should be able to identify, frame and refer the medical questions arising in proceedings before the Tribunal without any reference to the Tribunal and without the worker, who will usually be the opposing party in the proceedings, having any input into the referral. Such a course of action would not be consistent with well accepted notions of procedural fairness, nor with the good administration and exercise of the Tribunal’s jurisdiction (whether in its conciliation or determinative functions).
All these considerations combine, in my opinion, to indicate that once the Tribunal’s jurisdiction has been invoked by the filing of a notice of dispute, the implied power of a compensating authority to refer a medical question to a Medical Panel ceases in relation to the subject matter of the disputed determination. The compensating authority then may make a referral only for the purpose of determining (or re-determining in accordance with s 53(7) and (7a)) some other matter for which it has responsibility under the WRC Act, or for the purposes of determining any additional claim of the worker.
In short the power of referral which is implicit in s 98F(2) may be exercised by the compensating authority or the Tribunal at any time or from time to time for the purpose of the discharge of their functions under the WRC Act, and only for that purpose. Once that function has been discharged, the implied power of referral is no longer available.
Answers to the Questions Referred
For the reasons given above, I would answer the questions referred to this Court as follows.
In Mr Campbell’s case:

Does the compensating authority have the power under the Act to refer the medical questions to a Medical Panel established in Part 6C of the Act in the circumstances of this case?

No, because the referral was made after the compensating authority had discharged its function of determining the subject matter of the dispute.

In Mr Yaghoubi’s case:

Does the compensating authority have the power under the Act to refer the medical questions to a Medical Panel established in Part 6C of the Act and, if so, is that power confined to a time prior to referral of a dispute for judicial determination pursuant to s 92D of the Act?

No, because the referral was made after the compensating authority had discharged its function of determining the subject matter of the dispute.

Addendum

Since circulating the above reasons in draft, I have been provided with the draft reasons of Gray and Sulan JJ.
Their Honours would hold that a compensating authority may refer a medical question to a medical panel at any time, including after a dispute has been referred for conciliation and after it has been referred to the Tribunal for judicial determination. I remain of the view that, as a matter of statutory construction, a compensating authority may refer a medical question to a medical panel only for the purpose of the discharge of its functions under the WRC Act, and that once those functions have been discharged, the power of referral ceases. I have referred to the aspects of the legislation which support that construction.
In my opinion, the present questions of law do not provide an appropriate occasion on which to address the possible application of the Kable principle in relation to Part 6C. First, on the construction of Part 6C which I consider appropriate, the issue does not arise. Secondly, I consider that if, contrary to the construction of Part 6C which I prefer, the Tribunal is bound to adopt and apply in a final and conclusive way the opinion of a medical panel on a medical question, issues as to whether the Tribunal does have any remaining genuine adjudicative function to perform do arise. In my opinion, these issues should not be determined in the abstract. The very breadth of the matters which may be the subject of medical questions in a given case, and the possibility that those matters may be the same matters which are the subject matter of the dispute referred to the Tribunal for judicial determination, indicate that very real issues may arise in this respect. It would be preferable, in my opinion, for this Court to defer consideration of those issues until an appeal, following the judicial determination by the Tribunal in the circumstances of a given case, is brought before it. Absent an appropriate factual context, any decision of this Court on the topic is likely to be hypothetical or, at least, have the potential to be an opinion of an advisory kind.
Finally, I note that on 22 June 2011, the High Court delivered its decision in Maurice Blackburn Cashman v Brown.[129] The Court considered the meaning of the phrase “[f]or the purposes of determining any question or matter” which appears at the commencement of s 68(4) of the Accident Compensation Act 1985 (Vic). Section 68(4), as noted in the body of these reasons, is the progenitor of s 98H(4) of the WRC Act. The Court held that the phrase should be understood as meaning “for the purposes of determining any question or matter arising under or for the purposes of the Act”[130] with the effect that it had no application to entitlements or causes of action which did not arise under the ACA.
[129] [2011] HCA 22.
[130] Ibid at [34].
The decision in Maurice Blackburn Cashman v Brown does not necessitate a revision of my reasons which were prepared well before it was delivered. Nor does it require that this Court hear from the parties as to its possible effect in relation to the WRC Act. I note, however, that if, contrary to my conclusion, s 98H(4) does bind the Tribunal, it may be necessary in some future litigation to consider the effect of the High Court decision in relation to claims under s 54(7) of the WRC Act, to which I referred in the body of my reasons.