Chiropractors Ass of Aus (SA) & Anor v Workcover Corp

[2000] HCATrans 350

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A44 of 1999

B e t w e e n -

CHIROPRACTORS ASSOCIATION OF AUSTRALIA (SA) LTD and NAOMI PERRY

Applicants

and

WORKCOVER CORPORATION OF SOUTH AUSTRALIA

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 10 AUGUST 2000, AT 10.02 AM

Copyright in the High Court of Australia

MS R.A. LAYTON, QC:   May it please the Court, I appear with MR G. MANOS for the applicants.  (instructed by Manos & Associates)

MR R.C. WHITE, QC:   May it please the Court, I appear with my learned friend, MR H.G. ROWELL, for the respondent.  (instructed by Johnson Winter & Slattery)

GAUDRON J:   Ms Layton.

MS LAYTON:   If the Court pleases, it is a very simple fact scenario in this case which raises what the applicants say are four really important issues involving administrative law and in particular the application of natural justice in the circumstance where the exercise of a power affects financial and professional interests.

GUMMOW J:   I am not sure about that.  What is the relevant section under which the decision would be made?

MS LAYTON:   The decision is made pursuant ‑ ‑ ‑

GUMMOW J:   What is the source of the decision‑making power, in other words?

MS LAYTON:   The source of the decision‑making power is in fact in section 3 of the definitions.

GUMMOW J:   It is just in the definition of “recognised medical expert”, is it?

MS LAYTON:   Yes, that is correct.  There is a similar definition which has been interpreted as being a form of application.  In other words, it is the only place in the Act whereby certain exempt employers, I think it might be, may apply to become exempt.  I do not think it is the “exempt employers” but ‑ ‑ ‑

GUMMOW J:   So, the definition is treated as impliedly conferring the power to decide to recognise a medical expert.

MS LAYTON:   Yes.  There is no other section, and this is it, and what it does is that bearing in mind that already a medical expert is somebody who is defined as being one with certain powers, then it is saying that recognised medical experts implicitly also can be recognised if they are persons:

in relation to disabilities of a particular kind – a medical expert who is recognised by the Corporation ­

GAUDRON J:   Ms Layton, what you are seeking, in essence, at least in respect of the first three declarations you sought at first instance is a declaration as to your rights without, in some cases, even making an application?

MS LAYTON:   That is correct.  What we are looking at is the fact that ‑ ‑ ‑

GAUDRON J:   Well, now, why is not that an academic matter that travels beyond the legitimate bounds of judicial power and also the legitimate bounds of the grant of a declaration?

MS LAYTON:   The reasons we say it does not is this, firstly, the decision of WorkCover could have been, but was not, the subject of judicial review and it would have been an appropriate subject for judicial review.

GAUDRON J:   We are still talking hypotheses.  We are not talking actual controversy affecting immediate rights and interests.

MS LAYTON:   Certainly.  I would submit that we are and the reason that we are talking about something which is not hypothetical is because there is a real and continuing interest of the chiropractors in being recognised.  They have applied to be ‑ ‑ ‑

GAUDRON J:   Have you got an application there, currently?

MS LAYTON:   There is their submission which was made to WorkCover which is the equivalent of an application.  There is no procedure that is set out under the ‑ ‑ ‑

GAUDRON J:   But, have you got a current application there?

MS LAYTON:   They have got a continuing application there as is indicated by their letter.  Their last letter which was responsive to the rejection says, and if I could refer the Court to page 5 of the application book.  At line 45, Manos & Associates writing on behalf of the applicants say this:

Our client remains committed to its members and we have been instructed to pursue the certification.

GAUDRON J:   It is hardly an application.  You do not say, “We renew our application for recognition” do you?  You have got to read that into it.

MS LAYTON:   We would submit that where there is a situation, where there is not a finality of application, in other words, there is no procedure which is set out under the Act, so there can be a number of “applications made” ‑ it might be called submissions, it might be called a request, there could be a number of descriptors of what is done ‑ but here it is quite clear that they wish to continue with their pursuit of recognition and we say that this takes it out of the hypothetical, this takes it out of the academic.  This is a true controversy between parties as to what is required for the recognition of chiropractors.

KIRBY J:   I suppose that letter has to be read with the earlier letter which is at page 1.

MS LAYTON:   That is correct.  There are the four letters together.  The fourth is not quite so important.  That is just indicating that there is no response to the request for criteria.

KIRBY J:   The practicality is your clients want to be certified and so far WorkCover has refused.

MS LAYTON:   That is exactly right, and we say that that is the controversy between the parties, it is a real one, they are persisting and that is why they are here.

KIRBY J:   Are you entitled – is there a freedom of information statute in this State that would allow you to exercise your rights under that?

MS LAYTON:   Yes, there is and I think that was used as part of the discovery process before the matter came on before the Supreme Court.

GUMMOW J:   What relief were you seeking in the Supreme Court?

MS LAYTON:   The relief we were seeking in the Supreme Court were the series of declarations.

GUMMOW J:   Where do we see them set out?

MS LAYTON:   They are set out at page 41 of the application book and they are set out in the judgment of Justice Bleby.  The first one indicated a declaration:

That the Corporation is required pursuant to Section 3 of the Act to develop and publish criteria by way of guidelines –

The second was:

That the criteria used by the Corporation should be limited to the matters set out in Section 3 –

and not go beyond that.  The third was:

That the defendant is required to give reasons for the rejection –

The fourth was:

Insofar as the letter of 12 February 1997 may be construed as setting out criteria…..are invalid and go beyond the provision of the Act.

So, those were the four declarations and we say that these are not hypothetical ones.

KIRBY J:   So, even if 1 and 2 were regarded as, in a sense, requiring action to be taken which has not yet been taken, 3 and 4 are asserting legal rights to entitlements which you say administrative law gives to your client.

MS LAYTON:   That is correct.  So, that is why it raises both the ‑ ‑ ‑

KIRBY J:   There is a problem with 1 and 2, is there not?  I mean, it is requiring something to be done which has not yet been done.

MS LAYTON:   That is true but when one juxtaposes it with the absence of reasons, and this is where one gets to that interesting bringing together of procedural fairness and criteria and guidelines and reasons, and we would say that you cannot miss on both in decision‑making, that is the very important point, put together, that this appeal raises.

KIRBY J:   Are you aware of the Supreme Court of Canada’s decision in which it rather suggested that it took a different view to Osmond?

MS LAYTON:   Yes, exactly, and that is one of the points that we wish to make, that Osmond was decided in 1985.  It was said in that case that as the law stood at that time there was no general common law rule for the provision of reasons but it was underscored that that was the situation at the time and ‑ ‑ ‑

KIRBY J:   I think there have been some decisions in England, too, which nudge things a little forward.

MS LAYTON:   That is exactly right.  There are decisions in England, in New Zealand, in Canada, and also even in Australia the legislation has changed.  In other words, if one is looking at the ambience of natural justice, at the time in 1985 there were only two States that had legislation which required decision‑making, now there are six.

GAUDRON J:   What you are seeking, though, in a sense, at least in 1 and 2, is to have the content of the rules of natural justice determined without the assigning of any breach, are you not?

MS LAYTON:   What we are seeking in 1 and 2 firstly requires an assertion that natural justice is required in this decision‑making process, then the second question is, “Well, what is the content of that natural justice?”

GAUDRON J:   Yes.

MS LAYTON:   We say that in the circumstances of this case ‑ ‑ ‑

GUMMOW J:   Just a minute, Ms Layton.

MS LAYTON:   Certainly.

GUMMOW J:   One begins with Annetts v McCann and so on which suggest that of course natural justice is required unless the legislation suggests the contrary.  So, that is not a problem, but ‑ ‑ ‑

MS LAYTON:   I would be quite happy to move from that point because the Supreme Court were not with me on that point, either.

GUMMOW J:   But, the question is, what is its content, though?

MS LAYTON:   Yes.  The question is, what is its content, and we say in the situation which exists here, having regard to the statute, the circumstances of the application, the nature of the interest, all of the surrounding circumstances, require the chiropractors either to have guidelines and/or to have reasons.  They cannot miss out on both.  They cannot be in a situation ‑ ‑ ‑

KIRBY J:   What is curious to me is why you did not move to quash their purported decision to refuse you guidelines, based upon grounds which, as I understand it, the court below has held to be irrelevant and then, supportive of that, seek true reasons for the failure to give you the certification.  Why did you not seek to quash the purported decision, because that would have removed any suggestion that this was an academic exercise.

MS LAYTON:   Certainly.  The reasons are actually quite nicely given in an English case of Cunningham it which it says, “Well, look, if you are in a situation where you do not know the reasons for a decision how can you say whether or not someone has approached something in an incorrect way, used an irrelevant matter, failed to exercise what it is required to do ‑ ‑ ‑

KIRBY J:   But they did offer you a number of – at least one can infer the kind of reasons that were before them when they offered you some reasons for their concerns.

MS LAYTON:   That is true but also the Chief Justice said that he was not very satisfied reading those, that that was the criteria that they applied and he, in looking at that letter said, “Well, I cannot say that those are the criteria that applied” and that is why he refused – one of the reasons why he refused the fourth declaration - he was not satisfied that that was necessarily the criteria that was applied.  But, to go back to your Honour’s question, there are several aspects.  If you do not know what the criteria are and if you do not know the reasons for decision, apart from using a Wednesbury principle, it is very difficult to challenge a particular decision.

They may well have considered absolutely everything that was appropriate and decided that the merits of the case meant that the chiropractors did not fulfil the statutory requirements.  We do not know that.  We did not know that.  What happened then was that it was easier, in fact, to pursue the application – it was not final – and then seek declarations that the criteria ‑ ‑ ‑

GUMMOW J:   What was not final?

MS LAYTON:   There is no such thing as a final decision with regard to recognition, we would submit.  It is not like a situation of a court or tribunal or whatever where that is the end of the matter and one can take it no further.

GUMMOW J:   That suggests to me that informed, as your client now will be, by what has already happened, they might consider applying again.

MS LAYTON:   For judicial review of the original decision?

GUMMOW J:   No, applying again for a fresh decision and then, if that is not satisfactory, seeking to quash it and then they will be crystal clear issues.  They are not crystal clear at the moment.

MS LAYTON:   That is true, except to this extent, if we were applying we are still no wiser as to what the criteria are.  We still do not know ‑ ‑ ‑

KIRBY J:   Assume you apply and they just ignore your letter.

MS LAYTON:   Exactly.

KIRBY J:   Or, assume you apply and they say, “We regret we are not in a position to give you certification” full stop, and they refuse to give reasons, you are no better advanced.

MS LAYTON:   We are no better advanced and that is the dilemma.  The open‑ended invitation that they give us which was ‑ ‑ ‑

GUMMOW J:   You are better advanced curially, because you could then move to quash it.

MS LAYTON:   Well, we are in the same dilemma again because you have got to have reasons to quash and where you have no reasons it makes it very difficult.

GUMMOW J:   You have got to have a decision to quash.

MS LAYTON:   I am sorry?

GUMMOW J:   You have to have a decision.  You would have a decision.  Any how.

MS LAYTON:   You would have to have a decision to refuse in the absence of reasons.  If reasons are there that would give some opportunity to see whether or not the decision was appropriate but if they do exactly what ‑ ‑ ‑

GAUDRON J:   Why is not the letter to which you have referred us reasons, any way?

MS LAYTON:   Why is it not – are there not reasons?

GAUDRON J:   Yes.

MS LAYTON:   What the letter in fact does, dissecting it, the second sentence indicates – and this is at page 3 of the application book:

The Corporation has decided not to extend certification rights to registered chiropractors at this time, as it does not believe that the change will be entirely beneficial to the scheme.

GAUDRON J:   Why is not that the reason?

MS LAYTON:   That gives no reason, we would submit.

GAUDRON J:   It does.  The question is, had you sought to agitate it, whether that was the reason that might justify the decision.

MS LAYTON:   We would submit, firstly, that that gave rise to the declaration, “Well, why is that a consideration?” namely, whether the change is entirely beneficial to the scheme.  “Is it restricted to those statutory criteria in section 3 or is it of wider ambience?”  But, to go to your Honour’s ‑ ‑ ‑

KIRBY J:   We do not seem to have – where is this statement of claim setting out what you actually sought?

MS LAYTON:   The statement of claim, I do not believe, is in the application book.

KIRBY J:   If the matter that is troubling is what you were actually seeking and the relief you were actually seeking then you really ‑ ‑ ‑

MS LAYTON:   The declarations that are at page 41, those are the matters that we were seeking.  If the Court would be helped by having the statement of claim we would be quite happy to provide it but ‑ ‑ ‑

KIRBY J:   Did you assert that they had made a decision or did you assert that, being in doubt as to whether they had made a decision or not, you want these four grounds of relief?

MS LAYTON:   That is correct.  We assumed that that was a decision.

KIRBY J:   Did Chief Justice Doyle say that he did not read the letter as a decision?

MS LAYTON:   There was no issue as to whether or not there was a decision.  It was always assumed by all parties that that was a decision, it was adverse, and it was the exercise of a power under section 3.

KIRBY J:   Well, why did you not seek to quash it, on the basis that it was contrary to law?

MS LAYTON:   Because it may have been a decision that was in fact done appropriately.  When one does not have reasons it is very hard to say, “Well, they did not apply themselves to the right things”.

GAUDRON J:   It looks to me as though that is the reason.  Now, whether it is sufficient reason or whether it is a legitimate reason may be another question.  That is the only reason that is assigned, is it not?

MS LAYTON:   We would submit that if it is inadequate, which it clearly is, inadequate reasons are virtually no reasons.

GUMMOW J:   Yes, but your complaint really is it goes back to this definition.  The criteria which are to be applied are no more than what is indicated by the subject, scope and purpose of the legislation.  You are not happy with that.  You want to get out of this body a list of criteria which you can nail them with but that is not the way this Act seems to work.

MS LAYTON:   I would change the wording a little.  We would say, firstly, that certainly the statutory criteria do indicate a limitation but to the extent that there is unspecified criteria, they should tell us what it is so that we can appropriately address it as part of proper decision‑making.  It is not a question of trying to nail somebody but just say, “Look, we have some rights here” and I use “rights” loosely.  I am not talking about legal rights I am talking about the fact that there is an acknowledgment that chiropractors may in fact be recognised medical experts.  They are in that situation and they are saying, “We want to become one of those group and we do not know what criteria you are using to judge whether or not we fit within that group”.

GUMMOW J:   You have been told, were you not, and further inquiries have been solicited on page 4, line 20.

MS LAYTON:   Well, what they gave us was a nice bureaucratic answer which is a talkfest with several groups about irrelevant and invalid criteria - that is what they offered us – and what we want is recognition.  A talkfest in the possible future, if I could just take your Honours to the letter.

GUMMOW J:   There are many statutes which do not have listed criteria, many statutes in which the decision‑maker has a pretty wide ambit, subject only to what is marked out by the subject, scope and purpose of the Act.  This just seems to be another one.

MS LAYTON:   I would submit that it is not because of the nomination of specific criteria in the section which talks about the disability, the experience and the training in an already existing cohort of a group of people that are recognised as medical experts.  One does have a limitation there.  It is not just an open-ended unfettered statutory discretion, we would submit.

KIRBY J:   It must be exercised for the purposes for which Parliament has conferred it on the decision‑maker.

MS LAYTON:   It does.  And, it is the acknowledgment already.  There is almost an assumption built into that definition which assumes that these people are already in the scheme.  If they are then recognised by WorkCover as having a certain experience and training in certain disabilities they can become recognised medical experts.  That is implicit.

KIRBY J:   Just reading their letter it seems as though you have been refused the medical profession does not get on with your representative body which is a completely irrelevant consideration for the use of statutory power.

MS LAYTON:   That is exactly right.

GUMMOW J:   But that is not the way you ran your case.

MS LAYTON:   The way we ran our case was by a series of declarations because it was impossible to know the basis upon which they actually decided against us.

GUMMOW J:   You have just agreed you knew the basis.

MS LAYTON:   I am sorry?

GUMMOW J:   You have just agreed with Justice Kirby’s suggestion as to what the basis appears to have been.  If that were right, that would suggest a ground of irrelevant consideration.

MS LAYTON:   We did argue that what was set out there was irrelevant and unhelpful in the criteria.

KIRBY J:   But Chief Justice Doyle said he was not prepared to infer from the letter that these were their grounds of refusal of the certification.

MS LAYTON:   That is correct.

KIRBY J:   And, one of the bases upon which you wish to argue the matter, I assume, in this Court is whether his Honour was wrong in that respect and that you can infer from their letter that that was the basis of their refusal.

MS LAYTON:   That is correct.

KIRBY J:   The question then is whether the relief you have sought is the correct relief, whether you should not have sought to quash the decision on the ground that they had acted on irrelevant bases.

MS LAYTON:   Assuming for the moment – I do not wish to repeat the argument that I have put to your Honour before which is, “Look, how do we

know the grounds of, except by inference” but just assuming for the moment that that might have been possible, that does not mean that we should be denied a declaration merely because there is another form that we might otherwise have taken.  If I could just use the example in Ainsworth’s Case.  That was a case in which certiorari and mandamus was sought and they were rejected, but the High Court said, “Well, look, hold on, a declaration that you have missed out on natural justice would be appropriate”.

Now, we would submit here that maybe judicial review might have been a way we could have gone but that does not mean that the remedies we seek now are hypothetical or irrelevant.  They are not.  They might not be the best remedies but they are still open and should be, if applicable, allowed to proceed.  I notice that the red light is on.

KIRBY J:   It certainly is.

GAUDRON J:   Thank you, Ms Layton.  Yes, Mr White.

MR WHITE:   If the Court pleases, the first four special leave questions which are identified in the applicant’s summary relate to the duty to afford procedural fairness, in particular the suggestion that that duty extends to providing in advance to the applicants the criteria which the decision‑maker might apply, or would apply ‑ ‑ ‑

KIRBY J:   That is bound up in the request for reasons which you, the donee of statutory power, refused to give.  I mean, really, at least arguably, it is a very wrong thing for those who enjoy statutory power from Parliament, from the people, refuse to say on what basis they exercise it or when they do say give irrelevant grounds.

MR WHITE:   There are two steps to the process, one, whether there is a duty to give criteria in advance and what the applicants actually ask is that the decision maker develop criteria and then publish them.

KIRBY J:   I think there are difficulties with the first two but I do not see a difficulty with the third and I think that is a very important question.

MR WHITE:   I am sorry, your Honour, I missed the first part.

KIRBY J:   The third declaration, reasons.

MR WHITE:   Yes.  Your Honour, can I address myself, then, to the alleged failure to give reasons, but it is a separate step in the process from the duty to publish and develop criteria because what is implicit in the first proposition of the applicants is that in relation to this power, which is a rather special power, there is a duty on the decision‑maker to develop for itself criteria and ‑ ‑ ‑

KIRBY J:   It looks from your letter that you did develop them and that the ones you developed were completely irrelevant, that they were not getting on well with the medical profession.  What has that got to do with the exercise of your power?

MR WHITE:   Your Honour, can I just complete what I am saying about the duty.  The duty which the applicants assert is a duty for the decision maker to develop criteria in advance and even before any application has been made to it.

KIRBY J:   You keep going back to that because that is a strong point, I concede that, but you still have to grapple with the third declaration they seek and which was refused.

MR WHITE:   All right.  Then, turning to this suggestion that there has been an irrelevant consideration taken into account which is the relationship with the medical profession.  We would say, with respect, that that is not shown to be irrelevant, if it was characterised in a particular way that because there was a difficulty in the relationship between the chiropractors and the medical profession that might be one thing, but if what WorkCover was saying is that because there are such difficulties and indeed some battle for patients between the medical profession on the one hand and chiropractors on the other and the workers’ compensation scheme would become the battlefield in which that struggle would be borne out and it would be done at the expense of the workers’ compensation scheme then that would be a relevant matter for WorkCover to take into account and hence it was appropriate for the Chief Justice to decline the declaration.

GUMMOW J:   Why is not the only criterion to be taken into account the existence of:

specialised  knowledge of, and experience in the treatment of, disabilities of –

the relevant kind.

MR WHITE:   First of all, it is not expressed to be only those matters, but, secondly, it is ‑ ‑ ‑

GUMMOW J:   I do not know about that:

a medical expert who is recognised by the Corporation as having specialised knowledge of, and experience in the treatment of, disabilities of that kind –

recognised by the Corporation as –

what –

as having specialised knowledge –

et cetera.  Not that you are disliked by some other relevant party.

MR WHITE:   Yes, but that identifies the class of person who might be recognised.

GUMMOW J:   Yes.

MR WHITE:   It is a discretionary power.  It is not a power that must be exercised.  It is not a power, the exercise of which is required for the operation of the Act.  The Act functions perfectly well without there being any recognition and then, given ‑ ‑ ‑

GUMMOW J:   It is a very badly drawn statute, really, when you have to grub around inside a definition to find something important like this to unearth, there it is.

MR WHITE:   We rely on that fact, the fact that one sees only in a definition this structure which the applicants seek to build out of a process of application, out of that an obligation to develop criteria, an obligation to publish criteria and then an obligation to limit those to particular matters.  His Honour Justice Bleby in the Full Court identified a number of practical matters which he suggested should be taken into account.  These included things such as the relevant ethical standards within the professional group, given that the role of these persons would be to issue certificates which would permit people to enter into the compensation scheme or might involve their exclusion from the scheme. 

It is obviously necessary that the persons doing that have high medical standards, and he identified that as being a relevant matter to a group, that in the practical administration of the Act when a certificate comes in and the administrator is asked to decide whether or not it should admit a worker to compensation or exclude them, then issues of determining whether or not the particulars ‑ ‑ ‑

GUMMOW J:   This problem is not going to go away.  Ms Layton’s clients are not going to give up and informed by what you have just been putting to us, as coming out of the Full Court judgment, is that the position your client takes as to what informs the exercise of this power.

MR WHITE:   I am sorry, your Honour, I missed the last two words of what you said.

GUMMOW J:   You have said that it comes out of the Full Court that there are various matters to be taken into account, other than that which I mentioned, in determining whether direct powers.

MR WHITE:   Yes.

GUMMOW J:   Now, sooner or later you have got to put your cards on the table in dealing with Ms Layton’s client about all this and that is not a question for this immediate litigation.

MR WHITE:   Yes.  On that we say it is a practical reason why special leave is not required.

GUMMOW J:   That may be so.

MR WHITE:   WorkCover has extended an invitation to the chiropractors, as well as the other groups, to participate in the development of guidelines for the recognition.  It has not closed its mind to recognition.  And, rather than preserving to itself in an absolute sense the considerations which it would take into account, it has actually invited the participation of them.  In a practical way, if that invitation was taken up, the issues which the applicants wish to agitate before the Court would be resolved.

KIRBY J:   But that is not how the law in this country works.  Donees of statutory law must comply with the law and they can go on chatting and talking as long as they like and they may resolve matters ‑ that is their business – but, meanwhile, it is the duty of the courts of law to make you adhere to the statutory obligations.  The complaint is, as far as I am concerned, that at least in two respects, declarations 3 and 4, that you did not, and 3, at least if it arises in this case, and this is what I would invite you to address, is undoubtedly a very important question of administrative law.  Is Osmond still an expression of the common law of Australia?  The law has moved on in England and in Canada and it seems at least arguable that donees of statutory power cannot arrogantly refuse to say what their reasons are.

MR WHITE:   With respect to the duty to give reasons, this is not an appropriate case for special leave, firstly, because as her Honour Justice Gaudron has noted, a reason was given, so the dispute would really be more about the adequacy of the reason given rather than the duty per se, but in putting ‑ ‑ ‑

KIRBY J:   Do you accept that that was your reason?

MR WHITE:   Yes, your Honour, that is the reason that has been given.

KIRBY J:   That they were not getting on well with the medical profession?

MR WHITE:   No, your Honour.  The expression is that it would not be entirely beneficial for the scheme.  Now, what has not been spelt out are the policy considerations which underlie that, but what that is indicating is that a policy decision was taken that it was inappropriate to recognise the chiropractors as recognised medical experts, but there was a reason given and what one would then be going to, if this Court granted leave, would be the adequacy or otherwise of those reasons, not quite the question which the applicants seek to raise.  Further, we draw attention ‑ ‑ ‑

KIRBY J:   Help me with this, Chief Justice Doyle did not seem to be convinced that these were necessarily your reasons for rejecting the ‑ ‑ ‑

MR WHITE:   Nor the criterion.

KIRBY J:   He did not accept that but you say that they were your reasons.

MR WHITE:   No, your Honour, on the contrary.  Our submission, as I think he has recorded in his judgment, is that these were not the criteria which had been relied upon.

KIRBY J:   I am not talking about criteria, I am talking about your reasons for refusing certification.

MR WHITE:   Nor the reasons.  These were matters which WorkCover had identified which it would wish to be discussing with the professional groups in the development of guidelines for recognition.  His Honour’s remarks were entirely obiter and one might say unnecessary because it was simply WorkCover in a rather helpful way seeking to set out for the chiropractors matters which it thought would have to be addressed and  ‑ ‑ ‑

GUMMOW J:   There is plenty of authority.  There is nothing wrong with a decision maker working our guidelines.  There are judgments of Sir Gerard Brennan saying that on various occasions.

MR WHITE:   Yes.  Providing it does not have a closed mind about it and exclude the case which does not fall within those guidelines from a consideration simply because it does not come within those guidelines.

GUMMOW J:   Yes, that is right.

MR WHITE:   The second thing we say, though, about the duty to give reasons is that the draft notice of appeal and indeed the special point that is raised does not, strictly speaking, raise the question of whether Osmond is still good law.  It really expresses the question in terms of its application to the facts of this case, and ‑ ‑ ‑

KIRBY J:   That would obviously be necessary.  We do not deal with things in generality.  They have to be dealt with in the case that is before the Court.

MR WHITE:   It does not assert, though, that the principle which has hitherto applied that there is no general obligation by an administrative decision maker to give reasons is incorrect or inaccurate or inappropriate.  What it asserts is that Osmond was inappropriately applied in this case in the sense that this was not one of the special cases or particular cases which Osmond itself recognised where a duty to give reasons could apply.  Now, it might well be that the time will come when this Court will wish to revisit Osmond but, in our respectful submission, this is not he case for that.

The particular cases and the illustrations which the applicants rely upon for that purpose are all quite different from this case.  There is Cunningham’s Case which was relied upon.  Now, that was the case of a public servant who had been awarded a lesser amount of compensation following unfair dismissal by a tribunal and the particular feature which the Court of Appeal relied upon there was that the tribunal was actually exercising a judicial power.  It was not an administrative power at all.  Furthermore, the award of compensation was so low as to appear plainly aberrant and called out for explanation.  That is not this case.

Next, the applicants rely upon R v Secretary of State Ex parte Doody.  That is the case which involved the liberty of the individual.  In our way in which we would express it in Australia, the determination by the Home Secretary as to the time at which a prisoner would become eligible for parole.

KIRBY J:   Yes, but this is the way the common law develops in this country and in other countries.  It would probably be contrary to the judicial power for us simply to take the case on and make some grand pronouncement about the generality.  You deal with a particular case.

MR WHITE:   We accept that but when one looks at the way in which it develops one sees particular cases, particular examples, and what the Court sees, as we discern it, is to try to discern a unifying principle that might underlie that.  My submission now is that in none of these cases in which there has been this development of the duty of the administration decision maker to give reasons does it include anything like the present case.  One can see that it involves considerations of where the subject matter is something upon which the Court places a very high value, and that is Doody, because it involved the liberty of the individual, or the nature of the power, which is Cunningham, because it was a judicial power, or in the next case my learned friend relies upon which is R v City of London Ex parte Matson.

The decision maker there was actually a Court of Record, a rather unusual one but, nevertheless, a Court of Record, and it had pronounced its decision in public and that decision affected the reputation of Mr Matson, a disappointed applicant for a position of alderman in the City of London.  The Cypressvale decision, that is the decision of the Queensland Full Court, which is relied upon, was not a decision about a duty to give reasons at all.  It was a decision about the adequacy of reasons.  One can go on with all these various illustrations but there is none which involves a consideration of an obligation to give reasons by a decision maker in respect of a power ‑ ‑ ‑

KIRBY J:   That is because decision makers who do not want to give decisions, to reserve power to themselves, uncontrolled and unreviewed by courts, simply say, “Well, we are developing criteria.  We are thinking about this.  We have not got anything definite.”, but they still do not act on the authority that is given to them by Parliament, according to law, and until the issue is dealt with that is how it will be.

MR WHITE:   But, with respect, your Honour, that assumes that which has to be decided because if it be the law that they must give reasons, then they are obviously in breach by not giving them, but the debate really is whether in the circumstances of this administrative power there was an obligation to give reasons and here we have a power which is rather unique.  It is found a definition.  It is a power that does not have to be exercised at all.  It is not a power, the exercise of which is necessary for the purposes of the operation of the Act.  It is a power which would be exercised ‑ ‑ ‑

KIRBY J:   I wonder about that.  If it is enlivened by an application it would seem that one way or the other it has to be exercised - either you grant the certificate or you do not grant the certificate.

MR WHITE:   Yes.  Even when enlivened by an application it is a power which, of its nature, one would expect to be influenced by policy type considerations rather than considerations personal to an applicant.  It might be different if, as in FAI v Winneke, it seemed likely that the decision turned upon some characteristic personal to the applicant, but that is not this case.

KIRBY J:   But you could not dispute that it affects the livelihood of the persons for whom the present applicant represents.

MR WHITE:   We would dispute that it prejudicially affects the livelihood.  All it does is to decline them the chance of obtaining a benefit and that is all it is.  It is a hope on their part that they would obtain something as ‑ ‑ ‑

KIRBY J:   It is more than a hope.  It is contemplated by the Act.  I mean, in medical services chiropractors are included.

MR WHITE:   But, unless they are granted recognition, they go on having a particular status under this Act.  Their hope is that if they were recognised they would be able to provide an additional service and thereby earn additional income.  That is the interest which they have asserted ‑ ‑ ‑

KIRBY J:   Your client continues to refuse them certification because they have not resolved their relationship problems with the medical and other professions.

MR WHITE:   I am sorry to keep coming back to this, your Honour, but that is not the finding of the Chief Justice.

KIRBY J:   I am just reading from page 3 of the application book. 

MR WHITE:   Page 3, yes.  What that is is one has to read ‑ ‑ ‑

KIRBY J:   This is your letter.

MR WHITE:   One has to read that paragraph in the light of the immediately preceding paragraph where the Corporation says it:

is willing to further investigate the long term possibility of extending certification rights to this group.  While this does not provide any guarantee of future acceptance of te profession as primary certifying practitioners, it will enable the Corporation, the National Medical Services Group and the CAA –

that is the chiropractors –

to further investigate and consider relevant issues for the scheme.

That is what it is doing, laying out – these are the things to which we will wish to have regard in our discussions.

KIRBY J:   In short, on your present application, no.

MR WHITE:   That has been dealt with in the second paragraph of the page, the terms.  I am repeating myself, your Honour, in taking you back through those things.  Those are the submissions of the respondent.

GAUDRON J:   Thank you, Mr White.  Yes, Ms Layton.

MS LAYTON:   Four very short points in response.  Firstly, the first question that your Honours asked me which related to section 3, I was stumbling with the other definition which was similar and it was the subject of another case and that is “authorised officer” and the case which decided on that, in slightly different circumstances, was Quark Technology & Another which is mentioned in the list of authorities at page 74. 

Moving to the second point, reasons, my friend argues that this is not a suitable case in which to have reasons raised.  We say that it is for a number of reasons that your Honour Justice Kirby has put in arguendo to my friend, and, in particular, whilst my friend has gone through each of the English decisions to say that not one of those fits these particular cases, the overall thrust of the English decisions, and it is encapsulated by the decision in Matson, it is stated as the real issue is, is the refusal to give reasons fair.  That is the proposition which has changed from the time when Osmond was decided to the present time.  That is the generic change. 

The second aspect is, also, Lord Lester who argued the case in Matson put it very elegantly, and that was this, “Although there is no general rule of administrative law that a decision maker had to give reasons, a requirement to give reasons could no longer be regarded as exceptional”.  A very nice way of putting the argument of where the law has changed.

GUMMOW J:   Yes, and totally unhelpful in any particular case.  It does not tell you anything.

MS LAYTON:   I would submit it is helpful but I can see why your Honour might think differently.

KIRBY J:   What do you say about the suggestion that what is stated in the letter on page 3 are not reasons but simply, as it were, signals of things that they have got in their mind, that they are developing?

MS LAYTON:   If it is the latter, namely only signals that they have got in their mind, the whole letter is actually quite misleading because it gives an

inference in the whole of the context of it that when they talked about it not presently being entirely beneficial to the Act that they are looking at broader issues than that which are set out in section 3 and that their thinking processes are indicated below, being the matters that they have identified.  So, the juxtaposition of it flirts with being reasons when, on the other hand, it does not specifically state that it is.  That is a dilemma and they should not have just hidden behind that.  Either they are and they are irrelevant, or they are not and in which case we know nothing.

The third point that I raise in response is my friend’s argument that the giving of the critical features are only critical features which are personal to an applicant.  This was a very heated debate that was had in the Full Court.  The answer we give to that is that usually applicants are individuals.  Here we have, appropriately, a group.  That completes my submissions.

GAUDRON J:   Thank you, Ms Layton.  What I am about to say is said on behalf of Justice Gummow and myself

In this matter, we are of the view that in the absence of a specific challenge to a decision of WorkCover, it would not be appropriate to grant declaratory relief in terms of the first two declarations sought by the applicants at first instance.  Moreover, there being no application to quash the decision of the respondent embodied in the letter of 12 February 1997, this is not an appropriate case in which to consider the matters raised by the fourth declaration sought.  For the same reason, it is inappropriate to consider whether WorkCover was required to give reasons for rejecting the applicants’ claim for recognition.  The question whether an administrative decision maker is required to give reasons for decision is an important question which might warrant consideration by this Court in an appropriate case.  However, in our view, this is not such a case.  We would therefore refuse special leave.

KIRBY J:   I would grant special leave, but limited to the refusal of declarations 3 and 4.  I agree with the reasons given for refusing special leave in respect of declarations 1 and 2.  I consider that consideration by the Court of the important question which is presented by the application for declaration 3 is ripe for determination in the decision of the Full Court in respect of that declaration.  Similarly in respect of declaration 4.  I would grant special leave on those two declarations.

GAUDRON J:   The order of the Court then is special leave refused.

You really cannot resist an order for costs, can you, Ms Layton?

MS LAYTON:   I certainly cannot.

GAUDRON J:   No.  It is refused with costs.

The Court will adjourn briefly to reconstitute.

AT 10.45 AM THE MATTER WAS CONCLUDED