Chiropractors Assoc of Aust (SA) & Ano v WorkCover No. Scgrg-97-897 Judgment No. S120

CHIROPRACTORS ASSOCIATION OF AUSTRALIA (SOUTH AUSTRALIA) LTD & ANOR v WORKCOVER CORPORATION OF SOUTH AUSTRALIA
[1999] SASC 120

Civil

DOYLE CJ. The first plaintiff, the Chiropractors Association of Australia (South Australia) Ltd (“the Association”) represents 175 persons who are registered as chiropractors under the Chiropractors Act 1991. These people constitute about 75% of the registered chiropractors in South Australia. The second plaintiff is a registered chiropractor, and is one of those persons whom the Association represents.
For present purposes it suffices to say that only a registered chiropractor can practise chiropractic for fee or reward. It is not necessary to consider the scope of the practice of chiropractic.
The defendant, WorkCover Corporation of South Australia (“the Corporation”) is a body corporate continued in existence by the WorkCover Corporation Act 1994 (“the Corporation Act”).
One of the main functions of the Corporation is to administer the Workers Rehabilitation and Compensation Act 1986 (“the Act”): s13(1)(a) of the Corporation Act.
The Act establishes a scheme for workers rehabilitation and compensation. The scheme is of the well-known type, although in South Australia the scheme has a number of features that are probably unique.
The issue before me is the meaning of the definition of “recognised medical expert” in the Act. A further issue that arises is that of the right of the plaintiffs to be informed of the basis upon which the Corporation would decide whether chiropractors represented by the Association should be accorded the status of recognised medical expert.
The plaintiffs claim declarations against the Corporation. They claim a declaration that the Corporation is required:
“to develop and publish criteria by way of guidelines or principles as well as set out a procedure by which medical experts may be recognised by the Corporation as recognised medical experts.”

They also claim a declaration relating to the permissible criteria for use by the Corporation in deciding whether to accord that status. They also claim that the Corporation must give reasons for rejecting an application made by the Association for recognition of its members. They claim a declaration that matters referred to in a letter by the Corporation are not permissible criteria in deciding whether to accord recognition.

The Act

The Act refers to a medical expert and to a recognised medical expert. Being a registered chiropractor, the second plaintiff is, by operation of the relevant definition, a medical expert and wishes to be a recognised medical expert. The same is true of the other persons represented by the Association. Any registered chiropractor is a medical expert.
Before coming to the statutory provisions, it is helpful to understand the role of each type of expert in the scheme of the Act. I will deal with this as briefly as I can.
If a worker suffers a compensable disability, the worker is entitled to be compensated for certain specified costs. They include the cost of medical services. Medical services comprise, broadly, treatment by a medical expert and any diagnostic examination or test required for the purpose of treatment by a medical expert: s3(1). Putting it fairly generally, a worker who suffers a compensable disability can recover the cost of treatment if the treatment is provided by a medical expert.
A medical expert is defined as meaning a person who falls into any one of nine specified categories. I need mention only two. The first is that of a legally qualified medical practitioner, the second is that of a registered chiropractor. The other seven groups are registered members of professions that might be expected to be involved in the treatment of injured workers.
A registered medical expert performs important functions under the Act in relation to the making of a claim for compensation, in relation to the making of a claim of incapacity for work, and in relation to the variation or termination of weekly payments in respect of incapacity. Once again, I have expressed the position fairly broadly.
A claim for compensation must be supported by a certificate from a recognised medical expert, the certificate relating to the claimed disability: s52(1)(c). If there is a claim of incapacity for work, the certificate must certify the extent and probable duration of the incapacity: s52(1)(c)(iii). To satisfy itself about a claim of disability, the Corporation may require a worker to submit to an examination, but it must be an examination by a recognised medical expert: s53(2). Refusal to submit to such an examination entitles the Corporation to reject the claim: s53(3). Once weekly payments in respect of incapacity for work have begun, they can be discontinued or reduced only in certain specified circumstances. One of those circumstances is the satisfaction of the Corporation that the worker has ceased to be incapacitated for work, or that there has been a reduction in the extent of the incapacity. In either case, the Corporation must have a certificate from a recognised medical expert to that effect: s36(1)(b) and (2)(b). The liability to pay compensation can be redeemed by a capital payment in certain specified events. One of the requirements is that a recognised medical expert has certified that the extent of incapacity can be determined with a reasonable degree of confidence: s42(2)(d). Refusal to submit to an examination by a recognised medical expert can lead to termination of weekly payments for incapacity: s36(1)(f) and s36(1a)(a) and (b).
As this brief survey indicates, only a recognised medical expert can provide an opinion about the existence of a disability or incapacity in support of a claim, and termination and variation of weekly payments on the basis of a termination or reduction in incapacity requires the opinion of a recognised medical expert. Redemption requires an opinion from a recognised medical expert. Compulsory medical examinations can be required only if the examiner is a recognised medical expert.
Thus, fees charged for treatment by a medical expert are recoverable under the Act, but only a recognised medical expert can perform functions which are important procedurally under the Act.
I consider that the provisions of the Act assume that a medical expert will be competent to diagnose the cause of symptoms, as occasion requires, and to provide treatment for a compensable injury. This assumes, of course, that the medical expert acts within his or her field of competence. But only a recognised medical expert can provide an opinion about disability and incapacity that enables certain statutory procedures to be implemented.
It is convenient to mention here that I accept, as was submitted by Ms Layton QC for the plaintiffs, that the acquisition of the status of recognised medical expert could be beneficial both to a medical expert and to a worker being treated by a medical expert. It would avoid the need for and cost of referring the worker to a recognised medical expert when the need arises under the Act for the opinion of a recognised medical expert. Referring the worker to another person also has the potential for the expression of conflicting views about the nature of the worker’s injury and the appropriate treatment. I accept that a chiropractor who is a recognised medical expert would attract more patients for treatment than a chiropractor who is not, and would in some cases have a more satisfactory professional relationship with the patient if there was not the need, on occasions, to refer the patient to another recognised medical expert. Acquisition of the status of recognised medical expert therefore would have a beneficial effect on the professional and financial interests of a chiropractor.
I consider that this interest is sufficient to give the second plaintiff standing to raise the matters now before the court if it is necessary to rely on the existence of such an interest for standing. I say that because the fact that the second plaintiff, as a medical expert, is eligible to acquire the status of recognised medical expert may itself suffice to give standing. On the issue of standing I refer to Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 557-558.
There is no need to consider separately the standing of the Association, although I incline to the view that, in view of its membership, it has standing also.

An application for recognition

By letter dated 5 December 1996 solicitors acting for the Association wrote to the Corporation asking the Corporation to recognise registered chiropractors
“as having specialist knowledge of and experience in the treatment and diagnosis of disabilities of a particular kind namely spinal, lower back injuries and neuro musculoskeletal conditions ....”

A detailed submission accompanied the letter, supporting the claim made in the letter.

By letter dated 12 February 1997 the Corporation said:
“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.”

The letter said that the Corporation was

“willing to further investigate the long term possibility of extending certification rights to this group.”

The letter identified some matters that would need to be addressed. I set these out because they were the subject of submissions during the case:

“ The need for the chiropractic profession to implement strategies to resolve relationship problems with the medical and any other professions, beyond the workers compensation environment.
The development of agreed, long term, sustainable principles for approval of provider groups seeking certification rights.
... The development of appropriate risk management strategies to address any risks associated with extending certification rights to this and other professional groups.
... Ensuring that current concerns with legally qualified medical practitioners who are certifying time off work and management of treatment are not extended to other professional groups.
.... The Corporation will require strong stakeholder support for any changes to the current system.
.... Future direction should be consistent with the national approach towards approval of providers.
.... Any changes must result in net savings to the scheme.”

By letter dated 24 March 1997 the solicitors for the Association expressed dissatisfaction with the decision. They said in the letter that most of the matters identified by the Corporation were the responsibility of WorkCover, and not of the Association. The letter called upon the Corporation to provide
“the criteria upon which you would decide whether a particular medical expert should be recognised by the Corporation.”

It threatened legal proceedings if the Corporation did not provide criteria by which an application to be recognised would be decided.

The response from the Corporation took the matter no further, and proceedings were issued.
As I said earlier, the proceedings hinge upon the definition of recognised medical expert. The definition is as follows:
“‘recognised medical expert’ means-
(a).... a legally qualified medical practitioner; or
(b)in relation to disabilities of a particular kind - a medical expert who is recognised by the Corporation as having specialised knowledge of, and experience in the treatment of, disabilities of that kind;”
The contentions
The plaintiffs contend that the Corporation is under an obligation to consider the recognition of recognised medical experts, even if no application is made to it.
The plaintiffs claim that the definition permits the Corporation, in making a decision to accord recognition, to have regard only to the possession by the relevant group of specialised knowledge of, and experience in the treatment of, disabilities of a particular kind. (On occasions I will refer to having relevant knowledge, meaning by that convenient shorthand the having of specialised knowledge of and experience in the treatment of disabilities of a particular kind.) The plaintiffs submit that the Corporation may not have regard to other matters such as, broadly, the Corporation’s opinion about the impact, on its administration of the Act or of the scheme of compensation of according recognition, or the need or lack of need for the convenience of workers and others for the recognition of other recognised medical experts. In other words, the plaintiffs’ submission is that the power is one to be exercised by reference only to the ability to identify a particular kind of disability and the ability to relate relevant knowledge to that disability.
If that submission is not accepted, the plaintiffs submit that the Corporation must exercise its discretion by reference to criteria consistent with the objects and purposes of the Act. The plaintiffs argue that the matters referred to in the letter set out above went beyond the scope of that discretion.
The plaintiffs argue that the process of recognition is one that requires or enables the Corporation to consider applicants as a group and not as individuals.
The plaintiffs submit that a decision on an application for recognition affects the rights and interests of the members of the relevant group in a manner that attracts the obligation to observe the requirements of natural justice. The plaintiffs submit that in the circumstances natural justice required that the Corporation consider any application on its merits, not apply an inflexible policy, and disclose in advance the criteria by reference to which the application would be considered.
On the basis of those submissions the plaintiffs sought declarations that the Corporation could have regard only to matters relevant to the having of relevant knowledge, was obliged to publish in advance criteria by which it would consider a further application by the plaintiffs, and that the matters identified in the letter from the Corporation were not permissible criteria when considering an application by the plaintiffs.
The Corporation submits that it had a broad discretion in considering an application for recognition, the only limit being that the discretion must be exercised consistently with the objects of the Act. The Corporation submits that it can consider a very wide range of matters, including all of the matters set out in its letter.
It submits that recognition is a process that requires an application by an individual medical expert for recognition, and consideration of individual applications.
The Corporation argues that a medical expert seeking recognition has no legitimate expectation of recognition, and has no right or interest that is affected in such a way as to attract an obligation to observe the requirements of natural justice. However, as I understood the submission, it is conceded that it would be necessary to disclose to a particular individual any matter adverse to that particular individual upon which the Corporation proposed to rely. The Corporation submits that there is no basis upon which it could be required to identify, in advance, criteria for its decision.
The Corporation argues that the matters set out in its letter were permissible considerations in considering the application for recognition, but at the same time argues that the matters in the letter were no more than matters that it had invited the Association to consider. It denies that these were criteria for the decision it had made, or would necessarily be criteria for a decision on a further application for recognition.

The Corporation Act

Both parties relied upon the provisions of this Act to support their respective submissions.
The Corporation Act confers on the Corporation the function of administering the Act. It gives the Corporation other functions, such as promoting the rehabilitation of persons who suffer disabilities arising from employment, ensuring the efficient and economic operation of the scheme under the Act, consulting with various groups that have an interest in injury prevention and rehabilitation, encouraging those groups to take a constructive role in promoting injury prevention and rehabilitation, and a number of other functions.
These provisions emphasise that the Corporation is to play an active part in the matters referred to, and not merely to administer the statutory scheme for compensation. Very broadly, its function is to promote occupational health, safety and welfare, and the rehabilitation of workers and to do everything it can to improve the working of the statutory scheme.
I do not consider that the provisions of the Corporation Act throw any helpful light on the issues before me. The objects found in s2(1) of the Act cover some of the same ground as the functions referred to in the Corporation Act. But apart from that, I do not think that a consideration of the general functions of the Corporation assists in deciding the relatively narrow issue before me.
In particular, the fact that one of the functions conferred by the Corporation Act is “to prepare, promote or endorse guidelines to assist people who are subject to the operation of an Act administered by the Corporation” does not, I consider, affect the interpretation of the definition of recognised medical expert: see s13(1)(i) of the Corporation Act.

Recognised medical expert

I have already considered the different role of a medical expert and of a recognised medical expert. The opinion of a recognised medical expert has a particular statutory status, and only a recognised medical expert can perform a compulsory medical examination.
Bearing in mind that all legally qualified medical practitioners are recognised medical experts, I proceed on the basis that in most situations a recognised medical expert will be reasonably available to a worker, to the Corporation or to an exempt employer. I appreciate that at certain times and places, for example in remote locations, that will not always be so. I am also prepared to assume that there will be injured workers who will prefer to rely upon an opinion from a treating medical expert who is not a recognised medical expert, rather than be referred to a recognised medical expert for a certificate or opinion.
But, bearing in mind the permissive terms of the definition of medical expert, these factors do not cause me to conclude that the Corporation is obliged to identify appropriate persons and to accord recognition to them, even if no application is made to it. It is, of course, open to it to do so, but I consider that if the Corporation considers the existing situation satisfactory, there is no obligation on it to move to accord recognition. In saying that I should mention that, as I understand it, the existing situation is that the Corporation has not accorded recognition to any group of medical experts.
The issue then becomes the role of the Corporation upon the making of an application to it for recognition.
I consider that it was open to the Association to make application on behalf of registered chiropractors whom it represented. I reject the submission by the Corporation that it has no power to consider an application on behalf of a group, or to accord recognition to medical experts by reference to criteria applicable to them as a group. There is nothing in the language of the definition that leads to the conclusion that the process must be one of individual application and recognition. There is nothing about the language or the practicalities to suggest otherwise.
The next issue is whether, assuming an application is made, the Corporation is obliged to accord recognition to persons with the relevant knowledge, or whether it has a power to do so and an accompanying discretion not to do so. There can be an obligation to accord recognition only if the Corporation is able to satisfy itself of the relevant matters. Any obligation is, of necessity, a qualified one. Moreover, the language does not suggest an obligation to accord recognition as distinct from a power to do so. If the definition referred to a medical expert as one who satisfied the Corporation that the expert had the relevant knowledge, there would then be room to argue that upon satisfaction as to that matter the Corporation had no choice. But that is not the language used.

I consider that the function performed by the Corporation in according recognition is properly described as a power coupled with a discretion, rather than an obligation, although I accept that when application is made to the Corporation the application must be given proper consideration.
On that basis, the Corporation was obliged to consider whether the members of the Association had specialised knowledge of and experience in the treatment of disabilities of a particular kind. Part of that process is to consider whether the relevant disability or disabilities can be identified with the necessary degree of particularity. This judgment had to be made in good faith, and not merely as a device to refuse recognition. I accept the submission by the Corporation that if the particular disability or disabilities could not be specified with sufficient certainty, to enable the specification to be applied satisfactorily by chiropractors and by the Corporation, that would be a ground upon which the Corporation could refuse to accord recognition. The place of recognised medical experts in the scheme of the Act indicates that to accord recognition on terms that would give rise to regularly recurring doubts about whether an opinion was in relation to the appropriate disability would be most unsatisfactory. It is common ground that, particularly at the stage of a claim for compensation, the relevant opinions are often expressed quite briefly. If the disability in relation to which a particular medical expert is a recognised medical expert is not sufficiently certain, the efficient determination of claims for compensation could become impossible.
The plaintiffs argue that this is the furthest the Corporation can go, and I am not certain that the plaintiffs even acknowledge the validity of the last point. It may be that their submission was that if a particular disability could be matched to knowledge and experience possessed by a registered chiropractor, that is the end of the matter and recognition must be accorded. If that is their submission, I do not accept it.
The real issue is whether the Corporation can go beyond what I might call the realm of sufficient certainty in the description of a disability and adequate and reasonably precise identification of the required knowledge and experience.
In particular, can the Corporation take into account its view as to the impact of recognition upon the efficient working of the scheme? What if the Corporation believes that there are already enough recognised medical experts, meaning that they are reasonably available and that there is no significant inconvenience to workers or others if the number is not increased? Can the Corporation consider the impact of recognition on its own administrative costs, if there is such an impact beyond the impact that would flow from inadequate particularity in identifying the particular disability? What if the Corporation believes that it will be difficult to administer the scheme if it recognises medical experts other than legally qualified medical practitioners? Can the Corporation consider matters of the type that it identified in its letter to the Association? There are many possibly relevant matters that come to mind. In short, does the Corporation have a discretion to be exercised consistently with the objects of the Act, or is it a confined discretion that takes into account only the possession of the relevant knowledge and experience and the ability adequately to identify the particular disability?
The language of the definition does not really point one way or the other. The wider discretion would be suggested if the process of recognition required the Corporation merely to have regard to the relevant knowledge, or if the provision was that the Corporation could, in the exercise of its discretion, recognise a medical expert. On the other hand, if it was intended to restrict the process of recognition in the manner suggested by the plaintiffs, words could have been found that would indicate that that was the intention. Providing that a recognised medical expert was a person who satisfied the Corporation that the person had the relevant knowledge would, I consider, sufficiently indicate that possession of the relevant knowledge was the only issue.
In my opinion the provision can be read either way.
The provision has to be read in context, and should be given a meaning that accords with the operation of the Act as a whole. For example, having regard to the functions of a recognised medical expert, in my opinion recognition is something that is to occur in advance, or by way of advance accreditation, and not only after a certificate has been lodged by a worker in support of a claim for compensation. The scheme of the Act assumes that certificates will be completed by people who know in advance whether or not they are recognised medical experts.
The role of a recognised medical expert suggests that consideration of the efficient working of the scheme is relevant to the process of recognition.
It is also clear that, whatever the scope of the discretion, it has been conferred on the Corporation to use to promote the purposes and objects of the Act. But I do not accept that that fact gives any clue as to the scope of the discretion. The reason for which the discretion is conferred is one thing, the scope of the discretion is another, and that turns upon the terms in which the discretion is conferred. Of course, the discretion might entitle the Corporation to consider anything that is consistent with promoting the purposes and objects of the Act, but that will be so only if the discretion is a broad one bounded only by those limits. One must consider the terms of the discretion to decide whether that is so or not.
When one looks through the definitions in the Act, one is reminded that quite often in statutes Parliament provides for something to be approved or prescribed, and so provides in terms apt to confer a wide discretion once a qualifying fact is found to exist. For example, the definition of “apprentice” in s3(1) includes “a person undertaking training in a scheme approved by the Corporation for the purposes of this definition.” While the scheme would have to provide training, in my opinion that provision gives the Corporation a wide discretion in deciding whether or not to approve a scheme. The definition of “Local Government Corporation” includes
“(c)Any other body -
(i).... established for Local Government purposes; and
(ii) prescribed for the purposes of this definition.”

Once again, while the relevant body must be established for Local Government purposes, in my opinion the decision to prescribe again involves the exercise of a wide discretion. Similarly, the definition of “educational institution” includes “any other educational or training institution approved by the Corporation for the purposes of this definition.” In each case the process of approval or prescribing involves the exercise of a wide discretion, once the qualifying facts are found.

Returning to the definition of “recognised medical expert”, I think that if the verb used was “approved” or “prescribed” instead of “recognised”, one would conclude, consistent with ordinary drafting patterns, that a fairly broad discretion had been conferred on the Corporation. One would so conclude because the process of approving or prescribing is usually taken as suggesting that more is required than merely identifying the presence of the qualifying criteria. Once can therefore ask whether the use of “recognised” suggests a more limited process.
My view on this has wavered. But, in the end, I conclude that the process of recognition should not be treated as any different from the process of approval or the process of prescribing. I consider that the language used does confer a discretion on the Corporation that extends beyond consideration of the ability adequately to particularise the relevant disability and beyond satisfaction as to possession of the relevant knowledge.
I do not consider that the notion of recognition necessarily suggests consideration only of the possession of the relevant knowledge. As well, there are practical matters, aspects of the administration of the scheme, that seem to me to be highly relevant to a decision to accord recognition. For those reasons, I conclude that Parliament must have intended to confer a broad discretion.
But even that is only the beginning of wisdom. It is one thing to decide that the discretion extends to a consideration of matters that are relevant to effecting the purposes and objects of the Act. It is another thing to identify the range of permissible matters.
I have earlier referred to matters that I consider are relevant. Generalising a little, I consider that the Corporation is entitled to consider the efficient working of the scheme to the extent that difficulties of administration will arise from the manner in which the disability is to be identified, or will arise from the manner in which the specialised knowledge and experience are to be identified. In making the latter point I recognise the possibility that the Corporation might not consider it appropriate to accord recognition to all medical experts of a particular category, such as all registered chiropractors.
But how wide does the discretion go? What about matters such as a belief that there are enough recognised medical experts in South Australia, and that there is no need to recognise any more, even if problems of definition can be overcome? What about a view, apparently reflected in the first issue identified in the Corporation’s letter, that the recognition of registered chiropractors will give rise to problems with the medical profession and other professions? Is the Corporation entitled to say, as the second of its points suggests, that it will not accord recognition to chiropractors until it has developed a comprehensive approach to the accreditation process which will ensure that it is able to take a consistent approach in relation to all groups that are eligible for recognition as recognised medical experts? Can the Corporation consider, as its second to last point suggests, either national consistency in the approach to such schemes or, if this is what is intended, avoiding things that might make workers compensation more expensive for employers in this State than in other States? Is it relevant to consider the reaction of the “stakeholders”?
In proceedings such as these the function of the court is to determine whether the discretion has been exercised lawfully. The function of the court is not to map out the scope of a statutory discretion, unless it is necessary to do so to answer a specific question that arises. The only issue for the court is whether the discretion has been exercised by reference to permissible matters.
For that reason, it is not for this Court to attempt to state definitively what can and cannot be considered by the Corporation. The Court’s position is to consider whether a decision made has been made on permissible grounds, if the grounds are disclosed.
In these proceedings the plaintiffs do not actually challenge the validity of the decision already made by the Corporation. Perhaps they took the view that there was no point in doing so, because a further application can always be made. It is not the court’s function to deal with proposed applications, and so it can be said that the scope of the discretion does not arise at all. But I do not think that it would be helpful to either party to refuse altogether to consider the scope of the discretion for that reason.
Although I am willing to express a view on the matters relevant to the discretion, I have come to the conclusion that in the exercise of the discretion that the court has in considering an application for a declaration, I should decline to declare that any of the matters referred to in the letter are irrelevant to the decision to accord or to refuse recognition.
First of all, I am not satisfied that the matters stated are the grounds upon which the decision was made or would be made on a further application. Secondly, the matters are expressed quite loosely. Their meaning is not clear, despite the various suggestions put to me by counsel. I consider that to make a declaration in relation to such generally expressed criteria could cause undesirable confusion in the future. A declaration that some or all of the matters are not permissible criteria might be taken to exclude something within the scope of one or other of them that was a permissible matter for consideration.
I realise that this may not be satisfactory for either party, but I consider that making a decision on the validity of each of the matters referred to in the letter will not, in the longer run, be a wise thing to do.
At the risk of doing what I have declined to do, I add some observations in the hope that this will assist the parties. If the matters identified in the letter are to be taken at face value, and as stating issues that must be resolved before recognition will be accorded I consider that they go beyond what are permissible considerations, at least in part.
As to the first, for example, I accept the need for certainty, but I do not consider that the attitude of the medical profession to according recognition is a relevant matter. If what is alluded to are differences of professional approach to treatment as between medical practitioners and chiropractors, once again I doubt whether that is relevant. If registered chiropractors have the relevant knowledge, and sufficient certainty of description can be achieved, the fact that their approach to diagnosis or incapacity may differ from that of doctors does not, of itself, seem to me to be a reason for refusing recognition. As to the second point, I can understand the need for consistency of approach by the Corporation, but I have difficulty accepting that it would be appropriate to decline recognition to registered chiropractors unless and until the Corporation was satisfied that it had identified principles that would work equally well with every other relevant group. It may be appropriate for the Corporation to consider risk management strategies if registered chiropractors are to be recognised, but I have difficulty understanding why it should be necessary to sort out what risk management strategies would be adopted if other eligible groups were recognised. The Corporation might think that doctors are certifying that workers are incapacitated for work too readily, or doing so without being sufficiently precise, but a matter like that seems to me not to have much to do with the process of recognition of chiropractors. The attitude of employers and workers might be relevant, in the sense that questions of access to recognised experts, intruding into the relationship between treating medical expert and patient and so on might be relevant, but I do not consider that the general attitude of all who might be regarded as stakeholders could be relevant to the process of recognition. I do not consider that national consistency of approach would be relevant. The Corporation has to administer the Act as it is. An impact on employer costs might be a relevant matter, but if so it would surely be relevant only in terms of the cost of the scheme, and not in terms of comparisons with other States. I do not consider it would be appropriate to refuse recognition unless it could be demonstrated that the operating costs of the scheme would be reduced, if that is what is intended by the last point.
I make these comments because, as I have already said, in my opinion the letter casts the net so wide that, taken at face value, it does raise matters that are outside the scope of the relevant discretion. What is at issue is recognition on the basis of persons possessing relevant knowledge. The efficient administration of the Act is a relevant matter. But to condition recognition upon satisfaction that any existing problems are eliminated, and that, as it were, all possible problems in the broadest sense are resolved, seems to me to go beyond the statutory considerations.
However, I also realise that the problem may be simply that the letter is poorly expressed. It is not appropriate for the court to construe ambiguities adversely to the Corporation. As I have already said, I am not satisfied that the letter intends to state the basis upon which the request for recognition was or will be decided.
I do not consider that I can properly take the matter any further than I have. It is for those reasons that I decline to declare that the matters set out in the Corporation letter are not permissible matters for consideration in relation to an application by the plaintiffs for recognition as recognised medical experts.

Natural justice

The plaintiffs claim that because a decision to recognise or not to recognise members of the Association as recognised medical experts will affect the professional and financial interests of the members, the decision must be made in a manner that accords procedural fairness to the applicants.
They claim that in the circumstances fairness requires that the Association and, perhaps, the individual chiropractors, know the matters that will be important or crucial in the making of a decision by the Corporation. Accordingly, they claim to be entitled to be provided with guidelines or criteria by reference to which the Corporation will decide a further application, and by reference to which that application can be made. A declaration is sought that the Corporation is required
“to develop and publish criteria by way of guidelines or principles as well as set out a procedure by which medical experts may be recognised by the Corporation as recognised medical experts.”
For present purposes, the law of Australia is summarised by the following passage from the judgment of Mason CJ, Deane and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598:
“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ...”

This passage was subsequently approved by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 576. The decision in Ainsworth establishes that personal and business reputation are interests attracting the protection of the rules of natural justice: at 578.

There has been considerable debate about the utility of the concept of a legitimate expectation, but the concept is firmly embedded in the case law. In my opinion neither the Association nor the chiropractors whom it represented had a legitimate expectation that, upon application by the Association, recognition would be accorded by the Corporation. The cases have tended to deny that an applicant for a licence or statutory approval has a legitimate expectation of a grant, upon the making of a first application, at least when the decision to be made involves the exercise of a discretion upon grounds that are not the subject of clearly defined criteria: see FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360-361 Mason J, 376-377 Aickin J and at 394 Wilson J. I refer also to Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 680-681 McHugh J and to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 58-59 Dawson J. In my opinion, having regard to the nature and scope of the discretion to be exercised, and the room for considerations of policy, an applicant does not and a group of applicants do not have such a legitimate expectation.
Nor is there anything in the circumstances of the case to suggest that by its conduct the Corporation has created a legitimate expectation.

In what I have said so far on this matter I have drawn on remarks to be found in the individual judgments of members of the High Court. As far as I am aware, there is no High Court decision in which the issue is determined in a manner which would bind me. It may be that this is something that, having regard to the relevance of the facts of the particular case to the decision, can never be determined in the abstract. I wish to make it clear that the remarks that I have made apply to an application by a group of people, as was the case here. Such an application is likely to be disposed of on the basis of a mix of broad policy considerations and matters relevant to the group as a whole. If an individual chiropractor were to apply for recognition, and the Corporation proposed to refuse recognition on the basis of information in its possession that was adverse to that person in particular, I consider it likely that the Corporation would be under a duty to bring that information to the attention of the applicant. In that respect I am inclined to agree with the views of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 711-714. I realise that those views were expressed in the context of legislation that imposed a duty to grant a licence subject to satisfaction of a matter that raised narrower matters for consideration than are raised in this case. However, I am inclined to think that even in the present case, as I have said, an individual applicant for recognition would be entitled to be informed of information peculiar to that applicant and adverse to the applicant before it was taken into account. But that is not the case here.
It might be said that that acknowledgment on my part suggests that an applicant for a licence in the present case does have a legitimate expectation of the grant of a licence, otherwise the obligation to afford procedural fairness in the situation just identified would not arise.
It might be that the obligation to accord procedural fairness arises because the decision to accord or to refuse recognition affects the professional and financial interests of the chiropractors represented by the Association. However, I doubt whether there is a relevant effect upon such interests in the present case. The High Court decisions that have dealt with this basis for an entitlement to procedural fairness have generally, as best I can tell, dealt with a recognisable adverse effect upon a relevant interest or have dealt with the depravation of something affecting such an interest: see, for example, Annetts v McCann (1990) 170 CLR 596, Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Johns v Australian Securities Commission (1993) 178 CLR 408.
In the present case, the decision not to recognise chiropractors represented by the Association had no adverse effect on their reputation. As to their financial and professional interests the most that can be said is that the decision left them where they were before. It denied them something, recognition, which probably had a monetary value to them, and which, in the case of some patients, may well have enhanced the treatment provided in the sense that it may well have removed the need to refer the patient to a recognised medical expert for the provision of a certificate. However, without in any way denying the importance of the issue to the chiropractors, my view is that these interests are insufficient to attract a requirement to accord procedural fairness, having regard to the case law as it now stands. To that fact I would add further or alternatively the point that the decision deprived the chiropractors of nothing, it merely failed to accord to them a benefit that they sought.
My view is, therefore, that neither the Association nor the chiropractors whom it represented had a sufficient interest to require the Corporation to accord procedural fairness in considering the application for recognition that was made on behalf of the chiropractors represented by the Association.
However, I recognise that the law of Australia may have developed to a point at which no firm distinction should be drawn between an application for the first grant of a licence or something like a licence, and the renewal or extension of a licence or like privilege. The relevance of that observation is that, in my opinion, if the issue were one of termination of recognition I consider that the members of the group whose recognition was at risk would be entitled to procedural fairness.
It may be that there is a general principle that procedural fairness must be accorded when exercising statutory powers apt to affect an individual, and that matters such as the nature of the decision, legitimate expectations and effects on rights and interests go to the content of the requirement rather than to the existence of the requirement: see Haoucher at 653 Deane J, Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121 at 139-140 Tadgell J. In the light of that, and because of the importance of the issue to the parties, I propose to consider the claimed entitlement to natural justice or to procedural fairness, despite the fact that I have concluded that the decision in question does not have a sufficient effect upon interests of those represented by the Association, or deny a legitimate entitlement, in such a manner as to give rise to an entitlement to natural justice or procedural fairness.
It was not suggested by Ms Layton QC that the Corporation was required to accord to the Association a formal hearing. I agree that, under all the circumstances, no such obligation could be imposed. On the other hand, Mr White QC for the Corporation did not deny that the application had to be considered fairly.
It is clear from the many authorities in this area that an administrative decision maker may make use of knowledge and experience and expertise that the decision maker possesses, without having to disclose that material to the applicant, and without having to disclose how the material might be used. In the case of decisions in respect of which no hearing is required, that is a hearing in the more formal sense, the courts have not required an administrative decision maker with the sort of information just referred to, to identify, in advance, its preliminary views or attitudes, or the knowledge and experience that will be used, or even tentative adverse conclusions. I qualify the latter point in one respect. It may be that an adverse conclusion of a type that could not reasonably be expected by an applicant might have to be brought to an applicant’s attention, as a matter of fairness. That was the view taken by the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 127 ALR 699 at 714. I do not need to consider that question, because there is no suggestion that in the present case any such matter was taken into account.
As I have said earlier, in the present case the Association claims that the Corporation is under an obligation to establish and then to publish to the Association the criteria by which it will decide a further application and the procedure to be followed in the making of such an application. That is said to be a requirement of natural justice.
In my opinion there are some obvious difficulties with this submission. If the obligation exists, it surely existed before the application for recognition was made and rejected by the Corporation. There is no reason why the obligation would arise only after an application for recognition had been rejected. If the obligation exists, does it then exist in relation to any group or person who might apply for recognition, or only in relation to persons who indicate that they propose to apply for recognition?
I do not agree that the obligation exists at large. If the submission were to be accepted, it appears to me that it would have to be confined to an obligation to persons who have indicated to the Corporation that they propose to make an application.
There is a further practical difficulty. I have not found it easy to identify the range of matters that may properly be considered in relation to an application for recognition. That may be due to my own deficiencies. But even if it is, it is surely foreseeable that after receipt of an application, and after considering its contents, matters might occur to the Corporation as relevant that had not occurred to it beforehand. The suggested obligation would then impose upon the Corporation an obligation to add to the list of matters identified in advance. I am unaware of any authority in relation to a statutory discretion of the type in issue here which contemplates this sort of procedure.
Ms Layton QC rested her submission on this point substantially on the decision of the Full Court of the Federal Court in Alphaone. As I said earlier, that was a case in which the court construed the relevant provision as imposing an obligation to grant a licence, subject to such conditions as the Commissioner might think fit, and provided only that the Commissioner was satisfied on reasonable grounds that the applicant was a fit and proper person: 127 ALR 699 at 712. It was therefore a licence that one could expect would be granted “in the ordinary course unless the applicant fails to meet that criterion”: 127 ALR 699 at 712. The case was one in which there was a complaint about the fact that the Commissioner had failed to disclose to Alphaone evidence of unlawful conduct by Alphaone and had failed to give it an opportunity to answer the allegation or to put matters in mitigation: 127 ALR 699 at 713. The court went on to conclude that Alphaone was fully aware of the need to demonstrate that it was a fit and proper person, and was aware that the Commissioner believed that it was trading illegally. The only real issue was whether the Commissioner could conclude that the company was not a fit and proper person to hold a licence, without inviting further submissions: 127 ALR 699 at 715. The court concluded that this was an “obvious and natural evaluation” and that there was no obligation to communicate a tentative conclusion. In my opinion it is important to understand that it was in that context that the Full Court made certain statements relied upon by Ms Layton QC. For example, in relation to the opportunity to be heard the court said (at 714):
“That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material ...”

A little later again the court said (at 714):

“The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it ...”

A little later the court said (at 715), referring to procedural fairness:

“It also extends to require the decision maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made.”

Those statements were made in a context quite unlike the present case.

For reasons that I have indicated, I consider that the Corporation has a fairly broad discretion, and one that is not confined to the identification of a particular disability and the identification of relevant knowledge in relation to that disability. The Corporation can consider a range of matters. The provision is not one that leads to the conclusion that there is a duty to accord recognition, subject to satisfaction as to the matters specifically identified in the definition. Nor is there any suggestion, in the present case, that the decision was likely to turn upon a conclusion about particular individuals, or particular facts relating to the conduct of particular individuals.
In my opinion the present case is readily distinguishable from Alphaone. I do not consider that the approach of the Full Court in Alphaone is applicable to a case like this. Even if one were to take a relatively narrow approach to the scope of the discretion conferred on the Corporation, I would not accept that the Corporation was obliged as a matter of procedural fairness to identify in advance how it would go about deciding whether it should accord recognition. I consider that the natural reading of the provision is that it is up to an applicant or group of applicants to identify the relevant knowledge and experience, and to put forward their own identification of the particular kind of disability in relation to which that knowledge and experience is possessed. The applicant can be expected to have some understanding of matters relevant to the efficient administration of the Act. The process of evaluation would depend very much upon the manner in which the application was presented and, quite apart from that, in my opinion it would not accord with authority to require the Corporation to state in advance how it proposed to make a decision.
In short, even if the discretion is a relatively narrow one confined to consideration of the issue of identifying a disability and assessing relevant knowledge and experience, I reject the claim that the Corporation is required to identify in advance how it proposes to proceed. In my opinion there is no obligation to identify the approach to be taken to consideration of issues like that. I reach the conclusion all the more readily on the basis that the discretion is a relatively wide one, entitling the Corporation to take into account a range of matters relevant to the efficient conduct of the scheme.
In my opinion it is necessary for a court to distinguish between what one hopes would happen as a matter of good and sensible administration, and on the other hand requirements to be enforced as a matter of law. One would hope that the Corporation would assist applicants for recognition by indicating issues that would be important in considering an application for recognition, and by indicating the sort of material that the Corporation wished to have put before it. But it is not for the courts to impose upon administrators the courts’ view of what is good and sensible practice. The role of the courts is to insist and require that fair procedures be observed, and provided that procedural fairness is accorded it is not for the courts to require of administrators what the courts might think would be sensible and good practice. I do not consider that procedural fairness requires an administrator to indicate, in advance, the basis upon which a statutory discretion will be exercised.
For those reasons I do not accept that the Association is entitled to the declaration that it seeks.

Reasons

It is also argued that the Corporation was required to give reasons for the rejection of the application that the association made for recognition.
I propose to deal with this submission very briefly. I am not aware of any authority that supports the view that, as a matter of course, an administrative decision maker is obliged to provide reasons for a decision that has been made. In particular, the imposition of an obligation to give reasons cannot be used as an indirect means of requiring an administrator to identify the basis of decision making in such a way as to facilitate the making of a further application. In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 the High Court held that there was no general common law rule requiring reasons to be given for administrative decisions, even when those decisions were made in exercise of a statutory discretion and were liable to affect adversely the interests of persons the subject of the decision. In my opinion there is no basis upon which I could hold that the Corporation is obliged to give reasons for its decision.

Conclusions

For those reasons I decline to declare that the matters identified by the Corporation in its letter of 12 February 1997 are not permissible considerations in considering an application for acceptance as a recognised medical expert under the Act. I decline to declare that the Corporation has an obligation to publish criteria by which it will consider an application by the Association for recognition of those persons whom it represents. I decline to declare that the Corporation is obliged to publish reasons for a decision which it made not to accord recognition to the persons represented by the Association. It would not be appropriate for me to grant a declaration in the terms sought as to the range of matters that may be considered in connection with an application for recognition, but in any event my reasons indicate that I do not accept the submission advanced by the Association as to the scope of the statutory discretion. I have indicated that the matters identified by the Corporation in its letter of 12 February, if taken at face value, go beyond what is permissible, if they are to be considered as criteria for the making of a decision.
The claim brought by the Association must be dismissed.

[1999] SASC 120

26 March 1999