Craig v Workers Compensation Tribunal - [2004] SASC 410

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CRAIG v WORKERS COMPENSATION TRIBUNAL & ANOR
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice Vanstone)
10 December 2004
ADMINISTRATIVE LAW - JUDICIAL REVIEW AT COMMON LAW - PROCEDURAL FAIRNESS
ADMINISTRATIVE LAW - PARTICULAR TRIBUNALS OR BODIES - WORKERS' COMPENSATION TRIBUNALS
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GROUNDS FOR CERTIORARI TO QUASH - EXCESS OR WANT OF JURISDICTION
Plaintiff made a claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (`the Act') - the claim proceeded before a single member of Tribunal on basis that the presumption that employment contributed to disability under s 31(5) of the Act applied - plaintiff appealed to Full Bench of Tribunal arguing single member erred in finding the presumption displaced - the Full Bench held that the presumption was not applicable - whether the finding that the presumption was not applicable amounted to a denial of procedural fairness - whether the Full Bench by proceeding without affording the plaintiff procedural fairness had exceeded its jurisdiction - action dismissed.
Workers Rehabilitation and Compensation Act 1986 (SA) s 30(1), s 30(2), s 30(2)(b), s 31(5), s 80, s 80A, s 84A, s 84B, s 85, s 85A, s 86(1), s 87, s 87A, s 88I(b), s 92D, s 94; Supreme Court Act 1935 (SA) s 39, s 39(6), referred to.
Stead v State Government Insurance Commission (1986) 161 CLR 141; Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Craig v South Australia (1995) 184 CLR 163, discussed.
Tsimpinos v Allianz (Australia) Workers' Compensation (SA) Pty Ltd (2004) 88 SASR 311; Public Service Association of South Australia v Federated Clerks Union of Australia (1991) 173 CLR 132; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Dranichnikov v Minister for Immigration and Mulitcultural Affairs (2003) 197 ALR 389; Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476; R v Gray; ex parte Marsh (1985) 157 CLR 351; The Returned Services League of Australia (Victoria Branch) Inc v The Liquor Licensing Commission [1999] 2 VR 203, considered.

CRAIG v WORKERS COMPENSATION TRIBUNAL & ANOR
[2004] SASC 410
Full Court: Doyle CJ, Perry and Vanstone JJ

DOYLE CJ: Mr Craig was granted leave to serve proceedings on the Workers’ Compensation Tribunal (“the Tribunal”) and WorkCover Corporation (“the Corporation”). The proceedings relate to a disputed claim for compensation under the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Act”).
Mr Craig claims that a Full Bench of the Tribunal, when hearing an appeal against a decision of the Tribunal constituted of a single member, made an error that caused it to exceed its jurisdiction. Accordingly, Mr Craig claims to be entitled to challenge the decision, despite the provisions of s 88I(b) of the Act, which protect decisions of the Tribunal, except in proceedings before the Full Court “founded on an alleged excess or want of jurisdiction.”
Mr Craig claims that the Tribunal exceeded its jurisdiction in deciding that s 31(5) of the Act, which provides for a presumption that employment contributed to a disability, did not apply to the claim he had made before the Tribunal. Before a single member of the Tribunal his claim had proceeded on the basis that s 31(5) did apply, the Corporation having conceded that it applied. The single member held that his claim failed, and in the course of so deciding found that the presumption was displaced by “proof to the contrary”. On appeal to the Full Bench, Mr Craig again relied upon the presumption and argued that the single member erred in concluding that it was displaced. The Full Bench held that the presumption was not applicable to his case, and that any error in its application by the single member was of no significance.
Mr Craig complains that the Full Bench so decided without indicating that it might depart from the basis upon which this aspect of his case was argued and decided before the single member, and upon which it was argued before the Full Bench. He complains that as a result, his challenge to the single member’s decision that the presumption was displaced by “proof to the contrary” has not been determined.
He argues that this was a denial of procedural fairness, and that in proceeding without according him procedural fairness the Full Bench had exceeded its jurisdiction. Putting it differently, the Full Bench had determined his case in breach of a condition (an obligation to act fairly) that attached to or limited its authority to determine his case.
The proceedings before the Tribunal
To understand how the point arises, and whether any departure from the requirements of fairness could have had any effect on the outcome of the case, some attention to the course that the matter followed is required.
Mr Craig worked as a truck driver. He drove from Sydney to Adelaide, in the course of his employment, between 29 April 1999 and 3 May 1999. He felt unwell during that trip. He consulted his general practitioner. She gave him certificates that he was unfit to work until Saturday 15 May. On Sunday 16 May he suffered a heart attack. It was an acute myocardial infarction. It led to the need for bypass surgery on 23 August 1999 and to incapacity for work. He claimed that he had suffered a compensable disability for the purposes of the Act, entitling him to compensation.
His claim was rejected and was referred to the Tribunal “for judicial determination” under s 92D of the Act.
The claim was advanced on several bases. What follows is drawn from the decisions of the single member and of the Full Bench.
Mr Craig was 52 years of age, was obese, had high cholesterol levels and was a heavy smoker. He had longstanding coronary heart disease. The heart attack was undoubtedly linked to that condition. The single member heard a good deal of expert medical evidence about his condition, its causes, the events during the trip from Sydney and the infarction on 16 May.
Mr Craig had to prove that he suffered a compensable disability. That meant he had to prove that he had suffered a disability that “arises from employment”: s 30(1). By s 30(2) of the Act:
“(2) Subject to this section, a disability arises from employment if –
(a) in the case of a disability that is not a secondary disability or a disease – it arises out of or in the course of employment; or
(b) in the case of a disability that is a secondary disability or a disease –
(i)the disability arises out of employment; or
(ii)the disability arises in the course of employment and the employment contributed to the disability.”
It was not disputed, as I understand it, that the coronary heart disease was a disease for the purposes of the Act.
If Mr Craig could prove that he suffered from a disability (or injury) that was not a disease, it was sufficient if it arose out of or in the course of the employment. If the disability was a secondary disability or disease, then he had to prove that it arose out of the employment, or, if it arose in the course of the employment, that the employment contributed to the disability.
One of his arguments was that if the disability was a disease, and he had to prove that the employment contributed to the disability, then he was entitled to the benefit of s 31(5) of the Act which provides as follows:
“(5) Where –
(a)a worker’s disability consists of the aggravation, acceleration, exacerbation, deterioration or recurrence of a pre-existing coronary heart disease; and
(b) the disability arises in the course of employment,
it will be presumed, in the absence of proof to the contrary, that the employment contributed to the disability.”
His first argument seems to have been that whatever it was that happened while he was driving from Sydney to Adelaide, even if it was an infarction or some other cardiac event, the event could be described as an injury in the primary sense of the term, and not as a mere step in the progression of a disease. On that approach, in the course of that trip he had suffered a disability that arose out of or in the course of employment, and so it was compensable.
The single member rejected that claim. He found that during the course of the trip from Sydney Mr Craig suffered angina, which he described as “a manifestation of the insufficiency of blood supply through the coronary arteries to the muscle”, a product of the underlying coronary heart disease. What happened in the course of the trip was part of the progression of his coronary heart disease. That meant that it was not sufficient that it happened while he was at work. By s 30(2)(b) of the Act it had to be proved, as the disability was a secondary disability or a disease, that the disability arose out of the employment, or alternatively that it arose in the course of the employment and that the employment contributed to the disability. If the claim was presented along the lines of the second possibility, the presumption in s 31(5) might help Mr Craig.
Accordingly, the claim that Mr Craig suffered from a disability, that was not a secondary disability or disease, failed before the single member.
Mr Craig also claimed that he was on duty when he suffered the heart attack on 16 May, because he was on call then. That claim failed before the single member on the facts.
Mr Craig claimed that the underlying heart disease was attributable to stress arising from the nature of his employment. That claim also was rejected by the single member on the facts.
And so, as I understand the proceedings, the question arose of whether Mr Craig had established that he suffered from a disability (a secondary disability or a disease) that arose out of his employment, or that arose in the course of employment and to which the employment contributed.
When he suffered the heart attack on 16 May, he was not at work. Nor did he succeed in proving that the underlying heart disease arose out of his employment. That meant, as I understand the case, that the focus finally shifted to whatever happened in the course of the trip from Sydney. Whatever it was, it happened in the course of employment. Accordingly, if it was a disability, and the employment contributed to the disability, it was compensable.
The entitlement to compensation that would arise from any disability sustained in the course of the trip from Sydney was not identified before us. Assuming that angina was a disability, it might have given rise only to an entitlement to compensation in respect of some of the medical expenses incurred, and in respect of a short period of time off work.
Be that as it may, before the single member counsel for the Corporation did not dispute that Mr Craig was entitled to invoke the presumption under s 31(5). That seems to involve a concession that whatever happened was an aggravation (I use that term only, for convenience, to embrace all of the terms found in s 31(5)(a) of the Act) of the pre-existing heart disease, that that aggravation was a disability, and that the disability arose in the course of the employment (that is, during the trip). Indeed, counsel for the Corporation appears to have embraced this proposition, because it was part of his case that Mr Craig did not suffer during the trip from something that could be classed as an injury in the primary sense. The Corporation contended, on the whole of the evidence, that it was established that the employment did not contribute to the disability.
Bearing in mind the single member’s ultimate conclusion that all that happened during the trip from Sydney was that the underlying heart disease became symptomatic, he had some difficulty with this concession. He said at [141]:
“Assuming for the purposes of this case that the “manifestation” of symptoms is encompassed by the words “exacerbation or deterioration” and assuming that the word “arise” may mean “manifest” – although it has other meanings eg happens or first occurs, I am prepared for the purposes of this case to assume that the worker has the benefit of the presumption although it’s clearly not free from doubt.”
The single member then considered the evidence as a whole. He found, that there were factors other than the employment that “adequately explained the disability”. In other words, he found there was proof to the contrary of the proposition or presumption that the employment contributed to the disability. Accordingly, he dismissed the claim.
Mr Craig appealed to the Full Bench. By s 86(1) of the Act an appeal lay only “on a question of law”.
The Full Bench rejected the attack on the finding that the symptoms experienced by Mr Craig while driving from Sydney were not attributable to anything that could be described as an injury in the primary sense, and were attributable to angina which was a manifestation of Mr Craig’s longstanding heart disease. In some respects the Full Bench was not satisfied that the attacks on the reasoning raised a question of law, but that does not matter now. The Full Bench was firmly of the view that anything that occurred in the course of the trip from Sydney was attributable to the progression of the coronary heart disease, and so Mr Craig had to prove that any relevant disability arose out of his employment, or arose in the course of the employment and that the employment contributed to the disability.
The Full Bench also rejected an attack on the single member’s findings that whatever happened during the trip from Sydney did not contribute to the infarction that Mr Craig suffered on 16 May.
There was no challenge to the finding that Mr Craig was not at work on 16 May.
That led the Full Bench to consider the claim that Mr Craig’s heart disease was attributable to stress experienced in the course of his employment. If that were established, then the disability (whatever it was) would arise out of the employment.
The Full Bench found that in one respect the single member had erred in considering this aspect of the case. In preferring the evidence of certain expert witnesses he had said that their views on the relationship between cardiac disease and stress “accord with those expressed in other cases by senior cardiologists in Adelaide.” The Full Bench concluded that the single member had denied Mr Craig natural justice in this respect, because he had taken account of evidence given in other cases, without giving counsel for Mr Craig any opportunity to be heard on the matter. On that ground alone the Full Bench said the appeal must succeed.
The Full Bench then and finally turned to the submission that the single member had erred, as a matter of law, in the application of the presumption under s 31(5) of the Act, and that he had applied the wrong test when deciding that the presumption was rebutted. The Full Bench did not consider the merits of the submission to this effect. It said, referring to s 31(5) at [69]:
“In our view, this provision has no application in this case. On the findings made by the learned Deputy President the only relevant cardiac event was that which occurred on 16 May 1999 and given his unchallenged finding that the worker was not then at work the gateway to the presumption, that is s 31(5)(b), remained shut. Accordingly, the worker’s claim could only succeed if he could establish that his employment with the employer contributed to the disability.”
It is not disputed that before the Full Bench counsel for the Corporation again accepted that the presumption applied. By that I mean that counsel for the Corporation argued that anything that occurred was an aggravation of pre-existing heart disease, and that even though it arose in the course of employment the presumption was rebutted.
The Full Bench ordered that there be a new trial limited to the question of whether Mr Craig could establish that the infarction that he sustained on 16 May 1999 was caused by work-related stress. That was the one issue on which the single member had erred.
The issue on appeal
Mr Stanley, counsel for Mr Craig, submits that the concession by counsel for the Corporation involves a concession that the preconditions to the application of s 31(5) were made out. That is, that on the course of the trip Mr Craig suffered an aggravation of his pre-existing heart disease, and that occurred in the course of his employment. He submits that by deciding that the provision had no application, the Full Bench has, without warning to Mr Craig and without hearing him on the question, deprived him of the benefit of that concession. That, he submits, is a denial of procedural fairness.
He also submits that the Full Bench has failed to consider one of the challenges to the single member’s decision. That is, the submission that he erred in law in considering whether there was proof to the contrary of the presumption that arose under s 31(5).
If the argument is correct, and if this Court has power to interfere, a question arises as to the appropriate remedy. This was not the subject of detailed submissions. I consider that the appropriate order would be to order that the decision be set aside and that the matter be remitted to the Full Bench for further consideration, enabling it to consider the argument with which it has not dealt.
The concession and its significance
It is first necessary to get a clearer understanding of just what is involved in the reliance on s 31(5) before the Full Bench.
As things stand, the concession by counsel for the Corporation on which Mr Craig relies must relate to events in the course of the trip from Sydney to Adelaide.
There is a finding, that has not been overturned, that Mr Craig did not suffer a compensable disability on 16 May, when he suffered an infarction.
The concession cannot avail Mr Craig in respect of that event. There is a finding that he was not then in the course of his employment. Having regard to the manner in which the case was fought, the concession cannot be regarded as having been intended to preclude the Corporation from so contending.
It is for that reason that the only relevant application of the presumption under s 31(5) is in relation to events that occurred in the course of the trip from Sydney.
As I said earlier in these reasons, the single member was prepared to treat the manifestation of symptoms in the course of that journey as capable of attracting the operation of the presumption under s 31(5). I earlier set out his observations at [141] of his reasons.
But the single member had found that what occurred in the course of that trip was nothing more than the manifestation of symptoms of the coronary heart disease, that manifestation being described as angina.
I understand the Full Bench, in the passage at [69] set out above, to mean that on the basis of that finding, which was upheld on appeal, Mr Craig did not suffer a disability for the purposes of s 31(5) in the course of the trip and accordingly the presumption could not be invoked.
The Full Bench must have proceeded on the basis that the concession by the Corporation, before the single member and before it, was not a concession that avoided the need for a decision as to the nature of the event in the course of the trip, and was in substance an argument that anything of significance or relevance that did occur was an aggravation of pre-existing coronary heart disease, and if it was a disability it arose in the course of employment, but in that event there was proof to the contrary of the presumption that arose.

In other words, the Full Bench appears to have reasoned that on the single member’s findings, which relevantly had not been challenged successfully, there was a finding that what happened in the course of the trip from Sydney was no more than the occurrence of symptoms attributable to the underlying condition, and that that did not amount to a disability. I understand the Full Bench also to have reasoned that the only relevant disability was that attributable to the heart attack sustained on 16 May.
Was the availability of the presumption of practical significance?
The rules of natural justice or, as they are more commonly called these days, the rules of procedural fairness, are at the heart of the administration of justice. Assuming the rules have not been displaced by statutory provision, and there is no such suggestion in this case, a breach of those rules will almost always be an error of law that will, subject to statutory limits on the power of the relevant Court to interfere, either result in an appeal against the decision being allowed (assuming there is a remedy by way of appeal) or in the relevant decision being set aside in the exercise of the supervisory jurisdiction of the Supreme Court.
But there may be cases in which the Court can conclude, without deciding the merits of the issue the decision of which was affected by the failure to accord procedural fairness, that that failure could not possibly have made any difference. And in that situation it may be appropriate for the Court to refuse a remedy. For example, in Stead v State Government Insurance Commission (1986) 161 CLR 141, in the context of an appeal in which complaint was made of a breach of the rules of procedural fairness, the High Court said at 145:
“For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”
This statement of principle was referred to with approval by members of the High Court in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4] Gleeson CJ; at [58] Gaudron and Gummow JJ; at [104] McHugh J; at [130]-[133] Kirby J; at [172] Hayne J and at [211] Callinan J.
It seems to me arguable that this is a case in which the failure to inform counsel for Mr Craig that the Tribunal might depart from one of the bases on which the case was argued could not have made any difference to the outcome. If, on the findings of the single member, the only disability arising from the events in the course of the trip from Sydney was angina giving rise to a short term incapacity for work, and if any relevant incapacity for work was wholly attributable to the heart attack on 16 May, an erroneous approach to the consideration of the events in the course of the trip might not be of any significance. The finding that what happened in the course of the trip from Sydney was nothing more than a transient episode of angina, a finding which was upheld, seems to mean that the claim for compensation for incapacity for work would hinge upon a decision in relation to the heart attack on 16 May 1999.
Mr Stanley, counsel for Mr Craig before us, submitted that the availability of the presumption could have a bearing on the outcome. While Mr Quick QC, counsel for the Corporation, argued that the presumption was rebutted, I did not understand him to argue that its availability could not be of any significance in the final outcome.
Because it is not clear to me that a finding that there was a disability in the course of the trip from Sydney, to which the employment contributed, is of no practical significance, it is necessary to consider the question of whether there was a failure to accord procedural fairness, and whether such a failure meant that the Full Bench exceeded its jurisdiction. In other words, I am not confident that a failure to accord procedural fairness could not have affected Mr Craig’s rights, or the outcome of the case.
Was there a failure to accord procedural fairness?
Mr Quick did not deny that the Full Bench was obliged to conduct its proceedings fairly. Such a submission had no prospect of success. This follows from the nature and functions of the Tribunal, which I will deal with briefly.
The Tribunal was making a “judicial determination” of a dispute: s 94 of the Act. For that purpose it was constituted by Judges of the Industrial Relations Court of South Australia: s 80 and s 80A. The Tribunal had to decide the relevant facts, and apply the law to them. It has power to compel witnesses to attend, and to require a witness to be sworn or to affirm: s 84A and s 84B. It was obliged to sit in public: s 85A. Its decision is referred to as a judgment by s 87, but is enforced only by registration of the judgment in the District Court: s 87A. There are a number of other provisions relating to the Tribunal which are of a kind commonly found in statutes dealing with courts. The Tribunal must proceed “according to equity, good conscience and the substantial merits of the case”: s 85.
I consider that the Tribunal exercises judicial power when it hears an appeal. It is implicit in these provisions, and in its constitution and nature, that the Tribunal is to proceed like a court.
In Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302 the Tribunal was held to be a court for the purposes of s 39 of the Supreme Court Act, which gives the Supreme Court power to deal with vexatious proceedings. Vexatious proceedings are defined to include “civil and criminal proceedings whether instituted in the court or some other court of the State”: s 39(6). That is another reason for concluding that the Tribunal must accord procedural fairness to those who appear before it.
To say that is not to be particularly specific. In my opinion it is clear that the Tribunal is required to proceed as a court would, subject to the statutory provisions that enable it to depart from the practices and procedures of a court. There is no provision which authorises or permits the Tribunal to proceed in other than a fair manner.
The Full Bench apparently did not warn counsel for Mr Craig that it might treat the presumption under s 31(5) of the Act as irrelevant. Counsel did not have the opportunity to put submissions on that. I am not able to say that the course of argument would have indicated to counsel that this might happen. That was not suggested in submissions before us.
It follows that the Full Bench, no doubt inadvertently, denied Mr Craig procedural fairness. This had the further consequence that his argument that the single member erred, in deciding that the presumption was rebutted, was not considered. Assuming this argument was capable of having a bearing on the outcome, it had to be considered.
Does the error give rise to an excess or want of jurisdiction?
As mentioned earlier, this Court can intervene only if error on the part of the Tribunal is found, and that error gives rise to an “excess or want of jurisdiction”: s 88I of the Act. See the discussion of that section in Tsimpinos v Allianz (Australia) Workers’ Compensation (SA) Pty Ltd [2004] SASC 124; (2004) 88 SASR 311.
The grounds on which this Court can intervene do not extend to a wrongful failure or refusal to exercise jurisdiction: Public Service Association of South Australia v Federated Clerks Union of Australia (1991) 173 CLR 132. Accordingly, the fact that Mr Craig’s attack on the reasons of the single member has not been fully considered and determined, to the extent that it might mean that there has been a failure to exercise jurisdiction, or to exercise it to the full, cannot assist Mr Craig: cf Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 43 Gaudron and Gummow JJ: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [32] Gummow and Callinan JJ, at [86]-[89] Kirby J.
Recent High Court authority indicates that a denial of procedural fairness by a decision maker acting under a statute, who is required to decide issues of fact and law and to make a finding that directly affects the rights or interests of individuals, will ordinarily mean that the decision is made in excess of jurisdiction or with want of jurisdiction in the sense necessary to attract the remedies available under s 75(v) of the Constitution: Re Refugee Tribunal ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4] Gleeson CJ, at [41] Gaudron and Gummow JJ, at [104] McHugh J, at [142] Kirby J, at [169-171] Hayne J, at [216] Callinan J; Plaintiff S157 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at [25] Gleeson CJ, at [76] Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
These judicial observations were made with reference to a statutory decision maker that was not a court. They indicate that such a decision maker is likely (subject to the provisions of the relevant statute) to exceed jurisdiction by denying procedural fairness.
This Court remains bound by the High Court decision in Craig v South Australia (1995) 184 CLR 163. It is unnecessary to refer to the facts of that case. The decision of the High Court in that case establishes that when the decision maker is a court, the ambit of jurisdictional error is likely to be narrower than in the case of a statutory decision maker that is not a court. In Craig the Court made the point that certiorari, at least, was available to correct errors that did not go to jurisdiction. The Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said at 175-176:
“Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court of tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”.” (Footnotes omitted)
For this reason, in considering whether an error gives rise to an excess or want of jurisdiction, it is necessary to bear in mind that decisions in which certiorari has been granted to correct an error are not necessarily decisions in which the court granting certiorari has identified an error going to jurisdiction.
In Craig the High Court considered and illustrated the concept of jurisdictional error, at some length. It is not necessary here to set out that part of the Court’s reasons. The High Court drew a distinction between inferior courts (and for present purposes the Tribunal is an inferior court) and tribunals that are not courts. The High Court explained why error by a tribunal or statutory decision maker that might give rise to an excess of jurisdiction, will not necessarily have the same effect when made by a court. Underlying the distinction was the proposition (at 179) that
“… in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law.”
Their Honours went on to say (at 179-180):
“In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”
The High Court accepted in Craig that drawing the line in question “between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern” in some situations (at 178).
That difficulty is illustrated by cases such as R v Gray; Ex parte Marsh (1985) 157 CLR 351 and Public Service Association of South Australia v Federated Clerks Union of Australia (above), where the members of the High Court divided over the drawing of the line.
In the present case there can be no doubt that the Full Bench had authority to embark upon the hearing of the appeal, provided that it confined itself to suggested errors that involved a question of law. The failure to observe that requirement might well result in a decision made in excess or in want of jurisdiction, but it is not necessary to decide that. There can be no doubt that the order it made, dismissing the appeal, was an order of a kind that it had power to make. The jurisdiction of the Full Bench was not subject to the existence of an essential condition, other than that the appeal be on a question of law. There can be no suggestion that the Full Bench lacked jurisdiction because some event or circumstance that upon which jurisdiction depended did not exist. Nor did the Full Bench disregard a matter upon which the statute made its jurisdiction conditional, or take into account a matter which the statute required that it not take into account. It appears to me that the Full Bench correctly understood the nature of the function which it was performing, and the extent of its powers. Thus, a number of the matters considered by the High Court in Craig as pointers to a decision in excess of jurisdiction do not exist in the present case.
The case of Mr Craig is that although the Full Bench identified and dealt with issues that arose for decision, deciding questions of fact and law to the extent necessary, the Full Bench exceeded its jurisdiction because of the manner in which it dealt with the appeal before it. The submission is that the Full Bench was obliged to accord Mr Craig procedural fairness (this cannot be denied), and that its failure to do so, in the respect outlined above, resulted in a decision in excess or want of jurisdiction.
The submission put for Mr Craig can, perhaps, be expressed in the form of two questions. First, does the fact that the Full Bench denied Mr Craig procedural fairness in disposing of one of his complaints that the single member erred, mean that its decision was made without jurisdiction? Second, and alternatively, does the fact that the Full Bench did not address Mr Craig’s criticisms of the reasons of the single member, for finding that the presumption was rebutted, mean that the Full Bench acted beyond its jurisdiction or without jurisdiction?
As I have said, there can be no doubt that the Full Bench was required to proceed fairly. The requirement to proceed fairly can, in a sense, be said to be a condition of the conferral of jurisdiction to decide a dispute by “judicial determination”. But the requirement to proceed fairly is not attached, by statute, as a condition of the conferral of jurisdiction. It is a requirement that arises, by implication, from the nature of the body on which the jurisdiction is conferred. So, in my opinion, it is not correct to say that Parliament has made the existence of the Full Bench’s jurisdiction conditional upon it proceeding fairly. The position is accurately stated by saying that Parliament has conferred jurisdiction on a body which is required to accord procedural fairness. That, to me, suggests that the requirement to proceed fairly is not a condition of the Full Bench’s jurisdiction.
If it was a condition of the Full Bench’s jurisdiction, the same could be said of a number of other obligations that apply to the Tribunal, such as to apply the law correctly, and to find the facts correctly. It seems to me that the logic of the argument for Mr Craig would lead to or a conclusion that any error of fact or law meant that the decision of the Full Bench was made in excess or in want of jurisdiction, and that surely cannot be correct. One cannot equate the duties and functions of a court, or of a court-like decision maker, with jurisdictional limits. In particular, as has been often observed, and as was alluded to in Craig, courts have jurisdiction to go right and to go wrong, to decide cases correctly or incorrectly. An incorrect decision is not, by definition, one made without jurisdiction.
The issue before this Court is the scope of the jurisdiction conferred on the Full Bench of the Tribunal. My decision on that issue is influenced by the intermediate conclusion that it is a court, or a court like body. That consideration is not decisive. I agree with the observations made by Phillips JA in TheReturned Services League of Australia (Victoria Branch) Inc. v The Liquor Licensing Commission [1999] VSCA 37; [1999] 2 VR 203. There, referring to the decision in Craig, and to the distinction between a court and an administrative tribunal, his Honour said at [18]:
“But in this area the concern is not so much with the trappings, or indeed the final classification (if that is possible) of the body in question, but with the jurisdiction conferred upon it by the statute, in the sense of the functions committed to it. It was to that end that their Honours were contrasting a court of law with a purely administrative tribunal, pointing out that a court of law will commonly have the jurisdiction to decide questions of law as well as fact, so that if the court of law goes wrong when deciding a question of law it will be less likely to have fallen into jurisdictional error. But that is not because the body in question is classified as a court of law and not an administrative tribunal, but because being a court of law it probably has had committed to it by the Parliament the task of deciding the question of law, whether it decides it rightly or wrongly – and so in deciding, even if it goes wrong, it does not stray outside its jurisdiction. If erroneous, its decision may well be open to appeal, but it will not be subject to prerogative relief for want or excess of jurisdiction (even if amenable to such relief if error of law is disclosed on the face of the record).”
I would answer the questions that I posed by saying that I am satisfied that the Full Bench of the Tribunal is a court, but whether or not it is a court, I am satisfied that Parliament has conferred on it the task of deciding appeals of a certain type, expecting it to proceed in a certain fashion, but not conditioning the vesting of jurisdiction upon any such expectation. As well, the Full Bench has been established as a body to decide questions of law and questions of fact, and ordinarily (always subject to the type of error and its consequences) an error in either respect will not deprive the Full Bench of jurisdiction.

The error in the present case was an error made in the course of disposing the matter which the Full Bench had jurisdiction to dispose of, and related only to the manner in which the Full Bench discharged its function. The circumstances do not fit the criteria identified in Craig as indicating an excess of jurisdiction by a court or court-like decision maker.
Putting things a little differently, the Full Bench erred by departing from a rule that governs the manner in which it exercises its power. But so does any court, for example, if bound by the rules of evidence, when it admits inadmissible evidence. To refer to such an error, or the error made in the present case, as procedural, is not to deny its significance. But this also suggests that the error is one made within jurisdiction.
I conclude that unfairness in the manner in which the Full Bench disposed of the challenge to the decision of the single member did not give rise to a decision, dismissing the appeal, that was made without or beyond its jurisdiction. As to the second way of formulating the submission, the failure to address a particular argument (that the single member erred in deciding that the presumption was rebutted) does not mean that the Full Bench failed to exercise its jurisdiction. In fact, it decided that that argument did not arise, or call for consideration, because the presumption was not available. That decision might be wrong, or have been made in breach of the rules of procedural fairness, but that error does not have the result that the decision made by the Full Bench is not an exercise of its jurisdiction. The case is distinguishable from the decisions referred to above in Bhardwaj and in Dranichnikov.
Reference was made in the course of submissions to the High Court Decision in R v Watson; Ex parte Armstrong (1976) 136 CLR 248. There the High Court held that prohibition lies under s 75(v) of the Constitution to a Judge of the Family Court, a superior Court of record, on the grounds that because of observations made by the Judge in the course of a case, the parties or the public might reasonably suspect that the Judge was not unprejudiced or impartial. This decision, which dealt with the question of bias, was said by Mr Stanley to be based on jurisdictional error by the Family Court Judge, and to indicate that a breach of the rules of procedural fairness gave rise to jurisdictional error. But the decision in that case was affected by the consideration that s 75(v) of the Constitution establishes that prohibition will lie to a judge of a Commonwealth court, although it is a superior court. It was not submitted in that case that prohibition was not available if bias was made out. There was, in that case no privative clause like s 88I of the Act.
In my opinion the decision in that case is not authority for the proposition that a failure by a court to accord procedural fairness amounts to an error that causes the resulting decision to be made in excess or in want of jurisdiction. As was observed in Aala by Gaudron and Gummow JJ at [38]:
“On various occasions it has been assumed that prohibition under s 75(v) issues in respect of failure to observe the rules of natural justice.”
Their Honours there referred to the decision in Watson, and certain other cases. I take their Honours, in context, to mean that it has been assumed that prohibition lies, in these circumstances, whether or not the error gives rise to a decision in excess or in want of jurisdiction. Their Honours went on to say at [41]-[42]:
“It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.
Different considerations arise where the Commonwealth officer is a member of a federal court. There, procedural fairness is a concomitant of the vesting of the judicial power of the Commonwealth in that federal court and s 75(v) operates to maintain s 71 of the Constitution.”
Again, I take their Honours to mean that the remedy will lie whether or not the error goes to jurisdiction, subject to any privative clause. In Aala Hayne J also remarked, at [171], that:
“The power to grant prohibition for denial of procedural fairness, in cases within s 75(v) jurisdiction, has often been assumed.” (Footnote omitted)
He also refers to Watson and other cases. However, I recognise that observations made by him at [169] might imply that the denial of procedural fairness does give rise to jurisdictional error.
While I recognise that there is some uncertainty about the situation, I take the view that this Court is bound by the decision in Craig, and that applying that decision it should hold that the error made by the Full Bench did not deprive the Full Bench of jurisdiction when it made its decision dismissing the appeal.
Conclusion
The proceedings issued by Mr Craig claimed an order setting aside the decision made by the Full Bench or quashing it, on the grounds that the Full Bench did not have jurisdiction to decide that the presumption under s 31(5) of the Act did not arise, or to decide that the appeal by Mr Craig should be dismissed, without determining whether or not the single member had erred in deciding that the presumption was rebutted. That claim was referred to the Full Court.
In my opinion the claim must fail, and accordingly the action should be dismissed.
PERRY J: In my view, the action should be dismissed. I agree substantially with the reasons published by the Chief Justice.
In particular, if the Full Bench of the tribunal made an error, it was an error within jurisdiction. It was not an error giving rise to an excess or want of jurisdiction.
VANSTONE J: I agree that the action should be dismissed.
My opinion is that even if the Full Bench of the Tribunal made an error, it was not one going to jurisdiction. In respect of the characterisation of any such error I agree with the reasons given by the Chief Justice.