Elderly Citizens Homes of SA Inc v WorkCover (No 2) No. Scgrg-99-267 Judgment No. S144

[1999] SASC 144

ELDERLY CITIZENS HOMES OF SA INCORPORATED v
WORKCOVER CORPORATION OF SOUTH AUSTRALIA (No 2)
[1999] SASC 144

Civil

Debelle J

1. This is an application for a stay of execution of an order.  In this application for judicial review Elderly Citizens Homes of South Australia Incorporated (“ECH”) seeks an order that WorkCover Corporation of South Australia (“the Corporation”) disclose to it a report prepared by an employee of the Corporation.  That report was prepared in association with an application made by ECH for registration as an exempt employer.  The report was adverse to ECH.  It recommended that the application by ECH be refused.  ECH is aware of that because Mr Taylor, the author of the report, has said as much to ECH.  That statement has also been confirmed in a letter dated 2 March 1999 from WorkCover to ECH.  The application by ECH will be determined by a committee of the Corporation which acts as the delegate of the board of the Corporation.  Mr Taylor is not a member of the committee. 

2. On 1 April I published reasons for judgment holding that ECH was entitled to disclosure of the report.  I informed the parties that I proposed to make an order in the nature of a declaration to that effect.  At the request of the parties and by consent, I did not then make any orders.  The Corporation has had an opportunity of considering the reasons.  It proposes to appeal against the decision.  It seeks a stay of execution.  As Mr White QC acknowledges, what the Corporation effectively seeks is a stay of any injunction ordering the Corporation to disclose the report to ECH.  Such an order would obviously be the ordinary consequence of an order in the nature of declaration that ECH is entitled to disclosure of the report.  I should add that Mr White has properly said on behalf of the Corporation that it would not, in the ordinary course, seek an injunction. But for the fact of the intended appeal, it would have been prepared to hand over the report without a necessity for an injunction being ordered.  That is a very proper attitude on the part of the Corporation.  These reasons, therefore, proceed on the footing that the orders to be made will be orders in the nature of declarations granting the relief stated in the judgment together with an injunction ordering disclosure of the report forthwith to ECH. 

3. It is well settled that there must be reasons which justify a stay.  A stay pending an appeal is not the usual course.  That much at least is common ground. 

4. The application for the stay is advanced on the footing that, in the absence of a stay, any appeal by the Corporation will be rendered nugatory.  It is important to examine the essential ground of the appeal and the subject matter of these proceedings and in particular the issues which were canvassed in these proceedings.  Shortly stated, the issue in these proceedings was whether the content of the rules of procedural fairness required in the circumstances which have happened, the disclosure of Mr Taylor's report.  The Corporation acknowledged that the rules of procedural fairness applied in the context of an application for registration as an exempt employer but said that, in the particular circumstances of this case, those rules did not require disclosure.  One of the grounds advanced was that there had in effect been disclosure of the content of the report in a number of ways and, in particular, by the information conveyed by Mr Taylor to officers of ECH. 

5. It is important to note that the Corporation did not point to any aspect of the report which required that it not be disclosed but, instead, argued the matter as a question of principle.  That is to say, the Corporation does not point to any aspect of the report which is privileged.  It does not point to any aspect of the report which it says should not be disclosed on some ground of public interest immunity.  It does not point to any aspect of the report which is so confidential that it could not be disclosed to ECH.  It says that there is no reason why the report should be disclosed and on that footing is confidential to it.  I repeat, it was the Corporation’s case that, as a matter of principle, a report of this kind should not be disclosed particularly since ECH was, it says, aware of the material contained in that report. 

6. The question which is to be canvassed on the appeal is whether an applicant for registration as an exempt employer is entitled to examine a report adverse to it.  There is a subsidiary issue whether, in the particular circumstances of this case, the report should have been disclosed to ECH, given the statements made by Mr Taylor as to the effect of the report. 

7. In the context of the present application, it is relevant to note also that one of the grounds upon which disclosure was ordered was that, in the absence of disclosure, the applicant had no means of knowing whether Mr Taylor had conveyed the whole of the content of the report to it.  If there were no disclosure, ECH would not know whether there were other grounds advanced than those of which it had been informed. 

8. It is against that background that I turn to the question of whether the appeal would be rendered nugatory if a stay were not ordered. 

9. This case is to be contrasted with those where the issue at first instance is whether a document should be disclosed or handed over for inspection on the ground that it is the subject of privilege or public interest immunity.  In those cases, if a stay is not ordered, the basis upon which disclosure is resisted, such as privilege or some other grant of public immunity, no longer remains.  If disclosure is resisted, say on the ground of legal professional privilege, the privilege is defeated.  It no longer exists.  In those circumstances there remains no issue of principle for examination.  The circumstances in this case are quite different.  If there is no stay and the report is disclosed to ECH, ECH will of course have the benefit of examining that report.  But, so far as the Corporation is concerned, the issue of principle remains.  That is to say, the issue remains whether the Corporation is obliged to disclose reports of this kind to an applicant for registration as an exempt employer.  The issue also remains whether the Corporation is obliged to disclose the report in circumstances where it is asserted that the content of the report has been disclosed in some way other than by production of the report.  For those reasons, I am not satisfied that the disclosure of this report to ECH will render the appeal nugatory. 

10. In the particular circumstances of this case, there is also an element of urgency.  The papers suggest that a decision that an employer is entitled to become an exempt employer cannot take effect until 1 July in any year.  The application process is structured in a way to enable assessment of an application to be completed before 1 July.  That process appears to involve not only the determination of whether an employer satisfies the performance standards of the Corporation but a period of assessment against those performance standards and other kinds of assessment. 

11. ECH has not complied with the time limits which would normally operate in respect of these applications.  As the reasons for judgment disclose, there has been a de facto extension of those time limits.  I do not overlook the fact that the Corporation would still wish to make an assessment of ECH even if the Committee grants it status as an exempt employer.  I am not satisfied that there is not sufficient time to enable all of the assessment processes which the Corporation seeks to implement to be completed before 1 July. As was repeatedly stressed in the course of submissions by both parties, the question whether ECH satisfied performance standards is a question for the Committee to determine and thereafter it will be for the Committee or the Corporation to determine whether it satisfies the other necessary assessments  and to determine whether they can be completed before 1 July.  The question whether ECH is registered as an exempt employer has considerable financial consequences for ECH.  That was always common ground in the hearing of this matter.  If a stay were ordered, it would not be possible for the processes to be completed before 1 July.  A stay would negate all of the attempts of ECH to seek registration by 1 July. 

12. To summarise.  A stay effectively denies ECH any opportunity to gain registration as an exempt employer by 1 July.  On the other hand, a stay does not render nugatory any appeal by the Corporation.  Whilst the ECH will have the report disclosed to it, the issue of principle remains for the Corporation to argue.  For these reasons I refuse the application for a stay. 

13. There will be orders as follows:

14. An order declaring that ECH is entitled to disclosure to it of the report to the committee concerning its application for registration as an exempt employer being the report referred to in the Corporation's letter to ECH dated 9 March 1999. 

15. An order declaring that ECH is entitled to make representations in writing to the committee concerning the content of the report. 

16. An injunction ordering that the Corporation forthwith disclose the report to ECH. 

17. That the oral application of the Corporation for a stay of this order be dismissed. 

18. That ECH is entitled to its costs of the application for judicial review and the costs of the Corporation's application for a stay, such costs to be taxed or agreed.

19. Both applications are fit for senior counsel.