Industrial Rehabilitation Services Pty Ltd v Workers Rehabilitation and Compensation Corporation and Others No. SCGRG 93/414 Judgment No. 4012 Number of Pages - 20 Practice - Statutes

[1993] SASC 4012

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), DUGGAN(2) AND MULLIGHAN(3) JJ

CWDS
Practice - South Australia - procedure under Supreme Court Rules - Where a party requires an order by the court as to questions of law the court must be satisfied that a point of law has been raised on the pleadings before proceeding with the order - Rule 75.02 Supreme Court Rules - Statement of Claim and defence must be filed in order to determine the factual and legal basis of relief as sought by a plaintiff for an appropriate determination to be made under Rule 75.02(c).
Statutes - interpretation - Whether the Corporation has the power under the legislation, not only to approve the nature and content of rehabilitation programmes but also who may provide - rehabilitation services.
Workers Rehabilitation and Compensation Act, 1986ss.26,27, 32 and 64 - Workers Rehabilitation and Compensation Corporation v James (1991) 56 SASR
414, applied.

HRNG ADELAIDE, 3 May 1993 #DATE 16:7:1993
Counsel for appellant:     Mr D M Quick QC
   with Mr B Gilchrist
Solicitors for appellant:    Elston and Gilchrist
Counsel for respondent:     Mr H G Rowell
Solicitors for respondent: Stratford and Co

ORDER
Appeal allowed.

JUDGE1 LEGOE ACJ This is an appeal from a judgment and order of a judge of this Court determining preliminary points of law. The learned judge answered certain questions which were prepared for the approval of counsel during the course of the hearing. The appellant issued proceedings in this Court on 11 March 1993, seeking a wide variety of relief. 2. I have had the benefit of studying the reasons of my brother Mullighan J. I agree with my learned brother's conclusion that the appeal should be allowed on the basis that I too would answer each of the preliminary questions in the negative rather than as answered by the learned judge. I would set aside the judgment. However, as we are differing from the learned judge and as I have certain views about the procedural aspects of this matter, I set out some additional reasons of my own. The Summons (Document No.1 on the file) 3. By summons the appellant (the plaintiff in the action) seeks a wide variety of forms of relief, including:-
    (a) As against the first named defendant Workers Rehabilitation
    and Compensation Corporation (hereinafter called "the
    Corporation") and the second named defendant Rayner, who is the
    "Manager of the Rehabilitation Providers Unit within the
    Corporation":-
    (i) damages for intimidation and coercion;
    (ii) damages for interference with contractual relations entered
    into by the plaintiff;
    (iii) damages for causing loss by unlawful means;
(iv) damages pursuant to s.84 of the Fair Trading Act 1987 for
    breaches of ss.56, 57, 64 and 69 of the said Act;
(v) compensation pursuant to s.85 of the Fair Trading Act 1987 for
    breaches of the sections referred to in (iv) above;
    (vi) damages for defamation; and various injunctions restraining
    the two defendants from intimidating or coercing "clients or
    intended clients" of the plaintiff or pursuant to s.83 of the Fair
    Trading Act restraining them from committing or attempting to
    commit breaches of ss.56, 57, 64 and 69 thereof, or (vii) "an
    injunction restraining them (the two defendants) from interfering
    or attempting to interfere with contractual relations between the
    plaintiff and workers."
    (b) As against the first and second defendant and third defendant
    Lewis Owens, the Chief Executive Officer of the Corporation:-
    (i) damages for conspiring to injure the plaintiff;
    (ii) injunction restraining all defendants from conspiring with
    each other or any other person to injure the plaintiff. The Ex parte Application (Document No.2 on the file) 4. On the same day as the summons was issued the plaintiff took out an ex parte application for a number of interlocutory injunctions. First, "an urgent ex parte interlocutory injunction pending determination of this action or until further Order ... seeking to restrain all three defendants from "uttering, publishing, corresponding or in any way communicating with any person, body corporate or statutory authority any words for statement to the effect that ...":-
    1.1 The plaintiff is not an approved rehabilitation provider for
    the purposes of the Workers Rehabilitation and Compensation Act
    1986 (the Act);
    1.2 The plaintiff is unable to provide rehabilitation services to
    injured workers;
    1.3 Workers will be personally liable to meet any costs of
    rehabilitation services provided by the plaintiff;
    1.4 That a person's appointment of the plaintiff to provide
    rehabilitation services will in any way compromise or interfere
    with that person's entitlement to benefits under the Act;
    1.5 That no rehabilitation services provided by the plaintiff can
    or will be approved for the purposes of the Act; and
    1.6 That the quality of rehabilitation services provided by the
    plaintiff is in any way inferior to any other rehabilitation
    services that might be provided by any other organisation. 5. Secondly, the plaintiff sought an interlocutory injunction restraining all three defendants from "inducing, discouraging, or preventing in any way and from attempting to induce, encourage or prevent any person, body corporate or statutory authority from seeking or obtaining the provision of rehabilitation services from the plaintiff". 6. A third interlocutory injunction sought from the first defendant an order that it hear and determine according to law:-
    "(a) Any application for approval by workers or by the plaintiff
    on behalf of workers of rehabilitation programmes provided or to
    be provided by the plaintiff or workers as defined in the Act, and
    (b) Any application for compensation by or on behalf of such
    workers in respect of the cost of rehabilitation services provided
    to such workers by the plaintiff where such rehabilitation
    services are rehabilitation programmes or services of a kind
    approved by the first defendant for the purpose of s.32 of the
    Act;" and (as to both (a) and (b)) without reference solely to the fact that such services are or are intended to be provided by the plaintiff. 7. Fourthly, the plaintiff sought a form of injunctive relief requiring the first defendant, within 48 hours of the making of an order, to write letters to all workers with whom the plaintiff was providing rehabilitation services as at 18 February 1993 pursuant to an agreement to do so between the plaintiff and the first defendant. The form of the letters to be in the form of a draft submitted to and approved by the Court. 8. This application was supported by the affidavit of one Douglas Hughes, State Manager for South Australia of the plaintiff company, together with exhibits thereto. The exhibits included a copy of an undated agreement (exhibit WDH1 - hereinafter called "the Agreement") between the plaintiff and the Corporation; the renewal of Agreement or an eight month period (19 December 1991 to 18 August 1992) exhibit WDH2; the further extension of the Agreement for six months (19 August 1992 to 18 February 1993) exhibit WDH3 together with terms and conditions attached. Clause 3 of the last mentioned exhibit, after referring to evaluation reports by the WorkCover's Contract Management team in January 1992, states:-
    "Contract renewal to be dependent on;
    (i) Industrial Rehabilitation Service demonstrating significant
    improvement in Return to Work (outcome) rate in all duration
    categories and ensuring performance within WorkCover's established
    ranges specified in Contracts Management Manual.
    (ii) Industrial Rehabilitation Service demonstrating consolidation
    of documented policies and procedures, and evidence of
    implementation of these in case management practice.
    (iii) Industrial Rehabilitation Service implementing regular and
    systematic case reviews of all WorkCover cases, with review dates
    and (outcomes) documented on case files and/or other files
    retained by a responsible QA officer." 9. The other exhibits to Mr Hughes' affidavit are copies of the letters or fax messages that passed between the Corporation and the plaintiff from 9 December 1992 until 12 February 1993 and the correspondence between the plaintiff's solicitors and the Corporation from about 23 February 1993 until 4 March 1993. The last exhibit in WDH12 was Mr Lewis Owens' letter to the plaintiff's solicitors in which he said:
    "The only kind of rehabilitation programs or services which
    constitute approved rehabilitation within the meaning of
    s.32(2)(c) of ... the Act are those which are approved by the
    Corporation pursuant to s.32(8). The Corporation has determined
    that the rehabilitation programs, or services pursuant to
    rehabilitation programs provided by contracted rehabilitation
providers will be approved." 10. It is the underlined passage which gives rise to the dispute in this matter, as the paragraphs following the above in Mr L Owens' letter of 4 March 1993 make clear. Mr Owens further indicated that the Corporation would continue to advise workers who inquired of the above matters. The plaintiff obtained the signatures of some workers, to whom rehabilitation services had been provided, to a deed engaging the plaintiff and delegating to the plaintiff a right to recover the costs for those services from the Corporation (exhibit WDH13). 11. Mr W.D. Hughes swore a further affidavit together with further exhibits on 18 March 1993 in support of the application for the injunctions, and on the same date another affidavit correcting a few details in his previous affidavit of 18 March 1993. The affidavit of Jane Materne, sworn on 17 March 1993, related to two workers who had contacted her to advise her that after the representations of the Corporation they had contacted her and had advised her that they had transferred to another rehabilitation provider. 12. The second named defendant Mr P D J Rayner, filed an affidavit sworn on 17 March 1993 in answer to the plaintiff's application and supporting affidavits. When the ex parte application came before a Master he was not satisfied that an order should be made on an ex parte basis, and refused the application for an interim injunction. The Master adjourned the application for an interlocutory injunction. When served with the application, the defendant Corporation asked that the application be heard by a judge. There is no order on the file directing the inter partes hearing. The matter came before the trial judge on 18 March 1993. Relevant Rules of Court 13. Every action in the Supreme Court under the 1987 Rules of Court must be commenced by summons - Rule 7.01. Under the Rules a summons is only an originating process. All interlocutory proceedings are brought by application (see Rule 67.01); see Lunn on Civil Procedures South Australia, vol.1, p.7435, para. 7.01.10. Further, as Judge Lunn states in that footnote, "Likewise an application cannot be an originating process." In footnote 67.00.1 on 9321, Judge Lunn states, "If a party insists, it is entitled to have its application heard and determined ex parte, not merely adjourned for service: see Attorney-General (N.S.W.) v. Wentworth (1991) 24 NSWLR 347." 14. Rule 7.03 provides that where it is not intended to serve a summons (in contrast to an application) on any person such summons shall be in Form 1 and shall be supported by an affidavit setting out the facts relied upon for the relief sought. An affidavit used in a proceeding shall comply with the provisions of Rule 83.01 as to form. Generally speaking, if the affidavit evidence is admissible then it may be used by any party on the file regardless of which party filed it and whether it was filed for use in another application or not: see Muirfield Properties Pty v. Kolle (1988) VR 167. 15. Rule 7.04 provides that an inter partes summons shall be in Form 2, and shall be supported either by an affidavit setting out the facts relied upon for the relief sought, or by a Statement of Claim pleading the plaintiff's cause of action in accordance with the requirements of Rules 9 and 46. There was no order made pursuant to this Rule. 16. There is no Statement of Claim or any pleadings on the file. More significantly, although the orders sought in the Notice of Appeal include three declarations, there is no claim for any declaratory relief in the summons. 17. On the second day of the hearing (19 March 1993) counsel for the respondent handed to the learned trial judge "a document setting out the questions ..." that they agreed would be appropriate upon the affidavits. It was pointed out to the trial judge that he would need to be satisfied that it would be appropriate under Rule 75.02 that a point of law arises on the pleadings before proceeding. Reference was also made to other Rules in the discussion which followed. Finally after undertakings had been given through counsel the learned trial judge made an order stating that in doing so he exercised the power "pursuant to Rule 75.02" and to the extent necessary dispensed with strict compliance with the rules, see Rule 3.04(a). Rule 75.02 where relevant says:
    "75.02 The Court may at any time or from time to time in any
    proceeding order:-
    (a) ...
    (b) ...
    (c) that any part or parts of law arising on the pleadings be
    disposed of before proceeding to trial of the facts ..." 18. The draft Minutes of Order initiated by the learned trial judge are as follows:-
    "1. For the purposes of this order - 'the Act' means the Workers
    Rehabilitation and Compensation Act, 1986; 'the agreement' means
    the agreement between the plaintiff and the Corporation relating
    to the provision of rehabilitation services which was terminated
    on 18 February, 1993; 'the Corporation' means the Workers
    Rehabilitation and Compensation Corporation constituted under the
    Act; 'pre-termination client' means a worker for whom
    rehabilitation services were being provided by the plaintiff prior
    to 19 February, 1993 in accordance with the agreement; 'cost of
    rehabilitation services' means the cost of such services
    reasonably incurred by the worker; 'worker' means a worker as
    defined in the Act.
    2. That the following points of law arising in the proceedings be
    forthwith determined by the Court, namely that upon the facts
    deposed to in the affidavit of Wayne Douglas Hughes sworn on the
    11th day of March, 1993, the two further affidavits of Wayne
    Douglas Hughes sworn on the 18th day of March, 1993 and the
    affidavit of Paul David James Rayner sworn on the 17th day of
    March, 1993 all filed herein, and upon the proper construction of
    the Act:
    (1) Whether the Corporation may lawfully reject a claim for
    compensation by a pre-termination client for the cost of
    rehabilitation services provided by the plaintiff to the
    pre-termination client after 18 February, 1993 where such
    rehabilitation services comprise or form part of a programme or
    service actually approved by the Corporation.
    (2) Whether the Corporation may lawfully reject a claim for
    compensation by a worker, whether or not the worker is a
    pre-termination client, for the cost of rehabilitation services
    provided by the plaintiff to the worker after 18 February, 1993
    where such rehabilitation services comprise or form part of a
    programme or service of a kind approved by the Corporation -
    (a) solely on the ground that the plaintiff is not or no longer
    party to the agreement or any other agreement with the Corporation
    for the provision of rehabilitation services;
    (b) solely on the ground that the plaintiff is not a provider
    approved by the Corporation; or
    (c) on grounds which include the grounds referred to in
    sub-paragraph (a) or (b).
    (3) Whether, for the purposes of section 32 of the Act, the
    Corporation may lawfully refuse to approve a rehabilitation
    programme or service offered or intended to be provided by the
    plaintiff for a worker -
    (a) solely on the ground that the plaintiff is not or no longer
    party to the agreement or any other agreement with the Corporation
    for the provision of rehabilitation services;
    (b) solely on the ground that the plaintiff is not a provider
    approved by the Corporation; or
    (c) on grounds which include the grounds referred to in
sub-paragraph (a) or (b)." 19. The procedure adopted in this case In Workers Rehabilitation and Compensation Corporation v. James (1991) 56 SASR 414, at 417-418, Mullighan J set out the relief that was sought by the plaintiff in that matter which included a determination of the proper construction of a section of the Act, and of a number of questions relating to some sections. But there was no form of declaratory relief or consequential relief sought in 10 James' case. Mullighan J observed, at p.418, that the defendant did not oppose the procedure adopted by the plaintiff in that James' case and added that the questions do not raise for consideration all of the important issues which were canvassed during argument and which properly arose in the factual context of the circumstances relating to the defendant. His Honour then said:- "Consequently, it is necessary to refine some of the questions to provide the answers which the parties require." 20. As his Honour then observed it could not be expected that the answers to the questions, even as refined, would refine all the issues facing the plaintiff. On appeal, when the Full Court upheld the answers given by Mullighan J, I made some observations as to the procedure adopted under Rule 63.02: see Workers Rehabilitation and Compensation Corporation v. James (1992) 164 LSJS 126, where I said:-
    "The appellant sought answers to a series of questions. The case
    as presented to the learned judge was that those questions were
    capable of being answered and should be answered in the
    affirmative or in the negative. The appellant had a statutory duty
    to discharge. The procedures in the Act for discharging those
    duties are not in question on the summons. The background facts
    are disclosed in the supporting affidavit. The appellant does not
    claim 'to be entitled to any right,' nor is any claim for a
    declaration 'and consequential relief' made in the summons. The
    summons merely seeks answers to a series of questions." (p.126) 21. After observing that there was no contest to the appropriateness of the summons issued pursuant to Rule 63.02 nor was the matter apparently raised before the Master, who did not direct his mind to the appropriateness of the procedure but simply referred it into court, I added:-
    "In my judgment Rule 63.02 is not intended to be used for the
    purpose of seeking from this Court a series of answers to
    questions rising out of a possible conflict as to the proper
    interpretation of the statute in a lis pendens or proceedings
    still on foot before a statutory officer. The Rule can be used
    when some right is in doubt which is dependent upon the proper
    interpretation of the statute or a provision thereof, and the
    rights are dependent upon such proper interpretation: see
Graeme-Evans v. University of Adelaide (1973) 6 SASR 302, at 303,
    where Wells J said:- 'the procedure under Order 54a of the 1947
    Supreme Court Rules invoked seems to me entirely appropriate
    because the plaintiff claims to be qualified to be elected to the
    University Council as an undergraduate member - an important
    right'." 22. The learned judge proceeded to hear and determine the summons as he was pressed to do by the parties. His Honour provided answers to the questions in the summons. The summons and application in this case do not rely on Rule 63.02 but rather Rule 75.02. The questions are ambulatory and difficult to relate in full to the undisputed facts disclosed in the affidavits in the case at bar. In James' case I concluded that Rule 63.02 was a "guide" to the proper interpretation of sections of the Act there in question. 23. I repeat my comments in James' case in this case. In my opinion, Rule 75.02(c), although it contains a wide discretion for application in appropriate circumstances, it is not appropriate on the present state of the procedure adopted. It will be necessary for a Statement of Claim and Defence to be filed in order to determine the factual and legal basis for the relief as sought by the plaintiff. 24. The other difficulty that seems to me to arise procedurally in this case is that the answers to the various questions, as proposed by my brother Mullighan J and supported by myself, may not necessarily be appropriate for many of the forms of relief, particularly injunctive relief, which is claimed by the plaintiff, eg the interlocutory injunction sought to restrain all three defendants from "uttering, publishing, corresponding or in any way communicating to any" person any of the words or statements to the effect as set out in the application. This form of prohibitory injunction seems to be confined to a claim that the words if uttered would be defamatory of the plaintiff. There are no particulars of the words which are alleged to be defamatory, nor are there any particulars put forward by the plaintiff in the summons, the application or for that matter, in the affidavits, which would support that type of injunction in defamation proceedings. 25. The learned trial judge described the issues as follows: "the Corporation has power not only to approve the nature and content of rehabilitation programmes but also to determine who may provide rehabilitation services?" 26. The appropriate form of relief upon which this type of issue could be resolved appears from paragraphs 1.7, 1.8 and 1.9 of the plaintiff's summons. But, the material facts upon which the plaintiff claims to be entitled to any or all of those forms of relief and those injunctions and/or damages has not yet been placed upon the file, and is not at present before the Court in an appropriate form for determination under Rule 75.02(c). 27. The learned judge and Mullighan J, in his reasons, referred to an undertaking which was given by the parties which is dated 19 March 1993. The undertaking is confined to those persons who seek provision for rehabilitation services from the plaintiff and sets out a statement as to the information that will be given to those persons when they make such an approach. The undertaking further states that if there is any change in the nature of the rehabilitation services of a kind approved by the Corporation after 18 February 1993 that the Corporation will forthwith notify the plaintiff of such change. Further, that the plaintiff was to submit every rehabilitation programme or any amendment to it, which the plaintiff intends to provide to a worker who is or has been an employee of a non-exempt employer in the form of the Return To Work form supplied by the Corporation to the plaintiff from time to time. Further, the Corporation undertakes that as far as is reasonably practical it will record the name and address of each person who makes an enquiry of the Corporation with respect to or in any way concerning the ability of the plaintiff to provide rehabilitation services and will record the date and nature of such enquiry, and that such record will be retained by the Corporation to abide the directions of the Court. Finally, the plaintiff undertook not to offer to provide rehabilitation services to any worker who was a former client of the plaintiff and who had been allocated by the Corporation to another rehabilitation provider and who is undertaking, as at 19 March 1993, a current return to work plan with that provider. 28. The effect of the undertaking was as described by the learned judge, that if the issues are resolved in favour of the plaintiff the cost of such services would be borne by the Corporation and if the issues were to be resolved in favour of the Corporation then the cost of rehabilitation services provided to workers by the plaintiff after 18 February 1993 would be borne by the plaintiff. I am not satisfied that the undertaking is in any way a satisfactory format for resolving the issues as to the relief sought by the plaintiff once the questions of law have been determined by the answering of the questions posed. It appears that the learned trial judge ordered the questions to be determined as preliminary points of law based upon the undertakings which had been given by the parties on 19 March. 29. The parties have proceeded thus far on this basis. I consider that this court should proceed to dispose of the Grounds of Appeal. I confine my agreement to the conclusions reached by my brother Mullighan J and to the particular Grounds of Appeal which relate to the real issue between the parties, namely, as to whether the Corporation has the power under the legislation, not only to approve the nature and content of rehabilitation programmes, but also to determine who may provide rehabilitation services. The Grounds Of Appeal Ground 3 of the appellant's Notice of Appeal reads:- "3. That the learned judge erred in law in interpreting ss.26 and 27 of the Workers Rehabilitation Act as amended in that he found that these Sections conferred exclusive power on the respondent to approve rehabilitation providers." 30. Section 26 of the Act, where relevant, reads:-

    "26(1) The Corporation shall establish or approve rehabilitation
    programmes with the object of ensuring that workers suffering from
    compensable disabilities ...
    (a) achieve the best practicable level of physical and mental
    recovery; and
    (b) are, where possible, restored to the workforce and the
    community.
    (2) A rehabilitation programme may be established by the
    Corporation in relation to ...
    (a) a particular worker;
    (b) workers of a particular class;
    (c) workers suffering from disabilities of a particular class." 31. Sub-section (3) of s.26 relates to the powers of the Corporation for the purposes of or in the course of a rehabilitation programme. 32. Upon the material before the Court the Corporation has not itself established rehabilitation programmes. However it has, pursuant to s.26(1), approved rehabilitation programmes, including the programme operated by the plaintiff, at least up until 18 February 1993 when the Agreement between the Corporation and the plaintiff was terminated. 33. The Corporation has exercised its powers under s.27 of the Act to give encouragement (and perhaps assistance) to the provision of rehabilitation facilities and services in the private sector (see s.27(2) of the Act). The plaintiff has operated such a rehabilitation service for a number of years. Further, the Corporation has entered into arrangements with other bodies as well as the plaintiff, under which rehabilitation services are provided for disabled workers (see s.27(3)(a)). The Corporation has not, to date, established or maintained a register of persons and organisations that are in the opinion of the Corporation, properly qualified and equipped to provide rehabilitation services. (See s.27(3)(c)) 34. The learned trial judge has reached the conclusion that the Corporations power to establish or approve rehabilitation programmes is unqualified and unrestricted. In the course of his reasoning he stated inter alia that the Corporation should be able to "include a term" to the effect that rehabilitation services should be provided by rehabilitation providers approved by the Corporation. I am not clear what his Honour meant by including such a term, but presumably it is used in agreements. In his reasoning, which is set out in the judgment of my brother Mullighan J so far as is relevant on this point, the learned trial judge went on to reach a conclusion that it would be absurd if the Corporation were obliged to pay compensation pursuant to s.32(2)(c) of the Act "in circumstances where it did not believe the provider could give an adequate standard of service." 35. Sections 26 and 27 are contained in Part III, Division I of the Act, relating to rehabilitation. Section 26 deals with rehabilitation programmes and s.27; clinics and other facilities. Section 28 deals with rehabilitation advisers who are appointed by the Corporation for the purposes of the Act. A rehabilitation adviser is someone who assists in devising and coordinating rehabilitation programmes for disabled workers and is responsible to the Corporation for monitoring the progress of disabled workers who are involved in rehabilitation programmes. The rehabilitation adviser may subject to monitory limitations set by the Corporation, expend the money of the Corporation in obtaining for the disabled worker services and equipment that may assist towards rehabilitation and finally, consult with employers with a view to expediting the return to work of disabled workers (see s.28(2) of the Act). 36. Part IV, Division I, is the part of the Act which deals with conditions under which disability is compensable. Section 30 sets out the compensable disabilities. Section 31 is an evidentiary provision. Section 32, which is in Division II of Part IV, deals with compensation for medical expenses, etc, and where relevant:-
    "32(1) Subject to this section, a worker is entitled to be
    compensated for costs of a kind described in subsection (2)
    reasonably incurred by the worker in consequence of having
    suffered a compensable disability.
    (a) for the purposes of sub-s.(1), the amount of compensation will
    be determined ...
    (2) The costs referred to in sub-s.(1) are as follows:
    (a) the costs of medical services;
    (b) the cost of hospitalisation and all associated medical,
    surgical and nursing services;
    (c) the cost of approved rehabilitation; ..." 37. The other costs in sub-s.(2) include costs of travelling and transportation and where necessary, accommodation and attendance by a registered or enrolled nurse and further, of provision, maintenance and replacement or repair of therapeutic appliances, cost of medicines and other material purchased on prescription or recommendation of a medical expert, and "any other costs (or classes of costs) authorised by the Corporation." By sub-s.(3) of s.32 18 compensation in respect of costs to which the section applies may be paid:- "(a) to the worker; or (b) directly to the person to whom the worker is liable for those costs." 38. By sub-s.(4), if the amount that the worker is entitled to claim for the provision of the service in respect of which compensation is payable is considered unreasonable by the Corporation, then the Corporation may reduce the charge by the amount of the excess. Sub-s.(5), is a similar provision which relates to services of a kind to which the section applies provided to a worker in relation to a compensable disability. Where the charges for such services are considered by the Corporation in the circumstances to be inappropriate or unnecessary the Corporation may disallow "charges for the services." By sub-s.(6), when the Corporation disallows or reduces a charge then notice must be given to the provider setting out the basis of the disallowance and the provider's right to have the decision reviewed under the review provisions of the Act. Further, under this sub-section the worker is not liable to the provider for the disallowed charge, or for more than the reduced charge (as the case requires) and further, if the worker has in fact paid an amount which he or she is not liable to pay, the Corporation will reimburse the worker for that amount and recover it from the provider as a debt. Sub-s.(8) of s.32 is of particular significance to the issues in this case. Sub-s.(8) provides:- "(8) A reference in this section to approved rehabilitation is a reference to rehabilitation programmes or services of a kind approved by the Corporation for the purposes of this section." 39. In the course of his reasoning the learned trial judge gave some examples which he considered indicated that there was "an implied power of the Corporation to approve rehabilitation providers". Having discussed these examples his Honour referred to "the potential for anomaly" in that fees for medical services might be recoverable under s.32 even after an arrangement made under s.27(3)(a) of the Act in respect of provision of medical services has been determined and where the Corporation is not satisfied with the standard or quality of the services provided, his Honour considered the possibility of this anomaly did not affect the conclusion that the Corporation "has the power in relation to rehabilitation services to determine who is an approved provider." His Honour concluded that when the Act is viewed as a whole, it can be seen that the power of the Corporation in s.26(1) to establish an approved rehabilitation programme "includes the power to approve a person as a provider of rehabilitation services for which compensation is payable under s.32(2)(c)." 40. Like my brother Mullighan J, I find myself unable to agree with the reasoning and conclusion reached by the learned trial judge. I adopt, with respect, the reasoning of Mullighan J in this regard and have reached the conclusion that the appellant has established ground 3 in its Notice of Appeal. In my judgment the power of the Corporation to approve rehabilitation programmes does not include either expressly in the Act or by necessary implication a power to approve a person as a provider of rehabilitation services for which compensation is payable under s.32(2)(c). Ground 4 41. Ground 4 in the Notice of Appeal claims that the learned judge erred in his interpretation of the Agreement between the appellant and the respondent Corporation in that he found "compensation was payable under the Agreement in respect of treatment provided by the appellant pursuant to the Agreement." In his reasons the learned trial judge said:- "In my view, it is incidental to the exercise of the power to enter into arrangements pursuant to s.27(3)(a) for the Corporation to include provisions in such arrangements by which it maintains control of the rehabilitation of workers and examines (sic) that rehabilitation services of an approved standard are supplied." 42. Further his Honour found that the Corporation may include provisions requiring the other party to transfer workers for treatment by another rehabilitation provider. After setting out a number of provisions in the Agreement including no liability of workers (Clause 2.2), the obligation to provide services (Clause 2.4), the control of cases (Clause 7.1), existing rights and liabilities at the date of termination (Clause 26.1), case management on termination (Clause 26.3), case files on termination (Clause 26.5), and adjustment of fees on termination (Clause 26.6), the learned judge summarised the effect of the Agreement. Having done so he concluded:-
    "It is implicit in these provisions that upon termination of the
    Agreement, IRS will not continue to treat nominated workers or, if
    it does, that workers treated by it will not be entitled to
    compensation under section 32(2)(c). Indeed, any other
    construction would be at odds with the tenor of the Agreement." 43. The learned trial judge then rejected a submission that had been put to him to the effect that the ambit of the Corporations power to approve rehabilitation programmes was determined by the definition of "approved rehabilitation" in s.32(8) of the Act. His Honour concluded that the expression in sub-s.(8) "of a kind" was capable of referring to the quality of rehabilitation services as well as to the nature and content of such services. Further, in his Honour's view, the Corporation is able to control the quality of rehabilitation services by determining who will provide such services. 44. In my judgment insofar as the learned judge found the Agreement had the effect of enabling the Corporation to control the rehabilitation services by determining who will provide such services. I would hold uphold ground 4 in the Notice of Appeal. I agree with Mullighan J that the Act provides that:-
    1. The rehabilitation programme receive approval by the
    Corporation (s.26(1) of the Act); and
    2. The incurring of the cost of the programme must be reasonable
    and where the Corporation disallows or reduces a charge made for
    the cost of rehabilitation services then the worker is liable to
    the provider for the disallowed or reduced charge (s.32(6)(a) and
    (b) of the Act). 45. I would add that any costs for those services in respect of which a charge has been made is payable pursuant to s.32(3) either to the worker or alternatively, directly to the person to whom the worker is liable for those costs. The power of the Corporation to reduce the charge by the amount of any excess is contained in s.32(4) of the Act. 46. For these reasons I would uphold paragraph 4 in the plaintiff's Notice of Appeal. The Other Grounds in the Notice Of Appeal - namely, grounds 1, 2, 5, 6 and 7 47. The other grounds of appeal relate principally to the questions which were submitted to the learned judge for determination. Insofar as ground 2 raises an issue as to whether the remuneration to be paid to the appellant pursuant to the Agreement between it and the respondent Corporation amounted to "compensation under s.32(2)(c) of the Act" I am of the opinion that it is not necessary to determine this ground in the light of the conclusions that I have reached on grounds 3 and 4 above. Clearly the compensation in respect of costs payable to the worker or directly to the person to whom the worker is liable for those costs, can include the costs of rehabilitation services under s.32(2)(c) and any reduced amount fixed by the Corporation pursuant to sub-s.6 of that section. 48. I agree with my brother Mullighan J that the means of financial control over the provision of rehabilitation services is in s.32 itself. Sub-s.(2) identifies the costs which are referrable to approved rehabilitation. This is a reference to rehabilitation programmes or services of a kind approved by the Corporation as referred to in sub-s.(8) of s.32. I further agree with Mullighan J that where the worker has been charged for rehabilitation services then that worker is entitled to claim for the service and the Corporation, if it considers the amount charged is unreasonable, may reduce the charge by the amount of the excess pursuant to sub-s.(4) as mentioned above. Further, such charges may be totally disallowed if the Corporation considers they are unnecessary: see sub-s.(5). The worker's liability is restricted by sub-s.(6). These are adequate provisions to protect the worker and the Corporation. The compensation fund out of which these charges are payable is set out by s.64 of the Act. The worker's entitlement is to be compensated for costs of a kind described in sub-s.(2) which have been reasonably incurred by the worker in consequence of having suffered a compensable disability: see sub-s.(1) of s.32. Once the worker has established this entitlement then, in my judgment, the Corporation may not lawfully reject a claim for compensation of the kind specified in the questions proposed for construction in these proceedings. For these reasons, as well as the reasons expressed by Mullighan J, I would answer both questions 1 and 2 in the negative. 49. For the same reasons I would answer 3(b) of the questions in the negative. 50. For the reasons expressed above in relation to ground 4, I would also answer question 3(a) in the negative. These answers necessarily require question 3(c) to be answered in the negative. 51. For these reasons I would uphold grounds 1, 5, 6 and 7 in the Notice of Appeal. 52. In my opinion the appeal should be allowed and the answers provided by the learned trial judge set aside and all three questions answered in the negative. The judgment in favour of the defendants should also be set aside. But because of the views that I have expressed as to the procedural difficulties confronting the further hearing of this action, I am of the opinion that when the matter goes back to the learned trial judge for further hearing that the 24 parties should address the procedural matters and seek appropriate directions as may be necessary and considered appropriate for the proper determination of the issues arising on the relief claimed by the plaintiff in this matter.

JUDGE2 DUGGAN J For the reasons given by Mullighan J I agree that the appeal should be allowed and that the preliminary questions should be answered in the manner suggested by him. The action should be remitted to the trial judge for further hearing and the giving of such directions as are considered by the trial judge to be appropriate in the light of the procedural aspects discussed by Legoe J.

JUDGE3 MULLIGHAN J The appellant carries on business as a provider of rehabilitation services for injured and disabled workers in this State and elsewhere. The respondent is established by s.7 of the Workers Rehabilitation and Compensation Act 1986. The Act provides for the rehabilitation and compensation of persons who suffer disability arising from employment and that the respondent undertakes the administration and enforcement of the Act, including the payment of compensation to disabled workers from a fund established by the Act. Among the expenses which are compensable under the Act is the cost of approved rehabilitation: s.32(2)(c). The appellant provided rehabilitation services for which it was paid by the respondent pursuant to agreement between them. A dispute arose and the appellant brought an action in this court against the respondent. Judgment was entered for the respondent and the appellant appeals against that judgment. 2. In order to understand the issues raised by the appeal it is necessary to say something about the circumstances which gave rise to the dispute. The following summary is taken from the reasons for judgment of the learned trial Judge. 3. In November 1987 the appellant entered into an agreement with the respondent to provide rehabilitation services for injured and disabled workers for a period of twelve months. Those arrangements were continued by renewal of agreements or by fresh agreements until 18th February 1993 when the period of the last agreement expired. The agreement on 19th August 1992 which effected the last renewal provided that any further renewal was conditional upon the appellant satisfying the respondent as to its level of performance against criteria specified by the respondent. The respondent alleged that the appellant had not demonstrated an improvement in its level of its performance and there was no evidence that it could meet its specified criteria. Consequently, the respondent informed the appellant that the agreement would not be renewed, that it could continue to provide services for workers until the agreement expired and that the respondent would make appropriate arrangements for the transfer to it of all files relating to workers that had been treated by the appellant. All files have been handed over to the respondent. The appellant does not contest that the respondent had the right to terminate the agreement which right was included in the agreement. It contested that it had failed to satisfy the respondent's criteria and that it did not have the capacity to meet them. It asked the respondent whether workers it was treating would be able to continue to use its services after the agreement expired and be reimbursed by the respondent, which replied in the negative. The respondent wrote to each worker undergoing rehabilitation with the appellant and to their employers informing them that it was not renewing the agreement and informed them that it would arrange for the transfer of the rehabilitation programme of each worker to another rehabilitation provider. The appellant wrote to all such workers inviting them to continue their rehabilitation with the appellant subject to the respondent meeting the cost. Over 50 workers expressed the desire to be able to do so, however, the respondent refused on the ground that the appellant was no longer a rehabilitation provider with whom it had a contract. The respondent informed the appellant that it would continue to inform workers that the appellant was not a contracted rehabilitation provider and that it would not approve rehabilitation services provided by the appellant which wishes to continue to provide such services. 4. The appellant issued proceedings against the respondent seeking (inter alia) orders restraining the respondent from informing workers that they are not entitled to reimbursement for the cost of rehabilitation services provided by the appellant. 5. When the proceedings came on for hearing, the parties asked that certain points of law be determined as preliminary questions. The questions were whether, upon the proposed construction of the Act:
    "(1) the Corporation may lawfully reject a claim for compensation
    by a pre-termination client for the cost of rehabilitation
    services provided by the plaintiff to the pre-termination client
    after 18 February, 1993 where such rehabilitation services
    comprise or form part of a program or service actually approved by
    the Corporation;
    (2) the Corporation may lawfully reject a claim for compensation

    by a worker, whether or not the worker is a pre-termination
    client, for the cost of rehabilitation services provided by the
    plaintiff to the worker after 18 February, 1993 where such
    rehabilitation services comprise or form part of a program or
    service of a kind approved by the Corporation -
    (a) solely on the ground that the plaintiff is not or no longer
    party to the agreement or any other agreement with the Corporation
    for the provision of rehabilitation services;
    (b) solely on the ground that the plaintiff is not a provider
    approved by the Corporation; or
    (c) on grounds which include the grounds referred to in
    sub-paragraph (a) or (b); and (3) for the purposes of section 32
    of the Act, the Corporation may lawfully refuse to approve a
    rehabilitation program or service offered or intended to be
    provided by the plaintiff for a worker -
    (a) solely on the ground that the plaintiff is not or no longer
    party to the agreement or any other agreement with the Corporation
    for the provision of rehabilitation services;
    (b) solely on the ground that the plaintiff is not a provider
    approved by the Corporation; or (c) on grounds which include the
    grounds referred to in sub-paragraph (a) or (b).
    In these questions: 'pre-termination client' means a worker for
    whom rehabilitation services were being provided by the plaintiff
    prior to 19 February, 1993 in accordance with the agreement; 'cost
    of rehabilitation services' means the cost of such services
    reasonably incurred by the worker; 'worker' means a worker as
    defined in the Act." 6. The learned Judge ordered that these questions be determined as preliminary points of law and in his reasons for judgment, he described the issue raised by those points of law as follows:- "Stripped to essentials, the issue between the parties is whether the Corporation has power not only to approve the nature and content of rehabilitation programs but also to determine who may provide rehabilitation services." The practical effect of the determination of these laws in the early stage was described by the learned Judge as follows:
    "Both IRS and the Corporation gave an undertaking in identical
    terms which dealt with a number of issues. The undertaking is on
    the file in this action and need not be repeated. It is sufficient
    to note that it includes an undertaking by both to the effect
    that, if the issues in this action are resolved in favour of the
    Corporation, the cost of rehabilitation services provided to
    workers by IRS after 18 February 1993 would be borne by IRS. If,
    however, the issues are resolved in favour of IRS, the cost of
    such services would be borne by the Corporation. In this way,
    disabled workers receiving rehabilitation services from IRS after
    18 February 1993 were indemnified from any liability for the cost
    of these services." 7. It is convenient at this stage to mention relevant provisions of the Act. Section 26(l) provides that the respondent shall establish or approve rehabilitation programmes with the object of ensuring that disabled members obtain the best practical levels of physical and mental recovery and are, where possible returned to the workforce and the community. Section 26(2) provides that such a programme may be established in relation to a particular worker, workers of a particular class and workers suffering from disabilities of a particular class. Section 27 is as follows:
    "27.(l) In the exercise of its powers under this Division, the
    Corporation should seek to utilize rehabilitation facilities and
    services provided by the employer of a disabled worker.
    (2) In the exercise of its powers under this Division, the
    Corporation should give encouragement and assistance to the
    establishment and provision of rehabilitation facilities and
    services in the private sector.
    (3) The Corporation may -
    (a) enter into arrangements with any government agency or other
    body under which medical services or rehabilitation facilities and
    services will be provided for disabled workers;
    (b) with the approval of the Minister, establish clinics and other
    facilities for the assessment, treatment or rehabilitation of
    disabled workers; and
    (c) establish and maintain a register of persons and organisations
    that are, in the opinion of the Corporation, properly qualified
    and equipped to provide rehabilitation services." 8. Section 32(l) provides that a worker is entitled to be compensated for the costs of the kind described in s.32(2). These costs include "the cost of approved rehabilitation". 9. Section 32(2)(C) also includes, as the more usual types of costs such as the cost of medical and hospital services, medicines and travel for the purpose of treatment. Section 32(8) provides: "s.32(8) A reference in this section to approved rehabilitation is a reference to rehabilitation programmes or services of a kind approved by the Corporation for the purpose of this section." 10. The learned Judge answered each of the questions in a way favourable to the respondent with the consequence that the appellant could not succeed as to any aspect of the relief claimed in the action and judgment was entered in favour of the respondent. He held that the respondent had the power not only to approve the nature and content of the rehabilitation programme but also to determine who may provide the rehabilitation services. His reasoning is to be found in the following passages of his reasons for judgment:
    "The Corporation's power to establish or approve rehabilitation
    programs is unqualified and unrestricted. There is, therefore, no
    reason why, when establishing or approving a rehabilitation
    program, the Corporation should not be able to include a term to
    the effect that the rehabilitation services shall be provided by
    rehabilitation providers approved by the Corporation. Such a term
    would enhance the capacity of the Corporation to achieve the
    statutory objectives. Indeed, if the Corporation did not have such
    a power, some absurd results might follow and the objects of the
    Act, and in particular of s.26, might be defeated. For example,
    the Corporation might establish a series of rehabilitation
    programs. If it did not have the power to approve those who were
    able to provide the rehabilitation services outlined in those
    programs, the Corporation might be obliged to pay compensation
    pursuant to s.32(2)(c) in respect of rehabilitation services
    provided in accordance with a program approved by the Corporation
    but provided by a person or organisation which the Corporation
    believed was not competent to provide those services. If that
    occurred, not only would the Corporation be inhibited in its
    capacity to discharge the statutory objectives in s.26(l) but
    there might also be adverse consequences for the worker.
    Similarly, should a person or organisation providing
    rehabilitation services submit a rehabilitation program to the
    Corporation for approval, the Corporation should be able to
    approve the provider as well as the program. Although the
    Corporation might approve the program, it might believe that the
    provider is not qualified or equipped to provide rehabilitation in
    accordance with that program or it might believe that the provider
    does not otherwise have the capacity to provide a proper standard
    of rehabilitation services. It would be quite absurd if the
    Corporation were obliged to pay compensation pursuant to
    s.32(2)(c) in circumstances where it did not believe the provider
    could provide an adequate standard of service." 11. The learned Judge went on to note that rehabilitation services can be provided by any person and no training or qualification is required and that whether organisations which provide such services might have in their staff trained or qualified experts such as physiotherapists, occupational therapists, medical practitioners, psychologists and the like, there is no requirement that they do and consequently the services could be provided by any person, qualified or unqualified. He considered that it would be quite incongruous if the respondent was required to pay compensation pursuant to s.32(e)(c) for services provided by persons unqualified or unskilled merely because such a person had provided the services pursuant to an offered program. He went on to say:
    "The conclusion that the power of approval in s.26(l) includes a
    power to approve rehabilitation providers is reinforced by a
    consideration of the terms of s.27. Sub-sections (l) and (2) are
    no more than statements of desired objectives of the Parliament.
    However, sub-section (3) provides a means by which the Corporation
    can determine who will provide rehabilitation services.
    Rehabilitation services can be provided either by employers,
    government agencies, or persons or organisations in the private
    sector pursuant to arrangements made under s.27(3)(a), or, with
    the approval of the Minister, in clinics or the like established
    by the Corporation pursuant to s.27(3)(b); or by registered
    providers who are on a register kept by the Corporation pursuant
    to s.27(3)(c). It is implicit in the power of the Corporation to
    enter into arrangements with persons under s.27(3)(a) that the
    Corporation is at liberty to enter into such arrangements only
    with those persons who it believes have the competence or skills
    necessary to provide rehabilitation services to a standard
    approved by the Corporation. Similarly, it is implicit in the
    power of the Corporation to establish and maintain a list of
    registered providers under 5.27(3)(c) that it will place a person
    on the register only if it believes that that person is a fit and
    proper person to be entered on the register and has the necessary
skills or competence to provide rehabilitation services." 12. He went on to summarise his conclusions as follows: "When the Act is viewed as a whole, it can be seen that the power of the Corporation in s.26(l) to establish and approve rehabilitation programs includes a power to approve a person as a provider of rehabilitation services for which compensation is payable under s.32(2)(c)." 13. The appellant contends that these conclusions were wrong in law and are contrary to the true interpretation of the relevant provisions of the Act. 14. In order to resolve the issues raised by this appeal, it is necessary to consider the scheme of the Act and the relevant sections in a little more detail. In Workers Rehabilitation and Compensation Corporation v. James (1991) 56 SASR 414 I had occasion to discuss the scheme of the Act and aspects of the role to be played by the respondent in the administration of that scheme. For present purposes I need mention only some matters. The Act provides for a new approach to the treatment of workers who suffer disability arising from employment. The former scheme of compensation through employers was abolished. The Act provides for the raising of levies to be paid by employers, with exceptions, which levies are paid into a fund entitled the "Compensation Fund" which is administered by the respondent. The Fund is applied, in part, to the establishment and provision of facilities for the rehabilitation of disabled workers and for the payment of compensation to which they are entitled under the Act. Every effort is to be made for workers to be rehabilitated and compensation, in various forms, is paid whilst they are disabled and incapacitated from employment. The respondent is entrusted with the administration of the Act. 15. In order to promote the object of rehabilitation, the respondent is obliged to approve rehabilitation programmes as required: s.26(1), and it may establish a programme or programmes as provided by s.26(2). 16. Obviously, for a programme to be undertaken, there must be a provider of the rehabilitation services. As may be seen from s.27, it is envisaged that such services may be provided by an employer or otherwise by the private sector or by a government agency. Indeed the respondent, with approval by the Minister, may establish clinics and other facilities to provide such services. Rehabilitation services may vary considerably depending upon the nature and extent of the disability and characteristics of the particular worker. No doubt it would be necessary in certain circumstances, perhaps in the majority of cases, for services to be administered by appropriately trained and skilled providers. However, it is not difficult to think of cases where the provider would not need any particular training or learned skills, but simply patience and persistence. Rehabilitation services are not like other services set out in s.32, e.g. medical, hospital or nursing services. Those types of services are given by qualified persons who are duly registered pursuant to legislative requirements. Parliament has not provided for the registration or licensing of providers of rehabilitation services in the Act or in any other legislation, perhaps because it is likely that there will be circumstances where the provider can do what is required without being qualified in any particular discipline. The rehabilitation service may be no more than the teaching and development of new practical skills. There is no reason to suppose that Parliament did not recognize as much when enacting the scheme. 17. Because rehabilitation services may embrace many fields of human activity, including those not requiring specialist or professional providers, the Act provides a scheme which permits the use of the widest possible range of skills, the control by the respondent of the cost and the supervision of the provision of the services so as to ensure that neither the disabled worker nor the Fund is exploited. Consequently, the Act provides that the respondent must establish or approve the rehabilitation programmes and that it may do so with respect to a particular worker. Parliament has also acknowledged that with experience the respondent would become aware of efficient and effective providers and that workers and employers may want to know who they are. Consequently, the respondent is empowered, in its discretion, to establish and maintain a register of providers who, in the opinion of the respondent, are properly qualified and equipped to provide services: s.27(3)(c). Furthermore, the respondent may appoint rehabilitation advisers to assist in devising, co-ordinating and maintaining rehabilitation programmes and for other purposes: s.28. 18. The means of financial control over the provision of rehabilitation services is to be found in s.32. Where a worker has been charged by the provider more than the amount the worker is entitled to claim pursuant to the Act for the service and the respondent considers that the amount charged is unreasonable, it may reduce the charge by the amount of the excess: s.32(4). Where rehabilitation services are considered by the respondent to have been unnecessary, the charges for the services may be disallowed by the respondent: s.32(5). A worker is not liable for any charge which is disallowed on the amount of the excess when a charge is reduced and if payment or overpayment, as the case may be, has accrued, the worker must be reimbursed by the respondent: s.32(6). These provisions protect the worker and the Fund. It is against this background that the relevant sections of the Act must be interpreted. It is to be noticed at once that the scheme envisages private enterprise playing a part in the provision of rehabilitation services. The disabled worker has the freedom of choice of all persons who provide services. He may choose his own medical practitioner, nurse, physiotherapist and the like. There is only one exception. S.32(2)(f) provides that a disabled worker is entitled to be compensated for the costs, reasonably incurred of attendance by a registered or enrolled nurse, "or by some other person approved by the (respondent) or of a class approved by the (respondent), where the disability is such that the worker must have nursing or personal attendance". In no other instance does the Act provide that the provider of any service is to be approved by the respondent. S.32(8) provides only for approval of rehabilitation programmes or services, not for approval of the provider. 19. I find myself in disagreement with the reasoning and conclusion of the learned Judge. In my view the respondent does not have the power to decline to pay for rehabilitation services unless it has approved of the provider. The Act contains no such provision, even though there is such a provision with respect to certain services specified in s.32(2)(f). It is unnecessary to import such a meaning into s.32(8), or any other provision, in order to make the scheme workable. The learned Judge took the view that the objects of the Act might be defeated unless the power to approve the provider existed. In my opinion the Act provides ample safeguards. S.32(1) provides that a worker is entitled to payment only if the cost has been reasonably incurred. That safeguard is to be read in conjunction with ss.32(4) and (5) which I have mentioned. What the Act provides is that the rehabilitation programme must be approved by the Corporation, the incurring of the cost of the programme must be reasonable and the cost must be reasonable. 20. A power in the Corporation not to approve of the rehabilitation provider would be a substantial interference with the freedom of choice of the worker. It could lead to a very unsatisfactory situation. The respondent might decide to approve of providers for reasons unassociated with their expertise or the quality of their services but purely upon financial considerations. It is not difficult to imagine a situation where a provider has rendered services which were entirely appropriate and found to be so subsequently upon review of the respondent's decision to disallow the cost. In the meantime the respondent has withdrawn approval for all services rendered by that provider. The end result of giving such a power to the respondent would be to permit it to create a small coterie of providers compliant to its wishes. I do not suggest that the respondent would permit such a situation to occur, but it is a useful example against which to consider the true meaning of the Act. If the Legislature intended that the respondent must have such a power, it could very easily have said so and it did not. 21. Not only, upon the contention of the respondent, would the worker be deprived of freedom of choice, but so would his trades union or his employer both of whom may be expected to take an interest in his successful rehabiliation and who may have a preference, for good reason, for a particular provider who for some reason is unacceptable to the respondent. If the view of the respondent, regardless of the reason for it, is to be preferred, it may be expected that Parliament would have said so. 22. It was suggested in argument that the discretionary power, in s.27(3)(c), to establish and maintain the register of providers, suggests that the respondent has the power to approve or disapprove of providers when approving of programmes. If that contention is correct the consequence would be something akin to a licensing system with the respondent as the sole arbiter and with no right of review. In my view s.27(3)(c) does no more than enable the respondent to establish and maintain the register of persons and organizations that are, in its opinion, properly qualified and equipped. It may be expected that employers and workers alike would find such a register useful. If the Act is to be construed as the respondent contends, it would have been a simple matter to provide that only persons or organizations on the register may provide rehabilitation services. If the register is to be established for that purpose, then Parliament would, no doubt, have given to rehabilitation providers the right to apply to be on the register and the right to have reviewed any decision of the respondent refusing such an application, or removing a provider from the register as the Act does give those affected by decisions of the Corporation, a right of review. 23. In my view it is not necessary to import into the relevant provisions of the Act the power to approve the provider, as well as the programme, in order to make the scheme of rehabilitation workable or to ensure that the respondent achieves the statutory objectives in the context of rehabilitation as the learned Judge concluded. There may be circumstances in which the power to approve the provider is desirable. If those circumstances are sufficiently common, Parliament may decide to give to the respondent that power of approval. However, thus far it has not done so. It has not been established that approval of the provider is essential for the implementation of approved programmers and there is, in my view, no reason to assume that such is the case. 24. In my view the Act does not empower the respondent to decide who may provide rehabilitation services and it may not do so unless the terms and conditions of any contract between a provider and the respondent so provides. 25. The agreement between the parties is at an end and there is no contractual arrangement binding the appellant which controls the services which the appellant may provide to a disabled worker. I do not think it is necessary to discuss the terms and conditions of the agreement. If it was extant it could, and it did, regulate to whom the appellant could provide rehabilitation services. However, there is no longer any such control by agreement. 26. I would answer each of the preliminary questions in the negative and I would allow the appeal, set aside the judgment and remit the action to the learned Judge for trial.