Martha Pashalis v the WorkCover Corporation No. SCGRG 94/26 Judgment No. 4803 Number of Pages 17 Workers' Compensation

[1994] SASC 4803

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2), PRIOR(4), PERRY(3) and DEBELLE(5) JJ

CWDS
Workers' compensation - proceedings to obtain compensation - Determination of claim by Review Officer pursuant to s102 Workers Rehabilitation and Compensation Act - purported review of that determination by another Review Officer at instance of Workers Rehabilitation and Compensation Corporation - second Review Officer lacking jurisdiction to review first Review Officer's determination - appeal from Workers Compensation Appeal Tribunal allowed and determination of second Review Officer set aside. Workers Rehabilitation and Compensation Act 1986 ss 95, 96 and 102. Cameron v The Workcover Corporation
(1993) 174 LSJS 290, applied.

Courts and judges - courts - Test for departure by Full Court from a previous decision - recent decision as to construction of WorkersRehabilitation and Compensation Act 1986 - not per incuriam or called into question by supervening curial decisions - decision not plainly wrong - no proper grounds for departing from the decision. R v White (1967) SASR 184; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd, McCauley and Anor
(1989) 52 SASR 148 and Cameron v the Workcover Corporation (1993) 174 LSJS
290, applied.

HRNG ADELAIDE, 5 September 1994 #DATE 27:10:1994

Counsel for appellant:     Mr M W Saies

Solicitors for appellant:    Palios Meegan and Nicholson

Counsel for respondent:     Mr S Walsh QC with Mr M Calligeros

Solicitors for respondent: Gun and Davey

ORDER
Appeal allowed.

JUDGE1 KING CJ The appellant was injured in the course of her employment on 12th March 1990. Her claim for compensation under the Workers Rehabilitation and Compensation Act 1986 was accepted by the Workers Rehabilitation and Compensation Corporation. Subsequently by letter dated 18th March 1992 the appellant sought a lump sum payment pursuant to s43 of the Act. The Corporation having failed to make a decision on this application, the appellant applied to a Review Officer for a decision pursuant to s102. On 13th August 1992 Review Officer Palmer determined that the appellant was entitled to receive 25 per cent of the prescribed sum applicable at March 1990 for a lower back condition pursuant to s43(3).

2. The Corporation thereupon sought a review of this determination pursuant to s95. The appellant did likewise. There was a hearing before Review Officer Fitzgerald during the course of which the appellant withdrew her application for review. Her counsel submitted that there was no jurisdiction to review Mr Palmer's determination. Review Officer Fitzgerald made a determination on 29th January 1993 whereby he set aside the previous determination and substituted a determination that the appellant was entitled to 15 per cent of the prescribed sum.

3. The appellant appealed to the Workers Compensation Appeal Tribunal. The Tribunal followed its previous decision in a case of South Coast Reinforcing v Cameron ("Cameron") (A36/1993) and held that a Review Officer's decision pursuant to s102 is reviewable under s95. It therefore held that Review Officer Fitzgerald had jurisdiction to conduct her review. The Tribunal disagreed, however, with Ms Fitzgerald's basis of assessment and referred the matter back for a new assessment.

4. The appellant has appealed to this Court pursuant to s100 on three questions of law. The first ground of appeal is that the Corporation has no right to a review of or an appeal against a decision of a Review Officer under s102. The second ground is that there is no power to review pursuant to s95, a Review Officer's decision under s102. The third ground is that the Tribunal's decision as to the basis of assessment is wrong in law.

5. The case of Cameron which the Tribunal followed went on appeal to the Full Supreme Court. Judgment was delivered after the delivery of the judgment of the Tribunal in the present case. The decision of the Tribunal in Cameron was reversed on the appeal; Cameron v The Workcover Corporation (1993) 174 LSJS
290 ("Cameron's case"). In that case the Full Court held:
    (1) that there is no jurisdiction to review, pursuant to
s95, a decision of a Review Officer made under s102;
    (2) that there is a right of appeal to the Tribunal in both
    the Corporation and the worker against a decision of a
Review Officer under s102.

6. The appellant in this case must succeed on the second ground of appeal unless this Court is prepared to depart from the decision in Cameron's case. Mr Walsh QC for the respondent contended that Cameron's case was wrongly decided and ought not to be followed.

7. There is no suggestion that the decision of the Full Court in Cameron's case was delivered per incuriam or that there has been any supervening judicial decision of high authority; R v White (1967) SASR 184. This Court will therefore depart from Cameron's case only if it is shown to be plainly wrong; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd, McAuley and Anor (1989) 52 SASR 148 esp at p157.

8. There are difficulties arising out of the relationship of ss95, 96 and 102 which the draftsperson has not expressly resolved. For convenience I set out those sections:
    "Application for review
    95. (1) A person who is directly affected by a decision that
    is reviewable under subsection (2) may apply for a review of
    the decision.

(2) The following decisions are reviewable -
    (a) a decision made on a claim for compensation (including a
    decision in the nature of a redetermination of a claim);
    (b) a decision in relation to the nature of rehabilitation
    services provided, or to be provided, for a worker;
    (c) a decision to vary, suspend or discontinue weekly
    payments;
    (d) a decision on an application by an employer under
    section 36 to have weekly payments payable to a worker
    employed by, or formerly employed by, that employer
    reviewed;
    (da) a decision by the Corporation to disallow a charge for
    a service under section 32.

(3) For the purposes of subsection (1), an employer from
    whose employment a compensable disability arises shall be
    regarded as being directly affected by a decision of a kind
    referred to in subsection (2) made in relation to that
    disability.

(4) An application for review must be in the prescribed
    manner and form and must be made within one month after the
    person applying for the review receives notice of the
    decision to which the review relates unless the Chief Review
    Officer, or another Review Officer authorised by the Chief
    Review Officer for the purposes of this provision, in his or
    her discretion, allows an extension of the time for making
    the application.

(5) An application for review must be made in accordance
    with the regulations.

(6) Where an application is made under this section, the
    Corporation must first endeavour to resolve the questions in
    issue by agreement.

(7) Where -
    (a) The Corporation fails to resolve the questions in issue
    by agreement; or
    (b) the questions in issue have not been resolved after 14
    days from the date on which the application is first
    received by the Corporation and the applicant requests the
    reference of those questions to a Review Officer, the
    application for review shall be referred to a Review
    Officer.

Review by Review Officer
    96. (1) Where an application for review is referred to a
    Review Officer, the Review Officer shall conduct a review of
    the decision to which the application relates.

(1a) A party to proceedings before a Review Officer must
    disclose to the Review Officer and all other parties to the
    proceedings the existence of all material in the party's
    possession or power that may be relevant to the proceedings
    and must, if the Review Officer so requests, produce all or
    any of that material to the Review Officer.

(2) On a review under this section, the Review Officer shall
    make a fresh determination of the matters to which the
    decision subject to review relates.
    ...

(4) Where the Review Officer arrives at a decision that
    differs from the decision under review, the decision of the
    Review Officer shall take effect in substitution for that
    decision.
    ...

Special jurisdiction of Review Officer
    102. (1) A worker who believes that there has been undue
    delay in the determination of a claim by the worker under
    this Act may apply to a Review Officer under this section.

(2) An application shall not be made under this section
    within 14 days after the day on which the claim was made.

(3) On an application under this section the Review Officer
    may -
    (a) give such directions as the Review Officer thinks
    necessary to expedite the determination of the claim; or
    (b) personally decide the claim.

(4) A person to whom a direction is given by a Review
    Officer under subsection (3) shall comply with that
    direction.

(5) The regulations may prescribe procedures for the
    reference of applications under this section to Review
    Officers."

9. Section 102 does not say that the decision of a Review Officer under it is to be treated as if it were the decision of the Corporation; that is the meaning contended for by the respondent. Neither does it say that the decision is to be treated as a decision on a review under s95. If it were treated as if it were a decision of the Corporation, there would be the anomaly of one Review Officer reviewing a determination of another Review Officer. There would be the further problem of whether the Corporation, which is not a person "directly affected" by a decision of the Corporation Workcover Corporation (Century Products SA Pty Ltd) v Hojski (1993) 170 LSJS 130, is a person directly affected by a decision which is to be treated as if it were a decision of the Corporation. The provisions of s95(3) and (7)(b) appear to be inconsistent with the notion of a review at the instance of the Corporation. If on the other hand there is no right of review of a s102 decision, there is the problem of whether a right of appeal is conferred by s97 which creates an appeal against the decision of a Review Officer "on a review". Mr Walsh QC also contended that s102 contemplates a speedy decision in lieu of the delayed decision of the Corporation and not a review in which extensive evidence might be taken; Simpson Ltd v Arcipreste (1989) 53 SASR 9 per Duggan J at p21.

10. These issues were fully considered in Cameron's case. There are difficulties both of language and consequences in whatever construction is adopted. The construction adopted by the Full Court in Cameron's case appears to me to be the preferable solution to the problems. It certainly cannot be said to be plainly wrong.

11. I do not think that the Review Officer's decision under s102 should be assimilated to a decision of the Corporation. There is no warrant in the language of the section for that view of it. Section 102 confers a jurisdiction on a Review Officer. I think that it should be treated as a review. It is true that there is no primary decision to be reviewed, but there is a process before the Corporation which has failed because of the dilatoriness of the Corporation. It is that process which the Review Officer reviews.

12. A "decision made on a claim for compensation" which is reviewable under s95(2)(a) is, in my opinion, a decision made by the Corporation or an exempt employer under s53. It does not refer to the decision made by the Review Officer under the special jurisdiction conferred by s102. That special jurisdiction is, in my opinion, in the nature of a review of the failed primary process. It is therefore a "decision by a Review Officer on a review" for the purpose of s97 which therefore confers a right of appeal against such decision on both the Corporation and the worker.

13. I would therefore allow the appeal and set aside the determination of Review Officer Fitzgerald as made without jurisdiction.

JUDGE2 MILLHOUSE J I agree that the appeal should be allowed for the reasons given by the Chief Justice and that the determination of Review Officer Fitzgerald should be set aside.

2. I also entirely agree with my brother Perry about the poor drafting of the Workers Rehabilitation and Compensation Act 1986.

3. Perry J has expressed himself with his usual restrained courtesy. I may be a little blunter. The sections which we have had to construe, in an attempt to reconcile and make sense of them, look to me like a compromise worked out in the middle of the night between managers of the two Houses with little consideration for drafting: that may be an excuse for their confusion. If I am wrong then the sections are simply badly drafted, without any excuse. Be that as it may, it's about time Parliament jerked itself into gear and took the time to decide what meaning it intends in these sections and amended them to make that meaning clear. Indeed Parliament should scrutinise the entire Act, with a view to making it simpler, clearer, more comprehensible.

JUDGE3 PERRY J This is an appeal from a decision of the Workers Compensation Appeals Tribunal ("the Tribunal") brought by leave granted pursuant to s.100 of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

2. In its decision the Tribunal dismissed a challenge to the jurisdiction of a Review Officer to conduct, at the behest of the WorkCover Corporation of South Australia ("the Corporation"), a review pursuant to s.96 of the Act of a decision made under s.102 as to a worker's claim for compensation. After coming to its decision on the question of jurisdiction, the Tribunal referred the matter back to the Review Officer for re-assessment of the claim. The appeal relates in part to the decision of the Tribunal on the question of the jurisdiction of the Review Officer. As will be seen, because of the opinion which I ultimately reach as to the jurisdiction question, a separate matter raised by the appellant as to the method of assessment of her lump sum entitlement cannot, in my view, be dealt with by this Court on this appeal.

3. The appeal has been heard by a Court consisting of five judges in view of the submission of the respondent that the Court should over-rule a decision of the Full Court (composed of three judges) in Cameron v The WorkCover Corporation (1993) 174 LSJS 290.

4. The relevant history of the matter is conveniently summarised in the reasons for decision of the Tribunal as follows:
    "The following uncontested factual background puts these
    appeals into context; the worker was injured as a result of
    a fall from a bus on her way to work on 12 March 1990. By
    notice of disability and claim for compensation dated
    12 September 1990 the worker made a claim for compensation.
    The Corporation accepted the claim.

Subsequently, by letter dated 18 March 1992, the worker, by
    a letter from her solicitors to the Corporation, sought a
    lump sum payment for non-economic loss pursuant to Section
    43 of the Workers Rehabilitation and Compensation Act ("The
    Act").

By application dated 27 May 1993, (this should read 1992)
the worker's solicitors invoked Section 102 of the Act. On
    13 August 1992 a Review Officer, exercising the special
jurisdiction pursuant to Section 102, determined the
worker's entitlement pursuant to Section 43(3) of the Act at
    25% of the prescribed sum in respect of a permanent
    compensable disability of the lower back.

By application for review dated 27 August 1992 the worker
    sought a review of that decision complaining that the
    assessment was, in the circumstances, inadequate. By
    application for review dated 31 August 1992 the Corporation
    sought a review of that decision complaining that, in the
    circumstances, it was excessive.

The applications for review were heard before a Review
    Officer on several dates in October and December 1992 and in
    January 1993. At a hearing on 18 December 1992 the worker
    gave evidence about the nature of the disability and the
    extent to which it interfered with her normal life. The
    matter was then adjourned to 18 January 1993.

At the outset of that resumed hearing the worker's solicitor
    withdrew the worker's application for review. That occurred
    without any opposition being voiced by counsel for the
    Corporation. The review hearing proceeded on the remaining
    application for review filed by the Corporation.

At the conclusion of the evidence at review Ms Palios,
    counsel for the worker, submitted that the Review Officer
    had no jurisdiction to determine the application for review
    because, in the circumstances, the Corporation had no right
to apply for a review pursuant to Section 95 of the Act."

5. The Tribunal goes on to refer to the decision of the second Review Officer, during the course of which, following an earlier decision of the Tribunal in The Corporation (Wightman Mayer Advertising Pty Ltd) v Lamshed
(1991) WCATR 3 228, he held that, when the first Review Officer exercised what was described as "the special jurisdiction of s.102", he stood on the same footing as the Corporation when it makes a determination under s.53(4), and his decision was, therefore, subject to review under s.96 of the Act before any question of an appeal to the Tribunal arose.

6. The second Review Officer concluded that as the decision of the first Review Officer was not a decision of the Corporation but merely a decision "on the same footing" as a decision of the Corporation pursuant to s.53(4), the Corporation was a person "directly affected" within the meaning of s.95 of the Act, and accordingly had the right to seek a review. The second Review Officer rejected the argument that she lacked jurisdiction to entertain the Corporation's application for review.

7. The second Review Officer proceeded to determine the worker's entitlement as 15% (in lieu of the 25% assessed by the first Review Officer) of the prescribed sum pursuant to s.43(3) of the Act.

8. While upholding the decision taken by the second Review Officer as to her right to entertain the Corporation's application for review, the Tribunal held that she fell into error in assessing the worker's entitlement pursuant to s.43(3), that section having been repealed retrospectively by ss.11 and 12 of the Workers Rehabilitation and Compensation Act (Miscellaneous) Amendment Act 1992 (No 84 of 1992) ("the Amendment Act") which was proclaimed into operation on 10 December 1992.

9. Applying the decision of this Court in WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski (1993) 170 LSJS 129, the Tribunal held that the Review Officer should have applied the law as it stood at the time of the review determination in assessing the worker's entitlement to an award for non-economic loss. This fell to be determined by applying the Third Schedule as it stood prior to the amending Act, together with the footnotes to the new Third Schedule set out in the amending Act, rather than by applying s.43(3).

10. In the result, the Tribunal confirmed the Review Officer's decision as to her jurisdiction, but referred the matter back to her so that the assessment of the worker's non-economic loss could be made in accordance with the Tribunal's ruling as to the appropriate method of assessment.

11. At the time of the decision of the Tribunal, which was given on 15 December 1993, an appeal to this Court in the matter of Cameron v The WorkCover Corporation, to which I have already referred, had been argued but judgment had not been handed down. In its own decision in Cameron, from which the appeal to this Court had been brought, the Tribunal had accepted the argument that a decision of the Review Officer pursuant to s.102(3)(b) of the Act was a decision "on a claim for compensation" within the meaning of s.95(2)(a) and was, therefore, susceptible of review pursuant to s.96.

12. The judgment of this Court in Cameron was delivered on 22 December 1993. In that decision, by a majority (Legoe and Mohr JJ, Bollen J dissenting), the Court held that when a Review Officer decided a claim pursuant to s.102(3)(b), he or she was conducting a review within the meaning of s.96. The Court held that a decision made under s.102(3)(b) could not be equated with a "decision made on a claim for compensation" by the Corporation within the meaning of s.95(2)(a), and was not the equivalent of the determination of the claim for compensation by the Corporation pursuant to s.53(4). Accordingly, the decision made under s.102(3)(b) was not reviewable under s.96, but was appealable under s.97.

13. Clearly, if Cameron's case was correctly decided, the decision of the second Review Officer in this case that she had jurisdiction to review the decision made by the first Review Officer under s.102(3)(b) of the Act was wrong. Likewise, in that event the decision of the Tribunal affirming the decision of the second Review Officer would also be wrong.

14. It follows that the critical question to be addressed in determining the fate of the present appeal is the correctness of the decision of this Court in Cameron.

15. Before looking more closely at the reasoning adopted by the majority in Cameron, it is convenient to set out the relevant provisions of the Act.

16. Where a worker suffers a compensable disability, notice of the disability must be given to the employer pursuant to s.51 of the Act, within the time and in the manner set out in that section. If the worker proceeds to make a claim for compensation, he or she must do so in the "manner and form" approved by the Corporation (s.52(1)(a)), the claim in the first instance being addressed to the employer (where the employee is at the commencement of the incapacity in employment) but in any other case to the Corporation. If the claim is given to the employer, it must be forwarded to the Corporation in accordance with the provisions of s.52(5) within five business days.

17. On receipt of a claim for compensation, the Corporation "shall make such investigations and inquiries as it thinks necessary to determine the claim" (s.53(1)). Furthermore, pursuant to s.53(4):
    "The Corporation shall determine claims for compensation as
    expeditiously as reasonably practicable, and where the claim
    is for compensation by way of income maintenance, shall,
    wherever practicable, endeavour to determine the claim
    within ten business days after the date of receipt of the
    claim."

18. Any person directly affected by a decision that is reviewable, which includes a decision made on a claim for compensation, may apply, pursuant to s.95(1), for a review of the decision.

19. Pursuant to s.95(6), where an application for review is made, the Corporation "must first endeavour to resolve the questions in issue by agreement". If it fails to do so, it must, pursuant to ss.(7), refer the application for review to a Review Officer. Upon that reference, the Review Officer conducts a review in accordance with s.96, drawing upon the principles, procedures and powers set out in ss.88, 89 and 90.

20. For example, on a review, the review authority "shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms" (s.88(1)(a)), and is not bound by rules of evidence. It must afford a reasonable opportunity to the parties to make submissions and to call and cross-examine evidence (s.89(2)). It may compel by summons the attendance of any person, or the production of any document (s.90). Following the review, the Review Officer "shall make a fresh determination of the matters to which the decision subject to review relates" (s.96(2)).

21. Furthermore, pursuant to s.96(4):
    "Where the Review Officer arrives at a decision that differs
    from the decision under review, the decision of the Review
    Officer shall take effect in substitution for that
    decision."

22. An appeal lies to the Tribunal against a decision by the Review Officer on a review in accordance with s.97. That section defines the persons who may institute an appeal to the Tribunal. The Corporation is specifically identified as one of the parties who may institute such an appeal. On an appeal, the Tribunal has a "... discretion to re-hear the whole or any part of the evidence taken before the Review Officer, or to take further evidence". (s.97(4)(d).)

23. The Tribunal may confirm, vary, set aside or reverse the decision under appeal, or refer the subject matter of the appeal back to a Review Officer with directions or suggestions which it might consider appropriate (s.97(5)).

24. The relevant provisions dealing with reviews and appeals, including the sections to which I have so far in that regard referred, appear within Part 6 of the Act which is headed "Reviews and Appeals", Division 1 of that Part referring to Review Officers, and Division 2 to the Tribunal. Within Part 6 appears the heading "Division 9 Miscellaneous". Within that Division there is one section only, namely, s.102, which itself is headed "Special Jurisdiction of Review Officer".

25. This Court can have regard to the headings to the Part or Division of the Act, but the heading to s.102 "Special Jurisdiction of Review Officer" does not form part of the Act and must accordingly be disregarded for the purposes of interpreting the Act (Acts Interpretation Act 1915, s.19, ss.(2) and (3)).

26. S.102 is in the following terms:
    102. (1) A worker who believes that there has been undue
    delay in the determination of a claim by the worker under
    this Act may apply to a Review Officer under this section.

(2) An application shall not be made under this section
    within 14 days after the day on which the claim was made.

(3) On an application under this section the Review Officer
    may -
    (a) give such directions as the Review Officer thinks
    necessary to expedite the determination of the claim; or
    (b) personally decide the claim.

(4) A person to whom a direction is given by a Review
    Officer under subsection (3) shall comply with that
    direction.

(5) The regulations may prescribe procedures for the
    reference of applications under this section to Review
    Officers."

27. As I have explained, it was s.102 which was invoked by the appellant in this case, as a result of which the first Review Officer made his determination dated 13 August 1992.

28. I have already explained that in Cameron, the majority held that a decision made under s.102 when a Review Officer, to use the words of ss.(3)(b) "personally decides" the claim, is not reviewable under s.96 but may be made the subject of an appeal under s.97 of the Act.

29. During the course of his reasons for judgment in that case, Legoe J said (174 LSJS 297):
"The important drafting aspect of s.97 is that the appeal
    lies 'against a decision by a Review Officer on a review'.
Section 96(2) requires the Review Officer to make a 'fresh
    determination'.
    ...

4. In the circumstances I am unable to see that the
    application for review in the application made by the
respondent on 20 August 1992 was within s.95(2) as a
    decision which was reviewable on a claim for compensation.
    In my judgment the decision made by Review Officer Mason on
2 July 1992 was a 'determination of the claim' s.102(3)(a)
of the Act. It was a 'fresh determination' made by virtue
of the procedure under s.102 and was a determination 'of the
    matters to which the decision subject to review relates',
s.96(2).
    ...

6. I further agree with my brother Mohr J that upon the
    Review Officer's determination made ex tempore on 2 July
    1992 WorkCover could institute an appeal 'against a decision
by a review officer on a review', s.97(1) and (2).
    ...

In my judgment both the 'exempt employer' and the
'Corporation' cannot on a proper construction of the Act as
a whole and Part VI particularly s.95(1) and (3) be a person
    who is directly affected by a decision that is reviewable
    under sub-s.(2). As a corollary it must follow in my
judgment that to 'personally decide the claim' s.102(3)(b)
    is not a 'decision' made on a claim for compensation under
s.95(2)(a). Review Officer Mason made a fresh determination
    as required by reading together as a scheme the procedure in
ss.102(3)(b) and 95 and 96(2) in particular.
    ...

In order to give effect to the Act the personal decision
made by Review Officer Mason pursuant to s.102(3)(b) is
    subject to an appeal which can be instituted by the
Corporation pursuant to its statutory right under s.97(1)
and (2)(c) of the Act."

30. Mohr J stated (301):
    "In my opinion the first question to be resolved is the
nature of the proceedings under Section 102. ... The
    respondent to these proceedings argued however that the
proceedings before a Review Officer pursuant to Section 102
    (the proceedings of 2nd July 1992) were not proceedings
which gave a right of appeal pursuant to Section 97 but that
in making a decision pursuant to Section 102(3)(b) or giving
directions pursuant to Section 102(3)(a) the Review Officer
    was in effect standing in the shoes of 'Workcover' and his
    directions and/or decision would in effect be decision or
    direction of 'Workcover'. Thus it was argued that Section
    95 operated to give 'Workcover' a right to such a review
pursuant to Section 95. The argument for this proposition
    was that 'Workcover' must of necessity be 'a person who is
    directly affected by a decision' and despite the fact that
    the 'decision' was its own, following the above argument, it
    could seek to review its own decision and if it could
    'resolve the question in issue by agreement' (Section
    95(7)(a)) or if the question in issue had not been resolved
    after 14 days from the date on which the application is
    first received by 'Workcover' and the applicant
    ('Workcover') requests the reference of those questions to a
    Review Officer (Section 95(7)(b)) could have the matter
    referred to a Review Officer (Section 95(7)).
    ...

The difficulty I find with the argument advanced on behalf
of 'Workcover' relates primarily to Section 95(7)(b). That
    section speaks of an 'application' being received by the
    Corporation. It would as violence to that concept to
interpret Section 95(7) as meaning that 'Workcover' could
    apply (as applicant) to itself to review a decision of
    itself because of the decision of the Review Officer made
pursuant to Section 102(3)(b) then according to the argument
    of the respondent that decision is made as a surrogate for
the Corporation then Section 95(7)(b) must be given that
    meaning."

31. His Honour went on to find against that contention, holding that the decision of the first Review Officer in that case stood but could be made the subject of an appeal under s.97.

32. With the greatest respect to Legoe and Mohr JJ, and after carefully considering the arguments put on the hearing of the appeal now in question, I am unable to accept the construction of the relevant sections of the Act which they adopted.

33. In my opinion, the words in s.102(3)(b) "personally decide the claim" are not apt to describe the process of review of the kind postulated by s.96. S.96 only deals with situations where there is "an application for review ... referred to a Review officer" (s.96(1)). That reference is clearly a reference of the kind referred to in s.95(7) which expressly uses the words "the application for review shall be referred to a Review Officer". That reference, as I have already explained, can only occur after the Corporation has failed to resolve the questions in issue by agreement. The review procedure under s.96 is a process which follows on the steps identified in s.95. The outcome of the review itself may be made the subject of an appeal pursuant to s.97.

34. S.102 stands on a different footing altogether. S.96 refers to "the decision subject to review" (s.96(2)). S.102, on the contrary, may be invoked where there has not been a decision. The decision made the subject of review under s.96 will commonly be the determination of the claim for compensation by the Corporation pursuant to s.53(4). It is the very failure of the Corporation to make that determination "as expeditiously as reasonably practicable" (s.53(4)) which gives rise to the right to seek the exercise by a Review Officer of the jurisdiction conferred upon him or her pursuant to s.102. That jurisdiction, apart from giving directions under s.102(3)(a), is to "personally decide the claim". That is a decision on the worker's claim for compensation, not a review of some other decision.

35. The determination by the Review Officer of an application when he or she personally decides the claim is not a "fresh determination" of the matters to which any decision subject to review relates within the meaning of s.96(2). Neither is it a "decision by a Review Officer on a review" within the meaning of s.97(1). In my opinion, if it equates with anything at all, it equates with a "decision made on a claim for compensation" within the meaning of s.95(2)(a). As I later point out, the decision under s.102(3)(b) is reviewable by the worker, if the worker invokes ss.95 and 96, but is not reviewable by the Corporation. Neither is it appealable by either under s.97, as it is not a decision by a Review Officer "on a review" (s.97(1)), and it is not a decision as to which the procedural preliminaries to an appeal, as set out in ss.95 and 96, have taken place. The fact that on a review sought by a worker with respect to a s.102(3)(b) decision another Review Officer sits in judgment on the first Review Officer's decision is an unavoidable consequence of the manner in which the legislation has been framed, and does not deflect me from the conclusion which I have reached.

36. It follows that, in my opinion, the decision of the majority in this Court in Cameron was wrong.

37. The question arises, that decision being a recent decision of the Full Court, whether notwithstanding the view which I have expressed, the Court should overturn that decision now.

38. It is a settled rule that
    "This Court treats decisions of the Full Court as binding
    upon subsequent Full Courts unless they are made per
incuriam or are shown to be plainly wrong." Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364 per King CJ at 368; see also Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd and Ors
(1989) 52 SASR 148 per King CJ at 157 and R v Gibson (1990) 54 SASR 191.)

39. If a decision is thought to be wrong, the question whether one should go further and characterise it as plainly wrong, does not depend solely upon whether or not it can be said to be a matter upon which opinions differ. There must be more. It is sufficient for the purposes of this case to conclude, as I do, that the decision in Cameron, with great respect to the views of those comprising the majority, cannot, in my view, survive analysis against the relevant sections of the Act.

40. I would, therefore, hold that a decision of a Review Officer made under s.102(3)(b) may be equated with a decision made on a claim for compensation within the meaning of those words in s.95(2)(a), but not with the words "decision of a Review Officer on a review" where those words appear in s.97(1).

41. But that conclusion is not sufficient to dispose of the appeal.

42. The question which then arises is whether or not the Corporation has a right to seek a review of the decision of a Review Officer made pursuant to s.102(3)(b).

43. There are difficulties in countenancing an application by the Corporation for a review pursuant to s.95. Commonly, the relevant decision will be a decision by the Corporation itself pursuant to s.53(4). In such a situation, there is an absurdity in the concept of the Corporation seeking to review its own decision.

44. But here, the decision is made by a Review Officer over whom the Corporation has no control. One would, therefore, endeavour to construe the Act in a manner which would give the Corporation an avenue by which it could seek a review of the decision. There are difficulties, however, in interpreting s.95 in such a way as to allow it to be invoked by the Corporation, even when the target of a proposed review is a decision made under s.102(3)(b).

45. Until its amendment by Act No 84 of 1992, s.95(1) read:
    "A person who is directly affected by a decision that is
    reviewable under ss.(2) may apply to the Corporation for a
    review of the decision."

46. The amending Act deleted from the sub-section the words "to the Corporation". But it seems to me that the section still contemplates an application for review being made to the Corporation: see, for example, ss.(7)(b) which reads:
    "... the questions in issue have not been resolved after 14
    days from the date on which the application is first
    received by the Corporation ..."

47. S.95(4) provides, in part:
    "An application for review must be in the prescribed manner
    and form and must be made within one month after the person
    applying for the review receives notice of the decision to
    which the review relates ..."

48. The Corporation must always be aware of a decision which it has itself made. But an application for review must now be made in the first instance to the Review Panel established under s.77 of the Act (see the Workers Rehabilitation and Compensation (Reviews and Appeals) Regulations 1987 Reg 6(2)(b)). What is more, it is the Chief Review Officer who causes notice of the application to be given to other parties; see Reg 6(3):
    "(Notice of application)
    Where an application for review is received under
    subregulation (2), the Chief Review Officer, or an officer
    nominated by the Chief Review Officer, must cause notice of
    the application and a copy of the application (together with
    any accompanying documentation) to be sent to each of the
    following (other than the applicant):
    (a) the Corporation;
    (b) any employer or former employer who appears to the Chief
    Review Officer to have a proper interest in the decision
    sought to be reviewed;
    (c) the worker."

49. The content of the regulations cannot, of course, govern or otherwise affect the proper construction of the Act.

50. It cannot be denied that the Corporation is, within the meaning of s.95(1), a person who is "directly affected" by a decision made "on a claim for compensation" (s.95(2)) where that decision was made by a Review Officer under s.102(3)(b). The absurdity attaching to the concept of the Corporation seeking a review of its own decision does not apply where the decision is that of an officer over which it has no control.

51. While there is no absurdity attaching to the concept of the Corporation being obliged to "resolve the questions in issue by agreement" before referring the application to a Review Officer, even where the question is one raised by the Corporation itself wishing to challenge a s.102(3)(b) decision, the concept of the Corporation making that reference if resolution has not been achieved within fourteen days "from the date on which the application is first received by the Corporation" (s.95(7)(b)), poses a problem. It is hardly appropriate to a situation where the Corporation is the applicant for review.

52. It seems to me that these difficulties of construction point firmly in the direction of the view that s.95 does not contemplate that the Corporation will be entitled to bring an application for review, even where the decision sought to be reviewed was made under s.102 of the Act.

53. It follows that, in my view, where such a decision has been made, it is neither reviewable under ss.95 and 96, nor appealable under s.97, at the behest of the Corporation. As I have already said, a worker could seek a review under ss.95 and 96, but in this case the worker withdrew her application for review. However, the Corporation has no right of review or appeal, except a right of appeal consequent upon the completion of a review sought by the worker.

54. It must be accepted that the conclusion which I have reached is hardly likely to accord with what Parliament intended.

55. I cannot, however, refrain from observing that this Court has been plagued over the years since the enactment of the Workers Rehabilitation and Compensation Act 1986 with appeals which turn upon questions of construction of the Act. In almost every case, the Court has been obliged to endeavour by one means or another to surmount problems occasioned by poor drafting. There is a limit, however, to the extent to which this Court can torture words towards a meaning which they cannot reasonably bear. A situation will occasionally arise where it is necessary for the legislature to return to the task of drafting the relevant provisions so that they give effect to Parliament's intention. In my opinion, this is one such situation.

56. In ground 3(c) of her notice of appeal, the appellant complains:
    "3. ...
    (c) That the learned Tribunal erred in law in finding the
worker's Section 43 lump sum entitlement is to be assessed
    by applying the Third Schedule as it stood prior to the
    Workers Rehabilitation and Compensation Act (Miscellaneous)
    Amendment Act No 84 of 1992 proclaimed on the 10th December
    1992 together with the footnotes of the new Third Schedule."

57. A difficulty in that ground being entertained by this Court arises by reason of the working out of the conclusions I have reached. On the basis of those conclusions, the second Review Officer should have ruled that she had no jurisdiction to entertain the Corporation's application for review. Indeed, that is the position whether one regards Cameron as correctly decided or not. The appeal to the Tribunal was a nullity, based, as it was, on a determination made by the second Review Officer without jurisdiction. The Tribunal's decision itself is, therefore, a nullity. The only operative and effective decision is that made by the first Review officer pursuant to s.102(3)(b).

58. That decision is not the subject of appeal to this Court, and indeed, could not be made the subject of such an appeal. The only right of appeal to this Court is, pursuant to s.100, by leave of this Court from a valid decision of the Tribunal.

59. The question whether or not the first Review Officer applied correct principles in making his determination could only be agitated on an application for review by the worker. But the worker abandoned her application for review. There the matter must rest.

60. I would allow the appeal, to the intent that the decision of the first Review Officer, that is, the decision of Review Officer Palmer dated 13 August 1992, be restored as the operative determination of the appellant's claim.

JUDGE4 PRIOR J I agree with the reasons published by Justice Perry. The appeal should be allowed and the decision of 13 August 1992 restored.

JUDGE5 DEBELLE J It is unnecessary to refer to the heading to s102 of the WorkersRehabilitation and Compensation Act 1986 ("the Act") to determine that it provides a special jurisdiction. It is designed to avoid any dilatoriness on the part of the Corporation and to ensure prompt determination of claims. The right of appeal provided by s97 is available only in respect of a decision by a review officer on a review. A decision made by a review officer exercising the special jurisdiction under s102 is plainly not a decision made by a review officer on a review. There is, therefore, nothing to activate the right of appeal to the Tribunal provided in s97. In my view the decision in Cameron v The WorkCover Corporation (1993) 174 LSJS 290 was not made per incuriam and was plainly wrong and this Court should so decide.

2. The only other potentially relevant right to review a decision provided by Div 6 of the Act is provided by ss95 and 96 of the Act, the right to apply for review by a review officer. However, those rights do not make any express provision for review of a decision made by a review officer under s102.

3. If reviewable at all, a decision made by a review officer under s102 would fall within the description "a decision made on a claim for compensation", one of the reviewable decisions listed in s95(2). However, an examination of s95 discloses that it is intended to provide for rights of appeal by workers, not by the Corporation. That appears most clearly perhaps in s95(6) which requires the Corporation to endeavour first to resolve the questions in issue by agreement. Further, generally speaking, all other decisions in respect of which an application for review will be made will be decisions made by the Corporation pursuant to s53(4). As has already been observed by the Chief Justice in another context, it is absurd to contemplate the Corporation seeking to review its own decision: WorkCover Corporation v Hojski (1993) 170 LSJS 129, 139. A decision made under s102 is not, therefore, a decision which falls within the list of reviewable decisions in s95(2). In the result, a decision by a review officer made under s102 is not capable of a review by the Corporation and it appears that it may not be capable of a review by the worker. It is not possible to determine whether this accords with the intention of Parliament. For whatever reason, there is a casus omissus and there is nothing in the Act from which it is possible to glean whether Parliament intended the decisions under s102 should be reviewable.

4. For these reasons, the only valid and subsisting decision is that made by the review officer under s102. The review officer who purported to review that decision under s95 ought to have ruled that she had no jurisdiction. The appeal to the Tribunal was a nullity and the appeal to this Court is also a nullity.

5. This is but another instance of the need for an urgent overhaul of this legislation if for the only purpose of providing some internal consistency. While it is often amended, little attempt has been made to resolve upon a scheme which is internally consistent. Important legislation of this kind affecting both the rights of the workers and the legitimate interests of the Corporation should not be allowed to falter because of Parliamentary inactivity.

6. I would therefore allow the appeal for the purpose of restoring the decision of the first review officer, that is, the decision of review officer Palmer made on 13 August 1992.