Mericka v Employers Mutual/WorkCover Corporation (Pollard Brothers Pty Ltd) - [2014] SASCFC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MERICKA v EMPLOYERS MUTUAL/WORKCOVER CORPORATION (POLLARD BROTHERS PTY LTD)
[2014] SASCFC 99
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Peek)
16 September 2014
WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - DETERMINATION OF CLAIMS - GENERALLY
WORKERS' COMPENSATION - ASSESSMENT AND AMOUNT OF COMPENSATION - ENTITLEMENTS REDEEMED OR COMMUTED TO A LUMP SUM - GENERALLY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR CLASSES OF ACT - REMEDIAL OR BENEFICIAL ACTS OR PROVISIONS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - GENERALLY
The appellant suffered a back injury on 27 May 1993 during the course of his employment. He was later diagnosed as suffering from the condition Benign Essential Tremor (BET) and submitted a claim to the respondent that his BET was a result of that compensable workplace injury. The respondent rejected that claim. The appellant then elected to exit the WorkCover regime by entering a redemption agreement with the respondent and receiving a lump sum payment, which was approved on 12 May 1997.
In 2005, the appellant claimed that the redemption agreement did not comply with s 42 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act) and was invalid because it was entered into before he received the advice prescribed by that provision. That interpretation was accepted by the South Australian Workers Compensation Tribunal at first instance but was later rejected by the Full Bench of the Tribunal which held that the interpretation for which the appellant contended was incorrect.
Held per Kourakis CJ (dismissing the appeal):
The appellant’s actual state of mind can have no bearing on the issue of the timing of prescribed advice unless together with any other relevant circumstance, it vitiates his assent to the redemption agreements. As such, the appellant’s contention, that the sequence in which events occurred in itself invalidated the redemption agreement, must be rejected (Kourakis CJ at [30]).
The requirement to give competent advice about the consequences of the redemption does require an explanation about both its legal and practical consequences. In s 42(2)(a) of the Act the use of the word “consequences” determines its proper construction, and the absence of any reference to advice on the merits of the redemption is significant (Kourakis CJ at [40]).
If s 42(2) of the Act is widely construed so as to condition the validity of a redemption agreement on the provision of sound advice on the merits of making it, great uncertainty will beset the administration of the statutory scheme under the Act (Kourakis CJ at [42]).
Held per Peek J (dismissing the appeal):
As to the content of the s 42(2) requirements, the previous authority of the Tribunal and the Full Tribunal, together with the reasons of the Chief Justice, demonstrate that the requirements should not be interpreted in the expansive ways contended for by the appellant.
As to the appellant’s strict sequential argument, the necessary intendment of s 42(2) is that the worker is to have the benefit of the prescribed advice prior to making a decision to redeem. Accordingly the prescribed advice should be provided to the worker before he or she signifies his or her assent to the redemption by placing his or her signature on the redemption agreement.
However, if the prescribed advice is provided after the worker places a signature on a redemption agreement, but prior to final execution by WorkCover, the redemption agreement may be valid, but only if it is established that after receiving the prescribed advice, the worker: (1) was aware that he or she was not bound by the previous signing to proceed with the redemption; (2) positively concurred with redemption proceeding; and (3) manifested that concurrence by some action over and above the previous signing. Such manifestation of concurrence must evince the worker’s knowledge that he or she is not bound by the previous signature and that he or she is making a fresh choice in the light of receiving the prescribed advice.
On correct analysis, the Full Tribunal did not err in law in setting aside the decision of the Tribunal at first instance.
Per Gray J (dissenting):
The word “advice” imports an evaluative quality. Advice is not merely descriptive or explanatory.
“Competent professional advice about the consequences of redemption” would be expected to include an evaluation of whether the proposed redemption was in the worker’s best interests.
Competent “financial advice about the investment or use of money to be received on redemption” would be expected to evaluate or assess different investment strategies and make recommendations on the best use of the funds received on redemption, having regard to the worker’s individual circumstances.
The purpose of the statutory procedure for entering a redemption agreement is to ensure that the worker makes his or her decision to enter into a redemption agreement with the benefit of the advice mandated by the legislation. A worker cannot agree to enter into a redemption agreement unless he has received that advice.
Workers Rehabilitation and Compensation Act 1986 (SA) s 42, referred to.
Elliott v Diener (1978) 21 ACTR 21; Elderfield v Transport Accident Commission (2010) 55 MVR 206; Fisher v Marin [2008] NSWCC 1357; Mericka v Employers Mutual Ltd/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25; Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471; Jol v State of NSW (1998) 45 NSWLR 283; Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31; Tsimpinos v WorkCover/Allianz (K and A Transport Pty Ltd) [2001] SAWCT 138; Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; Barker v Mid-Style Nominees Pty Ltd [2014] WASCA 75; WorkCover Corporation/Employers Mutual Ltd (Pollard Brothers Pty Ltd) v Mericka [2013] SAWCT 20; Thompson v Duffin (2009) SASR 181, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"timing of advice", "content of advice"

MERICKA v EMPLOYERS MUTUAL/WORKCOVER CORPORATION (POLLARD BROTHERS PTY LTD)
[2014] SASCFC 99
Full Court: Kourakis CJ, Gray and Peek JJ

KOURAKIS CJ: This is an appeal against the judgment of the Full Bench of the South Australian Workers Compensation Tribunal concerning the validity of a redemption agreement made between the appellant, Mr Mericka, and a claims agent of the WorkCover Corporation (WorkCover). The Full Bench set aside a decision made in Mr Mericka’s favour at trial and held the redemption agreement complied with the formalities prescribed by s 42(2) of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act). The appeal comes before this Court pursuant to permission granted on 4 March 2014 limiting the appeal to one ground concerning the proper construction of s 42(2) of the Act.
The facts relevant to that single ground of appeal can be very shortly stated. Mr Mericka suffered a back injury on 27 May 1993 when he jumped from heavy machinery which he was operating. Mr Mericka did not return to work and continued to receive ongoing income maintenance payments. In 1995 he consulted the legal firm Lieschke & Weatherill.
Sometime after his fall, Mr Mericka was diagnosed as having the condition Benign Essential Tremor (BET). Mr Mericka claimed that his BET condition arose out of his employment but WorkCover rejected that claim. The development of BET, and the dispute over its connection with Mr Mericka’s work, was significant. If the BET was not caused by his work, not only would Mr Mericka not be entitled to compensation for that condition, but WorkCover also contended that Mr Mericka’s BET condition had overtaken his compensable back injury such that he was no longer entitled to any weekly payments of compensation at all.
In 1996 Mr Mericka told Mr Lieschke that he wished to remove himself from the WorkCover system and receive a lump sum payment. During 1996 Mr Lieschke, on Mr Mericka’s instructions, entered into discussions with WorkCover on his behalf with a view to negotiating lump sum payments for him. The negotiations continued into 1997. A conciliation conference was held on 26 March 1997. On 16 April 1997 a solicitor for WorkCover’s agent, Ms Carabelas, wrote to Lieschke & Weatherill proposing a settlement on terms and conditions which included a redemption pursuant to s 42 of the Act of Mr Mericka’s ongoing entitlement to weekly payments of compensation and medical expenses. Ms Carabelas sent two redemption agreements to Lieschke & Weatherill with that letter, one redeeming Mr Mericka’s ongoing entitlements to weekly payments for the sum of $80,000, and another redeeming his entitlement to medical expenses in the sum of $20,000. Certificates certifying that Mr Mericka had received the advice prescribed by s 42 of the Act were also provided. The redemption agreements expressly contemplated that those certificates, being annexures A, B and C, would be completed before the redemption agreement was finally made. That documentation was sent to Mr Mericka.
Mr Mericka caused annexure C, which was a medical certificate certifying that the extent of his incapacity could be determined with a reasonable degree of confidence, to be completed by a medical practitioner, Dr Cameron, on 18 April 1997. An annexure B to each of the redemption agreements certified that Mr Mericka had received confident financial advice about the investment and use of the redemption sum. On 1 May 1997 an accountant, Mr Moss, completed annexure B with respect to the sum of $20,000 which redeemed WorkCover’s liability to meet future medical expenses. On the same day, another accountant, Mr Humble, completed annexure B with respect to the sum of $80,000 for redeeming Mr Mericka’s future income maintenance entitlement.
On 8 May 1997 Mr Mericka attended the office of Ms Mitchell, an employee of WorkCover’s claims agent. The reasons for his attendance and the matters which ensued when he attended, need not be dealt with in detail here. It suffices to say that on that day in Ms Mitchell’s office, Mr Mericka signed the redemption agreements.
On 9 May 1997 the redemption documents which Mr Mericka had signed and left with Ms Mitchell were couriered to Mr Lieschke. Mr Lieschke gave certain advice to Mr Mericka on the proposed redemption and completed an annexure A with respect to both redemption agreements certifying that he had provided professional advice about the consequences of the redemptions.
On 12 May 1997 Mr Lieschke couriered the executed redemption agreements and the completed certificates to an officer of the claims agent. It is not disputed that the documents were couriered to the claims agent on Mr Mericka’s express written instructions, which, he gave after receiving Mr Lieschke’s advice, for the purpose of redeeming his entitlement to weekly payments of compensation and to medical expenses. Entry into the redemption agreement was approved later that day by a senior officer of WorkCover and the redemption agreement was subscribed to by an officer of the claims agent on the same day. The redemption agreements were expressed to be made with respect to the following disabilities:
Left elbow/arm and lumbar spine, right knee, right ankle, anxiety/depression and aggravation of Benign Essential Tremor arising from employment.
A cheque for the total of the redemption amounts was drawn on 21 May 1997 and was paid to the credit of Mr Mericka’s bank account on 22 May 1997.
About eight years later, in 2005 Mr Mericka claimed compensation with respect to the injuries which were the subject of the redemption agreements and contended that the redemption agreement was invalid. WorkCover disputed his claim and the contention of invalidity. The notice of dispute came before the Workers Compensation Tribunal. The Auxiliary Judge who heard the proceeding at first instance found that the redemption agreements were invalid and ineffective on the grounds that:
1.     The financial advisers who prepared the respective annexure B for each of the redemption agreements had not given competent advice because they did not possess expertise in relation to workers compensation legislation and had not informed Mr Mericka of the lump sum which was required to generate payments equal to the entitlements foregone by Mr Mericka.
2.     The advice of Mr Lieschke was not competent legal advice because:
(a)     he had not specifically or emphatically told the applicant that he would be far better off remaining “on the system” and that he would be ill advised to redeem his entitlements; and
(b)    he did not have any knowledge of the financial advice tendered to the applicant.
WorkCover appealed against the Auxiliary Judge’s finding of invalidity on the grounds that he had erred in construing s 42 of the Act to require advice of that kind (the required content of prescribed advice issue). The Full Bench allowed the appeal and set aside the finding of invalidity.
The Full Bench also rejected Mr Mericka’s alternative contention that the redemption agreements were invalid because Mr Lieschke gave the prescribed advice only after he had subscribed to the agreements (the timing of prescribed advice issue).
The Auxiliary Judge had also found that Mr Mericka subscribed to the agreements while he was “in extremis” physically and psychologically when he subscribed to the agreements. However, the Auxiliary Judge did not go on to determine Mr Mericka’s contention that the conduct of Ms Mitchell in some way vitiated the redemption agreement because he held that the preconditions prescribed by s 42(2) of the Act had not been satisfied. On the appeal before the Full Bench, Mr Mericka put, by way of alternative contention should the Judge’s finding concerning the preconditions be set aside, that Ms Mitchell’s conduct had vitiated the agreement. The Full Bench identified Mr Mericka’s alternative grounds for setting aside the redemption agreements as including claims of undue influence, fraud, duress, misleading conduct and unconscionable conduct. Rather than decide those issues the Full Bench remitted the matter to the Workers Compensation Tribunal. Ms Mitchell’s conduct and its effect on Mr Mericka therefore do not bear in any way on the question of law which is before this Court.
Mr Mericka applied to this Court for permission to appeal against the decision of the Full Bench. This Court, by majority, gave permission to appeal on a ground of appeal which complained that the Full Bench had misconstrued s 42 of the Act. The appeal before this Court proceeded on the basis that that ground raised the required content of prescribed advice and timing of prescribed advice issues only.
The making of a Redemption Agreement
Section 42 of the Act relevantly provides as follows:
42—Redemption of liabilities
(1)Any of the following liabilities may, by agreement between the worker and the Corporation, be redeemed by a capital payment to the worker—
(a)     a liability to make weekly payments;
(b)     a liability to pay compensation under section 32.
(2)An agreement for the redemption of a liability under this section cannot be made unless—
(a)     the worker has received competent professional advice about the consequences of redemption; and
(b)     the worker has received competent financial advice about the investment or use of money to be received on redemption; and
(c)     the Corporation has consulted with the employer out of whose employment the injury arose and has considered any representations made by the employer; and
(d)     a recognised medical expert has certified that the extent of the worker's incapacity resulting from the compensable injury can be determined with a reasonable degree of confidence; and …
(3)The amount of the redemption payment is to be fixed by the agreement.
…
(10)The Corporation may accredit professional and financial advisers for the purpose of giving advice under this section (but a worker is not required to obtain the necessary advice from an accredited adviser).
(11)However, the Corporation incurs no liability for advice given by an accredited professional or financial adviser.
I make the following preliminary observations. The agreement which, pursuant to s 42(1) of the Act redeems WorkCover’s liability, must be a valid one. The agreement to which s 42(1) of the Act refers is a statutory agreement but, as will be seen, to be valid it must satisfy the conditions of a common law contract. The elements of the statutory agreement are:
(1) Final, not merely provisional, agreement on the redemption of WorkCover’s liabilities by the payment of an agreed sum.
(2) The satisfaction of the conditions prescribed by s 42(2) of the Act (the prescribed conditions).
The first element of the statutory agreement incorporates the requirements for a common law contract. The appeal before the Full Bench proceeded on the basis that an agreement made in circumstances which would vitiate a contract in law or in equity was not a valid agreement for the purposes of s 42 of the Act. It is appropriate to dispose of the appeal to this Court on the same basis.
The second additional element includes the receipt by the worker of the advice prescribed by s 42(2)(a) and (b) of the Act (the prescribed advice). The purpose of s 42 of the Act is to ensure that workers cannot trade their entitlement to ongoing payments unless and until they have received the prescribed advice. Plainly enough it would defeat the purpose of s 42 of the Act if a worker were to be bound by his or her concurrence in the redemption of his entitlements for a particular amount given before receiving the prescribed advice. It would be absurd to bind an employee to the redemption so agreed even if, after receiving the advice, he or she no longer wished to be bound by it. Therefore, by necessary implication, a valid agreement is not made pursuant to s 42 of the Act unless, and until, a worker gives his or her concurrence to a redemption for a specified capital amount after he or she has received the prescribed advice. WorkCover does not contest that construction of s 42. It is common ground that Mr Mericka received the prescribed advice before the redemption agreement was adopted by WorkCover.
The timing of Prescribed Advice Issue
On appeal Dr Churches, who appeared as counsel for Mr Mericka, contended that the necessary implication to which I referred in the preceding paragraph could be effected by reading into s 42(2)(a) of the Act the words “prior to signifying his or her agreement” so that it read “the worker has received competent professional advice about the consequences of redemption prior to signifying his agreement”.
In propounding that construction, Dr Churches accepted that a worker could signify his or her agreement by conduct other than writing. That concession is rightly made because there is no requirement that the redemption agreement itself be in writing. It matters not, that it would be impractical and imprudent not to reduce an agreement to writing. The point is that the worker’s concurrence to an agreement for the purposes of s 42 of the Act might be expressed by conduct other than subscription to an agreement. Dr Churches also accepted that s 42(2)(a) of the Act read with the additional words he proposed would be satisfied if a worker who had first signified agreement without receiving the prescribed advice, made a second signification of concurrence after having received that advice. Again that concession is rightly made and, as I explain in [22] below, that is precisely what happened in this case. Plainly, to allow a worker to signify his or her agreement again after first subscribing to a document achieves the purposes of the provision which is that a redemption agreement cannot be effective unless the worker agrees to the redemption after receiving the advice. Once that is accepted, there is, of course, no warrant to judicially amend the provision by imposing requirements about the timing, manner or form of the subsequent concurrence.

With respect, I do not accept that the construction I would give s 42 of the Act overlooks the consequences of the “mindset” that a worker might develop as a result of his or her earlier dealings with WorkCover for the following reasons:
·a “mindset” may develop as a result of a whole range of dealings before a worker has received the prescribed advice and it seems somewhat arbitrary to hold that the “mindset” of a worker who has subscribed to an agreement before receiving it might invalidate the agreement but that an erroneous “mindset” of a worker who only signs the agreement after receiving it does not;
·the reading in of a condition of validity that requires a strictly sequential procedure would vitiate what may well be many agreements which, in the ordinary course, are executed by workers before the prescribed advice is formally given and who for good reason strongly prefer a redemption to ongoing weekly payments and remain of that view after receiving the prescribed advice;
·if the prescribed advice is properly given after the worker has subscribed to the agreement it will, in the ordinary course, remove any erroneous “mindset”.
More fundamentally, implying as a necessary condition of validity that the worker can only perform the physical act of subscription to an agreement after receiving the prescribed advice lest the worker falls captive to a “mindset” conflates the questions of conduct which vitiates a worker’s assent, such as those which, in this case, were remitted to the Workers Compensation Tribunal with the form of signification of assent.
With respect, I would also reject the contention that allowing for signification other than by subscription causes practical difficulties for the following reasons:
·as I have already observed, s 42 of the Act does not require subscription to an agreement even though as a matter of practice a document will often be executed;
·Mr Mericka’s counsel accepted that subscription was not necessary;
·in practice there will be no difficulty in identifying assent because, as in this case, WorkCover will require a clear signification of assent before it pays the redemption sum;
·if there is any practical difficulty in identifying assent to an agreement by means other than subscription, the common law of contract has coped reasonably well with it for several centuries.
It cannot be the statutory intention of s 42 of the Act that subscription to a redemption agreement before the prescribed advice is given forever precludes a worker signifying his or her assent to the same agreement after the prescribed advice is given, even if he or she has made a rational, free and fully informed decision to accept the redemption. Such an absurd result could not have been intended by Parliament. If it be suggested that s 42 of the Act might be construed so that a binding redemption agreement could still be made by signing a fresh copy of the agreement, the objection to the validity of the agreement in this case is reduced to a matter of mere form. It would, in itself, offer no protection to the worker who has a fixed and erroneous mindset. A further alternative contention to avoid the absurdity of precluding a worker who has signed the agreement before receiving the prescribed advice from ever being able to redeem his or her entitlement may be to hold that the agreement is binding only if WorkCover establishes that the worker was not suffering from an erroneous mindset when the agreement was either first, or subsequently, subscribed to. However, if that be the suggested requirement, it manifests the conflation between the form in which assent might be signified and the state of mind of the worker to which I referred in [22] above. More importantly, both alternatives, to the absurd end point that no binding redemption agreement could ever be made if it is signed, for whatever reason, before receiving the prescribed advice, require the Court to venture into unchartered waters with no statutory text to guide it.
Applying the construction I would give s 42 of the Act to the facts of this case, and accepting for present purposes that the prescribed advice was given, the result is plain beyond doubt. No agreement was made for the purposes of s 42 of the Act when Mr Mericka subscribed to the redemption agreement in the office of the claims agent on 8 May 1997 for two reasons.
First, Mr Mericka had not received competent professional legal advice before subscribing to the redemption agreement.
Secondly, WorkCover had not yet expressed its concurrence because, in my view, the provision of the document recording the terms of the redemption agreement without execution was not an offer by WorkCover. At most, it was an invitation to treat. Even if I be wrong about that, and it was an offer, in the circumstances of this case, it was an offer that was conditional on the worker receiving the prescribed advice. So much is clear because the recitals in the redemption agreements so provide.
It may seem trite, but it is as well to say expressly, that there can be no criticism of WorkCover, its agents or officers for preparing, and submitting for consideration to a worker, a document recording the terms on which it is prepared to redeem its liabilities in accordance with s 42 of the Act. An agreement is not made by reducing to writing the terms on which it is proposed to enter into an agreement. Nor as I have already observed did Mr Mericka make an agreement when he subscribed to the document. No agreement can be made unless and until the elements I identified above have all been met. Section 42 of the Act does not preclude WorkCover or any other person from taking steps to make an agreement before it is actually made. It could hardly have been Parliament’s intention that the making of offers, the giving of advice and the acceptance of offers all take place instantaneously as all the relevant players gather in a single room. If a proposed agreement is not articulated orally or in writing the worker can never obtain the prescribed advice.
No agreement within the meaning of s 42 of the Act having been made, when Mr Mericka subscribed to the document, one then moves to the next step in the chronology which is the provision of advice by Mr Lieschke. The delivery of the redemption documents and the completed annexures to WorkCover by Mr Mericka’s solicitors on the instructions of Mr Mericka, after the prescribed advice was given, constituted the making of an offer, and a clear indication of concurrence, by Mr Mericka. Again, putting aside for present purposes the question of whether the advice he received satisfied the requirements of s 42(2) of the Act, that offer was accepted when the claims agent subscribed to the agreement after obtaining the approval of the senior workplace officer, Mr Morris. Only then was the agreement made. At that time the recitals accurately reflected the fact of the matter, that Mr Mericka had obtained the prescribed advice and wished to redeem his entitlements.
For the reasons I have given, Mr Mericka’s actual state of mind when he indicated his concurrence can have no bearing on the making of the redemption agreement unless, together with any other relevant circumstance, it vitiates his assent. That question of fact is yet to be determined. Mr Mericka’s submission, that the sequence in which events occurred in itself invalidated the redemption agreement, must be rejected.
The required content of prescribed advice
At the core of the controversy on this issue is the proper construction of the words “the consequences of redemption” in s 42(2)(a) of the Act, the words “about the investment or use of the money to be received on redemption” in s 42(2)(b) of the Act.
With respect to s 42(2)(a), the natural meaning of the word “consequences” is “that which follows” or “the effect or result of”. The natural meaning suggests that it is not the redemption agreement itself, and its terms, on which the worker must receive advice. Rather the word “consequences” suggests that the worker must receive competent advice on the effect of entering into the redemption agreement.
With respect to s 42(2)(b) of the Act, the financial advice must be “about the investment or use of money received”. That advice does not extend to the adequacy of the redemption sum to secure payments in the order of the payments the worker is currently receiving or might hope to receive if WorkCover’s liability were not redeemed.
The Auxiliary Judge construed s 42(2)(b) of the Act to require the giving of financial advice on the capacity of the proposed capital payment to provide the worker with ongoing weekly income maintenance at the level of weekly compensation payments which he was receiving or might otherwise be entitled to. There is no basis in the words of s 42(2)(b) of the Act for such an implication.
The Auxiliary Judge also construed the words “competent professional advice about the consequences of redemption” to include advice on the adequacy of the proposed sum to provide those payments. His Honour concluded that the advice must allow the worker to make an adequately informed decision about whether to accept the redemption. Indeed the Auxiliary Judge went further and found that in the circumstances of this case the only competent advice which could be given to Mr Mericka was to strongly warn him that it was not in his interest to redeem his entitlement. So expressed, it is plain that the Auxiliary Judge’s construction required advice to be given on the merits of entering into the agreement and not on the legal and practical consequences of the agreement once made.
The Auxiliary Judge’s construction is built on the false premise that the redemption sum should reflect the present day value of the future stream of income maintenance which the worker is receiving. However, it is often the case that redemption agreements are negotiated in circumstances when there is a real issue as to whether the worker is entitled to ongoing weekly payments of compensation. Mr Mericka’s case is one in point. If the BET condition was not compensable Mr Mericka would have no ongoing entitlement to weekly payments of income maintenance. In those circumstances, to require a financial adviser to give advice about the capital sum, which would be necessary to ensure income maintenance at levels equivalent to the weekly compensation Mr Mericka was receiving, would have been a meaningless exercise. Similarly, on the Auxiliary Judge’s construction the legal advice that a worker would require to make an informed decision about the merits of the redemption agreement would be advice about his or her prospects of success in maintaining a claim for ongoing payments of weekly compensation. Advice of that nature is not advice about the consequences of the redemption but about the legal merits of the compromise it represented.
The plurality of the Full Bench rejected the presiding member’s construction. McCusker DPJ and Hannon DPJ held:[1]
[1]    WorkCover Corporation/Employers Mutual Ltd (Pollard Brothers Pty Ltd) v Mericka [2012] SAWCT 42 at [90]-[94].
The word “competent”
In our conclusion there is no ambiguity here. The word is straightforward. Admittedly the notion of competent allows for a range of advices. There might well be a number of different yet competent advices in respect to the one set of circumstances. Competent advice is not to be viewed in the light of outcome. But to be competent it would require the advisor to have sought adequate knowledge of the material facts of the case. The usage here takes some meaning from the adjectives “professional” and “financial”. Persons giving such advice would need to be a person generally regarded as capable of giving such advice. In the case of the professional advice it would include a legal practitioner familiar with the legislation, though subsection (10) indicates others who might by experience have a good understanding and command of such matters (viz a union official or an insurance officer).[2]
The words “the consequences of redemption”
Again the focus of the advice is not ambiguous. As such the words do not require the advisor to express a view, let alone a trenchant view, as to the fairness of the proposal. The decision at first instance in Tsimpinos should not be followed. Indeed the view that the words incorporate an obligation to advise the desirability or fairness of the proposed redemption agreement is contrary to our understanding of the conclusion reached by the Full Tribunal in Tsimpinos.[3] It is not within the intendment of the legislation that the advisor should encourage or discourage redemption.
Moreover there is no requirement imposed upon the advisor to indicate the size of the return on investment of the lump sum that might be required to generate the weekly payment equivalent, though that exercise might be useful in exemplifying the consequences of redemption. As the Full Tribunal in Tsimpinos indicated once the worker appreciates the investment options from the financial advisor, the gap between that return and weekly payments will be self evident.[4] Nor do the words used in the legislation require an advice sufficiently comprehensive as to enable a worker to make an informed decision whether or not to agree to the proposed redemption. Though it must tend to that effect the obligation is as specified by the words in the proviso. It is to explain the consequences of redemption in the given case.
The phrase, “about the consequences of redemption” requires that the worker clearly understands the lump sum will end the right to weekly payments and/or medical expenses. It will also require the worker to be informed of the s 35(6a) consequence, the extent and period of the social security exclusion, the medical insurance effects and taxation effects. From this the worker will presumably draw his or her own conclusion and be guided by self interest. In determining whether the worker has received competent professional advice, regard must be had to earlier explanations of the nature of redemption and not just those given, in this case, on 9 May 2007.
[2]    Cf Brazier v Skipton Rock Co Ltd (1962) 1 All ER 955 per Winn J at 957.
[3]    Tsimpinos at paras [31], [32].
[4]    Tsimpinos at para [32].
The words “financial advice about the investment or use of money to be received on redemption”
The focus of the advice here is also unambiguous. Admittedly the level of the advice will vary according to the circumstances and the sum involved. In many cases the advice about investment or use of the money will involve no more than to list the prudent options, detailing the variables of security and return on investments or use of the amount involved. In short to get the best results the circumstances sensibly allow. For example as in the case at hand to purchase a house or the discharging of a mortgage. It is difficult to be more precise in this regard given the range of possible circumstances. As with professional advice there is no obligation to comment on the fairness of the proposed redemption. That is not specified in the words of the proviso.
McCouaig DP said:[5]
[5] WorkCover Corporation/Employers Mutual Ltd (Pollard Brothers Pty Ltd) v Mericka [2012] SAWCT 42 at [143], [176], [182].
In my view, however, s 42(2)(a) does not require the professional advice to focus on the appropriateness or fairness of the proposed redemption sum, or even embrace those considerations. What it requires is competent advice about the consequences of accepting the redemption sum. Had Parliament intended that the appropriateness or fairness of the proposal should feature in the advice it would have been easy to say that. That it did not do so is entirely consistent with the intent of the 1995 amendments that deregulated the calculation of the lump sum, no longer requiring it to be the actuarial equivalent of the recurring liability and leaving it to the parties themselves to decide what is fair.
…
What was required for the purposes of s 42(2)(b), however, was financial advice about the investment or use of the monies on offer. Knowing precisely how the redemption figures had been arrived at could be of no consequence to that advice.
…
The purpose of s 42(2)(b) is to ensure that a worker receives competent financial advice about how best to invest or use the monies on offer given his/her circumstances, not advice about the adequacy of the sum on offer.
Counsel for WorkCover submitted that the question of law before this Court is the construction found in the just cited paragraphs of the reasons of the Full Bench. Mr Mericka’s counsel took no issue with that submission. Plainly enough whether or not the advice actually given satisfied s 42(2) of the Act so construed is a question of fact that is not before this Court. If the construction of s 42(2) of the Act itself, in particular, in those paragraphs, is correct the appeal must be dismissed.
In my view the use of the word “consequences” in s 42(2)(a) of the Act determines its proper construction. The absence of any reference to advice on the merits of the redemption is significant. The concept of an opinion on a compromise is well known to the law. Superior courts have long exercised a jurisdiction, now found in 6R257 of the rules of this Court, to approve compromises of litigation involving a person under a disability. Unless the court has heard evidence in the proceedings itself it normally only approves a compromise after considering the opinion of counsel. Counsel’s opinion must advise not merely whether the proposal for settlement is adequate and reasonable but also “whether the prospect of getting a greater sum by rejecting the offer is good enough to outweigh, significantly, the risk of not getting any more”.[6] Parliament chose not to impose an obligation to give advice in similar terms for the purpose of s 42 of the Act. The requirement to give competent advice about the consequences of the redemption does, as the plurality observed, require an explanation about its legal and practical consequences. These consequences are importantly the loss, as a legal consequence, of any entitlement to ongoing weekly compensation or payment of medical expenses and, as a practical consequence, by reason of receipt of the capital payment, a preclusion for a certain period from social security benefits. Together with the financial advice on the likely returns from the investment of the capital payment a worker is then in a position to assess the effect of the redemption agreement on the income and financial support on which he or she will be dependent in the future. As the plurality observed, that advice will go some way towards allowing the worker to make an informed decision about whether or not to redeem his or her entitlements. However, the merits or fairness of the redemption agreement cannot be assessed without legal advice about the prospects of success in pursuing ongoing weekly payments of compensation and medical expenses. On no construction of s 42(2)(a) of the Act does it impose an obligation to give advice of that kind as a condition of the validity of a redemption agreement.
[6] Elliott v Diener (1978) 21 ACTR 21; Elderfield v Transport Accident Commission (2010) 55 MVR 206 at [19]; Fisher v Marin [2008] NSWSC 1357.
The content of the advice which must be given for the redemption agreement to be valid and the nature of the advice which is necessary to discharge the solicitor’s professional duty of care in tort are quite different. Mr Mericka’s reliance on Palios Meegan and Nicholson Holdings Pty Ltd v Shore[7] conflates those issues.
[7] (2010) 108 SASR 31.
It is hardly surprising that Parliament should limit the protection of workers to the provision of advice about the consequences of redemption. In personal injury matters, in common law courts, plaintiffs often find themselves pitted against insurers in litigation in which there is an “inequality of arms”. Nonetheless, leaving aside persons under a disability, agreements compromising those actions negotiated by the plaintiff’s solicitor are not vitiated by the negligent advice of the solicitor. The subjective circumstances which bring a party to make an agreement are irrelevant for the purposes of the objective theory of contract. If s 42(2) of the Act is widely construed so as to condition the validity of a redemption agreement on the provision of sound advice on the merits of making it, great uncertainty will beset the administration of the statutory scheme under the Act. Redemption agreements would become provisional agreements the binding effect of which would be dependent on a subsequent investigation of the nature of the advice given in each case. Insurance schemes depend critically on a sound assessment of the contingent liabilities of the insurer. The wide construction found by the Auxiliary Judge, and contended for by the appellant, would destroy that certainty. The purpose of the enactment of s 42(2) of the Act is no doubt to provide a minimum level of protection for an injured worker. It is quite another thing to find that it was the purpose of the legislature to provide a level of protection which is inimical to one of the stated objectives in s 2 of the Act, which is to provide for the efficient and effective administration of a scheme which is “fully funded on a fair basis”.
Conclusion

I would dismiss the appeal.

GRAY J.
This is an appeal against a judgment of the Full Bench of the South Australian Workers Compensation Tribunal.
Introduction
On 27 May 1993, the plaintiff and appellant, Alexander David Mericka, was involved in an industrial accident. He began receiving weekly payments in respect of those injuries on 8 September 1993, backdated to 27 May 1993.
On or about 29 April 1997, Mr Mericka received financial advice regarding redemption from Kenneth Humble. On 1 May 1997, Mr Mericka received further financial advice from Alan Moss.
On 8 May 1997, Mr Mericka signed redemption agreements and accompanying annexures regarding the receipt of financial advice in the presence of Ruth Mitchell, the then State manager of FAI, a claims agent for WorkCover. The trial Judge described Mr Mericka’s condition at the time of signing the agreements as being “in intense pain, shaking uncontrollably, and extremely anxious”.
On 9 May 1997, Mr Mericka saw his solicitor, Stephen Lieschke, and received professional advice from him. Mr Lieschke provided advice with respect to, inter alia, the preclusion period for payments from the Department of Social Security and the possible taxation implications of entering into the redemption agreements.
On 12 May 1997, the redemption agreements were signed by Fred Morris, an authorised officer of WorkCover.
On 14 May 1997, Mr Mericka received the settlement monies. On 20 May 1997, consent orders were made by the Tribunal giving accord to various aspects of the settlement. Mr Mericka received approximately $100,000.00 under the terms of the settlement in respect of his claims under section 42 of the Workers Rehabilitation and Compensation Act 1986 (SA). His potential entitlements, had he remained “in the system”, were estimated at $495,000.00. Mr Mericka was around 40 years old at the time of redemption.
On 31 March 2005, Mr Mericka wrote to WorkCover claiming that he had not been paid his lawful entitlements. WorkCover responded by drawing his attention to the redemption agreements. On 5 May 2005, Mr Mericka commenced proceedings seeking to impugn the redemption agreements.
The Trial Judge
On 5 September 2011, following a trial in the Workers Compensation Tribunal, Olsson AUJ found that the redemption agreements were void as a consequence of non-compliance with the requirements of section 42(2) of the Workers Rehabilitation and Compensation Act.[8]
[8] Mericka v Employers Mutual Ltd/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25.
The Judge summarised his views in regard to the construction of section 42 as follows:
... In my opinion, the following principles arose from the relevant statutory provisions:
1.It is trite to say that, absent any indication of contrary intention, the words employed by the legislature fell to be construed according to their normal and usual meaning. In particular, the word “competent”, in the context in which it appears, must be taken to mean “adequate” or “sufficient for the purpose”, or “suitable or sufficient for the purpose”.
2.It seems to me that, if advice was to be properly held to fall within such a description:
(1)     it ought to have been based upon an adequate knowledge and understanding of the relevant factual and legal circumstances;
(2)     it must, logically, have been formulated and given by a person of relevant qualifications and sufficient experience as to be able to tender meaningful and sound advice of the type contemplated, given, of course, that the word “competent” qualifies the advice given, rather than the person who gives it;
(3)     it must have been conveyed to the worker in a manner and form which that person was likely to comprehend; and
(4)     it must have been sufficiently comprehensive (when considered as a totality) as to enable the worker to make an informed decision as to whether or not to agree to a proposed redemption.
3.The contemplated professional advice about the consequences of a proposed redemption would normally be that of a relevantly experienced legal practitioner, although there may be circumstances in which it is appropriate for a duly qualified person of some other discipline to tender it.
4.That aside, the advice given must obviously have encompassed a clear exposition of the concept of redemption, how it would operate apropos the specific proposition under consideration and the relative advantages and disadvantages of that proposition, by way of contrast with a continuing reliance on legal rights and entitlements under the Act. As already emerges, the advice must positively have identified whether what was proposed represented a fair bargain in the circumstances.
5.Whilst it is true that the section employed the phrase “the consequences of redemption”, it is plain that, in context, it was not merely adverting to advice as to the legal concept of redemption at large. It was necessarily focusing on appropriate “professional advice” as to the specific transaction in contemplation and its adequacy and the practical overall consequences of it, including, but not limited to, the impact of Social Security preclusion and taxation policies, Health Insurance Commission requirements and other relevant considerations. Were it otherwise, there would be little safeguard to a worker and it is difficult to perceive the relevance of the following statutory reference to the requirement for competent financial advice related to the specific proposed transaction.
6.Logically, it would not normally be feasible to formulate and give the professional advice until the requisite financial advice and medical certification had been forthcoming and the substance of that material and other relevant aspects such as applicable preclusion periods and other considerations referred to in paragraph 5 have been ascertained and considered by the professional adviser. Clearly, any competent advice as to the consequences of a proposed redemption needed to take such material into account, as it would necessarily bear, in an important manner, on the adequacy of any proposed lump sum and the potential practical impact of a proposed redemption on the relevant worker.
7.It is to be noted that the section mandated that the competent financial advice is to be about the investment or use of money to be received on redemption. In my opinion this advice is not simply to be about prudent investment strategies at large. As the Full Bench in Tsimpinos pointed out, the statute plainly intended that an injured worker contemplating redemption was to receive advice as to how the funds in question could prudently be either invested or “used” to best achieve the aim of redemption. i.e. to set up a means of providing benefits as an alternative to those that would otherwise have been available under the statute.
8.Such advice would logically need to include an opinion as to whether, given the quantum of the proposed redemption sum, the attainment of such a goal was in fact likely to be feasible and relevant financial risks that may arise in attempting to attain it. As in the case of the professional advice, competent financial advice could not logically be formulated absent an adequate knowledge and understanding of the relevant specific circumstances, likely preclusion periods, the impact of taxation and the policies of other relevant statutory bodies and an appreciation of the statutory concept and consequences of redemption.
9.It is stating the obvious to say that the section necessarily contemplated that all of the requirements referred to in subsection (2) of s 42 be satisfied prior to final committal by a worker to any relevant binding redemption agreement.
10.The plain intendment of the statute was that, whilst parties were free to enter into any arrangement mutually acceptable to them, this was only permissible if the worker made a decision to do so on an adequately informed basis that such person apparently comprehended at the time.
[Footnotes omitted.]
The Full Bench
On 10 October 2012, the Full Bench of the Workers Compensation Tribunal allowed the appeal of WorkCover and remitted the proceedings for trial on several outstanding issues.[9] The Full Bench concluded:
[9] WorkCover Corporation/Employers Mutual Ltd (Pollard Brothers Pty Ltd) v Mericka [2012] SAWCT 42.
The word “competent”
In our conclusion there is no ambiguity here. The word is straightforward. Admittedly the notion of competent allows for a range of advices. There might well be a number of different yet competent advices in respect to the one set of circumstances. Competent advice is not to be viewed in the light of outcome. But to be competent it would require the advisor to have sought adequate knowledge of the material facts of the case. The usage here takes some meaning from the adjectives “professional” and “financial”. Persons giving such advice would need to be a person generally regarded as capable of giving such advice. In the case of the professional advice it would include a legal practitioner familiar with the legislation, though subsection (10) indicates others who might by experience have a good understanding and command of such matters (viz a union official or an insurance officer).
The words “the consequences of redemption”
Again the focus of the advice is not ambiguous. As such the words do not require the advisor to express a view, let alone a trenchant view, as to the fairness of the proposal. The decision at first instance in Tsimpinos should not be followed. Indeed the view that the words incorporate an obligation to advise the desirability or fairness of the proposed redemption agreement is contrary to our understanding of the conclusion reached by the Full Tribunal in Tsimpinos. It is not within the intendment of the legislation that the advisor should encourage or discourage redemption.
Moreover there is no requirement imposed upon the advisor to indicate the size of the return on investment of the lump sum that might be required to generate the weekly payment equivalent, though that exercise might be useful in exemplifying the consequences of redemption. As the Full Tribunal in Tsimpinos indicated once the worker appreciates the investment options from the financial advisor, the gap between that return and weekly payments will be self evident. Nor do the words used in the legislation require an advice sufficiently comprehensive as to enable a worker to make an informed decision whether or not to agree to the proposed redemption. Though it must tend to that effect the obligation is as specified by the words in the proviso. It is to explain the consequences of redemption in the given case.
The phrase, “about the consequences of redemption” requires that the worker clearly understands the lump sum will end the right to weekly payments and/or medical expenses. It will also require the worker to be informed of the s 35(6a) consequence, the extent and period of the social security exclusion, the medical insurance effects and taxation effects. From this the worker will presumably draw his or her own conclusion and be guided by self interest. In determining whether the worker has received competent professional advice, regard must be had to earlier explanations of the nature of redemption and not just those given, in this case, on 9 May 2007.
The words “financial advice about the investment or use of money to be received on redemption”
The focus of the advice here is also unambiguous. Admittedly the level of the advice will vary according to the circumstances and the sum involved. In many cases the advice about investment or use of the money will involve no more than to list the prudent options, detailing the variables of security and return on investments or use of the amount involved. In short to get the best results the circumstances sensibly allow. For example as in the case at hand to purchase a house or the discharging of a mortgage. It is difficult to be more precise in this regard given the range of possible circumstances. As with professional advice there is no obligation to comment on the fairness of the proposed redemption. That is not specified in the words of the proviso.
Conclusions on the provisos
The case advanced by the appellant regarding the correct meaning and effect of the provision of s 42 with respect to both professional and financial advice succeeds. Competent professional advice about the consequences of redemption does not require advice as to the fairness of the amount. It is not a matter, let alone a “core” issue, for either the professional or financial advice. It does not require the professional advisor to know the financial advice that may have been given. The financial advice does not require specific knowledge of workers compensation legislation or the consequences upon the former entitlement. Nor how the sum could achieve equivalence to the surrendered entitlement to weekly payments or medical entitlements to achieve a reasonable use of the money with reasonable security. The advices involve only the matters specified in the provisos. Moreover we agree with the observations of Vanstone J in Palios that to conclude to the contrary would be to insert, devoid of legislative support, an inappropriate elevation of the role of the professional advisor to one of decision maker rather than advisor.
...
The required sequence
The worker contends any agreement for redemption of a liability under s 42 is void unless the receipt of competent professional advice, of competent financial advice and of the medical expert’s certificate all occurred, in time, before the execution of the redemption agreement. The appellant disputes that this sequence of events is required by the section. Here on the facts the redemption agreements were signed before Ms Mitchell the day before the professional advice was given by Mr Lieschke. Indeed it was understood in any event that any agreement was subject to approval by Mr Morris on behalf of the Corporation. The claims agent had no authority to make redemption agreements.
Given that situation, a binding contract had to await that authorisation. At the time a binding contract came into existence, even on the worker’s argument, the prerequisites of subsections (2)(a)-(d) were in place assuming competent advice had been given. That is as distinct from the moment the signatures were affixed. Interestingly the appellant does not appear to have regarded the consent orders recorded on 20 May 1997 as a condition to be met before the agreement was binding. The cheques were drawn immediately following the approval by Mr Morris and were received by the worker on 14 May 1997.
...
We reject the argument that the advices must, in time, necessarily occur before the redemption agreement is signed by the worker. What must occur is for the requisite advices be received for the agreement to become operative. That said the point is moot owing to the need for Mr Morris’ authorisation.
[Footnotes omitted.]
On 15 July 2013, Mr Mericka appealed to this Court in respect of a question as to whether the redemption agreements were void as a consequence of non-compliance with section 42(2). Permission was limited to the one ground of appeal – the proper construction of section 42(2).
The Appeal
Issues Arising
On the hearing of the appeal, the following questions arose concerning the proper construction of section 42 of the Workers Rehabilitation and Compensation Act:
-what is the proper construction of the phrase “an agreement for the redemption of a liability under this section cannot be made unless – [sections 42(2)(a) to (e)]”;
-what is meant by “competent professional advice about the consequences of redemption”; and
-what is meant by “competent financial advice about the investment or use of money to be received on redemption”.
Before coming to discuss the parties’ contentions in regard to the issues of construction that have arisen under section 42, it is convenient to first address the statutory regime and the applicable principles of statutory construction.
Division 4A – Redemption
Division 4A of the Workers Rehabilitation and Compensation Act addresses redemption in the following terms:
Division 4A—Redemption
42—Redemption of liabilities
(1)     Any of the following liabilities may, by agreement between the worker and the Corporation, be redeemed by a capital payment to the worker—
(a)      a liability to make weekly payments;
(b)     a liability to pay compensation under section 32.
(2)     An agreement for the redemption of a liability under this section cannot be made unless—
(a) the worker has received competent professional advice about the consequences of redemption; and
(b) the worker has received competent financial advice about the investment or use of money to be received on redemption; and
(c) the Corporation has consulted with the employer out of whose employment the injury arose and has considered any representations made by the employer; and
(d)a recognised medical expert has certified that the extent of the worker's incapacity resulting from the compensable injury can be determined with a reasonable degree of confidence; and
(e) 1 (or more) of the following requirements are satisfied in the case of a proposed redemption under subsection (1)(a):
(i) the rate of weekly payments to be redeemed does not exceed $30 (indexed);
(ii)the worker has attained the age of 55 years and the Corporation has determined that the worker has no current work capacity;
(iii) the Tribunal (constituted of a presidential member) has determined, on the basis of a joint application made to the Tribunal by the worker and the Corporation in contemplation of an agreement being entered into under this section, that the continuation of weekly payments is contrary to the best interests of the worker from a psychological and social perspective.
(3)     The amount of the redemption payment is to be fixed by the agreement.
(4)     If the Corporation notifies a worker in writing that it is prepared to enter into negotiations for the redemption of a liability by agreement under this section, the Corporation is liable to indemnify the worker for reasonable costs of obtaining the advice required under this section up to a limit prescribed by regulation.
(5)     If agreement is not reached within 3 months after redemption is first proposed (by the worker or the Corporation), either party may apply to the Tribunal for reference of the matter to a conciliation conference.
(6)     The Tribunal will then appoint a conciliator, and a conciliation conference will be held, in accordance with the rules of the Tribunal.
(7)     At the conciliation conference, each party must disclose information in the party's possession that may be relevant to the failure to reach agreement (including representation made by an employer about the redemption proposal).
(8)     The conciliator must make every practicable attempt to help the parties to settle their differences by agreement.
(9)     However, if agreement is not reached, a party cannot be compelled to agree to redemption of the liability.
(10) The Corporation may accredit professional and financial advisers for the purpose of giving advice under this section (but a worker is not required to obtain the necessary advice from an accredited adviser).
(11) However, the Corporation incurs no liability for advice given by an accredited professional or financial adviser.
[Emphasis added.]
Section 42 of the Workers Rehabilitation and Compensation Act is concerned with the process for redemption of WorkCover’s liability to pay the worker weekly payments and medical expenses following a work based injury. The section enables WorkCover to discharge its liability by way of a lump-sum payment to the worker.
It is apparent that one mischief addressed by the statute was the risk to workers of making a decision to redeem their entitlements without professional advice.

An agreement between the worker and WorkCover to redeem WorkCover’s liability is contingent on receipt by the worker of two forms of advice. The inequality of bargaining power is addressed by section 42(4), which provides for WorkCover to pay the worker’s reasonable costs of obtaining the two forms of advice.
The legislative purpose of the Act may be seen in the long title:[10]
An Act to provide for the rehabilitation and compensation of workers in respect of injuries arising from their employment; and for other purposes.
The objects of the Act are set out in section 2, and sub-paragraph 2(1)(a)(iii) confirms the long title’s focus on compensation to workers for workplace related injuries. The requirement of unbiased interpretation between the interests of workers and employers, set out in section 2(2) of the Act, does not detract from the focus of the legislation, and, importantly, its reflection of what may be described as the inherently asymmetrical relationship between worker and WorkCover.
[10] Amatek Ltd v Googoorewon Pty Ltd (1993) 176 CLR 471, 477.
During the parliamentary debate, the Attorney-General remarked:[11]
... One has to recognise that under our amendment an agreement for the redemption of a liability cannot be made unless a number of prerequisites or preconditions are satisfied. One is that the worker has received competent professional advice about the consequences of the redemption and also competent financial advice about the investment or use of the money to be received on redemption. So, there is that hurdle immediately.
[11] South Australia, Parliamentary Debates, Legislative Council, 6 April 1995, 1787 (Hon KT Griffin, Attorney General).
The reference in the Attorney-General’s speech to the need for advice prior to agreement as “a hurdle” underscores the protection provided to the worker by section 42(2). The provision has the purpose of protecting the worker from undue influence or ignorance of the consequences of opting for redemption. If the advice may be received by the worker after he has signified agreement there would be no “hurdle”.
It is to be noted that the Attorney-General referred to safeguards and protection to the worker on numerous occasions in the above extract. It is apparent that it was Parliament’s intention that section 42(2) would protect the worker by requiring the advice to be given prior to the worker signifying his agreement for redemption.
Statutes that contain provisions to protect parties in a weak bargaining position have been the subject of observations by the High Court. The joint judgment of Mason CJ, Gaudron and McHugh JJ in Caltex Oil v Best recognised the importance of rejecting any interpretation that would allow the statutory protections to be circumvented:[12]
... In the case of a statute, the object of which is to protect the interests of a class of persons who are at a disadvantage in negotiating a contract on fair terms with a class of corporations having superior bargaining power, the courts must reject an interpretation which would allow the statutory purpose to be circumvented. This is particularly so when the attempted circumvention takes the form of the adoption of a provision in the contract which would enable the party possessing superior bargaining power, by its unilateral action, to alter the parties' rights and obligations under the contract in such a way as to deprive the contract of the statutory protection.
[Emphasis added.]
[12] Caltex Oil v Best (1990) 170 CLR 516, 525.
Before coming to discuss the issues for resolution, it is relevant to note that section 42 of the Workers Rehabilitation and Compensation Act is concerned with statutory redemption agreements. The Act provides a statutory basis for agreements between worker and WorkCover, but such agreements do not rest on contractual terms construed by reference to the law of contract. The agreements are to be understood entirely by reference to the terms of the legislation.
Competent Professional and Financial Advice
WorkCover submitted that competent professional advice on the consequences of redemption entailed an explanation of the effect or result of receiving a lump sum payment in exchange for the loss of weekly payments. This was said to include the taxation implications of the worker receiving a lump sum payment and the impact that receiving a lump sum payment may have on the worker’s entitlement to receive social security benefits. It was contended that although this advice may cast light on the merits or the “advisability” of entering into the redemption agreement, the legislation did not require that the worker receive advice on whether it was in his or her best interests to enter into the redemption agreement. It was further argued that competent financial advice need only address the use of the funds received under the redemption agreement, not whether the agreement represented a better or worse financial outcome for the worker compared to if they continued to receive regular payments.
Counsel for Mr Mericka submitted that competent professional advice necessarily includes an evaluation of the consequences of redemption in light of the financial advice received and must go beyond a mere explanation of how the redemption process works. The advice must address the worker’s individual circumstances and assess whether entering the redemption agreement was in the worker’s best interests. It was contended that competent financial advice must include a calculation of the lump sum required to generate an income equivalent to the weekly payments that would be foregone under the redemption agreement.
The New Shorter Oxford English Dictionary defines “advice” to mean:
1      The way in which a matter is looked at; opinion, judgement.
2      Forethought, wisdom.
3      Consideration, consultation, reckoning.
4      An opinion given or offered as to action; counsel.
...
[Emphasis added.]
It is evident that the natural meaning of “advice” imports an evaluative quality. Advice is not merely descriptive or explanatory.
In Palios Meegan & Nicholson Holdings Pty Ltd v Shore,[13] a case concerning the provision of legal advice in respect of a redemption agreement under section 42 of the Workers Compensation and Rehabilitation Act, I reviewed the authorities on the provision of professional advice and said:[14]
[13] Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31.
[14] Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31, [41], [43]-[44].
The standard of care is to reflect both the solicitor’s professed expertise and the client’s state of knowledge, dependence and vulnerability; that is, relevant to the scope of the solicitor’s duty, is the extent to which the client appears to need advice. In deciding what is required of a solicitor in a given case, the court may be influenced by the circumstance that generally it is the solicitor and not the client who has the better opportunity to assess the gravity of the risk involved in a particular case or in a particular transaction, and that it is the solicitor and not the client who has the necessary expertise to analyse and guard against that risk.
...
[The Worker] was in a position of some vulnerability [at the time of redemption]... In these circumstances, the standard of care required by the [solicitors] should not be narrowly viewed or circumscribed. The [solicitors] were required to assess what was in Ms Shore’s best interests and arm her with the relevant information. As noted by Fitzgerald JA in Studer v Boettcher:
Broadly, and not exhaustively, a legal practitioner should assist a client to make an informed and free choice between compromise and litigation, and, for that purpose, to assess what is in his or her own best interests. The respective advantages and disadvantages of the courses which are open should be explained. The lawyer is entitled, and if requested by the client obliged, to give his or her opinion and to explain the basis of that opinion in terms which the client can understand. The lawyer is also entitled to seek to persuade, but not to coerce, the client to accept and act on that opinion in the client's interests. The advice given and any attempted persuasion undertaken by the lawyer must be devoid of self-interest. Further, when the client alone must bear the consequences, he or she is entitled to make the final decision.
The scope of the duty owed by the [solicitors] is to be addressed having regard to the terms of the legislative scheme. The scheme is designed to provide benefits to the injured worker with an emphasis on, and encouragement towards, rehabilitation. It provides through redemption the ability for a claim to be finalised for a lump sum and for the worker to return to the workforce. The legislation mandates that professional and financial advice must be given to a worker before an agreement to redeem can be effected. The terms of section 42 of the Workers Rehabilitation and Compensation Act as later excerpted are of particular relevance as they stipulate the nature of the advices that must be provided before an agreement to redeem can be made. The section informs the scope of the duty. The professional advice must be competent and must address the consequences of redemption. The financial advice must be competent and must address the use of money to be received on redemption.
[Footnotes omitted. Emphasis added.]
It is to be noted that Nyland J expressly agreed with my reasons in that case.[15] This is persuasive and binding authority and there was no submission that the decision was plainly wrong. The extracted passage expressly holds that a solicitor’s duty to provide competent advice under section 42 of the Workers Rehabilitation and Compensation Act is informed by the scope of advice required under the legislation. It further holds that, to discharge that duty, a solicitor must provide advice on what course of action is in his or her client’s best interests. Advice which constitutes a breach of a solicitor’s professional obligations is, by definition, not “competent advice” within the meaning of section.
[15] Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31, [1].
Requiring an adviser to advise the worker on the merits of redemption does not elevate his or her role to that of decision-maker rather than advisor.[16] The worker remains in a position to determine what is in his or her best interests and to accept or reject the advice. The requirement that the worker receive advice on the merits merely ensures that the worker makes his or her decision with the benefit of a competent, professional assessment of what is in his or her best interests, having regard to the information and instructions they have provided to their advisor. An advisor who properly understands the client’s needs and rationale for proposing to enter a redemption agreement will be perfectly capable of offering advice on whether entering the redemption agreement will meet those needs.
[16] Cf. Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31, [159]-[160] (Vanstone J).
This interpretation is entirely consistent with the view that section 42 creates a deregulated system that was designed to “[leave] it for the parties themselves to decide what is fair, with the caveat that the worker must receive competent professional and financial advice...”.[17] This increased flexibility may well be advantageous to all parties, but a consequence of a more flexible system is that there are fewer safeguards for workers. The requirement for competent professional advice is designed, as discussed above, to mitigate the risk that workers will be worse off due to the loss of those safeguards. If the worker does not receive advice on the merits of the redemption agreement, then they are left to synthesise and evaluate for themselves the various professional, financial and medical advices they receive concerning what is often a complex and extremely important decision. This eventuality does not accord with Parliament’s intention or the ordinary meaning of the word “advice”.
[17] Tsimpinos v WorkCover/Allianz (K and A Transport Pty Ltd) [2001] SAWCT 138, [31].
In the present case, on the trial Judge’s findings, Mr Mericka did not receive competent advice on the consequences of redemption within the meaning of the legislation prior to entering into the redemption agreement.
The language of section 42(2)(a) of the Workers Rehabilitation and Compensation Act may be contrasted with that of section 42(2)(b). In advising on the “investment or use of money to be received on redemption”, the financial advisor could be expected to evaluate or assess different investment strategies and make recommendations on the best use of the funds having regard to the worker’s individual circumstances – the evaluative exercise required by the word “advice”. As the earlier extracted passage from my judgment in Palios Meegan & Nicholson Holdings Pty Ltd v Shore[18] demonstrates, the advice need not go beyond that. The text of section 42(2)(b) does not support the conclusion that the financial advice must evaluate whether the worker would be financially better off continuing to receive regular payments, though that may be useful advice to give. The Full Bench erred in implying such a requirement in Tsimpinos v WorkCover/Allianz (K and A Transport Pty Ltd).[19]An analysis of the implications of redemption, including whether the worker would be better or worse off by entering the redemption agreement, is to be addressed by the professional advice received under section 42(2)(a), by virtue of the broader connotation of the word “consequences”, as discussed above.
[18] Palios Meegan & Nicholson Holdings Pty Ltd v Shore (2010) 108 SASR 31, [44] as extracted above.
[19] Tsimpinos v WorkCover/Allianz (K and A Transport Pty Ltd) [2001] SAWCT 138, [32].
Cannot be Made Unless
The phrase “cannot be made unless” was considered by Spigelman CJ in Chase Oyster Bar v Hamo Industries Pty Ltd.[20] The Chief Justice reasoned:[21]
The first textual indicator that is always of significance is the mode of expression of the element directly in issue. Substantial, indeed often, but not always, determinative, weight must be given to language which is in mandatory form. See for example:
David Grant (especially at 276–277), where the formulation was “may only”.
Corporation of the City of Enfield at [6], [28] and [32]–[33], where the formulation was “must not be granted”.
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at [68], [136], [173] and [206], where the language “must give” was described as “imperative”.
The element under consideration in the present case — “cannot be made unless” — has a similar mandatory import. To adapt the words of Gummow J in David Grant (at 277): “it is impossible to identify the function or utility of the words ... ‘cannot be made’ ... if (they do) not mean what (they) say.”
The second aspect which must be taken into account, in addition to the text, is the structure of the legislative scheme. This is the context which must be taken into account in the first instance, not only after some ambiguity is identified in the directly operative words (see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408). There are two particularly relevant considerations for present purposes. First, the point of time in the decision-making process at which the element under consideration occurs. Secondly, the treatment of time limits in the scheme as a whole.
[20] Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393.
[21] Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393, [40].
In Barker v Mid-Style Nominees Pty Ltd, the Western Australian Court of Appeal considered a provision in a statute for the sale of land which provided that a person could not sell land “unless” certain conditions were satisfied.[22] The Court adopted an interpretation of the word “unless” which was consistent with Parliament’s intention to protect vulnerable purchasers:[23]
... The prohibition in s 13(1) applies unless one of the conditions in par (a) - par (e) of s 13(1) is satisfied when the contract is made. A would-be vendor must not, relevantly, confer a right to purchase or agree to sell unless one of the conditions is satisfied.
Parliament chose this form of prohibition in preference to less stringent regulation; for example, a requirement that one of the conditions be satisfied within a specified period after the formation of the contract; or that the would-be vendor believe on reasonable grounds when the contract is made that it will be able to transfer title to the would-be purchaser in accordance with the contract on the due date for settlement; or that the vendor give information to the purchaser about the state or condition of the title to the land before the contract is formed; or that the purchaser have a right to avoid or rescind the contract on specified terms; or that the deposit and all other moneys payable by the purchaser under the contract before settlement be held by an independent stakeholder in a trust account.
Parliament decided to forbid the conduct which created the mischief. In particular, Parliament decided to forbid a would-be vendor, who is engaged in a relatively large subdivision project, from conferring a right to purchase or agreeing to sell unless one of the conditions is satisfied.
...
... Even if one of the conditions in par (a) - par (e) of s 13(1) is satisfied after a would-be vendor makes a contract with a would-be purchaser for the sale of a lot in contravention of s 13(1), the purchaser will still have been exposed to the risk and associated uncertainty stemming from the vendor's pursuit of a form of business model which Parliament intended to eradicate.
The purpose of the Act (which, as I have mentioned, includes regulating the business operations of land developers who are carrying out relatively large subdivision projects) would not be advanced if a land developer could enforce contracts made in contravention of s 13(1) if one of the conditions is satisfied after the making of the contracts. Indeed, if s 13 were to operate in the manner envisaged by the trial judge, a land developer who was speculating in a proposed subdivision of lots may be encouraged to pursue the very mischief which the Parliament, in enacting s 13, was seeking to prevent.
[22] Barker v Mid-Style Nominees Pty Ltd [2014] WASCA 75.
[23] Barker v Mid-Style Nominees Pty Ltd [2014] WASCA 75, [70]-[72], [113]-[114]; cf Jol v State of NSW (1998) 45 NSWLR 283.
Counsel for Mr Mericka submitted that the words employed by the legislature were to be construed according to their ordinary meaning. Counsel then contended that the word “unless” was to be understood by reading the relevant legislative provisions in context. As the submission developed, counsel emphasised that section 42 recognised the inequality of bargaining power between the worker and WorkCover. It was then argued that the legislative scheme requires that the advices referred to in sections 42(2)(a) and (b) had to be provided to the worker before he signified his agreement to a proposed redemption. It was said that this was the means by which the Parliament protected the weak and vulnerable. Counsel drew in particular on the analysis of Spigelman CJ as extracted and discussed above in Chase Oyster Bar v Hamo Industries Pty Ltd.[24]Attention was also drawn to the reasoning of the Western Australian Court of Appeal in Barker v Mid-style Nominees Pty Ltd,[25] again as extracted and discussed above. In the above circumstances, it was submitted that the advice to the worker must precede any signification by the worker of an agreement to a redemption.
[24] Chase Oyster Bar v Hamo Industries Pty Ltd (2010) 78 NSWLR 393.
[25] Barker v Mid-Style Nominees Pty Ltd [2014] WASCA 75.

WorkCover submitted that section 42(2) of the Workers Compensation and Rehabilitation Act made it plain that an agreement cannot be made, unless the matters in paragraphs (a) to (e) occurred. It was asserted that the word “unless” simply meant “except if” and carried no temporal connotation. It was argued that the agreement was not made until WorkCover authorised the execution of the redemption agreements, and that this did not occur until after 9 May 1997, by which time all relevant advices had been given.
The difficulty that this submission faces is that a constrained meaning is given to the word “unless”, and a meaning that is inconsistent with legislation that is designed to protect a person in an unequal bargaining position. A further difficulty is that the submission pays no regard to the earlier referred to authorities and, in particular, the close analysis undertaken by Spigelman CJ. The purpose of the legislative procedure is to ensure that the worker receives the required advices before he commits himself to an agreement by signifying his assent to the terms of the agreement.
In the course of oral submissions, counsel for WorkCover suggested that Mr Mericka had received competent professional advice before the agreement was signed on behalf of WorkCover and that, in these circumstances, by the time the agreement was binding, Mr Mericka had received all required advices. The difficulty with this contention is that it overlooks entirely the consequences of the mindset that may have developed as a result of the earlier dealings between WorkCover and Mr Mericka and his signing the agreement before receiving advice. This is particularly significant in the present case in light of the trial Judge’s findings concerning Mr Mericka’s mental state at the time of signing the redemption agreements. There are prejudices inherent in these circumstances that weaken the protection contemplated for and provided by the legislation. Without that level of protection, there is a risk that the advice effectively becomes a “rubber stamp” for the worker’s decision. Once a worker has made a decision to enter into the agreement, they would be expected to perceive and assess the advice they subsequently receive in a different way to that which they would have perceived it had they received it before their decision was made.
The construction proffered by WorkCover also creates practical difficulties. At what point does the agreement become binding following receipt of the advices? Would the worker have to re-signify their agreement or would it be automatic? Could the worker seek to renegotiate the agreement? How would the worker withdraw from the agreement if, upon receiving the advices, they reconsider their position? These difficulties further complicate the worker’s mindset, as earlier discussed, and the legislation contains no provisions to resolve them.
Since drafting my reasons, I have had the benefit of reviewing the draft reasons of Peek J. I agree with his Honour’s additional analysis on the significance of the worker’s mindset.
In my view, Mr Mericka’s contentions as to construction should be accepted.
Conclusion
I would allow the appeal. I would hear the parties as to the consequential orders to be made.
PEEK J: Appeal against judgment of the Full Bench of the South Australian Workers Compensation Tribunal.I gratefully adopt the recitation of the history of this matter by Kourakis CJ. For the sake of simplification, I will refer to the appellant as the worker[26] and to the respondent as WorkCover.
[26] Since the appellant worker is male, I will also use the male gender when referring to a hypothetical worker rather than to the appellant himself.
Introduction
At first instance in the Workers Compensation Tribunal, Olsson AuJ found that the preconditions to validity of the redemption agreement were not satisfied in that the advice rendered to the worker in purported satisfaction of ss 42(2)(a) and (b) of the Workers Rehabilitation and Compensation Act 1986 (the Act) was not of the extent and standard that was required on a correct construction of those sub-sections. Having so found, his Honour abstained from finally adjudicating on the alternative claim of the worker that the redemption agreement should be set aside on account of conduct by WorkCover or its agents amounting to undue influence, fraud, duress, misleading and deceptive conduct or unconscionable conduct which the Full Bench of the Workers Compensation Tribunal (the Full Tribunal) described as “the residual claims”.
On appeal by WorkCover,[27] the Full Tribunal found that Olsson AuJ had erred as a matter of law in his construction of s 42(2) of the Act as to the extent and standard of prescribed advice that was required; the Full Tribunal accordingly set aside Olsson AuJ’s finding of invalidity of the redemption agreement. Their Honours further decided that, as a matter of jurisdiction, they could not deal with the residual claims on the appeal and remitted them for consideration by a Deputy President of the Tribunal other than Olsson AuJ.[28]
[27] WorkCover Corporation/Employers Mutual Ltd (Pollard Brothers Pty Ltd) v Mericka [2012] SAWCT 42.
[28] See WorkCover Corporation/Employers Mutual Ltd (Pollard Brothers Pty Ltd) v Mericka [2013] SAWCT 20.
The worker now appeals to this Court against the decision and orders of the Full Tribunal concerning each of two important issues concerning the correct construction of s 42(2) of the Act. The first issue may be referred to as the “required content of prescribed advice” issue and the second issue may be referred to as the “timing of prescribed advice” issue. I have had the benefit of reading in draft the judgments of Kourakis CJ and Gray J, who, unfortunately, have each come to different conclusions as to each of those issues.
The “required content of prescribed advice” issue
Section 42(2) of the Act relevantly provides:
(2)An agreement for the redemption of a liability under this section cannot be made unless—
(a) the worker has received competent professional advice about the consequences of redemption; and
(b) the worker has received competent financial advice about the investment or use of money to be received on redemption; and
I will refer to the individual sets of advice required by ss 42(2)(a) and (b) respectively as a “set of advice” and to the combination of both of those sets of advice as “the prescribed advice”.
The required content of the prescribed advice is a matter squarely within the area of expertise and experience of a specialist Tribunal. Both the joint judgment of McCusker DPJ and Hannon DPJ and the judgment of McCouaig DP/AuJ deal with the matter extensively and passages from those judgments are reproduced by Kourakis CJ with approval.
Both the previous authority of the Tribunal and the present reasons of the Full Tribunal, together with those of Kourakis CJ, demonstrate that the requirements of s 42(2) should not be interpreted in the expansive ways adopted by Olsson AuJ. I agree with the reasons of Kourakis CJ for rejecting this first aspect of the worker’s appeal and I have nothing to add.
The “timing of prescribed advice” issue
It is important to appreciate that the legislative prohibition enacted by s 42(2) is a broad and stringent one. In providing that a redemption agreement “cannot be made”, the Act declares that any purported redemption agreement, even though it purports to have been executed by all necessary parties,[29] will be void and of no effect if in fact one (or both) of the required sets of advice had not been provided to the worker prior to the purported final execution of the document by WorkCover.
[29] I proceed on the basis that the supply of the written document signed by a worker to WorkCover will constitute the offer and that a redemption agreement will come into force upon the acceptance by signing of the document by WorkCover.
Circumstances will vary greatly
The circumstances under which a worker may append his signature to a redemption agreement document without having received all of the prescribed advice may vary greatly. At one end of the spectrum, it is not difficult to envisage a situation in which a worker could quite innocently be attempting to “fill in the paperwork” and inadvertently sign the documents before having received the prescribed advice as required by the Act.
At the other end of the spectrum, it is unfortunately not possible to rule out serious misconduct by an employee of WorkCover as entirely unlikely. Olsson AuJ found that on 8 May 1997 Ms Mitchell, an employee of WorkCover’s claims agent, had inveigled the worker to attend at her office where he appended his signature to the redemption agreement document without a lawyer being present and without him having previously received the advice required by s 42(2)(a) of the Act. She then sent that signed document to the appellant’s lawyer and on 9 May 1997 the worker was given advice by his lawyer which was said to be the prescribed advice.[30] Thus his Honour stated:[31]
[30] Whether that advice did constitute the prescribed advice depends largely on the “required content of prescribed advice” issue discussed above.
[31] Mericka v Employers Mutual Ltd/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25.
[309]I accept his [the worker’s] evidence that he was shaking profusely and started to ease out from the chair to leave, saying that he needed to take his painkillers. She [Ms Mitchell] made some joke about having a drink of Johnnie Walker whisky from a bottle in her room and that this might help.
[310]The [worker] contends that, during the conversation, Ms Mitchell had some documents on the table and said that she just required a few signatures from him.
[311]It is his case that, at the time, he was in intense pain, shaking uncontrollably, and extremely anxious. He had not taken his afternoon painkillers. I accept his evidence in that regard.
…
[355]I entertain no doubt that Ms Mitchell brought pressure to bear on the [worker] to sign the agreements and to finalise the redemption process. I accept the general thrust of the [worker] version of what was said to him by Ms Mitchell on 8 May 1997 and the physical interaction said to have taken place between the two of them, including the arrangement by her of documentation on her desk for signature.
[356]I unhesitatingly conclude that she well appreciated that, at the time, he had not received competent professional advice. She certainly did not tell him that he ought to seek legal advice prior to signing any redemption documentation.
See also the judgment of the Full Court of the Supreme Court in Thompson v Duffin[32] which confirms the need to closely control the activities of WorkCover.
[32] See Thompson v Duffin (2009) SASR 181 (Bleby, Gray and Layton JJ).
The critical question
The following critical question arises: will a purported redemption agreement signed by the worker before the provision of all of the prescribed advice necessarily be void if, prior to final execution by WorkCover, the omitted prescribed advice is later supplied to the worker?
WorkCover’s “prior to final execution” submission
In essence, the response by WorkCover to the above critical question is that although the prescribed advice had not been supplied prior to the worker appending his signature to the document, the position may be rectified simply by supplying the worker with the prescribed advice at any time prior to final execution of the agreement by WorkCover.
The worker’s “strictly sequential” submission
The response by the worker to the above critical question is that the whole rationale for requiring the prescribed advice to be given to the worker prior to execution of a redemption agreement is to enable the worker to consider fully his decision of whether or not to redeem in the light of, and with the advantage of, that prescribed advice; therefore, as a matter of construction of the Act, an agreement to redeem will per se be void or invalid if the signature of a worker is appended to the document recording it before he has been given all of the prescribed advice.
Consideration
In my view, the answer to the critical question must be much more nuanced than that advocated for by either side.
Whenever a worker appends his signature to a redemption agreement without having previously received the prescribed advice – and particularly in a highly unorthodox situation where the worker is persuaded to do so by an agent of WorkCover – the later supply of the prescribed advice may not be sufficient by itself. A real question may remain as to whether the worker has, even after subsequently receiving the prescribed advice, fully considered his position in the light of that prescribed advice and with a full realisation that he has the option of not proceeding despite having previously signed the agreement.
I consider that Gray J is correct in emphasising that the act of initially signing the document (prior to the receipt of the prescribed advice) may produce a certain mindset in the worker who, having then made a decision to enter into the agreement, may perceive and assess prescribed advice subsequently received differently to the way in which he would have perceived and assessed it had it been received prior to the initial signing.
To express the same concern in my own words, I consider that there is a real risk that lay persons may receive, and perceive, legal advice being given to them very much through the lens of the deeply ingrained views or assumptions that they already hold. If a person is strongly of the view that, if he gives his word on a serious matter, he must keep it, his further belief that once he signs a legal agreement the point of backing out is past, and he is bound to honour it, may be very intractable indeed.
If such a worker has appended his signature before receiving all of the prescribed advice, his belief that he is bound to the agreement may be a strong one. The idea that, despite having signed such a formal legal agreement, he is free to ignore it if he chooses, may be highly counter intuitive to the basic assumptions upon which he has always conducted his affairs.
Of course, if the worker’s solicitor later gives the worker the prescribed advice, the solicitor may assume, even positively believe, that the worker will appreciate that he now has a fresh opportunity to assess his position in the light of this new advice. But the solicitor may be quite mistaken in that assumption or belief. The worker may not correctly understand the situation at all; starting from his initial assumption that he is bound to proceed with the application, he may interpret what is now being said by the solicitor as merely information as to what will now happen pursuant to the redemption agreement which is on foot.
It can readily be appreciated that very careful advice by the solicitor is needed to be sure that such a worker does indeed understand the true position in such circumstances.
I consider that if a worker appends his signature to a document recording a redemption agreement before he has been given the prescribed advice, a valid agreement to redeem can arise on the basis of that document only if the following conditions are met. First, the worker must be given the prescribed advice, at which time the worker must be aware, or must be made aware, that he is in no way obligated to proceed with the application for redemption by reason of the fact that he had previously signed the document prior to receiving the advice. Second, after receiving the prescribed advice, the worker must positively decide whether or not he wishes to proceed with the application for redemption; if he wishes to proceed, he must positively manifest that choice by some further action beyond the previous signing of the document.
Section 42(2) of the Act clearly requires that the worker must have the chance to decide whether he wishes to proceed with a written redemption agreement after he has received the whole of the prescribed advice; this remains the position even if he had earlier purported to accept redemption prior to receiving all such advice. If a worker, having received the prescribed advice, decides that he does wish to proceed with an application for redemption, he must positively manifest his concurrence with the application for redemption proceeding by some further action beyond the previous signing of the document. I respectfully agree with the statement of the Chief Justice at paragraph [18] herein:
Therefore, by necessary implication, a valid agreement is not made pursuant to s 42 of the Act unless, and until, a worker gives his or her concurrence to a redemption for a specified capital amount after he or she has received the prescribed advice.
Re-signing the document as a manifestation of concurrence
One practical way by which a worker may manifest such concurrence is to “re-sign” the document a second time after he has received the prescribed advice and thus overtly acknowledge that: he understands that he is in no way obligated to proceed by reason of the fact that he had previously signed the document prior to receiving the advice; and that he has since received, considered and understood the prescribed advice; and that he now does wish to proceed with the agreement to redeem.
It would be best in such a situation for the second confirmatory signature to be accompanied with a short notation something along the following lines:
I previously signed this document before receiving the prescribed advice required to be given to me under s 42(2) of the Workers Rehabilitation and Compensation Act 1986. I understand that my previous signing does not require me to proceed with redemption if I do not want to. However, I now confirm that I have since received, considered and understood the prescribed advice and that I now do wish to proceed with this redemption agreement. I so indicate by signing this document for a second time [signed; dated and timed].
Other possible manifestations of concurrence
No such re-signing process occurred in the present case. However, the respondent submits that on 9 May 1997, the worker’s solicitor gave the worker the required professional advice under s 42(2)(a) and then on 12 May 1997 sent the necessary documents to WorkCover for its signature and the final execution process to be carried out. The respondent submits that this action on 12 May 1997 is to be taken to have been done on instructions from the worker and therefore per se constitutes the required manifestation of concurrence by the worker.
I have some difficulty with a submission put in that bare form. The required manifestation of concurrence required is not just an objective act from which such concurrence might be inferred but rather a clear manifestation of a state of affairs which includes knowledge by the worker that he is not bound by his previous signature and that he has made a fresh choice in the light of receiving the prescribed advice.
If on 9 May 1997 the worker laboured under the view that he was bound by his signature given to Ms Mitchell the previous day (and that the subsequent giving of the prescribed advice simply informed him of some of the consequences of that signing), his acquiescence in his solicitor sending off the documents three days later would take the matter no further. That act by the solicitor could only manifest the worker’s concurrence in the redemption proceeding if it can be clearly shown that the worker then fully realised that he was free not to proceed and, having now received the prescribed advice, positively decided to proceed with the redemption.
Conclusion as to the “timing of prescribed advice” issue
In summary, I consider that the following propositions are correct.
First, the Act declares that any purported redemption agreement, even though it purports to have been executed by all necessary parties,[33] will be void and of no effect if one (or both) of the required sets of advice had not been provided to the worker prior to the purported final execution of the document by WorkCover.
[33] I proceed on the basis that the supply of the written document signed by a worker to WorkCover will constitute the offer and that a redemption agreement will come into force upon the acceptance by signing of the documents, and execution by WorkCover.

Second, the necessary intendment is that the worker is to have the benefit of the prescribed advice prior to making a decision to redeem. Accordingly, the prescribed advice should be provided before the worker signifies assent to redemption by placing his signature on a redemption agreement.
Third, if the prescribed advice is not provided before the worker places his signature on a redemption agreement, but is provided prior to final execution of the agreement by WorkCover, the redemption agreement may be valid but only if it is established that subsequent to receiving the prescribed advice:
·the worker was aware that he was not bound by his previous signing to proceed with redemption, and
·concurred with the redemption proceeding, and
·manifested that concurrence by some action over and above the previous signing.
This third proposition is, of course, stated in a way disengaged from any consideration of onus and quantum of proof (which I do not address) and its resolution is entirely dependent on any relevant evidence that might be led. Such evidentiary matters are simply not before this Court, but it is possible that they may be ventilated at the hearing of “the residual matters” before a different Deputy President ordered by the Full Tribunal, as referred to above.
As only one possible scenario that might arise at such a hearing, if the evidence of the solicitor who gave the prescribed advice to the worker on 9 May 1997 is that it was clearly apparent from their conversation at that time: that the worker then knew that he was not bound to proceed with redemption by reason of the signature he had given at the behest of Ms Mitchell the previous day; and that, having heard and considered the prescribed advice, he did positively wish to proceed with redemption; and that it was on this basis that the solicitor later sent the documents to WorkCover, then, in absence of other contrary evidence being preferred, validity of the redemption agreement (at least in the context of the matters here being discussed) would appear likely.
Disposition of the appeal
It is interesting to note that Olsson AuJ only made what might fairly be described as a fleeting reference to the sequential order issue. His Honour stated:[34]
…
[715]It is stating the obvious to say that the section necessarily contemplated that all of the requirements referred to in subsection (2) of s 42 be satisfied prior to final committal by a worker to any relevant binding redemption agreement.
The plain intendment of the statute was that, whilst parties were free to enter into any arrangement mutually acceptable to them, this was only permissible if the worker made a decision to do so on an adequately informed basis that such person apparently comprehended at the time.
[34] Mericka v Employers Mutual/WorkCover Corporation (Pollard Brothers Pty Ltd) [2011] SAWCT 25.
This is in no way a statement unequivocally in favour of the “strictly sequential” requirement for which the worker now contends. As I discern it, the Full Tribunal did not find that Olsson AuJ had erred as a matter of law in relation to the sequential order issue, and probably for the reason that the only statement relevant to this aspect in his Honour’s judgment (reproduced above) does not appear to reveal error. However, the majority judgment of the Full Tribunal did positively reject a submission by the worker, made by way of an alternative contention, that all prescribed advice had to have been received prior to the signature being placed on the document by the worker.[35]
[35] McCusker DPJ and Hannon DPJ at [112] to [115]. As I understand it, McCouaig DP/AuJ took the view that this alternative contention was not validly before the Full Tribunal.
In any event, the Full Tribunal allowed WorkCover’s appeal on the basis that Olsson AuJ had made errors of law as to the required content of the prescribed advice that was required to be given.
As stated above, I have rejected the worker’s “required content of prescribed advice” submission. I also reject the worker’s “timing of prescribed advice” submission in the absolute form that would be required to make out an error of law below.
Accordingly, I would dismiss the appeal