Rinker Group Ltd v WorkCover Corporation - [2006] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
RINKER GROUP LTD v WORKCOVER CORPORATION
[2006] SASC 193
Judgment of The Honourable Justice White
28 June 2006
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
WORKERS' COMPENSATION - INSURANCE AND LEVIES - EXEMPT EMPLOYERS
Application for judicial review and declarations - respondent refused renewal of registration as a group of exempt employers - alteration in the composition of the group since previous registration - whether a registration of one group can be renewed in respect of a differently constituted group - whether respondent has power to vary the composition of a registered group during the currency of the registration.
Held: the registration which can be renewed is the existing registration - if registration is sought for a differently constituted group, a new registration must be obtained - no power in the respondent to vary the constitution of the group registered - application dismissed.
Workers Rehabilitation and Compensation Act 1986 (SA), s 59, s 60, s 63, s 65, s 66; WorkCover Corporation Act 1994 (SA), s 4, s 13, s 14; Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999 (SA), Reg 9; Companies (South Australia) Code s 7; Corporation (South Australia) Act 1990 (SA); Corporations Act 2001 (Cth), s 50, referred to.
Nguyen v Minister for Health & Ageing [2002] FCA 1241, (2002) ALD 529, distinguished.
Truenergy Australia Pty Ltd v Minister for Industrial Relations [2005] SASR 393; Perre Brothers v Citrus Organisation Committee (1975) 10 SASR 555; Re Minister for Immigration & Multicultural & Indigenous Affairs: ex parte Lam [2003] HCA 6, (2003) 214 CLR 1; Annetts v McCann (1990) 170 CLR 596; H, R J v Police [2005] SASC 347; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, considered.

RINKER GROUP LTD v WORKCOVER CORPORATION
[2006] SASC 193

WHITE J: This is an application for judicial review and for declarations.
On 22 June 2006 the Board of the respondent (“the Corporation”) refused an application by the plaintiff for renewal of the registration of itself and other employers as a group of exempt employers under s 60 of the Workers Rehabilitation and Compensation Act 1986 (“WRCA”) because “the renewal application is for a group that is different to the existing self insurance registration”. The plaintiff seeks judicial review of that decision and declarations as to the validity of its application for renewal.
The proceedings raise the question of whether the registration of a group of employers as a group of exempt employers can be renewed pursuant to s 60(4)(d) of the WRCA if the composition of the group has changed since the initial registration.
As the current registration of the group expires on 30 June 2006, the court was asked to hear and determine the proceedings as a matter of urgency.
The Parties
The plaintiff is Rinker Group Ltd. It is a publicly listed company with a number of wholly owned subsidiaries employing workers in this State. On 10 April 2003, the demerger of CSR Limited occurred, with the effect, in general terms, that certain businesses previously conducted by CSR Limited and its subsidiaries were transferred to the plaintiff and its subsidiaries. The precise way in which this occurred has not been made clear in the evidence but it is probably immaterial for present purposes. It appears to be common ground that since 10 April 2003 the plaintiff and its subsidiaries have conducted businesses previously conducted by CSR Limited.
I am satisfied that in 2003 the plaintiff and corporations related to it were registered as a group of exempt employers for a period of three years under s 60 of the WRCA, and that the plaintiff was the nominated employer of that group pursuant to s 60(7) of the WRCA.
The defendant is the WorkCover Corporation of South Australia. It is a statutory corporation continued in existence by the WorkCover Corporation Act 1994 (s 4(1)). One of its functions is to administer the WRCA.
The Legislation
By s 59 of the WRCA, an employer in this State is not to employ a worker in employment to which the WRCA applies unless the employer is registered by the Corporation. The plaintiff and its subsidiaries employ workers in employment to which the WRCA applies and hence were, and are, bound by s 59(1) to register as employers.
By s 60 of the WRCA, an individual employer or a group of employers may apply to the Corporation for registration as an exempt employer or as a group of exempt employers. The effect of registration as an exempt employer or as a group of exempt employers is that, other than a liability to pay a special levy, the employer (or employers) do not have to pay the general levy which is to be paid by employers in the industry in which they operate (s 65, s 66) and may exercise a number of powers and discretions with respect to claims for compensation under the WRCA which would otherwise be exercised by the Corporation (s 63).
The present proceedings concern registration as a group of exempt employers. The issues which arise are to be determined principally by reference to s 60 of the WRCA which provides as follows:
60 — Exempt employers
(1)Subject to this section, an employer or a group of employers may apply to the Corporation for registration as an exempt employer or as a group of exempt employers.
(2)     An application shall not be made under subsection (1) unless—
(a)     in the case of an application by an individual employer—
(i)the employer is a body corporate employing more than the prescribed number of workers; or
(ii)    the employer is an indemnified maritime employer;
(b)     in the case of an application by a group—
(i)the members of the group are related corporations or local government corporations; and
(ii)the members of the group employ in aggregate more than the prescribed number of workers.
(3)     Where—
(a)     an application is made under subsection (1); and
(b)     the Corporation is satisfied—
(i)that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered; and
(ii)    that in all the circumstances it is appropriate to do so,
the Corporation may register the employer or the group as an exempt employer or a group of exempt employers.
(4)A registration under this section—
(a)     is subject to—
(i)a condition that the exempt employer must not exercise any power or discretion delegated to the exempt employer under this Act unreasonably; and
(ii)such other terms and conditions as the Corporation determines from time to time or as are prescribed by the regulations; and
(b)     where the exemption was granted on the ground that the employer is an indemnified maritime employer—is subject to a condition limiting the effect of the exemption to the workers, or a specified class of the workers, to whom the relevant indemnity relates; and
(c)     takes effect on a date fixed by the Corporation; and
(d)     subject to this section—
(i)has effect for an initial period (not exceeding three years) determined by the Corporation; and
(ii)may, on further application to the Corporation, be renewed from time to time for a further period (not exceeding three years) determined by the Corporation at the time of the renewal.
(5)The Corporation may revoke the registration of an exempt employer, or reduce the period of registration if the employer breaches or fails to comply with this Act or a term or condition of registration.
(6)In deciding whether to grant, renew, revoke, or reduce the period of registration as an exempt employer or group of employers under this section the Corporation may have regard to such matters as it considers relevant and will have regard to the following:
(a)     whether the employer or group is, and is likely to continue to be, able to meet its liabilities;
(b)     the resources that the employer or group has for the purpose of administering claims for compensation;
(c)     the incidence and severity of compensable disabilities arising from employment by the employer or employers;
(d)     the effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers;
(e)     the record of the employer or employers in relation to the rehabilitation of disabled workers;
(f)    the record of the employer or employers in providing suitable employment to workers who suffer compensable disabilities;
(g)     the views of any industrial association that has, in the opinion of the Corporation, a proper interest in the matter,
but once an employer or group has been registered as exempt, the Corporation must not, in deciding whether to renew the registration, consider the effect of the registration on the Compensation Fund.
(7)Where employers are registered as a group of exempt employers, one of those employers nominated in the application for registration shall, for the purposes of this Act, be treated as the employer of all workers employed by the various members of the group.
(8)Notwithstanding subsection (7), the members of the group are jointly and severally liable to satisfy the liabilities under this Act of the member referred to in subsection (7).
(9)In this section—
indemnified maritime employer means an employer that has the benefit of an indemnity granted by a member of the International Group of Protection and Indemnity Associations;
related corporations means corporations that are related corporations for the purposes of the Companies (South Australia) Code.
It can be seen that s 60 contemplates that either a single employer, or a group of employers, may be registered as exempt. A “group”, as that expression is used in s 60(1), contemplates a number (more than one) of employers.
An application for registration as a group of exempt employers is not to be made unless the members of the group are (relevantly) related corporations and employ in aggregate more than the prescribed number of workers (s 60(2)(b)). The prescribed number of workers is 200.[1] Section 60(9) provides that corporations are related if they are related corporations for the purposes of the Companies (South Australia) Code. Section 7(5) of that Code provided:
Where a corporation –
(a)is the holding company of another corporation;
(b)is a subsidiary of another corporation; or
(c)is a subsidiary of the holding company of another corporation,
that first‑mentioned corporation and that other corporation shall, for the purposes of this Code be deemed to be related to each other.
[1] Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999, reg 9.
The WRCA has not kept up with changes in the statutory régimes relating to corporations. The Companies (South Australia) Code was repealed by the Corporations (South Australia) Act 1990. Since 2001 the Corporations Act 2001 (Cth) has been the legislation regulating companies. Section 50 of the Corporations Act 2001 provides for related bodies corporate in terms which are very similar to the former s 7(5):
Where a body corporate is:
(a) a holding company of another body corporate; or
(b) a subsidiary of another body corporate; or
(c) a subsidiary of a holding company of another body corporate;
the first‑mentioned body and the other body are related to each other.
In order to avoid the absurdity involved in referring to an enactment which has long ceased to have operation, I consider that the reference in the WRCA to the Companies (South Australia) Code should be understood as including a reference to its counterpart legislation which is in force from time to time, and hence presently to the Corporations Act 2001 (Cth).
In effect, and putting the position of local government corporations to one side, the WRCA contemplates that only corporations which in aggregate employ at least 200 workers and which are either a holding company and its subsidiary or subsidiaries, or several subsidiaries of the one holding company, may be considered for registration as exempt employers.
Upon the Corporation being satisfied that the members of an eligible applicant group have reached the necessary standard determined by the Corporation for consideration of “conferral of exempt status”, and that it is appropriate to do so, the Corporation may register the group as a group of exempt employers (s 60(3)). That is a form of registration which satisfies the requirements of s 59(1).
Apart from the matters already mentioned, registration of a group of exempt employers can have a number of consequences. On registration, one member of the group is, for the purposes of the WRCA, treated as the employer of all workers employed by the various members of the group (s 60(7)). This has a significant effect on the exercise of the entitlements, liabilities and responsibilities arising under other provisions of the WRCA. Another consequence of registration is that all the members of the group are jointly and severally liable to satisfy the liabilities under the WRCA of the member who is to be treated as an employer of all workers (s 60(8)).
Registration may be subject to terms and conditions determined upon by the Corporation (s 60(4)(a)). Registration has effect for an initial period, not exceeding three years, determined by the Corporation.
Importantly for present purposes, a registration as an exempt employer or as a group of exempt employers may, subject to s 60, on further application be renewed from time to time for a further period not exceeding three years. (s 60(4)(d)(ii)) It has been held that on an application for renewal it is not necessary for an exempt employer to satisfy the Corporation again of the matters specified in sub-ss (2) and (3) of s 60.[2]
[2] Truenergy Australia Pty Ltd v Minister for Industrial Relations [2005] SASC 490; (2005) 93 SASR 393.
Evidence
At the hearing, I received into evidence an affidavit of Helen Jennifer Jones sworn 19 June 2006, an affidavit of David Joseph Meegan sworn 23 June 2006, an affidavit of Bruce James Carter sworn 26 June 2006, and an affidavit of Colin Lindsay Beard sworn 27 June 2006. In substance, apart from Mr Carter’s affidavit, and some Corporation records exhibited to Mr Beard’s affidavit, the content of each affidavit was contained in the correspondence between the Corporation and the plaintiff (or their respective solicitors) which was exhibited to it. None of the deponents was required to attend for cross-examination. I also received, by consent, a letter from the Corporation’s Solicitors, Johnson Winter and Slattery (“JWS”) to the plaintiff’s solicitors dated 23 June 2006, and a document entitled “Code for the Conduct of Exempt Employers Under the WorkCover Scheme” (“The Code of Conduct”) issued by WorkCover.
Events on Demerger
Prior to April 2003 CSR Limited and its subsidiaries employing workers in South Australia were registered as a group of exempt employers. CSR Limited itself was the employer nominated by the group for the purposes of s 60(7). I will refer to CSR Limited and its subsidiaries which had been registered as a group of exempt employers as the CSR Group.
The registration of the CSR Group had commenced some years previously and had been renewed from time to time. The registration which was current at the time of the demerger was due to expire on 30 June 2003.
Precisely what occurred in terms of registration and renewal of registration in May and June 2003 is not altogether clear. The court has been provided with correspondence and some Corporation records which purport to record what occurred. The Corporation records refer in the main to trading names and locations rather than to specific entities. Although the position is not altogether satisfactory, I am satisfied that following the CSR Limited demerger and with effect from (at least) 30 June 2003, a group associated with the plaintiff was registered as a group of exempt employers. I am satisfied that that group comprised the plaintiff, Readymix Holdings Pty Ltd, Readymix Emoleum Services Pty Ltd and Ballestrin Concrete Constructions Pty Ltd. The last mentioned company was added to the group with effect from 1 July 2003. I will refer to this group as the “Initial Group”. The registration of the Initial Group is to expire on 30 June 2006.
The plaintiff advanced some alternative propositions as to the nature of the Initial Group. It was able to do so because of the inadequate records which are available as to that registration.
The first alternative which the plaintiff advanced was that it was registered as an exempt employer, and that its subsidiaries had obtained their registration through it. I reject that submission. It is quite inconsistent with the circumstances contemplated by sub‑ss (2) and (3) of s 60, ie, a single employer can be registered as an exempt employer, and a group of employers can be registered as a group of exempt employers. There is no provision for a single employer to be registered as the representative of a group, or on behalf of all the members of a group. I reject the notion that s 60(7) has the effect that all corporations related to the employer nominated for the purposes of s 60(7) are “severally” registered as an exempt employer. Further, I reject the notion that s 60(7) has any effect at all on who it is who may be registered under sub-ss (2) and (3) of s 60. It is evident from its own terms that s 60(7) has operation only after a group has been registered.
Next it was contended that the group which was registered was the plaintiff and the corporations related to it from time to time. Another submission was that the group registered was a group comprising the plaintiff and at least one of its present or former related corporations. For reasons which I will give below, I reject each of these alternative propositions. I am satisfied that the Initial Group was comprised as outlined above.
Refusal of Renewal
By letter to the Corporation dated 30 November 2005, the plaintiff applied for renewal of “our Exempt Employer status”. Thereafter, arrangements were put into place for the performance evaluation which the Corporation required as a condition of the assessment of an application for renewal.
While this process was underway, the plaintiff sold a business conducted by two of its subsidiaries, Readymix Emoleum Services Pty Ltd and another which, as it did not employ any workers, was not registered. That sale was effected on 28 February 2006 by the sale of the shares in those subsidiaries to a third party. The effect of the sale was that the total number of workers employed by the remaining members of the Initial Group became 155.
The plaintiff informed the Corporation of this development. This led to some correspondence in which the Corporation pointed out difficulties which the sale of the two companies presented in relation to the application for renewal. In effect, the Corporation said that the plaintiff had three choices. It could persist with the application for renewal, but this was likely to be rejected because of the different composition of the group for which renewal was sought. It could seek renewal of the group having the composition of the Initial Group (but in a practical sense this was not commercially realistic as the plaintiff had no continuing relationship with, let alone control over, its former subsidiaries), or it could apply for new registration as a group of exempt employers, but such an application would fail because the remaining members of the group employed less than 200 workers. These three “scenarios” were summarised in a letter from JWS to the plaintiff’s solicitors dated 12 May 2006.
1.Rinker requests renewal of exempt employer status for the original group minus Readymix Emoleum Services Pty Limited and Readymix Roads Group Pty Limited.
The Committee will be advised that it is the position of the WorkCover Corporation that an application for renewal by Rinker of a group different from the group for which registration has been granted is not permitted by section 60 of the Workers Rehabilitation and Compensation Act 1986 (‘WRCA’). Accordingly, it is beyond the capacity of the Committee, and the Board, to renew registration for a group of exempt employers different from that group for which registration had been granted.
On that basis, the recommendation to the Committee and ultimately to the Board will be to treat such application for renewal as not a form of application to which the Committee or the Board is required to respond to (other than to note its invalidity).
2.Rinker seeks renewal of the exempt employer status for the original group of companies (ie. inclusive of Readymix Emoleum Services Pty Limited and Readymix Roads Group Pty Limited)
The Committee will be advised that Readymix Emoleum Services Pty Limited and Readymix Roads Group Pty Limited had not been evaluated under the exempt employer performance standards as access to that employer by the Corporation evaluator has been refused. The Committee will also be advised that the evaluation on the remaining members of the exempt employer group has been completed and shows compliance with the exempt employer standards.
WorkCover Corporation’s position will be that all members of the exempt employer group have to be evaluated and shown to be in compliance with the exempt employer performance standards before an application for renewal can be recommended. Accordingly WorkCover Corporation’s position will be to recommend against renewal of the exempt employer status for the current group of companies which are registered as an exempt employer.
3.The original exempt employer group (minus Readymix Emoleum Services Pty Limited and Readymix Roads Group Pty Limited) applies for the grant of registration as an exempt employer
WorkCover Corporation’s position will be that this particular group of related corporations does not employ more than the prescribed number of employees required for a valid application for exempt employer status under section 60(1)(a) of the WRCA. Accordingly, the Committee and the Board is not able to grant the application and the Committee and the Board need make no decision on the application (other than to note its invalidity). (Bold font in the original).

By letter dated 23 May 2006, the plaintiff’s solicitors maintained an application for renewal “in respect to Rinker and all its wholly owned subsidiaries, being related corporations as defined under s 60(9) of the Workers Rehabilitation and Compensation Act”. The solicitors confirmed that scenario one in the Corporation’s solicitor’s letter was applicable but maintained that the Corporation’s view of the law was erroneous.
The Corporation maintained its position. As already noted, on 22 June 2006, the Board of the Corporation refused the plaintiff’s “request for renewal of self insurance as the renewal application is for a group that is different to the existing self insurance registration”. The reference to “self insurance” registration should be taken to be a reference to registration as a group of exempt employers.
The Relief Sought
Initially, the plaintiff sought orders requiring the Corporation to consider its application for renewal and prohibiting it from refusing to exercise its discretion under s 60(6) in respect of that application. After the Board of the Corporation made its decision on 22 June 2006, the plaintiff indicated that it sought an order quashing the Board’s decision. It also sought declarations as to the validity of its application for renewal, and as to the power of the Corporation to renew the registration of a group of exempt employers in circumstances where two members of the Initial Group were no longer members of the group.
The Registration Which May Be Renewed
Section 60(1) of the WRCA contemplates that it is a group of employers who may make application for registration. It can only be the members of the group which can make the application because a group, as such, does not have independent legal existence and cannot itself make an application. Section 60(1) contemplates that it is a number of corporations, then employing workers, who may make application for registration. Application cannot be made by a corporation not yet in existence, nor by a corporation which is not, at the time of the application, in the defined relationship with the others in the group. Furthermore, s 60(3)(b)(ii) refers to the “employers constituting the group” in a way which suggests it is referring to corporationss which, at the time of consideration of the application, can be seen to comprise the group.
That suggests that “the group” which may be registered pursuant to s 60(3) is a group which makes a lawful application under s 60(2) (and which satisfies the s 60(3) conditions). That group may be defined by reference to the individual names of its members, or by description (for example Company A and its subsidiaries), but however it is defined, the group registered comprises only those corporations which make the application for registration. Section 60 does not contemplate the registration of a group, the composition of which may fluctuate from time to time. For these reasons, the alternative propositions of the plaintiff as to the way in which the group was registered in 2003 cannot be sustained.
The construction of s 60 which the Corporation relied upon was relatively straightforward. Its submission was that registration of a group of employers as a group of exempt employers is a registration of those employers who comprise the group which make the application for registration as a group of exempt employers. It was submitted that the registration which could, pursuant to s 60(4)(d)(ii) be renewed, was the registration “under this section”, namely, the registration previously granted to a particular group of employers. A group differently constituted could not seek renewal, as that group had never been registered as a group of exempt employers. The Corporation drew support for this submission from a passage in the judgment of Perry J (with whom Anderson J agreed) in Truenergy Australia Pty Ltd v Minister for Industrial Relations which indicated that the word “renewed” was used in the sense of an extension of the period of a registration previously granted.[3]
[3] [2005] SASC 490 at [29], (2005) 93 SASR 393 at 400.
In Perre Brothers v Citrus Organisation Committee[4] Wells J considered an analogous question to that arising in this case. Wells J held that a registration of one set of premises could not be “renewed” with respect to those and other premises. A renewal could be a renewal only of the premises originally registered. In part, this decision turned on the particular conditions which attached to the registration of the first premises, a circumstance which is not so important in the present case. But the decision does provide support for the position for which the Corporation contends.
[4] (1975) 10 SASR 555.
Mr McNamara QC who appeared for the plaintiff did not point to any particular words or expressions in s 60 which had been misconstrued by the Corporation or which indicated that the construction which it had adopted was not open. Rather, he submitted that implications should be drawn from the structure of s 60 considered as a whole, and the scheme which it created, that registration could be renewed even if the group originally registered was now differently constituted. Considerations of policy indicated, he submitted, that the construction relied upon by the Corporation could not be correct.
Mc McNamara QC marshalled a number of considerations which he submitted indicated that the approach adopted by the Corporation could not have been intended by Parliament. In the first place, he submitted that it was commonplace for businesses to be conducted by several companies within the one group over which a parent company exercised control. It was also commonplace for companies within a corporate group to buy and sell businesses by the purchase and sale of the shares in companies conducting those businesses, and for companies to incorporate additional subsidiaries for the purpose of establishing and conducting new businesses within the group. Mergers and demergers are, and have been, a fact of corporate life. Parliament must be taken to have been aware of these “realities” when it enacted s 60. The very fact that the WRCA provides for companies related to one another in the defined sense to be registered as a group of exempt employers is an indication that this is so. Section 60 is a recognition that companies in the one group will act as one economic unit. Unless s 60 is construed so as to allow some movement in and out of the group registered as exempt employers, the intended effect of s 60 would be compromised.
It was submitted that the process for obtaining initial registration was more onerous than the process for obtaining renewal of an existing registration. Mr McNamara QC contrasted in this respect the provisions of sub-ss (2) and (3) of s 60 on the one hand, with s 60(6) on the other. It could not have been intended, he submitted, that on each change in the composition of the group it had to start again in establishing an entitlement to registration as a group of exempt employers. However, apart from the eligibility requirements contained in s 60(2), namely, that the companies be related and employ in aggregate more than 200 workers, it is not apparent that the process for renewal is any less rigorous than the process in obtaining an initial grant of registration. I accept the submission of Mr Walsh QC that the matters listed in s 60(6) are not exhaustive of the matters to which the Corporation may have regard on an application for renewal.
Mr McNamara QC emphasised the desirability from the point of view of all (the Corporation, the employers and the workers) of stability and continuity in the compensation arrangements of employers. That stability and continuity could be lost if there was movement of employers to and from exempt status consequent upon a change in the composition of the group of which the employers formed part.
Mr McNamara QC pointed to what was said to be the undesirable results of the construction urged by the Corporation. These included:
(a)a company would remain part of the registered group even though, by reason of sale, it ceased to be related in any way to the other members of the group, and ceased to be amenable to control in any way by the group;
(b)the company nominated pursuant to s 60(7) would be liable to meet the liabilities of the departed member incurred after its departure (s 60(8)) even though it had no continuing economic relationship with that departed member;
(c)conversely, the departed member would remain jointly and severally liable pursuant to s 60(8) to meet the liabilities of the remaining members of the group incurred after its departure;
(d)a company which ceased to be a member of the group, and which registered as an employer in its own right would, in effect, be covered by two registrations. The WRCA does not contemplate two or more registrations of the one company;
(e)a merger of two companies within the one group would lead to a change in the composition of the group resulting in inability to renew a group registration; and
(f)if the view of the Corporation that it has no power to amend a registration be correct, where a company was added to the group either by acquisition or on the commencement of a business through a newly formed company, it would have to apply for registration as an employer in its own right. That registration presumably would have to continue until the expiry of the group’s registration because s 60(5)(d) does not permit the revocation of registration of a group of exempt employers so that a new group could be registered.
These illustrations pointed up, it was said, the lack of merit in the Corporation’s position that unless the composition of the group for which registration was granted remained constant, that registration could not be renewed.
The plaintiff’s submission was that these undesirable consequences could be avoided by construing s 60 as implicitly permitting an application for renewal of an existing registration to be made even if the composition of the group had altered since original registration. Alternatively, it should be held that WorkCover had a power to permit an amendment or variation of a group registration during its currency.
Amendment of Registration
It is convenient to consider first whether the Corporation has power to amend or vary a registration during its currency so as to alter the composition of the group registered.
Section 60 provides specifically for the grant, renewal, revocation and reduction of the period of registration, but makes no provision for variation of the constitution of the group registered. This suggests that a power to vary is not contemplated. It could be said that the power to reduce the period of registration (sub-ss (5) and (6) of s 60) is a power to vary of a limited kind. The grant of that limited power indicates also that a more general power of variation is not contemplated.
Mr McNamara QC referred to s 60(4)(a)(ii) which provides that a registration under s 60 is subject to such terms and conditions as the Corporation determines from time to time. In this case, the Corporation had made compliance with the Code of Conduct a condition of the registration in 2003. Chapter 9 of that Code provides for a “corporate restructure” of a group of exempt employers. Clause 9.2(1) says that the chapter sets out “the obligations” of an exempt employer in relation to registration and a restructure. One such obligation is to notify the Corporation of any event involving the formation, acquisition, disposal or amalgamation of a related corporation (Cl 9.2(2)). There are provisions indicating that if events of this kind occur, the Corporation may, or will, require the new entity to be included in the existing registration.
As I understand it, the submission was that these provisions in the Code of Conduct necessarily indicated that a power of variation of registration existed as a condition of the registration. I do not accept this submission. Absent an enabling provision, if a power to vary the composition of a group does not exist in the WRCA, the Corporation cannot, by a term which it imposes on the grant of registration, vest itself with such power. This being so, it is not necessary to attempt a detailed construction of the Code of Conduct. I note, however, that some, at least, of its provisions may be indications of what the Corporation will require in the circumstances to which it refers, rather than binding statements of what is required. I do not think it necessary in this context to address the submission of Mr McNamara QC as to administrative estoppel in any detail. In the first place, it is doubtful that any doctrine of administrative estoppel has emerged in Australia.[5] In the second place, even if the doctrine did exist, it is doubtful that it could be applied so as to require a statutory decision-maker to act in a way not authorised by the enabling statute.
[5] Re Minister for Immigration & Multicultural & Indigenous Affairs: ex parte Lam [2003] HCA 6 at 69, (2003) 214 CLR 1 at 22; Annetts v McCann (1990) 170 CLR 596 at 605.
The plaintiff put an alternative submission based upon s 14(1) of the WorkCover Corporation Act 1994 (“WCA”). Section 13 of the WCA specifies the functions of the Corporation. One of those functions is to administer the WRCA (s 13(1)(a)). Section 14(1) provides that the Corporation “has the powers necessary for, or incidental to, the performance of its functions”.
The plaintiff submitted that a power to amend the constitution of the group registered was necessary for, or incidental to, the performance of the functions of the Corporation in registering groups of exempt employers. Section 14(1) appears to be in the nature of a statutory codification of the powers implied by the common law in like circumstances. “A statutory power will be construed as impliedly authorising everything which fairly be regarded as incidental or consequential to the power itself.”[6] It is possible that s 14(1) is an enlargement of that implied power. Such a provision is not to be construed narrowly.
[6] Administrative Law, Wade and Forsyth, 9^th edition, OUP at 213.
Section 14(1) would authorise the Corporation to perform acts incidental to the grant, renewal, revocation etc of registration. It is doubtful, in my opinion, that it would authorise the Corporation to engage in an act of quite a different character, namely, variation of the registration so as to alter the group of employers which is registered. The way in which one describes the functions of the Corporation may have an effect on the scope of the acts which might reasonably be regarded as necessary or incidental to the performance of that function. The more abstract or general the description of the function, the greater the scope of the powers incidental to, or necessary for, the performance of that function. So, for example, if one described the function as managing the registration of exempt group of employers, instead of granting, renewing, revoking etc a registration, a different view of the reach of s 14(1) might be obtained. But in my opinion, the focus should be on the particular functions which the WRCA vests in the Corporation and that (relevantly) is the granting, renewing, revoking etc the registration of groups of employers. I do not consider that it can be said that a power of variation of the kind proposed by the plaintiff can be said to be necessary for, or incidental to, the performance of that function.
The plaintiff referred to the decision of Weinberg J in Nguyen v Minister for Health & Ageing[7] in which it was held that an approval granted jointly to two pharmacists in respect of particular premises could be revoked partially or severally upon the commission of offences by one of them. It was submitted that in this case the Corporation could revoke the registration partially, ie, with respect to Readymix Emoleum Services Pty Ltd, leaving the remaining registration intact. I do not consider that the reasoning in Nguyen can be applied in this case. In Nguyen each of the two pharmacists was eligible individually to be approved in respect of the particular premises. They happened to have been approved jointly but could as easily have been approved individually. The making of a joint application was not critical to the approval. The form in which the registration happened to have been granted did not control the substantive rights of the innocent pharmacist. In this case, the existence of the group was critical to the grant or renewal of registration in 2003. In particular, the involvement of Readymix Emoleum Services Pty Ltd was critical because, without the workers employed by it, the group did not employ the prescribed minimum number of workers. Its involvement, and the manner of registration was not a matter of form. In this case there was, and could only be, one registration. It is not sensible to speak of a partial revocation of that one registration.
[7] [2002] FCA 1241, (2002) ALD 529.
My conclusion is that the Corporation does not have a power to vary a registration so as to alter the composition of the group registered.
Renewal of a Differently Constituted Group
I do not consider that the undesirable consequences and policy considerations to which Mr McNamara QC referred lead to the conclusion that s 60 implicitly authorises a renewal in respect of a group which is differently constituted. I do so for two reasons. First, there is another solution to the difficulties identified. It is open to a group of employers to seek a new registration in respect of the altered composition of the group. The group can apply for a new registration of the differently constituted group and can, at the same time, invite the Corporation to revoke the existing registration. The wording of s 60(5) creates some uncertainty as to whether the registration of a group of exempt employers can be revoked.[8] But even if there is no power of revocation, the Corporation could, nevertheless, be invited to reduce the remaining period of registration (perhaps to nil).[9] Engaging in the process of seeking a new registration would avoid the problems identified by Mr McNamara. Changes in the composition of a group are not likely to be frequent so the process is unlikely to be onerous. As already pointed out, it is not apparent that the process of obtaining initial registration for eligible applicants is very different in rigour to the process of obtaining renewal of an existing registration.
[8] Cf WRCA s 62A(c).
[9] Cf H, R J v Police [2005] SASC 347 at [32]-[40], (2005) 93 SASR 62 at 72-3.
Secondly, I think that there is force in the submission of Mr Walsh QC that there may be circumstances in which the removal of one member from a group of exempt employers may alter significantly the financial strength, resources and administrative capacity of the group. Parliament may well have intended therefore that in all such cases the remaining members of the group should pass again through the s 60(2) and (3) gateways before continuing as a group of exempt employers. In other words, the policy considerations to which Mr McNamara QC referred do not point all one way. As has been pointed out elsewhere, policy considerations are often an unsafe guide to statutory construction, and especially where the policy considerations point in different directions.[10]
[10] Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 129.
Accordingly, in my opinion, the construction of s 60 adopted by the Corporation is correct. The Corporation may not exercise the power of renewal contained in s 60(4)(d)(ii) unless the group seeking the renewal is the same group as that currently registered. A change in the composition of the group means that a new registration, rather than a renewed registration, is required.
Decision on the Relief Sought

I decline to make an order quashing the decision of the Corporation made on 22 June 2006. The decision of the Corporation did not proceed on a mistaken view of the law. It follows that I also decline to make an order which would have the effect of requiring the Corporation to consider the matter further.
I also decline to make the declarations sought. The submissions of the parties were not specifically directed to the validity of the plaintiff’s application for renewal. However, this claim for relief seems to turn on the same considerations as were relevant to the claim that the Board’s decision was affected by legal error. The reasons which I have already given indicate therefore that the making of the declarations sought is inappropriate.
For these reasons, the plaintiff’s claim is dismissed.