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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 193
Decision Date: 28 June 2006

CaseChat Overview and Summary

Rinker Group Ltd sought judicial review of a decision by the WorkCover Corporation, refusing to renew its registration as a group of exempt employers under the Workers' Rehabilitation and Compensation Act 1986 (SA). The dispute arose following a demerger of CSR Limited, which had previously been registered as a group of exempt employers. After the demerger, Rinker Group Ltd, along with several other entities, applied for renewal of the registration. However, the WorkCover Corporation refused the renewal, stating that the composition of the group had changed, and thus, a new registration was required.

The central legal issues were whether a registration of one group could be renewed in respect of a differently constituted group, and whether the WorkCover Corporation had the power to vary the composition of a registered group during the currency of the registration. The court had to interpret the relevant provisions of the Workers' Rehabilitation and Compensation Act 1986 (SA), particularly Section 60, to determine the rights and obligations of the parties. The court also had to consider the administrative law principles that govern judicial review, specifically whether the decision of the WorkCover Corporation was legally erroneous.

The court found that the registration which could be renewed was the existing registration, and if registration was sought for a differently constituted group, a new registration must be obtained. The court held that the WorkCover Corporation did not have the power to vary the constitution of the group registered during the currency of the registration. The court reasoned that Section 60 of the Workers' Rehabilitation and Compensation Act 1986 (SA) contemplated a registration of a specific group of employers who make the application for registration as a group of exempt employers. The court rejected the argument that the WorkCover Corporation could renew the registration for a differently constituted group, as that group had never been registered as a group of exempt employers. The court concluded that the decision of the WorkCover Corporation was not legally erroneous, and therefore, the application for judicial review was dismissed.

The court did not make an order quashing the decision of the WorkCover Corporation made on 22 June 2006, as the decision did not proceed on a mistaken view of the law. The court also declined to make the declarations sought by Rinker Group Ltd, as the reasons given for dismissing the claim for relief also indicated that the making of the declarations sought was inappropriate. The court held that the making of the declarations sought would have the effect of requiring the WorkCover Corporation to consider the matter further, which was not warranted by the circumstances of the case.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.