Selamis v Workcover Corporation No. Scgrg-98-452 Judgment No. S6902

SELAMIS V WORKCOVER CORPORATION & ORS
[1998] SASC 6902

Civil

LANDER JThis is an application by the first defendant pursuant to r98.05(3) to strike out the plaintiff’s summons for judicial review.
The defendant claims that on the evidence presently before the Court there is no reasonable prospect that the Court would make any order in the nature of a judicial review.
The parties have accepted for the purpose of this application that if the defendant is to be successful there is an obligation upon the defendant to establish that none of the grounds upon which the plaintiff relies is arguable and the application is not fit for hearing before the Full Court.
The plaintiff has brought an application to the Full Court of this Court for judicial review seeking:
An order in the nature of certiorari to quash a decision of the full bench of the Workers Compensation Tribunal on 30 September 1997 whereby it declined jurisdiction to entertain the plaintiff’s claim that the disability suffered by him on 12 March 1996 was compensable within the meaning of the Workers Rehabilitation and Compensation Act 1986 as amended.

A declaration that the Workers Rehabilitation and Compensation Act 1986 as amended applies to the plaintiff in the circumstances of the disability suffered by him during the course of his employment on 12 March 1996 having regard to the provisions of s6 of the Workers Rehabilitation and Compensation Act as amended.

As can be seen the application for judicial review arises out of proceedings for compensation under the Workers Rehabilitation and Compensation Act (“the Act”).
A number of facts were agreed.
The plaintiff was born in Greece on 6 December 1950 and came to Australia with his wife and son on 4 April 1992. When the plaintiff arrived in Australia he settled in Kilburn. Thereafter the plaintiff, his wife and their son moved to an address at Flat 1, 4 Days Road, Croydon Park.
Between 1992 and February 1993 the plaintiff was unable to find employment. In February 1993 the plaintiff and his wife separated and thereafter the plaintiff lived for a period of time in the premises next to where his wife and son were then residing. In June 1993 the plaintiff returned to Greece.
The plaintiff returned to Australia on 2 April 1994 and immediately travelled to Coober Pedy where he obtained a driver’s licence to drive heavy vehicles. He then returned to Adelaide and obtained employment with Olympic Industries in which employment he remained from June to November 1994. During that period of four or five months he lived in rented accommodation at Woodville West and for a period of time at Kilburn.
In November 1994 he left his job with Olympic Industries and sought employment as a truck driver.
On 26 January 1995 he obtained employment as a semi trailer driver with a Melbourne based freight company S-Line Transport. At the time he was living in rented accommodation at Edwardstown.
The plaintiff “continued to keep his rented address at Edwardstown until about 21 March 1995” when he received confirmation from his employer that he would have his own truck to drive on a permanent basis. He then ceased to rent the accommodation at Edwardstown. The plaintiff worked as a driver for S-Line Transport for about six months driving a semi trailer between Melbourne and Perth. The business which employed him had an office in Melbourne although the plaintiff would often load and unload a semi trailer in Adelaide as well as in Melbourne and Perth. When the plaintiff stopped in Adelaide he would stay with his son who lived at 2 Days Road, Croydon Park.
Most of the time the plaintiff slept in the sleeping compartment of his truck cabin somewhere on the road between Melbourne, Perth and Adelaide.
In July 1995 the plaintiff obtained employment with G and T Georgopoulos Transport (the company) which is a business based in South Australia at 437 Prospect Road, Blair Athol. That company had an office only in Adelaide. The plaintiff was allocated the use of a semi trailer by the company for his work which required him to drive that semi trailer between Adelaide, Perth and Melbourne.
Whilst he was employed by that company the plaintiff did not own or rent any real estate in Adelaide or elsewhere.
When the plaintiff travelled between Melbourne and Perth he would usually stop in Adelaide where repairs and maintenance were done on the semi trailer by the company. The plaintiff would always load in Melbourne for delivery of those goods in Perth. He would usually pick up a load in Western Australia for delivery in South Australia and/or Victoria on the return run.
The plaintiff tried to organise his trips so that he could spend some time with his son at 2 Days Road, Croydon Park. The plaintiff did not visit his wife. There was a restraining order in place which prevented him contacting her.
Whilst he was employed by the company, the plaintiff used his son’s address and also an address in Perth for correspondence. The plaintiff obtained a heavy vehicle driving licence in Western Australia which he renewed. He used an address at 145 Ewart Street, Midvale, Western Australia for that purpose.
During his employment with the company the plaintiff lived a similar lifestyle to that which he enjoyed whilst working with S-Line Transport. He would sleep for most of the time in his truck but sometimes stay with his son at Croydon Park whenever he was in Adelaide.
On 12 March 1996 during the course of his employment with the company, the plaintiff was injured in a motor vehicle accident near Manjimup in Western Australia. At the time of the accident the plaintiff was a passenger in a vehicle which was being driven by a Mr Platt who was also an employee of the company. The plaintiff had picked up Mr Platt in Western Australia at the direction of his employer. At the time of the accident Mr Platt was driving the semi trailer towards Adelaide when the vehicle rolled whilst negotiating a bend. As a result of the collision the plaintiff suffered personal injuries which necessitated hospitalisation in Western Australia for several days. He then returned to South Australia where he took up residence at 207 South Road, Croydon.
Other matters agreed were that the plaintiff received notices of assessment from the Australian Taxation Office for the financial years ending 30 June 1995 addressed to him at 2 Days Road, Croydon Park and 30 June 1996 addressed to him at 207 South Road, Croydon. It was also agreed that the plaintiff opened a bank account at the Enfield branch of the Bank of South Australia on 29 December 1994. That account was operated last by the plaintiff on 12 September 1995 when there was a balance of $50 in the account.
The last agreed fact was that the Department of Community Services issued a health care card to the plaintiff bearing an expiry date of June 1992 at an address for the plaintiff at Flat 4, 53 Reynell Street, Kilkenny.
After his return to South Australia the plaintiff submitted a claim for compensation under the Act. He claimed that he was entitled to benefits under the Act having suffered a compensable disability arising from his employment. In support of his claim he submitted a medical certificate from a general practitioner certifying him unfit for any work duties from 12 March 1996 until 12 April 1996. Thereafter he regularly submitted further certificates certifying him incapacitated for work.
The circumstances giving rise to the claim were investigated by a private agent of the Workcover Corporation which, by letter dated 1 May 1996, notified the plaintiff that his claim was rejected apparently because there was not a sufficient nexus between the worker’s employment and this State and therefore the Act did not apply to the plaintiff’s employment.
The agent of Workcover advised the plaintiff that it had determined that the plaintiff was usually employed in more than two States in Australia but that he was not based in the State of South Australia. It was also said that investigations revealed that the plaintiff had no fixed address in South Australia and accordingly did not “reside” in South Australia and that therefore “the territorial application of the Workers Rehabilitation and Compensation Act was not met”.
On 7 June 1996 the plaintiff lodged a notice of dispute with the Workers Compensation Tribunal. On 4 October 1996 an arbitration officer, Mr Pope, after hearing the parties, concluded that the plaintiff had brought himself within s6 of the Act and was therefore entitled to workers compensation benefits under the Act.
On 18 October 1996, the Workcover Corporation, being a party dissatisfied with the result of an arbitration and which disputed the arbitrated determination, sought a judicial determination of the dispute pursuant to s94 of the Act.
On 8 May 1997 Deputy President Gilchrist delivered his reasons for decision in which he confirmed the determination made by the agent of Workcover on 1 May 1996 and found that the plaintiff did not have a “place of residence” in this State and accordingly he was not entitled to benefits under the Act.
His conclusion was expressed in the following terms:
“In all the circumstances I am not satisfied that the Croydon Park address was the worker’s ‘place of residence’. It therefore follows that it was not his ‘usual place of residence’. Thus, in my opinion, the Corporation was right to have rejected the worker’s claim. I therefore confirm its determination.”

On 20 May 1997 the plaintiff appealed from the decision of Deputy President Gilchrist. On 30 September 1997 the full bench of the Workers Compensation Tribunal (President Senior Judge Jennings, Deputy President Judge F K Cawthorne and Deputy President Judge H W Parsons) delivered its reasons for decision in dismissing the plaintiff’s appeal. It concluded that the Deputy President had reached the correct conclusion, confirmed that decision and dismissed the appeal.
It is from that decision that the plaintiff has applied for a judicial review.
In support of that judicial review, the plaintiff’s solicitors filed an affidavit. The basis of the application for judicial review was stated in that affidavit to be:
......... “9.     At all times since coming to Australia from Greece the plaintiff has lived only in the State of South Australia and his business and financial affairs have been conducted in South Australia save and except for the fact that he obtained his heavy vehicle driver’s licence in Western Australia.
......... 10.    The plaintiff has never had any ties emotional or otherwise to any State in Australia other than South Australia and the only place in Australia that the plaintiff has ever regarded or could regard as his “home” is Adelaide, South Australia.
......... 11.    It is submitted on behalf of the plaintiff that the decision of the Full Bench of the Workers Compensation Tribunal is incorrect and defies all common sense because the plaintiff has only ever resided in the State of South Australia and accordingly his “usual place of residence” could only be in South Australia.
......... 12.    Furthermore it is submitted on behalf of the plaintiff that the decision made by the Full Bench has implications of importance to not only the plaintiff but all workers in the transport industry in South Australia and that the decision should be the subject of judicial review by this Honourable Court for reasons of public importance.”
Shortly before the hearing of this application the plaintiff filed a document entitled “Notice of intention to amend statement in plaintiff’s affidavit”.
In that document the plaintiff sought leave to amend the affidavit of Craig James Roberts by adding a number of paragraphs. The paragraphs sought to be added were:-
“12A.. The plaintiff claims that the decisions of the Workers Compensation Tribunal constituted by the Deputy President and the Full Bench referred to in paragraphs 6 and 7 of this affidavit and exhibited hereto and marked with the letters “CRJ2” and SRJ3” are made in excess or want of jurisdiction in that the Tribunal erred in law:
a....... in determining that there was no nexus between the plaintiff’s employment and the State of South Australia;
b...... in confirming the decision of the first defendant when the plaintiff as a worker was usually employed in 2 or more States but was based in the State of South Australia in that upon the agreed facts:
i.the workers usual place of residence was in the State of South Australia;
ii.the worker regularly travelled between a port or point of embarkation in the State of South Australia and his other places of employment;
c....... in not considering (in the case of the Deputy President) and in refusing to consider (in the case of the Full Bench) whether the plaintiff regularly travelled between a port or point of embarkation in the State and his place of employment;
d....... in disregarding the agreed fact that the plaintiff resided in South Australia until about 21 March 1995 and further that on the agreed facts no other place could be said to be his place of residence outside of the State of South Australia both before and after he was employed in July 1995 with the employer who was his employer at the time of the accident;
e....... in giving no effect to the continuity of association that the agreed facts established the plaintiff had with South Australia;
f....... in disregarding the agreed fact that the plaintiff stayed with his son at a place in South Australia (and at no other place of abode) and that the South Australian address was used for his correspondence.
12BThe plaintiff further claims that the decisions of the Workers’ Compensation Tribunal constituted by the Deputy President and the Full Bench demonstrate error on the face of the record and that a remedy in the nature of certiorari lies and further that such a remedy for jurisdictional error of this kind is not excluded by Section 88I of the Workers’ Compensation or Rehabilitation Act, 1986. Particulars of the errors on the face of the record are those set out in the preceding paragraph in subparagraphs (a) to (f).
12CThe plaintiff seeks orders in the nature of certiorari to quash the decisions of the Workers’ Compensation Tribunal set out in paragraphs 6 and 7 of this affidavit.
12DThe plaintiff seeks a declaration that the Workers’ Rehabilitation and Compensation Act 1986 applies to the plaintiff in the circumstances of the disabilities suffered by him during the course of his employment on 12 March 1996.”
Mr Malcolm Gray QC, who appeared for the plaintiff, recognised, of course, that the affidavit could not be “amended”. He sought, however, to rely upon the matters raised in those paragraphs in support of his defence to this application. Mr Besanko QC, who appeared for the first defendant, did not object to that course.
One other procedural matter should be noted. Whilst the summons for the judicial review only seeks a judicial review of the decision of the Full Bench of the tribunal, Mr Gray made it clear, as did paragraph 12B above, that his client also sought the same orders in respect of the decision of Deputy President Gilchrist.
The Act provides that disability is compensable if it arises from employment. A disability will arise from employment if, depending upon whether it is a disability, secondary disability or disease, it arises out of or in the course of employment and the employment contributed to the disability [s30].
“Employment” is defined in the Act to include the work done under a contract of service; the work of a self employed person to whom the Workcover Corporation has extended the protection of the Act; the work of persons of whom the Crown is, under s103A, the presumptive employer; and attendance by a worker at a place of pick up [s3].
The territorial application of the Act is provided for in s6 of the Act:
“6..... (1) This Act applies to a worker’s employment (either within or outside the State) if there is a nexus between the worker’s employment and the State.
......... (2) A nexus exists between a worker’s employment and a State if -
(a).... the worker is usually employed in the State and not in any other State; or
(b)... the worker is usually employed in 2 or more States but is based in the State.
(3)In addition, a nexus exists between a worker’s employment and this State if -
(a)the worker is not usually employed in any State; but
(b)... the worker is employed in the State or the worker’s employment involves (or is likely to involve) recurrent trips to and from a base in the State, and the worker is not protected against employment-related disabilities by a corresponding law.
In this section -
1.A State includes a Territory.
2...... A reference to employment is a reference to the worker’s work (and not to employment as an abstract legal relationship).
3...... A worker is usually employed in a particular State if 10% or more of the time the worker spends working in employment is (or is to be) spent working in the State.
4...... A worker is based (or has a base) in a particular State if the worker’s usual place of residence is in the State or if the worker regularly travels between a port or other point of embarkation in the State and the place of employment.”
It can be seen from s6 that the worker might be entitled to receive compensation for a disability which has arisen outside the State if there exists a nexus between the worker’s employment and this State.
The Act provides that if a worker suffers a disability the worker must submit a notice of that disability to his or her employer or, if not in employment or if self employed, to the Corporation [s51]. “The Corporation” means the Workcover Corporation of South Australia [s3]. Time limits are provided for the giving of that notice [s51(2)].
Thereafter the worker, if he or she seeks benefits under the Act, must submit a claim for compensation in accordance with the provisions of s52 of the Act.
Section 53 provides that on receipt of a claim for compensation the Corporation shall make such investigations and inquiries as it thinks necessary to determine the claim and shall determine a claim for compensation as expeditiously as reasonably practicable [s53(1) and s53(2)].
As soon as practicable after determining a claim for compensation the Corporation shall give notice in writing of that determination to the claimant [s53(5)] and if any part of the claim is rejected the Corporation must include such information as the regulations may require as to the grounds on which the claim is rejected [s53(6)].
The Corporation may in any appropriate case, as defined in s53(8) of the Act, redetermine a claim [s53(7)]. A decision on a claim for compensation including a decision redetermining a claim is a reviewable decision [s89A].
If, as in this case, a claim is rejected (being a reviewable decision) then the worker can lodge a notice of dispute with the Registrar of the Tribunal [s90].
Before I address the process whereby that notice of dispute is dealt with I shall refer to the constitution and powers of the Tribunal.
The Workers Compensation Tribunal is constituted under the Act [s77] and can consist of a Full Bench (three presidential members), or a single presidential member or a single conciliation and arbitration officer [s78]. In some circumstances the Registrar can exercise the powers of the Tribunal but those circumstances are not important [s78B].
The jurisdiction of the Tribunal is that conferred by the statute (s79).
The President of the Tribunal, who is the principal judicial officer of the Tribunal, is the Senior Judge of the Industrial Relations Court of South Australia [s80]. A judge of the Industrial Relations Court of South Australia is a Deputy President of the Tribunal [s80A(1)]. On the nomination of the Minister the Governor can appoint a suitable person on a permanent or acting basis as a Deputy President of the Tribunal in addition to the Judges of the Industrial Relations Court of South Australia. A person is not eligible for appointment as a Deputy President of the Tribunal unless the person is a legal practitioner of at least seven years standing [s80A].

The Governor can also appoint conciliation and arbitration officers to carry out the Tribunal’s jurisdiction in conciliation and arbitration [s81].
A conciliation and arbitration officer whose appointment is for a term of five years must be a person of standing in the community with appropriate experience to work effectively in the conciliation and arbitration of disputes under the Act [s81 and s81A].
The Tribunal, however constituted, is not bound by the rules of evidence but may inform itself in any way it considers appropriate [s84]. It has the power to require the attendance of witnesses and the production of evidentiary material. It also has the power to compel a person who is called to give evidence or to produce evidentiary material before the Tribunal to give evidence and to produce that evidentiary material.
In the event that the person so called does not comply with the direction then that person commits a contempt [s84B]. The Tribunal is given power to punish for contempt [s88B].
Hearings of the Tribunal are to be in public and any person is entitled to appear personally or by representative in conciliation proceedings or other proceedings before the Tribunal [s85A and s85B]. The Tribunal must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms [s85].
The President may make Rules of the Tribunal regulating the business of the Tribunal and the duties of the various officers of the Tribunal; authorising conciliation and arbitration officers to exercise any part of the jurisdiction of the Tribunal; and regulating the practice and procedure of the Tribunal and other matters.
The Tribunal has power to award costs and the costs of proceedings are in the discretion of the Tribunal [s88F].
The Registrar must on the application by a party to proceedings issue a certified copy of a judgment or order of the Tribunal in the proceedings [s87].
The Tribunal can amend or set aside a judgment or order of the Tribunal if the parties consent or in order to correct an error or if the interests of justice require that the judgment or order be set aside [s88H].
Judgments and orders of the Tribunal can be filed in the District Court and if so filed may be enforced as judgment or orders of that Court [s87A].
An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to the Full Bench of the Tribunal (s86).
The Full Bench of the Tribunal can state a case on a question of law for the opinion of the Supreme Court and, if such a case is stated, the Full Court of the Supreme Court may decide the question of law or refer the case back to the Tribunal with directions that the Full Court considers appropriate or make consequential or related orders (s86A).
Where a person has lodged a notice of dispute pursuant to s90, the relevant compensating authority, which is either the Corporation, a delegate of the Corporation or an exempt employer, must, on receiving a copy of that notice of dispute, assign a suitable person to reconsider the disputed decision [s91]. On completion of the reconsideration the relevant compensating authority must confirm or vary the disputed decision to confirm with the result of the reconsideration and notify the Registrar accordingly [s91(3)].
If the relevant compensating authority, on a reconsideration of a disputed decision, either confirms or varies a decision and a party to the dispute expresses dissatisfaction with the result of the reconsideration, the Registrar must refer the dispute for conciliation [s91A].
When a dispute is referred for conciliation either a presidential member or a conciliation officer must be assigned in accordance with the rules of the Tribunal to preside at the conciliation proceedings [s90(2)].
If conciliation proceedings do not result in an agreed settlement of the dispute, the conciliator presiding at the conciliation proceedings must refer the dispute into the Tribunal either for arbitration or for judicial determination. A dispute can only be referred into the Tribunal for judicial determination if the conciliator has first informed the parties to the dispute of the conciliator’s intention so to do and the President agrees to the proposed reference [s92D].
Arbitrations are to be conducted by arbitration officers. A conciliation officer who presided at the conciliation proceedings cannot arbitrate the same dispute unless the parties agree [s93].
The Tribunal must make a judicial determination of a disputed claim if the dispute is referred to it for judicial determination pursuant to s92D, or a party to the dispute is dissatisfied with the result of an arbitration and disputes the arbitrated determination in accordance with the rules [s94].
A judicial determination of a disputed claim can only be made by the Tribunal when constituted by a single presidential member [s94A]. In some circumstances the disputed claim may be referred directly to the Full Bench of the Tribunal [s94A(2)].
The Tribunal when hearing a judicial determination of a dispute must rehear the matter and decide the dispute without regard to decisions taken in earlier proceedings [s94C]. The Tribunal, however, can accept in evidence transcripts of evidence and other evidentiary material introduced in proceedings for arbitration of the dispute and will not take further evidence that should in the Tribunal’s opinion have been introduced in proceedings for arbitration of the dispute unless there is adequate reason why the evidence was not introduced in the earlier proceedings or the interests of justice require admission of the evidence [s94C(2)].
The Tribunal’s decisions are, subject to the power of appeal from a presidential member to the Full Bench of the Tribunal and the power to state a case to the Full Court of the Supreme Court, final.
Section 88I provides:

“Finality of the Tribunal’s decisions

88I. No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except -
(a).... as provided in this Act; or
(b).... in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.”

That section is a privative clause. Legislatures have from time to time used various forms of privative clauses to limit the circumstances in which a party might approach a superior court for review of proceedings in an inferior court.
In Hockey v Yelland (1984) 157 CLR 124 at 130, Gibbs CJ (with whom Brennan and Dawson JJ agreed, and Mason and Wilson JJ did not disagree) said of privative clauses at 130:
“... It is a well recognized principle that the subject’s right of recourse to the courts is not to be taken away except by clear words. If the sub-section had provided that the determination should not be “quashed or called in question” it would have been effective to oust certiorari for errors of law not going to jurisdiction (South East Asia Firebricks Sdn Bhd v Non-Metallic Products Manufacturing Employees Union [1981] AC 363; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88), but although that formula is by no means unfamiliar to the Queensland legislature, it is not used in s14c(11). The provision that the board’s determination shall be final and conclusive is not enough to exclude certiorari. It has been held in Reg v Medical Appeal Tribunal; Ex parte Gilmore [1947] 1 QB 574 and in South East Asia Firebricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC at pp 369 - 370, that a provision that a decision shall be final does not prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record, and in my opinion the addition of the words “and conclusive” does not have that effect. The words of the further provision that the worker shall have no right to have any of the matters which have been determined by the medical board “heard and determined by an Industrial Magistrate, or, by way of appeal or otherwise, by any Court or judicial tribunal whatsoever” are in my opinion quite inapt to take away from the Court its power to issue certiorari for error of law on the face of the record. The words “heard and determined” echo the words of s13, and although sub-s(11) excludes any other hearing or determination of the matters the subject of the board’s determination, it does not affect the power of the court to decide whether that determination was reached in accordance with law.”
The section has an unusual feature in that the clause does not proclaim that the proceeding judgment or decision of the Tribunal is final. Usually privative clauses provide in their terms that the judgment, decision or order which cannot be challenged, appealed against, reviewed, quashed or called into question is ‘final’ or ‘final and conclusive’ or something to the like effect. Whilst the section does have as a heading “Finality of the Tribunal’s decision”, that heading does not form part of the Act [s19(3) Acts Interpretation Act 1915] and in those circumstances the heading is of very limited assistance in the construction of the section.
I think, however, the reason for the absence of the words “final and conclusive” is tolerably clear. The Act itself provides for an appeal procedure to the Full Bench from a presidential member [s86]. Therefore a presidential member’s decision could not be final and conclusive. I think that is why the section is in the form that it is. It acknowledges that unless provided for in the Act itself no proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called into question except on an alleged excess or want of jurisdiction.
Section 88I includes in its introductory words the words “quashed or called in question” and therefore it must be understood that s88I is a section which effectively ousts the jurisdiction of the Court to grant certiorari for errors of law not going to jurisdiction. The use of those words is also consistent with allowing certiorari to lie or judicial review to be available in the circumstances identified in s88I(b).
However s88I goes further. It also provides that a proceeding, judgment or decision of the Tribunal cannot be challenged, appealed against, reviewed, quashed or called in question “except in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction”.
It was submitted that this Court is prevented from granting certiorari except for any error of law going to jurisdiction and in that respect only where there is an alleged excess or want of jurisdiction on the part of the Tribunal rather than a failure by the Tribunal to exercise jurisdiction.
A similar privative clause was considered by the High Court in Public Service Association of South Australia v Federated Clerks Union of Australia, South Australian Branch & Anor (1991) 173 CLR 132. That case concerned an application made to the Industrial Registrar of the Industrial Commission of South Australia to register an alteration in the rules of the Public Service Association. Section 121 of the Industrial Conciliation and Arbitration Act 1972 provided that the Registrar could refuse an application under the section for various reasons set out in s121(5). There were other statutory provisions allowing the Registrar to refuse an application unless the Registrar formed the opinion that it was undesirable to do so for the reasons set out in the subsection [s116(2)].
The Registrar granted the application for registration of the alteration to the Public Service Association rules. Two other unions who were also registered associations under the Act sought to challenge the Registrar’s decision on appeal by filing applications for leave to appeal to the Full Commission of the Industrial Commission. The grounds of appeal complained of matters going to the merits of the Registrar’s findings on particular issues relevant to the application under s121(5).
Appeals to the Full Commission of the Industrial Commission from a decision of the Registrar were regulated by s104 of the Act. That allowed the Full Commission to grant leave to appeal to the Full Commission from an act or decision of the Registrar in relation to a matter before the Registrar. The section further provided that the Full Commission could hear and determine an appeal in respect of which leave was granted.
Section 105 allowed the Full Commission to take further evidence for the purpose of an appeal and provided that the Full Commission could make such order as the Full Commission thought fit and could confirm, quash or vary a decision of the Registrar.
The Full Commission decided not to grant leave to appeal. The refusal to grant leave essentially was on the basis that the matter before the Registrar involved the exercise of a wide discretion and in accordance with the principles in House v The King (1936) 55 CLR 499 an appellate body would not lightly interfere with the exercise of that discretion.
The respondents, pursuant to r98.01, successfully challenged the decision of the Full Commission in the Full Court of the Supreme Court by way of judicial review. The Full Court granted an order in the nature of certiorari to bring up and quash the order of the Full Commission refusing leave and an order in the nature of mandamus to compel the Full Commission to hear and determine afresh the application by the respondents for leave to appeal.
The matter went to the High Court on appeal from the Full Court of the Supreme Court of South Australia, the appellant claiming that the Full Court of the Supreme Court erred in making the orders to bring up and quash the order of the Full Commission and to compel the Full Commission to hear and determine afresh the applications by the respondents for leave to appeal. The appellant there submitted that any error of law on the part of the Full Commission was an error made within jurisdiction and that relief by way of judicial review to correct non jurisdictional errors was excluded by s95 of the Industrial Conciliation and Arbitration Act 1972.
That section provided:
“Except as is provided by section 96 -
(a).... every award, order or decision of the Commission or a Committee is final and no such award, order or decision can be removed to any other court;
and
(b).... no award, order or proceeding of any kind of the Commission or a Committee can be challenged, appealed against, reviewed, quashed or called in question except on the ground of excess or want of jurisdiction.”
Brennan J held that privative clauses which declare an order by a Tribunal to be final and further provide that the order shall not be quashed or called in question are effective to oust certiorari for non jurisdictional errors. In that respect, of course, his decision is consistent with that of Gibbs CJ in Hockey v Yelland. He said that the High Court had construed general privative clauses as “impliedly exempting certiorari for jurisdictional error from the ouster of supervisory jurisdiction”. He said, however, that s95 could not be construed so as to allow certiorari except in circumstances where the challenge, appeal or review is brought on the ground of excess or want of jurisdiction.
He said, at 142:
“Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it. The exception in s95(b) covers the former case; there is no acceptable canon of construction by which it can be extended to cover the latter case. Thus, s95(b) appears to permit erroneous assumptions of jurisdiction to be checked by judicial review, but not erroneous refusals to exercise jurisdiction.”
Brennan J accepted that such a construction would give rise to inconvenience and for an unbalanced operation of the section in the review of orders of the inferior Tribunal. He said, however, that notwithstanding the inconvenience of the construction he was unable to conclude that judicial review remained available for a wrongful failure or refusal to exercise jurisdiction.
Dawson and Gaudron JJ said this, at 160:
“Privative clauses such as s95 of the Act are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied: see, e.g., Clancy v Butchers’ Shop Employees Union (1904) 1 CLR 181 at 204 per O’Connor J; Hockey v Yelland (1984) 157 CLR 124 at 130 per Gibbs CJ and at 142 per Wilson J. See also Anisminic (1969) 2 AC at 170 per Lord Reid. Thus, a clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction.
Section 95 of the Act is a clause which both excludes and, with some precision, allows for judicial review. Because it expressly allows for review on the grounds of excess or want of jurisdiction, it must be interpreted as allowing an “award, order or proceeding”, to be reviewed only on those grounds. And those grounds are not made out if all that is established is that there was a refusal or failure to exercise jurisdiction.”
Deane and McHugh JJ dissented. However, neither Deane J nor McHugh J disagreed with the majority in respect of the jurisdiction of the superior court in relation to the ambit of judicial review available.
Deane J said at 148/149:
“As a matter of ordinary language, the exception in s95(b) in relation to a challenge to an “award, order or proceeding” on the ground of “excess of want of jurisdiction” is apt to refer only to a case where it is claimed that the award, order or proceeding is itself wholly or partly outside the limits of the jurisdiction of the Commission in the circumstances. In the case of an award or order, the basis of such a challenge could be that the Commission had no relevant jurisdiction at all. Alternatively, it could be that, while the Commission possessed relevant jurisdiction, the award or order made exceeded or went beyond what the Commission had jurisdiction to do in the circumstances of the case. In the exercise of the jurisdiction which it possesses, the Commission is necessarily entitled - or possessed of “jurisdiction” - to determine relevant questions of fact and law. In determining such questions, the Commission may, within its jurisdiction, fall into an identified error of law or fact. Even if such an error “within jurisdiction” affects an award or order of the Commission, it will not, without more, produce the consequence that the award or order is made without, or in excess of, jurisdiction. In the absence of any applicable overriding constitutional provisions, identified error of law or fact on the part of the Commission will bring a case within the exception in s95(b) only if it leads the Commission to purport to make an award or order or to entertain a proceeding which is of a nature which it had no authority to make or entertain in the circumstances of the case. In other words, “jurisdiction” is not used in the wide and almost meaningless sense to which Lord Reid disapprovingly referred in Anisminic Ltd v Foreign Compensation Commission. It is used in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them. It is when “jurisdiction” is used in that sense in a provision such as s95(b) that it is meaningful to speak, as this Court has done in many cases, of error being “within” and not in “want or excess of” the “jurisdiction” of a tribunal such as the Commission.
That construction of the exception in s95(b) is consistent with the general legislative policy which s95(a) manifests, namely, that an award, order or decision made by the Commission is “final” and cannot be “removed” to any other court. That general unqualified legislative directive precludes certiorari for underlying error within jurisdiction since such certiorari involves removal of the impugned award, order or decision to the court in which the proceedings for certiorari are brought.”

Deane J reached his conclusion on a different reasoning process but his reasoning did not deny the conclusions arrived at by Brennan J and Dawson and Gaudron JJ.
McHugh J, whose reasoning was consistent with that of Deane J, on the question of the construction of s95 of the Act, said at 164:
“The phrases ‘excess of jurisdiction’ and ‘want of jurisdiction’ are not terms of art. Nevertheless, they are frequently used by superior courts in describing acts of inferior courts or tribunals which have been done or carried out in breach of the conditions which circumscribe the powers and authorities of those courts or tribunals: as to the phrase ‘want of jurisdiction’ See Yirrell v Yirrell (1939) 62 CLR 287 at p294, p304; Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers’ Union (1957) 99 CLR 505 at p511; Reg v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at p201, p202; and Reg v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at p194; see as to the phrase ‘excessive jurisdiction’ Commissioner for Railways (NSW) v Locke (1970) 122 CLR 479 at p482; Brown v Rezitis (1970) 127 CLR 157 at p168; Reg V Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR at p202, p230; Reg v Ross-Jones; Ex parte Green (1984) 156 CLR at p194, p217; and Hockey v Yelland (1984) 157 CLR 124 at p130. Speaking generally, it can be said that there is a ‘want of jurisdiction’ when a court or tribunal does an act which is beyond its general power or authority and that there is an ‘excess of jurisdiction’ when it does an act, the doing of which is within its general power or authority, but which was done in breach of the conditions which authorise the doing of acts of that class or nature. As the passages in the judgments in the foregoing cases demonstrate, however, it is not uncommon for superior courts to use the phrases ‘want of jurisdiction’ and ‘excess of jurisdiction’ interchangeably. Nevertheless, whichever phrase is used to describe the situation, an inferior court or tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal. That being so, a mere failure to exercise jurisdiction cannot constitute an ‘excess or want of jurisdiction’.”
In Public Service of South Australia v Federated Clerks Union of Australia the Court concluded that the failure to grant leave did in fact amount to the exercise of an excess of jurisdiction. The reasons why that result was obtained are not important. It also concluded that the order in the nature of mandamus should not have been made because there was no jurisdiction available to the Supreme Court to compel the Full Commission to exercise its jurisdiction. Again the reasons are not important.
There is the point of distinction between s95 of the Industrial Act and s88I of the Workers Rehabilitation and Compensation Act. In the former Act s95(1) provides that the decision shall be final and conclusive. Section 88I does not provide that the Tribunal’s decision shall be final and conclusive, but for reasons already expressed I do not think there is any doubt that so much can be inferred from s88I itself and from the legislation as a whole. I think the absence of those words does not allow s88I to be distinguished from s95 of the Industrial Act. Otherwise, in my opinion, s95 is indistinguishable from s88I.
Like s95, s88I precludes this Court from granting an order in the nature of certiorari for errors of law not going to jurisdiction. Because of the reference to excess or want of jurisdiction s88I must be construed, in my opinion, as limiting the circumstances in which this Court might review a decision of the Tribunal to matters of jurisdiction but only where there has been an excess or want of jurisdiction on the part of the Tribunal.
I think that interpretation is consistent with the decision of the High Court in Public Service Association v Federated Clerks Union (supra) but also consistent with the tenor of the Act which provides for a system which is principally directed toward conciliation and arbitration.
As I have already pointed out, the dispute resolution machinery is provided for in Part 6A in the Workers Rehabilitation and Compensation Act and in particular creates a system of conciliation.
It is only when conciliation is first exhausted that a party is entitled to arbitration or having the matter determined by judicial determination within the Tribunal.
If the matter is subject to judicial determination then an appeal lies on a question of law only against a decision of the Tribunal constituted of a single presidential member.
The object of the Act is to contain disputes primarily within a conciliation and arbitration system. If it is necessary that there be a judicial determination then that is to be carried out by a single member whose decision is only subject to appeal in relation to a question of law.
The object of the Act is to contain disputes of facts to the conciliation and arbitration level and the single presidential member level. Thereafter the object of the Act is to provide for an appeal only on a question of law from a single presidential member to a Full Bench of the Tribunal and to have that Tribunal, subject to its power to take advice from the Supreme Court on a case stated pursuant to s86A, state the law for the purpose of the application of the Act. There is no right of appeal at all from any orders made on a conciliation or an arbitration. There is the power in the Tribunal to set aside a judgment or order of the Tribunal [s88H].
I do not think there is any doubt that Parliament intended to preclude this Court from having an influence in the determination of matters under this Act, except in so far as the Full Bench of the Tribunal might state a case to the Full Court of this Court.
Mr Besanko argued that s88I was of a kind that this Court was limited to determining whether the Full Bench and Deputy President Gilchrist had acted in excess or want of jurisdiction. He argued that neither the Full Bench nor Deputy President Gilchrist had declined to exercise jurisdiction.
Alternatively he argued that the matter under consideration was not one that went to jurisdiction at all.
Logically one would address the matter in reverse order. I have already concluded that s88I does not allow for a judicial review for error on the face of the record. It can only allow for jurisdictional error. If the matter under consideration is not jurisdictional at all then one does not need to decide whether there has been an excess or want of jurisdiction or a failure to exercise jurisdiction.
However Mr Besanko frankly conceded that his stronger argument was that s88I was limited to judicial review for an alleged excess or want of jurisdiction. On his primary argument he was prepared to assume that the question before the Full Bench of the Tribunal and before the Deputy President was a matter going to jurisdiction. He argued, however, that it was not a matter which went to an excess or want of jurisdiction and therefore was not capable of judicial review and that none of the grounds upon which the plaintiff relies are arguable.
The question which was before the Review Officer was whether the plaintiff was entitled to compensation under the Act. The plaintiff was only entitled to benefits under the Act if he could prove a number of matters. Those matters included; first, that he was a worker; secondly, that he had suffered a disability; thirdly, that the disability arose from employment; and fourthly, that the Act applied to his employment.
Within those basic matters he also had to establish that the disability was a physical or mental injury including a loss, deterioration or impairment of a limb, organ or part of the body or of a physical, mental or sensory faculty or a disease or disfigurement.
If the worker was not able to establish any one of the matters to which I have referred then the worker was not entitled to benefits under the Act.
The Review Officer was of the view that he was entitled to benefits concluding, inter alia, that the plaintiff had brought himself within s6 of the Act. On the other hand Deputy President Gilchrist, on the judicial determination, found that the plaintiff was not within the territorial application of the Act because the plaintiff did not have a residence within South Australia. Both the Review Officer and Deputy President Gilchrist were enquiring into the same matter and that was whether there was a nexus between the worker’s employment and the State of South Australia. Deputy President Gilchrist reached his conclusion, which was contrary to the conclusion reached by the Review Officer, upon a different finding of fact.
The Full Bench was called upon to determine the same issue. The question before the Full Bench was whether the plaintiff was based in South Australia and whether the plaintiff’s usual place of residence was in the State of South Australia so that the plaintiff could establish that there was a nexus between his employment and the State of South Australia.
The Full Bench determined that it was a question of fact whether the worker had a nexus with the State of South Australia because it was a matter of fact whether his usual place of residence was within the State.
In its consideration of the appeal the Full Court determined that s6 of the Act represented a separate code as to territoriality. Its finding in that respect has recently been approved by the Full Court of this Court in Workcover Corporation v Smith (Full Court, Judgment No. S6878, Prior, Lander and Wicks JJ, 2 October 1998).
On each of the occasions before the Review Officer, the Deputy President and the Full Bench, the question for determination was whether the plaintiff had his usual place of residence in the State of South Australia. On each occasion the consideration was a matter of fact. True it was that the fact, as found, had to be applied to the proper construction of s6 of the Act.
However, for the purpose of addressing the argument first put by Mr Besanko it cannot be said that the Review Officer or either level of the Tribunal was acting in excess or want of jurisdiction. Indeed the Tribunal was exercising its jurisdiction in considering whether or not the plaintiff was entitled to benefits under the Act because the plaintiff was within the territorial application of the Act.
It was put by the plaintiff that the decisions arrived at by the Deputy President and the Full Bench went beyond the limits of the jurisdiction conferred upon them. It was said that to find that the plaintiff did not have a usual place of residence in the State was an error which led the Deputy President and the Full Bench to arrive at a conclusion which amounted to an excess of jurisdiction. I cannot accept that argument. The task for the Tribunal, however constituted, was to decide inter alia whether the plaintiff came within the territorial application of the Act. That is exactly what the Tribunal did. It decided both at first instance and on appeal that the plaintiff did not come within the territorial application of the Act because there was no nexus between the plaintiff’s employment and the State. To make that decision was not to assume a jurisdiction not given to the Tribunal. It was the very question which had to be decided. An error of fact leading to a decision of rejecting a party’s application for benefits under the Act does not mean that the Tribunal has made a decision which indicates an excess or want of jurisdiction. It merely indicates the erroneous decision of fact within jurisdiction which is not susceptible to judicial review.
In my opinion, the orders made by both tiers of the Tribunal are clearly within jurisdiction, and are therefore not susceptible to judicial review.
There is no prospect, in my opinion, that the Court would make any order in the nature of judicial review.
For those reasons the first defendant is entitled to the order sought.
Mr Besanko put as an alternative argument that those orders, in any event, did not go to jurisdiction. He said the Tribunal decided the very question it was given jurisdiction to decide.
In my opinion the defendants argument must succeed. The orders made by the Tribunal both at first instance and on appeal were not made in excess or want of jurisdiction and are not subject to judicial review.
It is often very difficult to determine whether a matter raises a question of law or fact going to jurisdiction or a question of law and fact going to the merits of the case.
It was argued in this case by Mr Besanko that the decision that the plaintiff did not have a usual place of residence within South Australia was a decision of fact upon the merits and not one going to jurisdiction. It was not therefore subject to judicial review because judicial review was only available in circumstances of excess or want of jurisdiction.
I do not have to decide this matter because of the conclusion which I have reached on the first argument. Section 6 defines the limits of the jurisdiction to make orders for compensation under the Act. It is necessary that a worker establishes that there is a nexus between his or her employment and this State before a worker is entitled to benefits under the Act and, therefore, before the Tribunal would have jurisdiction to make an order in favour of that worker. The Act only applies in the circumstances of s6. Therefore it may be that an inquiry into the facts under s6 is an inquiry into jurisdiction. However, that can wait for another day because I have assumed for the purpose of Mr Besanko’s argument that the inquiry was jurisdictional in nature. That inquiry, as I have said, did not involve the Tribunal assuming a jurisdiction it did not have. It had to decide the question and did.
For these reasons the order will be that the plaintiff’s application for judicial review be struck out.

[1998] SASC 6902

19 November 1998