South Australian Massage Therapists Assoc Inc v WorkCover Corporation No. SCGRG 94/727 Judgment No. 4853 Number of Pages 19 Administrative Law
[1994] SASC 4853
•17 November 1994
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J
CWDS
Administrative law - rules of natural justice and breach thereof - Judicial Review - changes in policy made by defendant as to persons entitled to fees payable by the defendant for massage treatment given to injured workers - plaintiff association entitled to and not given an adequate opportunity to present opposition to the change. Workers Rehabilitation and Compensation Act 1986 5.32(1) and (2) (i). Kioa v West (1985) 159 CLR 550 and Somaghi v Minister for Immigration (1991) 102 ALR 339, applied.
HRNG ADELAIDE, 20-21 October 1994 #DATE 17:11:1994
Counsel for plaintiff: Mr C J Kourakis
Solicitors for plaintiff: Caldicott and Co
Counsel for defendant: Mr A J Besanko
Solicitors for defendant: Piper Alderman
ORDER
Application allowed.
JUDGE1 BOLLEN J This is an application for judicial review. I will state only the barest bones of the facts. More details will be found in the affidavits and exhibits received into evidence. I have studied all affidavits and exhibits. I reject any and all submissions suggesting that some parts of some affidavits are inadmissible. However, I think that only a few facts are sufficient to found a decision.
2. The plaintiff is an incorporated association. Its members give, and for many years have given, treatment called "massage". They give that treatment sometimes to injured workers, to people who have claims for compensation which the defendant is bound to consider and, in the right circumstances, to pay. For some years prior to April 1994 the defendant met the fees of members of the plaintiff association for massage given to injured workers in what I call the right circumstances.
3. During 1933 practitioners of vocations which can be called "alternative health services" produced and promulgated an idea that people giving massage, along with others, should work "under" a charter. An organisation was produced to work under such a charter. That organisation was not incorporated. The charter was called "The Australian Charter of the Affiliate Signatories of the Natural Medicine Chinese Medicine and Natural Therapies Profession". As I say, no organisation was incorporated under the charter. The base of the organisation that is "behind" the charter is in Brisbane. The charter is in evidence as an exhibit to an affidavit of an employee of the defendant - Beverley Pauline Tonkin. (Exhibit "BPT5" to an affidavit dated 1st July 1994). It is described on its face sheet as being compiled by "The Self-Regulation Task Force of the Natural Medicine, Chinese Medicine and Natural Therapies Professions of Australia - Completed in September 1993". Various bodies of "alternative health practitioners" have become signatories to the charter. The charter has attached to it two declarations. They are:
"THE AUSTRALIAN CHARTER OF THE'AFFILIATE SIGNATORIES' OF
THE NATURAL MEDICINE, CHINESE MEDICINE AND NATURAL
THERAPIES PROFESSIONS
DECLARATION
WHEREAS on Saturday 29 May 1993 at Canberra in the
Australian Capital Territory it was determined and
agreed by those present at an extraordinary meeting
of Senior Representatives of the 'Natural Medicine
Profession', the 'Chinese Medicine Profession' and
the 'Natural Therapies Profession' that the
Professions would be self-regulated by the
determination of their own Practitioners;
AND WHEREAS it was further determined that the
Professions would be better served so as to
self-regulate under the authority of a common
'Charter' in so far as may concern all relevant
procedural matters relating to those Professions and,
in particular, matters concerning the educational
levels, standards of competency, and standards of the
qualifications and training pertaining to
Practitioners within those Professions together with
the standards of practise, conduct and ethics of
those Practitioners;
AND WHEREAS certain Organizations of the Professions,
but not all, have agreed to achieve self-regulation
by means of the common 'Charter' adopted by those
Organizations as affiliate Signatories;
AND WHEREAS FURTHER, in order to better achieve such
self-regulation of the aforementioned Professions and
thereby to declare the powers, duties and
responsibilities of those Practitioners in the
various and several modalities of the practitioner
nomenclatures of the Professions;
THEREFORE TAKE NOTICE that "The Australian Charter"
of the 'Affiliate Signatories' of the Natural
Medicine, Chinese Medicine and Natural Therapies
Professions is, inter alia, hereby made for those
express purposes and the 'Charter' thereby makes this
Declaration on behalf of those 'affiliate
Signatories' identified by 'Resolution of Agreement'
as follows:
Dated this 2nd day of October 1993 at Melbourne,
Victoria, Australia." And:-
"IN PURSUANCE OF 'THE AUSTRALIAN CHARTER' OF THE
'AFFILIATE SIGNATORIES' OF THE NATURAL MEDICINE, CHINESE
MEDICINE AND NATURAL THERAPIES PROFESSIONS
DECLARATION
WHEREAS it is stated in section 2 of 'The Australian
Charter of the "Affiliate Signatories" of the Natural
Medicine, Chinese Medicine and Natural Therapies
Professions' that the Charter may be adopted by
'Resolution of Agreement';
AND WHEREAS it is provided under subsection 2(4) of
the 'Charter' that where the signatures of the
President, Vice President or Secretary, or any
authorized Executive Officer of the Organization or
any person authorized by that Organization, is, or
are, appended to the 'Resolution of Agreement', then,
by virtue of that signature or those signatures, as
the case may be, the Organization shall thereupon
become an 'affiliate Signatory' to the 'Charter';
THEREFORE TAKE NOTICE that the signature or
signatures of the person or persons, as the case may
be, hereinafter appended to this 'Resolution of
Agreement' in respect of an Organization is, or are,
the signature or signatures of the relevant person or
persons referred to in section 2 of the 'Charter' in
respect of those Organizations therein cited;
AND TAKE FURTHER NOTICE that, by virtue of that
signature, or those signatures, upon this 'Resolution
of Agreement', each Organization so cited hereinafter
shall be such an 'affiliate Signatory' and shall be
bound by the provisions of the 'Charter'.
Dated this 2nd day of October 1993 at Melbourne,
Victoria, Australia."
4. The charter and the ideas which gave birth to it attracted the interest of the defendant. It decided that it would pay fees only to those who "attained chartered status". It reached that decision in April 1994. The plaintiff was informed of it by letter to the President of the plaintiff organisation (Mr Hill) of the 14th of April 1994 that was accompanied by a document called: "Standards Massage services provided by approved service provider."
5. I set out the letter with the attachment:
"14 April 1994
Ron Hill
SA Remedial Therapy Clinic
127 Rundle Mall
ADELAIDE SA 5000
Dear Mr Hill
The Corporation has recently revised its policy
regarding the provision of massage services by
approved massage therapists. The new policy
recognises the Australian Charter of the Professions
of Natural Medicine, Chinese Medicine and Natural
Therapies and requires that WorkCover massage
providers be Chartered Natural Therapies
Practitioners. The Professional Massage and Remedial
Therapy Society and the South Australian Massage
Therapists Association Inc. are affiliate Signatories
to the Charter.
The Charter is a self-regulation scheme, designed to
generate and maintain high standards of competency,
education and professional qualifications in the
professions of Natural Medicine, Chinese Medicine and
Natural Therapies.
The accreditation process whereby massage therapists
may obtain approval to deliver massage services to
WorkCover claimants is now open and will operate in
accordance with the revised policy standards. This
means that all new WorkCover massage providers will
be Chartered Natural Therapies Practitioners. The
Corporation requires that the Certificate of Charter
specifies the Charter Registration Number and
Remedial Massage Therapy as the main modality of
practice.
As a currently accredited WorkCover massage provider,
you are advised that you are required to attain
Chartered status by 2 May 1995 if you wish to
continue as a WorkCover provider after that date.
In order to do so you may take advantage of the
Charter grandfather clause which allows qualified
remedial massage practitioners who fulfil the
criteria to attain Chartered status by application to
your association before 2 May 1994. The grandfather
clause ceases effect on that date. Your
association's representative on the Presidential
Board for the Natural Therapies Profession must
attest to your qualification by statutory
declaration.
If you do not take this action, and you wish to
maintain your WorkCover accreditation, you will have
to sit and pass a theoretical and practical
examination conducted by the Academic Board of
Examiners in order to obtain a Certificate of Charter
(Remedial Massage Therapy) within the next twelve
months. Providers who choose not to become Chartered
Natural Therapies Practitioners during this time will
have their accreditation revoked on 2 May 1995.
Two copies of the new policy standards are enclosed.
Please sign one copy to indicate your understanding
of WorkCover Corporation's new requirements and
return it to the undersigned within ten (10) days.
The Corporation is developing a referral form for use
by medical experts who refer claimants for massage
treatment.
Pads of 50 forms will be provided to massage
providers for distribution to their referral sources.
The form will be in triplicate, with copies for the
massage provider, the medical expert and the
Corporation.
Please indicate the number of pads you require on the
enclosed form and return it with the signed copy of
the policy standards.
The Corporation has decided to retain the current
arrangement in regard to fees for massage services,
rather than publish a scale of fees for massage
services in the South Australian Government Gazette.
The current fees are as follows:
MA100 initial consultation (3/4 hour) $38.00
MA200 standard consultation (1/2 hour) $28.00
MA300 extended consultation (3/4 hour) $38.00
MA400 long consultation (1 hour) $47.00
There are no special invoice forms. Accounts for
massage services provided to claimants must specify
the following:
1. Patient's name and address;
2. Item number;
3. Date of service;
4. Full description of service;
5. The fee for each service;
6. Provider name.
The following information would assist in processing
accounts but is not essential:
1. Employer name;
2. Claim number.
The Corporation is able to process all incoming mail
without the use of a claim number if the essential
information is provided. However, in order to assist
processing efficiency, you should include the claim
number if it is known.
Case managers will receive training in the new policy
in the near future. As the new arrangements mainly
pertain to the accreditation process, this should not
impact on case management and the delivery of massage
services.
I trust this information clarifies the Corporation's
position, and that you will wish to continue to
provide massage services under the new WorkCover
massage policy.
Yours sincerely
per Jodie Barnes
Bev Tonkin
Coordinator - Medical Policy and Education
WorkCover Corporation
STANDARDS
MASSAGE SERVICES PROVIDED BY APPROVED SERVICE PROVIDERS
WorkCover Corporation has authorised the costs of
massage services pursuant to Section 32(2)(i) of the
Workers Rehabilitation and Compensation Act, 1986, in
the circumstances set out below.
1. The massage provider must be a Chartered Natural
Therapies Practitioner whose main modality of
practice is Remedial Massage Therapy.
2. An Association/Society of massage therapists may
only be approved by WorkCover Corporation provided it
meets the following criteria:
2.1 The Association/Society is a Signatory of The
Australian Charter of the Professions of Natural
Medicine, Chinese Medicine and Natural Therapies.
2.2 The constitution admits to membership those
persons who are fit and proper persons and who carry
on the profession of remedial massage therapy in a
professional and ethical manner and on professional,
registered premises.
2.3 The affiliate Signatory complies with The
Presidential Board of the Chartered Natural Therapies
Profession requirement that prospective Chartered
Natural Therapies Practitioners pass a theoretical
and practical examination conducted by two or more
Chartered members of the Academic Board of Examiners
before being admitted as Chartered Natural Therapies
Practitioners.
2.4 The affiliate Signatory adopts the Code of Ethics
and Code of Practice of the Charter.
2.5 In addition to adopting the Code of
Administrative Procedures under the Charter, the
affiliate Signatory has a disciplinary mechanism
which can be promptly activated upon receipt of a
written complaint.
2.6 The affiliate Signatory and its members have
professional indemnity insurance. (Minimum $1m).
2.7 The affiliate Signatory is willing to cooperate
with WorkCover, accept and promote the massage
services policy and standards amongst its members,
and provide current lists of Chartered members as
required.
2.8 The affiliate Signatory conducts its affairs in a
proper and business like manner.
3. The massage provider must have 400 hours of
clinical practice logged and audited by the
association.
4. The massage provider must be accredited by
WorkCover Corporation in writing, must sign a copy of
the massage policy standards acknowledging their
agreement to be bound by the standards, and must have
received a WorkCover provider number prior to
commencing treatment of injured workers.
5. The services must only be provided pursuant to a
referral by an appropriate medical expert as part of
a treatment program.
6. A referral must be in writing and include:
(a) How the service is intended to increase the
person's capacity to work;
(b) How often the service should be provided;
(c) For how long the service should be provided;
(d) Dates of review;
(e) Specific body area to be treated (in accordance
with the injury described on the Prescribed Medical
Certificate.)
7. A copy of the referral must be sent to the
WorkCover Corporation case manager as soon as
possible by the massage provider, and certainly
within the first five (5) treatments or within 14
days of receipt. The case manager will usually
advise the provider of the decision by telephone so
that treatment may commence, and will confirm that
decision in writing.
8. Once referred, not more than ten (10) treatments
are to be rendered by the provider who must then
submit a report to the referring medical expert, with
a copy to the Corporation. The Corporation will not
pay a fee to the provider for this or any other
report. A further ten (10) massage services may be
provided when the case manager receives a second
written referral from the medical expert. The case
manager must advise the massage provider of the
decision either by telephone or in writing before
further treatment can commence.
Referrals for additional massage services, beyond the
stated maximum of 20, require prior written approval
from the case manager. The case manager must seek
the advice of a Corporation Medical Adviser or
Medical Consultant before making a decision regarding
further massage services.
9. The services must be reasonably incurred as a
consequence of having suffered a compensable
disability. The service must be directly related to
the compensable disability and help to increase the
worker's capacity to work.
10. Relaxation massage can only be performed on
injured workers suffering a work-related stress
condition with the case manager's prior written
approval. The treating medical expert must justify
the need for relaxation massage in terms of the
treatment program and a return to work strategy. The
request for relaxation massage services must be
submitted in writing to the case manager. In urgent
cases, approval may be given over the telephone or by
fax.
11. Segment massage should be performed on the
injured body part whenever this is appropriate.
12. Invoices must be prepared according to WorkCover
Corporation standards within scheduled fees set by
the Corporation. The invoice must include the name
of the worker, employer, referring medical expert,
the claim number, service date, item number and
appropriate charge. The service provider must be
identified by name and WorkCover provider number on
each invoice. All accounts must be rendered to the
worker.
13. Massage providers must adhere to the standards
set down by their professional body.
14. The Corporation reserves the right to refuse
payment for massage services which have not been
delivered in accordance with WorkCover Corporation
policy and standards.
15. The massage provider must not:
a) Diagnose or pass opinion on the diagnosis of a
medical expert;
b) Influence the worker's choice of practitioner(s);
c) Prescribe drugs, herbal remedies, liniments,
ointments, vitamins or food supplements;
d) Perform any service other than massage therapy;
the Corporation will not pay for electrotherapy,
reflexology, posture re-education, stretch programs,
meridian work, aromatherapy, acupressure,
acupuncture, educational kinesiology or applied
kinesiology, shiatsu;
e) Use the terms joint mobilisation or manipulation;
f) Mobilise joints at or beyond the available
physiological range.
16. The massage provider must keep clinical records
on a sessional basis and document all oral and
written communication with the Corporation in the
clinical records.
17. The massage provider must undertake to inform the
worker of the WorkCover Corporation requirements with
regard to payment for massage services.
18. This policy applies to the delivery of massage
services to S.A. WorkCover claimants in the state of
South Australia and other states and territories of
Australia in which claimants under the S.A. WorkCover
Scheme may reside, with the following exceptions:
(1) The massage provider must be appropriately
qualified to provide remedial massage services and
must be a member of a recognised association of
massage practitioners or accredited with an
appropriate Accreditation Board in the modality of
remedial massage therapy;
(2) The S.A. fees do not apply. Reasonable fees for
massage services will be paid.
The Corporation reserves its right to vary the
conditions for authorisation of the costs of massage
services at any time.
I...................... of .........................
(name) (address)
confirm that I have read this document and fully
understand the Corporation's standard requirements
comprising 4 pages pertaining to the provision of
massage services. I agree to abide by these
standards. I acknowledge that WorkCover reserves the
right to suspend or revoke my accreditation at any
time in its sole discretion.
...................... .................
Signed Date"
6. The result is that only those who "join" the Charter can recover from the defendant fees for services given to injured workers. That changes the position which previously existed. The members of the plaintiff association stand to lose the very great advantage of certain payment for treatment given to injured workers. Whereas they could, prior to April 1994, receive such a payment without joining any other organisation (i.e. other than the plaintiff itself) they must now, if they wish for payment from the defendant, join, on payment of a fee sent out of South Australia, an organisation which they do not wish to join. They and the plaintiff in its corporate mind have a great dislike of the charter and of its ideas. But I do no more than note that dislike. I do not think it necessary to discuss it further.
7. The plaintiff seeks orders by way of judicial review pursuant to Rule 98.01 of the Supreme Court Rules. It seeks:
"1. An order in the nature of certiorari quashing the
decision of the first defendant made on or about the
14th day of April 1994 whereby it determined that it
would pay the costs of massage services provided
pursuant to Section 32 of the Workers Rehabilitation
and Compensation Act, 1986 as amended only if the
massage providor was a 'chartered natural therapy
practitioner whose main modality of practice is
remedial massage therapy' and that an association
society of massage therapists may only be approved by
the Corporation if it is a signatory to 'the
Australian Charter of the Professions of Natural
Medicine, Chinese Medicine and Natural Therapy'.
2. An order in the nature of mandamus directing the
defendant to provide the plaintiff an opportunity to
make submissions on -
(a) the qualifications of certain of its members
which justify payments for their services by the
defendant pursuant to Section 32;
(b) the suitability of the association describing
itself as 'The Australian Charter of the Professions
of Natural Medicine, Chinese Medicine and Natural
Therapy' to be the only association recognised by the
defendant for the purposes of providing massage
services pursuant to Section 32;
(c) declarations that -
(i) the plaintiff is entitled to receive procedural
fairness from the defendant before it makes any
determination pursuant to Section 32(2)(i);
(ii) Section 32(2)(i) does not authorise the
Corporation to formulate a class of costs which
will be payable by reference to membership of a
specified organisation."
8. The grounds on which these orders are sought are set out in the supporting affidavit of the solicitor for the plaintiff, Paul D'Angelo, sworn on 13th May 1994. They are:
"(a) on a construction of Section 32 the defendant is
not authorised to formulate a class of costs payable
by it in such a way as to restrict the payment of
such costs to persons who are members of a specified
association;
(b) that in the circumstances of this case the
determination of the defendant dated the 14th day of
April 1994 was made in breach of the rules of natural
justice in that the plaintiff was not provided with a
fair opportunity to make submissions to the defendant
on the question of the suitability of the Charter to
be the only association recognised by the defendant
for the purpose of providing massage services
pursuant to Section 32 and on the suitability of
their own association to have the right to claim fees
for massage services provided pursuant to Section 32.
(c) the decision is so unreasonable that it ought to
be quashed."
9. Mr Besanko, for the defendant, correctly submitted that only these grounds could be considered before me. Mr Kourakis, for the plaintiff, had submitted an Outline of Submissions. Under the heading "The Decision" he wrote:
"2.1 The letter and standards ('RH 12') speak of a
decision pursuant to section 32(2)(i). Susan Mary
Filby claims to be the 'decisionmaker' (para 15) and
that a decision was made pursuant to section
32(2)(i).
2.2 The decision is said to be recorded on the
memorandum 'SMF 9' (para 15). The record does not
purport to be a decision pursuant to section
32(2)(i).
2.3 In the circumstances there ought to be a
declaration that no determination has been made
pursuant to section 32(2)(i).
2.4 In the alternative the instrument of delegation
from the Corporation to Filby is invalid."
10. The point is not available because it is not mentioned in the affidavit of Mr D'Angelo. But I mention in passing that I think that there is nothing in the point about the decision. Despite some oddity of recording the decision, I think that the decision was made by an officer duly authorised by the defendant to make it.
11. The first ground in the affidavit need not be discussed in detail. I think that it may in a tangential way raise the question which first troubled me. It is a question which must, I think, always be considered, whatever the grounds mentioned, when a party is seeking judicial review. Is the issue justiciable at all? With much force Mr Besanko submitted that the issue here is not justiciable. It is necessary to set out ss.32(1) and (2) of the Workers Rehabilitation and Compensation Act in full:
"32. (1) Subject to this section, a worker is
entitled to be compensated for costs of a kind
described in subsection (2) reasonably incurred by
the worker in consequence of having suffered a
compensable disability.
(1a) For the purposes of subsection (1), the amount
of compensation will be determined -
(a) according to scales published by the Corporation
in the Gazette under subsection (9), or
(b) if a particular cost is not fixed by such a scale
- according to what is a reasonable amount for the
provision of the service in respect of which
compensation is payable.
(2) The costs referred to in subsection (1) are as
follows:
(a) the cost of medical services;
(b) the cost of hospitalisation and all associated
medical, surgical and nursing services;
(c) the cost of approved rehabilitation;
(d) the cost of travelling, or being transported, to
and from any place for the purpose of receiving
medical services, hospitalisation or approved
rehabilitation (but not where the worker travels in a
private vehicle);
(e) where it is necessary for the worker to be
accommodated away from home for the purpose of
receiving medical services or approved rehabilitation
- the cost of such accommodation (but not exceeding
limits prescribed by regulation);
(f) the cost of attendance by a registered or
enrolled nurse, or by some other person approved by
the Corporation or of a class approved by the
Corporation, where the disability is such that the
worker must have nursing or personal attendance;
(g) the cost of the provision, maintenance,
replacement or repair of therapeutic appliances;
(h) the cost of medicines and other material
purchased on the prescription or recommendation of a
medical expert;
(i) any other costs (or classes of costs) authorised
by the Corporation."
12. Section 32(2)(i), is the relevant placitum. Mr Besanko said in substance "The Corporation may authorise costs or classes of costs". He said that the Corporation has an absolute right so to do. Its authorising costs of massage only to certain classes of masseurs cannot be investigated in judicial proceedings, is not justiciable at all. The Corporation has merely done what Parliament has said it can do. I was much attracted to this argument at first. But Mr Kourakis has persuaded me that it is not sound. Of course the Court may not tell the Corporation what decision it should have reached. But Mr Kourakis has persuaded me that the Court may consider and adjudicate upon the way in which the defendant reached its decision.
13. The defendant has, and had, at the relevant time, a right given by statute to authorise costs and class of costs which it would meet. I think that the authorities show that the defendant was obliged to "give an hearing" to those who would be affected by its decision of April 1944, that is to say, its decision to pay fees only to those who "joined the charter". I mention, that I use the expression "give an hearing" very widely at present to indicate both the possibility of oral hearing and consideration of written material. Mr Kourakis said that the substance of the case which the plaintiff made against the defendant is "the broad complaint that the decision was made without the requisite degree of procedural fairness".
14. I jump ahead. The third ground mentioned in the affidavit of Mr D'Angelo is that "the decision is so unreasonable that it ought to be quashed". The authorities show that it has to be a "very unreasonable" (my expression) decision for there to be an order that it be quashed. It must be such that no reasonable person or organisation could entertain it. The decision here is not unreasonable in the appropriate sense.
15. I come back to the live issue in this matter - lack of procedural fairness.
16. It is important to remember that for some years members of the plaintiff had been paid by the defendant for services to injured workmen. No idea of any change emerged before February 1994. The plaintiff knew that in the year 1993 the defendant was conducting a review of "massage policy". That review appeared to have been completed by the 24th November 1993. A memorandum of that day entitled "Review of Massage Policy" was circulated among officers of the defendant. The plaintiff was given a copy. In her affidavit of 30th August 1994 Mrs Tonkin, aforesaid, Medical and Education Policy Co-ordinator of the defendant says:
"3.7.1 in all my communications with Mr Ron Hill
I have conveyed to him that the Corporation's primary
concern was the current inadequate standards of the
various State massage associations, and also that it
was the Corporation's intention to devise standards
for the training of massage therapists so that their
theoretical and clinical competency could be measured
by their associations, so that the Corporation could
then be assured that these people were sufficiently
trained and clinically competent to treat injured
workers, and therefore be afforded status as
accredited providers;
3.7.2 I informed Mr Hill in or about January 1994
that provider status would only continue to be
afforded to SAMTA members if they satisfied the
criteria in the revised policy standards which were
annexed to my memorandum dated 24th November 1993
(which is the exhibit marked "BPT11" to my affidavit
sworn on the 1st day of July 1994). This involved
significant changes to the Corporation's existing
policy with respect to the training of massage
therapists and the rules and conduct of the various
massage associations. At no stage did I indicate
that the Corporation would guarantee ongoing provider
status to SAMTA members;"
17. The memorandum does not speak of "joining the Charter". Of this, Mr Kourakis submitted:
"In D7, the affidavit of 30 August 1994, Ms Tonkin
says at para.3.7.2; 'I informed Mr Hill in or
about January 1994 that prior status would only
continue to be afforded to SAMTA members if they
satisfied the criteria in the revised policy
standards which were annexed to my memorandum of
24 November 1993.'
That's an exhibit to her original affidavit, BPT11,
but it's in the same form as Exhibit SMF3 that I took
your Honour through a moment ago.
'This involved significant changes to the
corporation's existing policy with respect to
the training of massage therapists ... would
guarantee ongoing prior status to SAMTA
members'.
Of course, the plaintiff doesn't claim any such thing, but that
memorandum of November 1993, Mr Hill's understanding that a
review process had been worked through and that the licensing
effectively would continue if those standard were complied with,
is finally confirmed in that paragraph of Ms Tonkin's affidavit
at 3.7.2. That was the state of play as at January 1994.
However, at the very end of January, on 31 January, Ms Tonkin
spoke with a woman called Lorraine Miller Salerno and Ms Tonkin
describes that meeting. In her affidavit of 1 July 1994 in
para.14 Ms Tonkin advises that she was aware of a thing called
the charter. Over the page she has had a meeting with Ms
Salerno on 31 January.
As a result of, or following that meeting, on 4 February 1994
she sent a letter to Mr Hill which marked the beginning of the
change in attitude and that letter is Exhibit RH9 to Mr Hill's
affidavit of 13 May 1994 or BPT6 of Ms Tonkin's affidavit.
I am repeating myself but I do so because it's important to the
applicant's case.
Immediately before writing this letter the plaintiff association
had members who worked for WorkCover. The plaintiff
association, under the guidelines of November 1993, was a
recognised association whose members would be considered for
this licensing process. Whose members had been told it would
continue, subject to compliance with the 1993 agreed guidelines.
Mr Hill, who was the officer of the plaintiff association with
whom Ms Tonkin dealt, received a letter on 4 February. Ms
Tonkin refers to a December letter of 2 December 1993 when the
proposed changes were discussed. She says then that WorkCover
was unaware of the inauguration of the charter.
She sets out her meeting with Ms Salerno. She then says at
about .5: 'The charter is very important because it ...
knowledge and clinical competence.'
That is a statement which the plaintiff association disputes,
and disputed to the limited extent possible through some phone
calls with Ms Tonkin. That is a substantial matter which is in
dispute.
But what is there set out by Ms Tonkin is a conclusion after her
one meeting with Ms Salerno about this organisation and without
speaking to Mr Hill."
18. I think that these submissions are sound. The plaintiff was entitled to expect that its members who could comply with the standards set by or the requirements of the "Review and Massage Policy" of the 24th of November 1993 would be paid appropriate fees for service to injured workers or at least to be candidates for payment.
19. Then, as Mr Kourakis submitted, there came a change of opinion and attitude on the part of the defendant. No doubt it was a change made in the best of good faith. The defendant through its offices thought that a requirement to "join the Charter" was desirable. But the interests of the plaintiff and its members required serious consideration. Those who did not join the Charter would suffer in income, perhaps suffer substantially. These were matters which in my opinion the defendant was obliged to take into account.
20. I hold that the plaintiff, on behalf of its members, had or has a right to have its protests "at the Charter" considered and considered thoroughly by the defendant. It had and has a right to put its case of protest in a thorough and organised form to the defendant. I take my stand on Kioa v West
(1985) 159 CLR 550 and especially in the reasons of Mason J (as he then was) between pp.582-588 inclusive. In particular, for our purposes, His Honour said:
"It is a fundamental rule of the common law doctrine of
natural justice expressed in traditional terms that,
generally speaking, when an order is to be made which will
deprive a person of some right or interest or the legitimate
expectation of a benefit, he is entitled to know the case
sought to be made against him and to be given an opportunity
of replying to it (His Honour refers to authorities). The
reference to 'right or interest' in this formulation must be
understood as relating to personal liberty, status,
preservation of livelihood and reputation, as well as to
proprietary rights and interests." And:
"The law has now developed to a point where it may be
accepted that there is a common law duty to act fairly, in
the sense of according procedural fairness, in the making of
administrative decisions which affect rights, interests and
legitimate expectations, subject only to the clear
manifestation of a contrary statutory intention.... Where
the decision in question is one for which provision is made
by statute, the application and content of the doctrine of
natural justice or the duty to act fairly depends to a large
extent on the construction of the statute." And:
"In this respect recent decisions illustrate the importance
which the law attaches to the need to bring to a person's
attention the critical issue or factor on which the
administrative decision is likely to turn so that he may
have an opportunity of dealing with it."
21. I refer also to Somaghi v Minister for Immigration (1991) 102 ALR 339 where the Federal Court adopted much of the reasoning of Mason J in Kiao v West.
22. Here the members of the plaintiff face a decision which "will deprive a person of some right or interest or the legitimate expectation of a benefit" (Mason J at 582). The plaintiff on behalf of its members "is entitled to know the case made against (it) and to be given an opportunity of replying to it".
23. Mr Besanko submitted with force that none of this applies here. As I have said I was originally tempted to that view. But not in the end. "Well then", said Mr Besanko, "the plaintiff was afforded the opportunity to present its case to meet and oppose the case against it i.e. to meet the decision to require joining of the Charter". To this submission I return the broadly put answer "Not an adequate opportunity". The affidavits and exhibits show that the defendant revealed its intention with some reasons to the plaintiff. But in my opinion it did not give the plaintiff a reasonable opportunity to present an organised and reasoned protest. The first written notice of what was in the wind was given to the plaintiff by letter to Mr Hill from the defendant of the 4th February 1994. The final decision was conveyed by a letter of the 14th April 1994. The letter of the 4th February 1994 is:
"4 February 1994
Mr Ron Hill
South Australian Massage Therapists Association
PO Box 137, Rundle Mall
ADELAIDE SA 5000
Dear Ron
I refer to our meeting on 2 December 1993, when we discussed
proposed changes to the WorkCover policy standards for
approved massage providers.
At that time WorkCover was unaware of the inauguration of
the Australian Charter of the Professions of Natural
Medicine, Chinese Medicine and Natural Therapies, which
occurred in October 1993.
Earlier this week, I was advised of this development when
I met with Ms Lorraine Salerno, Vice-President of the
Presidential Board for the Chartered Natural Therapies
Profession.
The WorkCover Corporation is very supportive of the concept
of self-regulation of the Massage Therapy profession and
regards it as essential for professional accountability.
The Charter is very important because it introduces a
national accreditation process which ensures that all
Chartered Natural Therapists are of a high standard in terms
of theoretical knowledge and clinical competence.
As the Corporation has authorised massage services as a
class of cost pursuant to Section 32(2)(i) of the Workers
Rehabilitation and Compensation Act, 1986, it is important
that we be assured of the expertise of the massage
therapists whom we approve to deliver massage services to
WorkCover claimants.
Therefore, we propose to amend the policy standards that
were agreed at our meeting in December so that conferral of
a Certificate of Charter is a prerequisite of obtaining a
WorkCover provider number.
It is also proposed to increase the required number of hours
of clinical practice logged and audited by the Association
from 300 to 400 hours. A therapist who wishes to sit an
exam for a Certificate of Charter must have completed 500
hours of massage therapy and 400 hours of remedial therapy,
a total of 900 hours practical work. This is three times
the figure we agreed, which seems very inadequate in
comparison.
The closing date for the Charter's "grandfather" clause 71
is 2 May 1994.
This provides sufficient opportunity for members of South
Australian signatory associations to apply for chartered
status and their associations to make statutory declarations
concerning those members who qualify for such status.
It also enables associations who have not signed the Charter
the opportunity of signing it.
The Corporation proposes to allow a twelve (12) month
period, from April 1994 to March 1995, in which currently
approved providers must obtain chartered status if they wish
to retain their WorkCover provider status and number.
Those who choose not to become Chartered Natural Therapies
Practitioners would forfeit their WorkCover provider status
and number in April 1995.
Please find enclosed copies of the proposed WorkCover
application form for approved status and provider number,
and the Standards for massage provider accreditation and
service delivery.
Mark Nicholson, President of the Presidential Board of the
Chartered Natural Therapies Profession, has advised that the
first exam for the Natural Therapies' Certificate of Charter
is scheduled for July 1994.
The Corporation supports the objectives of the Australian
Charter and believes that self-regulation will enhance the
status of massage and remedial therapists in this state.
I hope your members will want to be part of this important
initiative and look forward to their continuing involvement
with WorkCover.
Please do not hesitate to contact me on (08)2332200 if you
have any queries regarding this matter.
Yours sincerely
Bev Tonkin
Coordinator Medical Policy and Education"
24. I emphasis paragraph 2. There was further discussion and correspondence. One thing which the plaintiff raised was that the Charter was not that of an incorporated body. A letter from the defendant to Mr Hill of the 25th February 1994 dealt with this and other points.
25. I have examined the evidence by affidavit and exhibits of internal discussions and writings within the defendant and of correspondence between the parties. The plaintiff did present some protest with some reasoning. But in my opinion it did not amount to an organised and thorough meeting of "the case against it". I think it knew enough of the case to offer an argument and answer. By that I do not mean that the answer would necessarily be correct or sound. It is not my function to be concerned with ultimate correctness. But the plaintiff was not afforded an opportunity to present that answer.
26. On the 18th March 1994 the solicitor for the plaintiff wrote seeking that opportunity. I set out the letter:
"18 March 1994
Chief Executive Officer
WorkCover Corporation
100 Waymouth Street
ADELAIDE SA 5000
ATTENTION: Ms Bev Tonkin
Dear Madam
RE: THE SA MASSEURS ASSOCIATION INC
We act for the abovenamed association in relation to a
proposal of WorkCover that membership of a national
association under the umbrella of the Australian Charter of
the Professions of Natural Medicine, Chinese Medicine and
Natural Therapy be a pre-condition to payment by the
Corporation for massage services provided to any workers
suffering from a compensable disability.
In our view, the decision expressed in your letter to our
client dated 4 February 1994 has been made without giving
the association an opportunity to make appropriate
submissions. Further, the standards suggested go beyond
what is authorised by the Act.
We request that you revoke any such decision until such time
as the association has been given an opportunity to be
heard.
Would you please advise the writer as to why it is that, in
your view, the standards of the current providers and the
association are inadequate.
Would you also please advise as soon as possible as to a
time when written submissions can be made and a larger
personal audience be given.
Yours faithfully
CALDICOTT AND CO
Per:
(for)
PAUL G D'ANGELO"
27. How was the request treated? It was treated as a delaying tactic. In an internal memorandum Mrs Tonkin called the letter "a delaying tactic on the part of Ron Hill...".
28. The letter was no delaying tactic. The plaintiff did not seek to delay. It sought to prevent the idea of "joining the Charter" altogether. It wanted to argue for an abandonment of the idea of "joining the Charter". The defendant should have realised (if it did not) that mere delay was not suggested. There could have been no difficulty about postponing the making of the final decision (it was delayed anyway). There could have been no difficulty in affording the opportunity for protest to the plaintiff so that that protest could be considered. But as Mr Kourakis said the defendant, wrongly thinking that mere delay was sought, prejudged the matter. I hold that it should have postponed all making of decision. I hold that it should have given the plaintiff the opportunity to present to it an organised and thorough argument against the Charter.
29. Should it have been an oral hearing? The authorities show that natural justice can be satisfied by the giving of an opportunity to present a case in writing. If there be written material that must be thoroughly and considered in good faith by the decision maker. An oral hearing is not always necessary. I think that the opportunity to proffer a written case will suffice here.
30. The prejudging that I have mentioned led Mr Kourakis to urge that thereby a suspicion of bias could arise against the relevant officer who made the decision. I say no more than that I do not agree.
31. I think that the claim for judicial review succeeds. I have in fact conducted a review. The plaintiff is entitled to the appropriate orders sufficient to set aside the impugned decision and direct that the defendant afford the plaintiff an opportunity to present a written case.
32. I will hear counsel as to appropriate orders.
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