Truenergy Australia Pty Ltd v Minister for Industrial Relations - [2005] SASC 490

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
TRUENERGY AUSTRALIA PTY LTD v MINISTER FOR INDUSTRIAL RELATIONS
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Debelle and The Honourable Justice Anderson)
22 December 2005
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
The applicant for judicial review applied for and was granted status as an exempt employer under the Workers Rehabilitation and Compensation Act 1986 for an initial period of three years - its application was irregular in that at the time, and at no time since then, did it employ 200 workers, which was a prerequisite to the making of such an application - when it applied to renew its registration, WorkCover purported to revoke the registration by reason of the fact that it did not employ the requisite number of workers - WorkCover's decision was upheld by the Minister on appeal by the applicant - on an application for judicial review of the Minister's decision, held (by majority, Debelle J dissenting) that WorkCover had failed to deal properly with the application to renew the registration - the shortfall in the number of workers, while relevant to the discretion to renew registration, was not a bar to renewal, and did not justify the peremptory revocation of the registration - the Minister erred in failing to find that WorkCover had not properly determined the application for renewal - order that the decision of the Minister be quashed and that the matter be referred back to him to deal with in accordance with the decision of the Court.
Workers Rehabilitation and Compensation Act 1986 s 60 and s 62A; Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999 reg 9, referred to.
Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1988) 194 CLR 355; McRae v Coulton (1986) 7 NSWLR 644; Australian Capital Television v Pty Ltd v Minister for Transport and Communications and Ors (1989) 86 ALR 119; Hatton v Beaumont [1977] 2 NSWLR 211; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955; Tasker v Fullwood [1978] 1 NSWLR 20; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93; Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1; Johnston v Paspaley Pearls Pty Ltd (1966) 110 NTR 1; Collins Radio Constructions Inc v Day (1997) 116 NTR 14; Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286; [1995] 1 All ER 367; Trade Practices Commission and Anor v Tooth & Co Ltd and Anor (1979) 142 CLR 397; Twist v Randwick Municipal Council (1976) 136 CLR 106; C E Heath Underwriting & Insurance (Aust) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535; In re Kerr [1943] SASR 8; Gerraty v McGavin (1914) 18 CLR 152; Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 136 CLR 326; Minister for Immigration v Bhardwha (2002) 209 CLR 597; Boddington v British Transport Police [1999] 2 AC 143; Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400; Smith v East Elloe Rural District Council [1956] AC 736; F Hoffmann-La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295; R v Wicks [1998] AC 92, considered.

TRUENERGY AUSTRALIA PTY LTD v MINISTER FOR INDUSTRIAL RELATIONS
[2005] SASC 490
Full Court: Perry, Debelle and Anderson JJ

PERRY J. The circumstances giving rise to the application before the Court are set out in the reasons of Debelle J.
Although the application was argued on the basis that it was unnecessary to determine the validity of the registration of the plaintiff as an exempt employer, for reasons which I will come to, I think that the question needs to be addressed by the Court. Counsel were put on notice during the course of the hearing that this might be so.
Section 60 of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) is relevantly as follows:
60Exempt employers
(1)     Subject to this section, an employer or a group of employers may apply to the Corporation for registration as an exempt employer or as a group of exempt employers.
(2)     An application shall not be made under subsection (1) unless-
(a)in the case of an application by an individual employer-
(i)the employer is a body corporate employing more than the prescribed number of workers; or
(ii)the employer is an indemnified maritime employer;
(b)in the case of an application by a group-
(i)the members of the group are related corporations or local government corporations; and
(ii)the members of the group employ in aggregate more than the prescribed number of workers.
(3)     Where-
(a)an application is made under subsection (1); and
(b)the Corporation is satisfied-
(i)that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered; and
(ii)that in all the circumstances it is appropriate to do so,
the Corporation may register the employer or the group as an exempt employer or a group of exempt employers.
(4)     A registration under this section-
(a)    is subject to-
(i)a condition that the exempt employer must not exercise any power or discretion delegated to the exempt employer under this Act unreasonably; and
(ii)such other terms and conditions as the Corporation determines from time to time or as are prescribed by the regulations; and
(b)    …..
(c)    takes effect on a date fixed by the Corporation; and
(d)    subject to this section-
(i)has effect for an initial period (not exceeding three years) determined by the Corporation; and
(ii)may, on further application to the Corporation, be renewed from time to time for a further period (not exceeding three years) determined by the Corporation at the time of the renewal.
(5)     The Corporation may revoke the registration of an exempt employer, or reduce the period of registration if the employer breaches or fails to comply with this Act or a term or condition of registration.
(6)     In deciding whether to grant, renew, revoke, or reduce the period of registration as an exempt employer or group of employers under this section the Corporation may have regard to such matters as it considers relevant and will have regard to the following:
(a)whether the employer or group is, and is likely to continue to be, able to meet its liabilities;
(b)the resources that the employer or group has for the purpose of administering claims for compensation;
(c)the incidence and severity of compensable disabilities arising from employment by the employer or employers;
(d)the effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers;
(e)the record of the employer or employers in relation to the rehabilitation of disabled workers;
(f)the record of the employer or employers in providing suitable employment to workers who suffer compensable disabilities;
(g)the views of any industrial association that has, in the opinion of the Corporation, a proper interest in the matter,
but once an employer or group has been registered as exempt, the Corporation must not, in deciding whether to renew the registration, consider the effect of the registration on the Compensation Fund.
(7)…..
For the purposes of s 60(2)(a)(i), the prescribed number of workers is 200.[1]
[1] Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999, reg 9.
Late in 2000, pursuant to s 60(1), the plaintiff applied to WorkCover Corporation (“WorkCover”) for registration as an exempt employer.
It is common ground between the parties that neither at the time the plaintiff made its application, nor at any time since then, has it employed 200 workers. Since June 2000, the largest number of workers which it has employed is 169.
The plaintiff did not mislead WorkCover as to the number of workers which it employed. It disclosed the number of its workers at the time when it made its application.
By letter of 17 May 2001, WorkCover advised the plaintiff that it had approved the application for a period expiring on 6 June 2004. The letter reads as follows:
Re: Exempt Employer Registration – TXU Australia Pty Ltd
I am pleased to advise that the Workers Compensation Committee approved TXU’s application for private exempt employer status for the period up to 6 June 2004.
The grant was made subject to the normal conditions:
The grant of exempt status is conditional upon TXU Australia Pty Ltd:
*Attaining compliance with the WorkCover Corporation Performance Standards for Self Insurers by August 2001;
*Demonstrating ongoing compliance with the Code for the Conduct of Exempt Employers under the WorkCover Scheme; and
The Committee also saw fit to include the following statement in its decision:
TXU’s exempt status may be reviewed if the amendment to change to a “remuneration basis” does not proceed”.
Please note that this last item does not infer that any automatic action against TXU’s exempt employer registration would be taken should the amendments fail. If this occurred, the exempt status would be reviewed in the light of the circumstances applicable at that time. Appropriate opportunities would be available for TXU to put its case for continuation before it would be considered by the Committee.
We remain confident that the amendments will proceed, and we will naturally keep you apprised of their progress.
I look forward to a continuation of the working relationship we and our respective staff have developed. If you have any queries, please contact me or Lindsay Beard.
The reference in the letter to an amendment to change to a “remuneration basis”, refers to statutory amendments which were then contemplated. If passed, the amendments would have removed the requirement for a minimum number of workers to be employed, and replaced it with a requirement that the applicant for registration have a payroll exceeding a stated amount.
The proposed amendment was never passed. The requirement that an applicant other than an “indemnified maritime employer” as defined, be a body corporate employing more than the prescribed number of workers, remains in force.
Was the plaintiff’s registration as an exempt employer valid?
Before the decision of the High Court in Project Blue Sky Inc and Ors v Australian Broadcasting Authority,[2] the conventional approach to that question is likely to have been based on the distinction between mandatory conditions, failure to comply with which would result in the invalidity of an act done in breach of such a condition, and provisions described as “directory”. Acts done in breach of a provision properly characterised as directory, would not normally result in invalidity.
[2] (1998) 194 CLR 355.
In the majority judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky, the classification of requirements as either directory or mandatory, was held to have outlived its usefulness. In the course of their judgment in that case, the majority said:
[93]… They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning.[3] That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales.[4] In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.[5]
[3] Citing McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television Pty Ltd v Minister for Transport and Communications and Ors (1989) 86 ALR 119 at 147
[4] Citing Hatton v Beaumont [1977] 2 NSWLR 211 at 213,226; Attorney-General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v The Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy [No 3] (1985) 8 FCR 93 at 102; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 457-460; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-26. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377.
[5] Citing Tasker v Fullwood [1978] 1 NSWLR 20 at 24.
The objects of the Act are set out in s 2 and include the establishment of a worker’s rehabilitation and compensation scheme; the effective rehabilitation of disabled workers; the efficient and effective administration of the scheme; and the adoption of measures to ensure that the scheme is fully funded.
The objects of the legislation will not be achieved unless workers have an identifiable body against whom claims may be lodged, being a body which properly and effectively administers the statutory scheme.
WorkCover administers the scheme, which is funded by levies imposed by WorkCover on employers other than exempt employers.
In the case of exempt employers, workers employed by such an employer must be able to deal with the employer in making and pursuing a claim for compensation under the Act, secure in the knowledge that they are dealing with a properly registered exempt employer.
Bearing those considerations in mind, attainment of the central objects of the Act would be seriously jeopardised if, unbeknown to both the workers and WorkCover, the status of exempt employer which WorkCover had bestowed upon a corporation, was to be invalid by reason of an irregularity in the application which preceded the grant of that status. Such an outcome could not have been in the contemplation of the legislature, and would not represent a sensible construction of the relevant provisions, considered in the context of the Act as a whole.
This is so, even although s 60(2) is expressed in terms that an application shall not be made unless the minimum requirement as to the number of workers is met. In my view, once an application has in fact been made and formally dealt with, the registration is, for all purposes, valid under the Act, unless and until it is terminated.
It follows that at the time when it applied for renewal of its registration by letter of 1 December 2003, the plaintiff had the status of an exempt employer.
I use the word “status” advisedly as that is the expression used in the Act: vide s 60(3)(b)(i), which refers to the “conferral of exempt status”.
It is no less a status by reason of the fact that in this case the grant of exempt status was expressed to be for a period expiring on 6 June 2004.
The next question which arises is whether, given that at the time when it applied by letter dated 1 December 2003 addressed to WorkCover for renewal of its registration, the plaintiff was already registered as an exempt employer, its application for renewal should be treated as an application for registration within the meaning of s 60(1) and (2).
The position taken by the Solicitor-General in his submissions on behalf of the Attorney-General was that the application for renewal was caught by s 60(2)(a)(i); that given that the plaintiff did not at that time employ more than the prescribed number of workers, the Corporation was entitled to treat the application as invalid; and that on appeal to the Minister, the Minister was entitled to uphold that view.
On the other hand, Mr McNamara QC for the plaintiff contended that an application for renewal of registration as an exempt employer was not an application for registration as an exempt employer, and was not caught by s 60(2).
In my view, the position taken by the plaintiff is correct.
As I have said, at the time the application for renewal was made, the plaintiff was already registered as an exempt employer. If its application was successful there would be no interruption to its status as such. It would inure for the period set by the Corporation pursuant to s 60(4)(d)(ii).
I repeat the words of that subsection.
60…
(4) A registration under this section-
…
(d) subject to this section-
(i)has effect for an initial period (not exceeding three years) determined by the Corporation; and
(ii)may, on further application to the Corporation, be renewed from time to time for a further period (not exceeding three years) determined by the Corporation at the time of the renewal.
In my view, the words “has effect for an initial period”, coupled with the words “may … be renewed … for a further period”, indicate that when the registration is renewed, it is the period of the registration which is effectively extended.
The Solicitor-General drew a distinction between “renewal” and “extension”. In doing so, he sought to obtain support from the use of the words “grant” or “renewal” in the context of leases.
I accept that in that context, “renewal” pursuant to an option to renew has ordinarily been regarded as taking effect by way of a re-grant: see Trade Practices Commission and Anor v Tooth & Co Ltd and Anor.[6] However, I do not think that the analogy is of assistance in construing the statutory provisions now in question.
[6] (1979) 142 CLR 397 per Aickin J at 441.
In construing the relevant subsections, reference may be made to s 60(3). This provides that where an application for registration is made under s 60(1), the Corporation may register the employer as an exempt employer where the Corporation is satisfied:
… that the employer … [has] reached a standard that in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered.
In this case the plaintiff has already satisfied that criteria. The Corporation must have reached the state of satisfaction predicated by the subsection before conferring exempt status upon the plaintiff.
It would not amount to a sensible construction of the relevant provisions to think that the plaintiff, when applying to renew its registration, should be obliged to pass through that doorway again.
True it is that circumstances might have arisen which could support the view that the standard was no longer achieved, but there is no reason to suppose that such circumstances would not be taken into account in the exercise of the discretion to renew under s 60(6).
There is ample scope in the provisions of s 60(6) in which the criteria for renewal are set out for the Corporation to have regard to all relevant matters in considering an application for renewal.

The renewed registration may be made subject to conditions such as those defined in s 60(4). Ordinarily, the renewed registration would be subject to such conditions as had previously been imposed. The Corporation can vary those conditions or impose other conditions pursuant to s 60(4)(a)(ii), which permits the Corporation to impose such terms and conditions as it might determine “from time to time”.
I reject the further argument put by the Solicitor-General, namely, that the word “application” in s 60(4)(d)(ii) should be given the same meaning as in s 60(2). In both subsections, indeed, throughout the Act, the word “application” is used in a bland, generic sense, and takes its meaning from its immediate context, not from a comparison with its use elsewhere.
It does not follow from the observations which I have so far made, that the question of the number of workers employed by an applicant for renewal is not a relevant consideration in determining the application. Clearly, it would be a relevant matter within the meaning of s 60(6). Under s 60(6), as well as having regard to the mandated criteria set out in subclauses (a)-(d), the Corporation may have regard “to such matters as it considers relevant”.
It is convenient at this stage to consider the manner in which the application for renewal and the appeal to the Minister were dealt with.
I have already referred to the letter from the plaintiff to WorkCover applying for renewal of the registration, being a letter dated 1 December 2003. This was well ahead of the expiration of the period of registration, which was due to expire on 6 June 2004.
It took some little time for WorkCover to deal with the application. It was not until 29 June 2004, after the nominal period of registration had expired, that WorkCover responded to the plaintiff. It did so by letter of that date in which it notified the plaintiff that the WorkCover Board had agreed “to revoke exempt employer status with effect from 31 July 2004”. In the letter, WorkCover went on to say:
The decision to revoke was based on the recommendation to the Board from the delegated Board committee to extend exempt employer status to 31 July 2004 to allow suitable time for an appeal to be lodged pursuant to s 62A of the [Act].
On the face of the letter, there was no indication that WorkCover had considered the application to renew the plaintiff’s registration. Rather, the letter notifies a decision to revoke the plaintiff’s status as an exempt employer. There is nothing in the papers to suggest that WorkCover had invited submissions on the question of revocation as opposed to renewal. It might be suggested that the requirements of natural justice would have obliged them to do so.
Be that as it may, the plaintiff treated the decision of WorkCover as a decision not to renew its exempt status. That is what it purported to appeal from in its letter to the defendant dated 27 July 2004.
The words “with effect from 31 July 2004” in the letter from WorkCover of 29 June 2004 carry with it an implication that WorkCover had renewed the plaintiff’s registration, to that date.
By letter of 16 June 2005,[7] WorkCover renewed the plaintiff’s exempt employer status for an additional six months, expiring on 31 January 2006. The ground stated in the letter was “to allow for the consideration of the s 62A appeal currently before the Minister”.
[7] I assume that other renewals bridged the gap between 31 July 2004 and 16 June 2005.
The only reason for its decision to revoke the plaintiff’s exempt employer status given by WorkCover in the letter of 29 June 2004 was:
The decision was based on TXU not meeting the requirement to maintain the minimum number of prescribed workers (200) for the continuation of the exempt status as previously discussed.
Pursuant to s 60(5), the Corporation may revoke the registration of an exempt employer on various grounds, which include a failure by the employer to comply with a condition of registration.
It was a condition of the plaintiff’s registration that it demonstrate “ongoing compliance with the Code for the Conduct of Exempt Employers under the WorkCover Scheme” (“the Code”).
Clause 2.5.2(2) of the Code states that the Corporation had determined that a term and condition of registration of an exempt employer was that the exempt employer continue to employ more than the prescribed number of workers.
It follows that if proper procedures had been followed, WorkCover may have been entitled to revoke the registration of the plaintiff.
Be that as it may, the letter from the plaintiff’s solicitors to the Minister of 27 July 2004, clearly purported to be an appeal against what was said to be WorkCover’s decision “not to renew” the status of the plaintiff as an exempt employer.
On the hearing of the appeal, attention was given by counsel to the question whether or not there was a right of appeal against a refusal to renew exempt employer status.
The grounds upon which an appeal may be brought to the Minster are set out in s 62A of the Act. They are:
(1)If the Corporation-
(a)     refuses the registration of an employer or group of employers as an exempt employer or group of exempt employers; or
(b)     grants or renews registration as an exempt employer or group of exempt employers for a period of less than three years; or
(c)     cancels the registration of an employer or group of employers as an exempt employer or group of exempt employers,
the employer or employers may appeal to the Minister against that decision.
It will be seen that a decision to refuse renewal of registration as an exempt employer is not expressly referred to. It is unnecessary to determine the question whether, in the result, there is no appeal against such a refusal, or whether a refusal to renew can be equated with a refusal to register within the meaning of subsection (1)(a).
Whatever may be the position as to that question, in the events which happened, WorkCover renewed the registration of the plaintiff for a period or periods of less than three years. Accordingly there was a right of appeal to the Minister under subsection (1)(b).
Furthermore, there was a right of appeal to the Minister if the operative decision of WorkCover was to revoke the registration of the plaintiff. I agree with Debelle J that the word “cancels” in subsection (1)(c) may be equated with “revokes”.
So that although the process which was followed was far from satisfactory, the Minister had before him an appeal which, whatever terminology might be employed, was effectively an appeal against the termination or projected termination of the plaintiff’s registration as an exempt employer.
The Minister’s determination of the appeal was notified by letter of 3 August 2005 to the plaintiff’s solicitors. The text of the letter is as follows:
I refer to the appeal by TXU pursuant to s 62A of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) against a decision by the WorkCover Corporation (“the Corporation”) to refuse TXU’s application to be registered as an exempt employer.
I have taken into account the submissions of TXU and WorkCover, including their two sets of further submissions.
I have decided that TXU is not entitled to registration as an exempt employer for the reasons given below.
At the time of its application, and to date, TXU has less than the number of employees prescribed under s 60(2) of the Act in r 9 of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999. A failure to comply with s 60(2) has the effect that an application is invalid. Therefore, the Corporation had no discretion to either approve or refuse the application the subject of appeal. In my view, the Corporation could only conclude the application was invalid.
I do not accept the submission that s 60(2) does not apply to applications that are renewals. That is so, because it is only under s 60(1), and not s 60(6), that a body is entitled to apply for registration as an exempt employer. Section 60(2) applies to all applications made under s 60(1). Section 60(6) simply provides criteria for the making of a decision under the Act. It does not create some distinct or alternative route by which an application can be made free from strictures of s 60(2). That a renewal is an application is reinforced by the express language of s 60(4)(d)(ii) of the Act.
TXU, in its letter of 20 February 2005, argued that the appeal should be allowed due to the operation of the doctrine of estoppel. In the alternative, TXU submitted that my decision should be deferred because there is a proposal to amend the relevant legislation to effect a change in the eligibility criteria relating to exempt employers. I have considered both of these submissions.
On the basis that I do not have any discretion on appeal under s 62A to approve the application because of the operation of s 60(2), I am of the view that the appeal should be dismissed.”
In the first paragraph of the letter the Minister refers to the decision by WorkCover to refuse the plaintiff’s “application to be registered as an exempt employer”. The letter makes no reference to the fact that what WorkCover had purported to do was to revoke the plaintiff’s registration, rather than refuse an application for registration.
The Minister goes on to suggest that at the time of its application, the plaintiff had less than the prescribed number of employees, which amounted to a failure to comply with s 60(2), which had the effect that the application was “invalid”. He went on to observe that in view of that, the Corporation had “no discretion to either approve or refuse the application the subject of appeal”.
It will be seen that in the course of the letter the Minister expressly rejects the submission that s 60(2) does not apply “to applications that are renewals”.
For the reasons which I have given, in my view, that view was wrong.
He went on to conclude that he did not have “any discretion on appeal under s 62A to approve the application”.
In my view, the approach of the Minister to the appeal was flawed.
The Minister should have recognised that the plaintiff had applied to renew its registration. He should have proceeded to determine the appeal on the footing that if the plaintiff employed less than the prescribed number of workers, that fact should have been treated by WorkCover as a matter going to the exercise of its discretion whether or not to renew the plaintiff’s registration. That was a process which should have proceeded by reference to the criteria set out in s 60(6). He should have reviewed by way of an appeal, what was an erroneous decision of WorkCover.
In reviewing WorkCover’s decision, the Minister had “… an absolute discretion to decide an appeal … as the Minister thinks appropriate” (s 62A(4)). The width of the discretion conferred on the Minister should not be allowed to obscure the fact that he was obliged to act in accordance with proper legal principles. The discretion conferred on the Minister in determining an appeal, was not to be exercised arbitrarily.
In the particular circumstances of this case, it was incumbent upon the Minister either to reassess the plaintiff’s application for renewal by reference to the criteria set out in s 60(6), or possibly to refer the matter back to WorkCover to follow the same process.
I use the word “possibly”, as it is not clear whether the Minister had power to refer the matter back to WorkCover. This is not an aspect of the matter upon which this Court has heard full argument.
In the result, in my view, proper grounds have been made out to support the plaintiff’s application to this Court.
I would allow the plaintiff’s claim, and make an order in the nature of certiorari, quashing the decision of the Minister notified by letter of 6 February 2005.
I would refer the matter back to the Minister for reconsideration by him in light of these reasons.
The plaintiff also seeks an order directing the Minister to allow its appeal, and as well it seeks a declaration as to the relevance in law of the question of the number of workers employed by the plaintiff.
I think it sufficient if the Minister’s decision is quashed, and the matter be referred back to him to determine the appeal in accordance with these reasons.
I would so order.
DEBELLE J. This application for judicial review concerns the proper interpretation of s 60 of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) in respect of applications for renewal of registration as an exempt employer.
The Minister did not appear but stated that he would abide the order of the Court. The Attorney‑General intervened and, through the Solicitor‑General, advanced argument on the Minister’s behalf.
An employer or a group of employers may apply for registration under the Act as an exempt employer: s 60 of the Act. In late 2002 the plaintiff applied for registration as an exempt employer. Section 60(2)(a) of the Act provides that an individual employer who applies for registration as an exempt employer must have more than the prescribed number of workers: s 60(2)(a). The prescribed number of workers is 200: reg 9 of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999.
Registration as an Exempt Employer
At the time of its application the plaintiff did not employ 200 workers and since then it has not employed that number of workers. Since June 2000 it has not employed more than 169 workers. The plaintiff informed the Corporation that it did not employ 200 workers. Notwithstanding that it knew that the plaintiff did not comply with s 60(2)(a), the Corporation granted the application by letter dated 17 May 2001. The relevant parts of the letter were in these terms:
I am pleased to advise that the Workers Compensation Committee approved TXU’s application for private exempt employer status for the period up to 6 June 2004.
The grant was made subject to the normal conditions:
The grant of exempt status is conditional upon TXU Australia Pty Ltd:
·Attaining compliance with the WorkCover Corporation Performance Standards for Self Insurers by August 2001;
·Demonstrating ongoing compliance with the Code for the Conduct of Exempt Employers under the WorkCover Scheme; and
The Committee also saw fit to include the following statement in its decision:
TXU’s exempt status may be reviewed if the amendment to change to a “remuneration basis” does not proceed.”
Please note that this last item does not infer that any automatic action against TXU’s exempt employer registration would be taken should the amendments fail. If this occurred, the exempt status would be reviewed in the light of the circumstances applicable at that time. Appropriate opportunities would be available for TXU to put its case for continuation before it would be considered by the Committee.
We remain confident that the amendments will proceed, and we will naturally keep you apprised of their progress.
As is apparent from the letter, amendments to the Act had been proposed in a Bill to delete the requirement of a minimum of 200 workers and replace it with other criteria for registration. It appears that the Corporation granted the application notwithstanding the fact that the plaintiff did not employ 200 workers because it expected the amendments to be enacted. However, the Bill lapsed and the proposed amendments were not re‑introduced.
The plaintiff’s application was invalid in that it did not comply with s 60(2) which requires an applicant to employ more than 200 workers. The Corporation has no power either to dispense with or to waive compliance with the statutory requirements for registration as an exempt employer. Not only was the plaintiff’s application invalid but the Corporation also acted unlawfully in granting the plaintiff registration as an exempt employer knowing that the plaintiff did not employ more than 200 workers. The reasoning in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 has no application in the circumstances of this case. The clear intent of s 60 of the Act and especially s 60(2) is that an employer may not apply for registration as an exempt employer unless it employs more than the prescribed number of workers. It is also the clear intent of s 60 that the Corporation has no power to grant registration as an exempt employer unless that statutory requisite as to the minimum number of workers is satisfied. If the Corporation purports to register an employer, it is acting ultra vires. I will return to the question whether the invalidity of the grant has consequences for the plaintiff.
The grant of registration, notwithstanding that the plaintiff did not employ 200 workers, is not the only difficulty for the plaintiff. Section 60(4)(d)(i) authorises the Corporation to grant registration for an initial period not exceeding three years. The grant was made on 17 May 2001 and was to operate until 6 June 2004, a period about three weeks longer than three years. However, nothing turns on that fact.
Application to Renew Registration
By letter dated 1 December 2003 the plaintiff applied to renew its registration as an exempt employer. By letter dated 29 June 2004 the Corporation informed the plaintiff that it had considered the application for renewal of its registration as an exempt employer and had decided to revoke that registration, the decision to take effect from 31 July 2004. The relevant part of the letter from the Corporation was in these terms:
Re: Renewal of Exempt Employer Status
The WorkCover Board has considered the application for renewal of exempt employer status submitted by TXU Australia Pty Ltd (TXU).
The Board agreed to revoke exempt employer status with effect from 31 July, 2004. The decision to revoke was based on the recommendation to the Board from the delegated Board Committee to extend exempt employer status to 31 July 2004 to allow suitable time for an appeal to be lodged pursuant to s 62A of the Workers Rehabilitation and Compensation Act, 1986 (WRCA). The decision was based on TXU not meeting the requirement to maintain the minimum number of prescribed workers (200) for the continuation of exempt status as previously discussed.
The decision to revoke registration was based on the fact that the plaintiff did not employ the minimum number of 200 workers.
Three further aspects of the letter from the Corporation should be noticed. The first is that the Corporation did not deal with the plaintiff’s application to renew its registration. Instead, it purported to revoke its registration. The second is that the Corporation purported to extend the plaintiff’s registration from 6 June 2004 to 31 July 2004. The Corporation has no power to extend the registration of an employer as an exempt employer. As will be seen, the Corporation has power only to grant renewal of registration. The purported extension to 31 July 2004 was, therefore, invalid. The third difficulty with the letter is that the plaintiff’s registration as an exempt employer had expired on 6 June 2004. The Corporation’s letter is dated 29 June 2004, more than three weeks after the registration had expired. Unless the Corporation had renewed the registration, about which the letter is silent, the registration had expired so that there was no registration which was capable of being revoked. I will return to these issues.
It will have been noticed that the Corporation did not give the plaintiff notice that it intended to revoke the plaintiff’s registration and did not hear it on that question. There is a question whether the rules of procedural fairness applied and, if so, whether the Corporation had denied procedural fairness to the plaintiff. However, the plaintiff did not rely on that ground. In any event, as will be seen, it exercised a right of appeal to the Minister pursuant to s 62A of the Act. It is doubtful, therefore, whether it can now rely on the failure to be given a hearing: Twist v Randwick Municipal Council (1976) 136 CLR 106.

By letter dated 27 July 2004 the plaintiff appealed pursuant to s 62A of the Act against the decision of the Corporation to the defendant, the Minister for Industrial Relations (“the Minister”). The plaintiff did not appeal against the Corporation’s decision to revoke its registration. Instead, it appealed against what it called “WorkCover’s decision not to renew its exempt status”.
By letter dated 3 August 2005 the Minister dismissed the appeal. The Minister’s reasons were expressed in these terms (the reference in the letter to TXU is a reference to the plaintiff):
I have decided that TXU is not entitled to registration as an exempt employer for the reasons given below.
At the time of its application, and to date, TXU has less than the number of employees prescribed under s 60(2) of the Act in r 9 of the Workers Rehabilitation and Compensation (Claims and Registration) Regulations 1999. A failure to comply with s 60(2) has the effect that an application is invalid. Therefore, the Corporation had no discretion to either approve or refuse the application the subject of appeal. In my view, the Corporation could only conclude the application was invalid.
I do not accept the submission that s 60(2) does not apply to applications that are renewals. That is so, because it is only under s 60(1), and not s 60(6), that a body is entitled to apply for registration as an exempt employer. Section 60(2) applies to all applications made under s 60(1). Section 60(6) simply provides criteria for the making of a decision under the Act. It does not create some distinct or alternative route by which an application can be made free from the strictures of s 60(2). That a renewal is an application is reinforced by the express language of s 60(4)(d)(ii) of the Act.
TXU, in its letter of 20 February 2005, argued that the appeal should be allowed due to the operation of the doctrine of estoppel. In the alternative, TXU submitted that my decision should be deferred because there is a proposal to amend the relevant legislation to effect a change in the eligibility criteria relating to exempt employers. I have considered both of these submissions.
On the basis that I do not have any discretion on appeal under s 62A to approve the application because of the operation of s 60(2), I am of the view that the appeal should be dismissed.
The Minister’s letter addresses only the question of renewal: it says nothing as to the purported revocation. The Minister’s reasons proceeded on the footing that an application for renewal is in fact an application for registration. His view was that the plaintiff was not entitled to registration as an exempt employer because it employed less than 200 workers.
The Act does not provide any right of appeal from a decision of the Minister made pursuant to s 62A. The plaintiff, therefore, brings this application for judicial review in which it seeks
(a)an order in the nature of certiorari to quash the Minister’s decision;
(b)a declaration that the prescribed minimum number of workers is not relevant on an application for renewal for registration as an exempt employer; and
(c)an order in the nature of mandamus that the Minister make a fresh determination according to law.
The Corporation has further extended the registration of the plaintiff as an exempt employer until 31 January 2006 pending the hearing of determination of this appeal. I repeat, the Corporation has no power to extend registration but no point is taken on that ground.
The plaintiff brings the application on a number of grounds. It is unnecessary to recite them because central to the success of the application is the plaintiff’s contention that the Minister was wrong in law in concluding that he had no discretion to allow the appeal because of the terms of s 60(2). An allied contention is that the Minister was wrong in concluding that the number of workers was a relevant factor when considering whether to renew registration as an exempt employer. The effect of the plaintiff’s contention is that the requirement for a minimum number of workers operates on the initial application for registration but is not a bar to an application for renewal of registration.
The Right of Appeal to the Minister
Section 62A provides a limited right of appeal. It is in these terms:
(1)     If the Corporation –
(a)     refuses the registration of an employer or group of employers as an exempt employer or group of exempt employers; or
(b)     grants or renews registration as an exempt employer or group of exempt employers for a period of less than three years; or
(c)     cancels the registration of an employer or group of employers as an exempt employer or group of exempt employers,
the employer or employers may appeal to the Minister against that decision.
The manner in which the Corporation has handled the plaintiff’s application for renewal does it little credit. It gives rise to questions whether the plaintiff had a right of appeal to the Minister. The Solicitor‑General did not seek to argue that the plaintiff did not have a right of appeal. Depending on the view which one takes as to the effect of the Corporation’s letter dated 29 June 2004, there were several avenues of appeal. If, as the plaintiff contends, the effect of the purported extension of its registration is a renewal of that registration, the plaintiff is appealing against a renewal for a period of less than three years pursuant to s 62A(1)(b). If the letter is, in fact, a revocation of registration, it is an appeal pursuant to s 62A(1)(c) which gives a right of appeal if the Corporation cancels registration. Neither s 60 nor any other provision in the Act invests the Corporation with power to cancel registration. However, by virtue of s 60(5) the Corporation has power to revoke registration. Two meanings of “cancel” in ordinary usage are to make void, to annul. Similarly, one of the meanings of “revoke” is to annul: see Oxford English Dictionary and Macquarie Dictionary. The use of the verb “cancel” in s 62A(1)(c) is unfortunate but is, in my view, intended to provide a right of appeal to the Minister where registration as an exempt employer has been revoked pursuant to s 60(5). If it does not have that meaning, there is no work for s 62A(1)(c). Expressed another way, if it does not have that meaning, there is no right of appeal against revocation of registration. That is clearly not the intention of s 62A. If the plaintiff was appealing against the Corporation’s decision not to renew its exempt status as had been stated in its appeal to the Minister and a renewal is a fresh grant of registration, an appeal lies through s 62(1)(a). Thus, by one means or another, the plaintiff had a right of appeal. I repeat, the Solicitor‑General expressly stated that he did not seek to argue the contrary. There is no issue as to whether the plaintiff had a right of appeal to the Minister.
A Relevant Factor
It is clear that the question whether the plaintiff employed more than 200 workers was a relevant factor for the Corporation to consider when deciding whether to renew the plaintiff’s registration. Section 60(4)(a)(ii), which is set out below, provides that registration is subject to such terms or conditions as the Corporation determines from time to time. The letter dated 17 May 2001 granting registration required the plaintiff to comply with the Code for the Conduct of Exempt Employers under the WorkCover Scheme. Paragraph 2.5.2(2) of the Code states:
(2)The Corporation has determined that a term and condition of registration of any exempt employer is the exempt employer continuing to employ more than the prescribed number of workers, either individually or in aggregate with a group of related corporations throughout the period of registration.
Although the paragraph refers to employing workers in aggregate with a group of related corporations, that is intended to apply to a group of employers who seek to be registered as a group of exempt employers. It does not apply to the plaintiff. Any suggestion to the contrary flies in the face of s 60(2) of the Act. Section 60(6), which is set out below, enables the Corporation to have regard to such matters as it considers relevant as well as to the other factors there listed. Given that the registration of the plaintiff as an exempt employer was subject to the condition that it employ not less than 200 workers, it was clearly relevant for the Corporation to consider that the plaintiff employed less than 200 workers when considering whether to renew its registration.
A Condition Precedent?
The next question is whether the requirement that the plaintiff employ more than 200 workers is in effect a condition precedent to renewal of registration.
The resolution of that question requires examination of the statutory scheme established by s 60 of the Act for the registration of employers as exempt employers. For present purposes it is sufficient to note sub‑ss (1) – (6) of s 60
(1)Subject to this section, an employer or a group of employers may apply to the Corporation for registration as an exempt employer or as a group of exempt employers.
(2)An application shall not be made under subsection (1) unless –
(a)     in the case of an application by an individual employer –
(i)the employer is a body corporate employing more than the prescribed number of workers; and
(ii)the employer is an indemnified maritime employer;
(b)     in the case of an application by a group –
(i)the members of the group are related corporations or local government corporations; and
(ii)the members of the group employ in aggregate more than the prescribed number of workers.
(3)Where –
(a)an application is made under subsection (1); and
(b)the Corporation is satisfied –
(i)that the employer or the employers constituting the group have reached a standard that, in the opinion of the Corporation, must be achieved before conferral of exempt status can be considered; and
(ii)that in all the circumstances it is appropriate to do so,
the Corporation may register the employer or the group as an exempt employer or a group of exempt employers.
(4)A registration under this section –
(a)     is subject to –
(i)a condition that the exempt employer must not exercise any power or discretion delegated to the exempt employer under this Act unreasonably; and
(ii)such other terms and conditions as the Corporation determines from time to time or as are prescribed by the regulations; and
(b)     [not relevant]
(c)     takes effect on a date fixed by the Corporation; and
(d)     subject to this section
(i)has effect for an initial period (not exceeding three years) determined by the Corporation; and
(ii)may, on further application to the Corporation be renewed from time to time for a further period (not exceeding three years) determined by the Corporation at the time of renewal.
(5)The Corporation may revoke the registration of an exempt employer, or reduce the period of registration if the employer breaches or fails to comply with this Act or a term or condition of registration.
(6)In deciding whether to grant, renew, revoke, or reduce the period of registration as an exempt employer or group of employers under this section the Corporation may have regard to such matters as it considers relevant and will have regard to the following:
(a)     whether the employer or group is, and is likely to continue to be, able to meet its liabilities;
(b)     the resources that the employer or group has for the purpose of administering claims for compensation;
(c)     the incidence and severity of compensable disabilities arising from employment by the employer or employers;
(d)     the effect, or likely effect, of the working conditions under which workers are employed by the employer, or any of the employers, on the health and safety of those workers;
(e)     the record of the employer or employers in relation to the rehabilitation of disabled workers;
(f)    the record of the employer or employers in providing suitable employment to workers who suffer compensable disabilities;
(g)     the views of any industrial association that has, in the opinion of the Corporation, a proper interest in the matter,
but once an employer or group has been registered as exempt, the Corporation must not, in deciding whether to renew the registration, consider the effect of the registration on the Compensation Fund.
The scheme plainly limits the employers who may apply to be an exempt employer to those who satisfy the criteria in s 60(2). The relevant criterion for the plaintiff as a body corporate is that it employs more than the prescribed number of workers: s 60(2)(a)(i). The expression “an application shall not be made under sub‑s (1) unless … the employer is a body corporate employing more than the prescribed number of workers” is a clear prescription of a condition which must be satisfied before an application can be made. The terms in which s 60(2) is expressed makes that criterion a condition precedent to a valid application. If an employer makes an application which does not satisfy that condition, it is an invalid application.
Section 60(3) requires the Corporation to consider the application and determine whether it is appropriate in all the circumstances to register an employer as an exempt employer.
Section 60(4) prescribes that registration as an exempt employer is subject to terms and conditions (including terms and conditions from time to time determined by the Corporation) and invests the Corporation with the authority to determine the period of initial registration. Shortly stated, s 60(4) deals with the period of registration and the terms and conditions of registration. In addition, s 60(4) provides for renewal of registration as an exempt employer.
If irrelevant words are omitted, s 60(4)(d)(ii) provides, “a registration under the section … may, on further application to the Corporation be renewed …”. It is clear from its terms that s 60(4)(d)(ii) gives an employer an option to renew its registration as an exempt employer.
A Renewal, Not an Extension
In this respect it is relevant to note that the Corporation has no power to extend a period of registration. Instead, it has power to grant a renewal of registration. The distinction between a renewal and an extension in the context of policies of insurance was considered by the High Court in CE Heath Underwriting & Insurance (Aust) Pty Ltd v Edwards Dunlop & Co Ltd (1993) 176 CLR 535. In that decision Dawson, Toohey & McHugh JJ (at 545) applied the reasoning of Mayo J In re Kerr [1943] SASR 8 at 16:
The distinction between the renewal of a policy and the extension of a policy was expressed in the following terms by Mayo J in Re Kerr:
“Strictly, a ‘renewal’ is descriptive of a repetition of the whole arrangement by substituting the like agreement in place of that previously subsisting, to be operative over a new period, whereas an ‘extension’ betokens a prolongation of the subsisting contract by the exercise of a power reserved thereby to vary one of its provisions, that is, by enlarging the period. Upon a renewal similar rights revest … A contract reserving continuous rights of renewal will, if these be exercised, lead to succeeding contracts in a series, the identity of each contract [being] separate and distinct. On the other hand, the exercise of the right of extension augments the length of time over which the contract operates, without changing its identity.”
Whether there is a renewal or an extension of an insurance policy is a question of construction, the term “renewal” often being used to refer to both “renewal” and “extension” in the sense that those words are used above. It is, however, well established that, where a policy is renewable only by mutual consent (ie not as of right), the renewal results in a fresh contract rather than the extension of an existing contract. (Citations omitted)
The reasoning applies with equal force to renewal of registration pursuant to s 60(4)(d)(ii). It is a renewal, not an extension. The terms of s 60(4)(d)(ii) make it clear that there is no automatic right of renewal. The Corporation has a discretion whether to grant or refuse renewal. The renewal is not necessarily a mere repetition of the terms and conditions of the previous registration.
The next question is whether a renewal is a fresh grant of registration or, instead, a repetition of the existing registration. Here again, the reasoning of Mayo J in Re Kerr is relevant. Section 60(4)(d)(ii) authorises the Corporation to fix the period of the renewed registration. The Corporation is not required to renew it for the same period as the initial grant of registration. The Corporation also has the power to impose fresh conditions. The power of the Corporation to fix a different period of registration from the initial period and to impose fresh conditions indicates that the Corporation is making a new grant of registration. It is not simply repeating the existing grant with the same terms and conditions and for the same period but making a new grant with the power to impose fresh conditions and for such period as it thinks fit, which may be longer or shorter than the previous period of registration but no longer than three years, that is to say, it is a new grant with perhaps fresh conditions and for such period as the Corporation thinks fit. Applying the reasoning of Mayo J in Re Kerr, it is not a repetition of the existing arrangement but a new arrangement.
The option to renew registration given to an exempt employer by s 60(4)(d)(ii) of the Act is akin to the option to renew a lease. If an option to renew a lease is exercised, a new lease comes into being: Gerraty v McGavin (1914) 18 CLR 152; Mercantile Credits Ltd v Shell Co of Australia Ltd (1976) 136 CLR 326 at 345 and Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397 at 442 per Aickin J. Although it cannot be pressed too far, the analogy is relevant given that the Act provides that an exempt employer has an option to renew registration and the Corporation has a discretion whether to grant or renew the application with terms and conditions which might be different from those which applied in respect of the registration which had expired.
Central to the submissions of both parties was the question whether the use of the expression “on further application to the Corporation” in s 60(4)(d)(ii) requires an employer who is registered as an exempt employer and who wishes to apply to renew the registration, to lodge an application which complies with s 60(2). The Solicitor‑General contended that it did. Mr McNamara QC for the plaintiff contended it did not.
It will have been noticed that s 60(4)(d)(ii) speaks of “a further application to the Corporation”. It does not provide that the employer may simply apply to renew. In this respect the contrast with the equivalent provision in the Act as initially enacted is striking. That provision was s 60(5)(b) which enabled the employer simply to apply to renew. It provided:
(5) A registration under this section –
…
(b) has effect, unless sooner revoked, for the period of 3 years and may be renewed from time to time for a further period of 3 years.
On one view it provided what was tantamount to an automatic right of renewal.
The fact that in s 60(4)(d)(ii) Parliament has used the epithet “further” in the expression “on further application” indicates its intention that the employer is required to make another application, that is to say, a fresh application for registration. If it had been intended that the employer could simply apply to renew the registration, Parliament would have used words similar to those in the repealed s 60(5)(b). Section 60(4)(d)(ii) does not simply say that the registration “may on application to the Corporation be renewed” or that the registration “may be renewed”. It requires a further application. That further application is an application which complies with s 60(2). In other words, the use of the epithet “further” is a reference back to s 60(2). It can have no other meaning.

Mr McNamara QC referred to s 62 which requires applications for registration as an exempt employer to be made in the prescribed manner and form. Forms of application have been prescribed by regulation. Mr McNamara relied on the fact that those forms do not make provision for an employer to state that it has already been registered as an exempt employer. That does not advance the plaintiff’s position since the Corporation would be aware from its register who had been registered as an exempt employer.
Mr McNamara also pointed to the fact that s 60(3)(b)(i) speaks of the “conferral of exempt status” and submitted that registration confers status upon an employer. He submitted that status is an attribute of legal personality which has a degree of permanence. It would be odd, he submitted, if the status of an exempt employer were to be conferred more than once. I do not accept that argument because it fails to pay sufficient regard to the terms of s 60(4)(d)(i) which limits the period of registration.
For these reasons, an employer seeking renewal of its registration as an exempt employer must make a fresh application for registration in accordance with the requirements of s 60(2). The requirement to make a fresh application which complies with s 60(2) has the consequence that the employer will not be entitled to a renewal of the registration unless the employer employs more than 200 workers.
Mr McNamara QC pointed to the fact that this interpretation of the Act could produce anomalies, if not hardship, should the vagaries of industry result in an exempt employer having less than 200 employees at the time of renewal. There will be occasions, he said, when the workforce might fall below 200 for a short time only. However, the plain fact is that Parliament has prescribed this standard and this Court must acknowledge that standard. There are policy reasons which reinforce the conclusion that on renewal an employer must satisfy the prescribed standard in that it enables the Corporation to make an overall review of the suitability of the employer to registration as an exempt employer. It might be a blunt instrument, as Mr McNamara described it, but it is the instrument Parliament has enacted. It enables the Corporation to ensure that the initial requirements for registration are still being satisfied. Mr McNamara also pointed to the fact that the criteria listed in s 60(6)(a) and s 60(6)(b) are a more appropriate means to determine whether an employer is suitable for registration as an exempt employer. However, Parliament has fixed what it perceives to be the relevant criterion and the Court must have regard to this.
Any Consequence of the Invalidity?
The Solicitor‑General did not rely on the fact that the initial grant of registration to the plaintiff was invalid. It is an interesting question whether an invalid grant of registration can be renewed. An invalid administrative act is not void or a nullity until a Court declares it to be so. That once controversial view of Professor Wade is now settled principle in Australia and in England: Ousley v The Queen (1997) 192 CLR 69 per Gummow J at 130; Minister for Immigration v Bhardwha (2002) 209 CLR 597 per Kirby J at 630 - 632 and per Hayne J at 646; Boddington v British Transport Police [1999] 2 AC 143; cf Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 per Finkelstein J at 412 – 413. In this case that principle has a special application in the sense that the registration of the plaintiff as an exempt employer affects not only the rights of the plaintiff but also, and importantly, the rights of its employees. There has been no challenge to the decision of the Corporation, so that the registration may be presumed to be valid at least for the purposes of ensuring that injured workers are compensated.
It is a nice question whether different considerations apply when the Court is asked to consider the plaintiff’s rights on an application for renewal. In that context, is it proper for the Court to ignore the invalidity of the initial grant of registration? The rights of workers will not be adversely affected since the plaintiff is applying for a renewal and the existing registration has expired or is about to do so. I think that the principles expressed in such cases as Smith v East Elloe Rural District Council [1956] AC 736 at 769 – 770, F Hoffmann‑La Roche & Co AG v Secretary for Trade and Industry [1975] AC 295 and in R v Wicks [1998] AC 92 do not assist in the resolution of this issue and may be distinguished. In this case, the Court is being asked to determine the plaintiff’s rights on its application for renewal of its registration as an exempt employer, given that the plaintiff’s registration was about to expire. In those circumstances, it is not necessary to overlook the fact that the initial grant of registration was invalidly made and was a nullity. The consequence is that the plaintiff is not applying to renew a registration. It is in law applying for an initial grant of registration. To hold otherwise is to hold that it is possible to renew a nullity. The proposition has only to be stated to be rejected. This is a further reason for concluding that the plaintiff was applying for a new grant of registration and its application will be valid only if it employs 200 workers. However, the question was not fully argued and given the conclusion that s 64(d)(ii) requires an applicant for renewal to make a fresh application which complies with s 62, I prefer not to express a final view on this question.
Conclusion
For these reasons, the Minister was correct in dismissing the plaintiff’s appeal on the ground that a failure to comply with s 60(2) has the consequence that an application for renewal is invalid. The plaintiff did not comply with s 60(2) in that it did not employ 200 workers, the prescribed minimum number of workers. The plaintiff has failed to show that the Minister has made an error of law. The plaintiff’s application must, therefore, be dismissed.
ANDERSON J I have come to the conclusion that in all the circumstances of this matter the decision by the Minister conveyed by letter of 6 February 2005 should be quashed. I agree with the reasons of Perry J for reaching this conclusion.
This matter is, unfortunately, complicated by a series of errors made in the first instance by WorkCover and then by the Minister. In my view, the starting point in this matter is the fact that the applicant was registered as an exempt employer. I do not agree that the application for exemption was invalid nor that the registration was necessarily invalid. It may be better to regard it as an unlawful registration, but the plain fact of the matter is that the registration has been in place for some time and has been acted upon.
The applicant applied for renewal of the registration. This application has not been dealt with by WorkCover. Instead it chose to revoke the registration.
I agree with Perry J that on an application for renewal it is not necessary for the applicant to pass through all the preliminary requirements required for an initial registration. On this basis, I do not believe that the renewal has been considered on its merits.
In my view, the Minister should have realised this and either dealt with the application for renewal or given some form of direction to WorkCover for it to properly assess the applicant’s application for renewal. The Minister was in error in this regard.
I agree therefore that the Minister’s decision should be quashed, and that the matter should be referred back to the Minister for a determination of the appeal from WorkCover.