Tsimpinos v Allianz (Aust) Workers' Compensation (SA) P/L No. Scciv-02-1766

PETER TSIMPINOS
v
ALLIANZ (AUSTRALIA) WORKERS’ COMPENSATION (SA) PTY LTD (AS AGENT FOR WORKCOVER CORPORATION) & WORKERS’ COMPENSATION TRIBUNAL
[2004] SASC 124
Full Court: Mullighan, Debelle and Gray JJ

MULLIGHAN J. I agree that the application should be dismissed for the reasons given by Debelle J.
DEBELLE J. This application for judicial review was referred to the Full Court by order of Perry J made on 23 June 2003. The applicant seeks orders in the nature of certiorari quashing decisions of the Workers’ Compensation Tribunal and the Full Bench of that Tribunal made on 6 March 2002 and on 20 June 2002 respectively. The applicant contends that both the Tribunal and the Full Bench of the Tribunal have erred in determining his average weekly earnings when assessing a claim for compensation.
The jurisdiction of this Court to hear an application for judicial review from the Workers’ Compensation Tribunal has been limited by s 88I of the Workers Rehabilitation and Compensation Act 1986 (“the Act”) to occasions where the Tribunal has acted with an excess or want of jurisdiction. Section 88I is in these terms:
“       88I.   No proceeding, judgment or decision of the Tribunal can be challenged, appealed against, reviewed, quashed or called in question except—
(a)     as provided in this Act; or
(b)    in proceedings before the Full Supreme Court founded on an alleged excess or want of jurisdiction.”
It is common ground that para (a) of s 88I has no application in this case. The applicant, therefore, can prosecute this application only if it is founded on an alleged excess or want of jurisdiction. If the court finds that there is no excess or want of jurisdiction, the applicant contends, in the alternative, that s 88I is inconsistent with Chapter III of the Commonwealth Constitution.
Notice of the constitutional question was given to the Attorneys-General of the Commonwealth and of the States and Territories pursuant to s 78B of the Judiciary Act 1903 (Cth). Only the Attorney-General of the State of South Australia applied to intervene.
Two Successive Injuries
The issues in this application arise out of the fact that the applicant suffered injury in the course of his employment on two separate occasions, the first in 1990 and the second in 2000. The second injury resulted in total disability. A dispute arose between the applicant and WorkCover Corporation (“the Corporation”) when determining his notional weekly earnings as part of his compensation for the second injury. That was in consequence of the fact that the applicant and the agent for the Corporation had executed a redemption agreement in respect of the compensation for the first injury. I will set out the circumstances leading to those difficulties.
The dealings concerning the applicant’s claims for compensation were conducted by the agent for the time being of the Corporation. No issue turns on the authority of the agent. I will therefore describe the dealings on the footing that they occurred between the applicant and the Corporation.
The First Injury
The applicant is employed by K & A Transport Pty Ltd as a truck driver. He is also a director of that company. On 17 April 1990 he suffered a lower back injury in the course of his employment. He claimed compensation. His claim was accepted as a partial incapacity and compensation was paid in the form of income maintenance from April 1990 until 5 March 1996.
On 10 February 1996 the Corporation gave notice of an interim assessment of the applicant’s loss of future earning capacity. The interim assessment had been made pursuant to s 42A of the Act. The notice stated that the applicant’s notional weekly earnings were $573 per week. The interim assessment was to be for the period of twelve months from 6 March 1996 to 4 March 1997 and totalled $14,963.81. At the time the applicant was receiving weekly payments under s 35 of the Act.
The interim assessment was not paid. It appears that before 6 March 1996 the parties had entered into negotiations for an agreement to redeem the applicant’s entitlements to weekly payments and medical expenses. It is unnecessary to stay with the medical expenses. There is no issue concerning them. On 13 May 1996 the Corporation and the applicant entered into an interim agreement to redeem by a capital payment the liability for loss of future earning capacity. The redemption was agreed in the sum of $46,500.
There are two means by which the Corporation may make a capital payment for loss of future earning capacity. I will examine them in greater detail later in these reasons. At this stage, I simply note the relevant provisions. The first is by entering into an agreement with the worker to redeem the liability for loss of future earning capacity. Such an agreement may be made pursuant to s 42 of the Act which is in Division 4A of the Act. The second means is provided by s 42A of the Act which is in Division 4B of the Act. Section 42A authorises the Corporation unilaterally to assess the worker’s loss of future earning capacity as a capital loss.
The redemption agreement made on 13 May 1996 is a curious mixture of both s 42 and s 42A of the Act. For example, clause 8 of the recitals is in these terms:
“The worker and the Corporation have reached an agreement for the redemption of the undischarged liability to make a capital payment for loss of future earning capacity pursuant to Division 4B of the Act.”
However, other recitals referred to the compliance with provisions of s 42 of the Act and in particular s 42(2) which puts in place a number of safeguards to ensure that the worker is properly advised before entering into a redemption agreement. Clauses 3 and 4 of the agreement are in these terms:
“3.That the worker ACKNOWLEDGES on receipt of the said capital payment the Corporation is thereby wholly discharged from any further liability to make a capital payment for loss of future earning capacity.
4.That the worker further ACKNOWLEDGES that the purpose of Section 35(6B) of the Act the worker is taken to be receiving a continuing weekly payment of $287.77.”
There is no s 35(6B) of the Act. The reference to s 35(6B) is plainly a reference to s 35(6b). In addition, the word “for” is plainly missing from this clause. It was common ground on the appeal that clause 4 should have read:
“That the worker further acknowledges that for the purpose of s 35(6b) of the Act the worker is taken to be receiving a continuing weekly payment of $287.77.”
The payment of $46,500 was made to the applicant. For reasons which I shall give in a moment, the curious mixture of provisions in the redemption agreement is of no moment.
The amount of $287.77 referred to in clause 4 was to be the source of future difficulty and leads to the current application. It is the result of dividing the sum of $14,963.81 by 52 weeks in each year.
The Second Injury
After a time the applicant returned to work on a full time basis. He worked for some 55 to 70 hours per week. His average weekly earnings rose to about $800 per week.
On 21 January 1999 the applicant was involved in another motor vehicle accident in the course of his employment. He claimed workers’ compensation. In his claim he stated that his average weekly earnings were $800 per week. The Corporation made a determination on 6 April 1999. It accepted that the applicant’s notional weekly earnings were $800 per week. The determination went on to note that the applicant had in 1996 received a lump sum capital payment redeeming his entitlement to loss of earning capacity in respect of the disability sustained on 17 April 1990. The determination stated that the payment had been accepted by the applicant in redemption of his entitlement to continue receiving weekly payments at the rate of $287.77 per week. The Corporation, therefore, deducted the sum of $287.77 from $800 to produce a weekly payment of $512.23 which it determined it would pay as income maintenance.
The applicant disputed the determination that the weekly payments should be $512.23 per week, asserting that his weekly payments should be $800 per week in accordance with the Corporation’s assessment of his notional weekly earnings. He also contended that the redemption agreement had no application because it had expired before he had submitted his claim for the second injury. The Corporation confirmed its decision. Eventually the dispute was heard by a Deputy President of the Workers Compensation Tribunal (“the Tribunal”).
The Proceedings in the Tribunal
The question before the Tribunal was whether the Corporation was justified in deducting $287.77 per week. The applicant contended that no deduction should be made or, in the alternative, that only a deduction of $90.59 per week should be deducted. The applicant led actuarial evidence before the Deputy President. That evidence established that, if the period over which the loss of earning capacity had been redeemed was the remainder of the applicant’s working life, the amount of $90.59 represented weekly payments which would exhaust the capital sum of $46,500 and interest thereon between June 1996 and the applicant’s 65^th birthday. There was also evidence that weekly payments at the rate of $287.77 per week would have exhausted the capital sum of $46,500 by about 9 September 1999, some eight months after the second injury. The applicant contended that he was entitled to weekly payments of $800 per week from 9 September 1999 or weekly payments of $709.41 being the difference between $800 per week and $90.59.
The Deputy President concluded that it was competent for the parties to agree the weekly payments which were being capitalised by the redemption agreement. He accordingly confirmed the Corporation’s determination that the sum of $287.77 per week should be deducted from the weekly payments of income maintenance payable in respect of the second disability. He also dismissed submissions that the agreement was unconscionable and in breach of s 119 of the Act.
The applicant appealed from that decision to the Full Bench of the Tribunal. The applicant contended in the Full Bench, as he had before the Deputy President, that there was no statutory warrant to enable parties to agree the amount of the weekly payments. All that the parties could agree, the applicant said, was the amount of the capital payment for loss of future earning capacity. The Full Bench held that, once a worker had entered into an agreement after receiving the advice required by the Act, it was not appropriate for the Tribunal to review the redemption agreement. It held that it was competent for the parties to agree the weekly payment. However, it held the amount of the weekly payment is a question of fact to be proved in the Tribunal and that the amount stated in the agreement was not conclusive evidence of the amount of the weekly payment but simply one of the facts to be considered. The Full Bench held that there was a lack of evidence on the amount of the weekly payments and remitted the matter to the Deputy President for determination.
The Deputy President heard the matter again and on 6 March 2002 published reasons in which he again confirmed the Corporation’s determination. His conclusion was based on the determination made on 10 February 1996. In doing so he rejected a submission from counsel for the applicant that the redemption of the agreement was for a specified period. This is the first decision which is the subject of the application for judicial review. The applicant appealed again to the Full Bench.
The Full Bench heard the matter on 6 May 2002 and published reasons on 20 June 2002. The Full Bench held that, while the redemption of weekly payments can be made for a fixed period, the redemption agreement must speak for itself. It held that, if it was intended to redeem the Corporation’s liability for some other period than to the time when the appellant reached the age of 65 years, the agreement would have said so. There was, it said, no basis to assume that some lesser period was being agreed.
During the hearing before the Full Bench, the Tribunal was informed for the first time that the lump sum stipulated in the interim assessment made on 10 February 1996 had not been paid because the negotiations which led to the redemption agreement had begun immediately thereafter. The Full Bench held that the reliance upon the interim assessment made on 10 February 1996 in earlier proceedings had been misplaced. It was, therefore, necessary to establish what payments were being made at the time of the redemption agreement. The Full Bench said that the only evidence of that fact was contained in a statement of Mr Crawley, the solicitor advising the applicant when the redemption agreement was being negotiated. Mr Crawley’s statement contained the following paragraph:
“He [the worker] informed me that he was presently receiving workers compensation of $275.00 per week gross; his private company was paying him $515.00 gross per week”.
Counsel for the applicant contended that the sum of $275 was wrong. Counsel for the Corporation submitted that there might be other evidence that could establish what had been paid as weekly payments of income maintenance and offered to obtain that evidence and place it before the Full Bench. The Full Bench took the view that it was too late for the parties to adduce further evidence and relied on the statement of Mr Crawley. It held that the amount of weekly payments payable immediately before the redemption agreement was $275 per week.
Application for Judicial Review
The applicant applies to this Court for judicial review of both the decisions of the Deputy President of 6 March 2002 and of the decision of the Full Bench of the Tribunal of 20 June 2002. Although the application seeks a review of both decisions, the affidavit in support lists grounds of review only of the decision of the Full Bench made on 20 June 2002. I do not think that anything turns on that fact since the issues in each of the decisions are essentially the same.
The grounds relied on are as follows:
“3.1The Tribunal exceeded its jurisdiction in holding that the plaintiff and the defendant did, and were entitled in law to, exclude, modify or restrict the proper and effective operation of Section 35 of the Act.
3.2The Tribunal erred in holding that the agreement between the plaintiff and the defendant dated 13 May 1996 redeemed the defendant’s liability to make weekly payments to the plaintiff. The agreement redeemed the defendant’s liability to make payments pursuant to Section 42A of the Act. Accordingly, the Tribunal erred in law in reducing the plaintiff’s entitled to weekly payments pursuant to Section 35 (69).
3.3In the alternative the Tribunal erred in assuming that the defendant’s redemption agreement properly construed did redeem liability until the plaintiff reached the age of 65 rather than for a fixed period determined by a division of the lump sum by the weekly amount of $287.77 recorded in the agreement.
3.4The determination of the Corporation contravenes Section 119 of the Act.”
Of the four grounds on which the applicant relies, only the first appears, on its face, to raise a question going to jurisdiction. I will examine each of the grounds. As will be seen, none of them involves an excess or want of jurisdiction of the Tribunal either as constituted by the single member or by the Full Bench.
The Challenge to Jurisdiction
Counsel for the applicant did not clearly articulate whether the Tribunal had acted with either a want of jurisdiction or in excess of its jurisdiction. This deficiency is of no consequence because, as will be seen, it is plain that the Tribunal had jurisdiction and that, if the Tribunal did err, the error or errors were errors within its jurisdiction.
A privative clause such as s 88I is to be construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied: Public Service Association of South Australia v Federated Clerks’ Union of Australia, South AustralianBranch (1991) 173 CLR 132 per Dawson and Gaudron JJ at 160. Their Honours were then speaking of s 95 which is the immediate statutory predecessor of s 88I. That principle has been recently re-affirmed in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 per Gummow J at 614 and in Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [32] and at [72].
While the distinction between jurisdictional error and non-jurisdictional error was for practical purposes abolished in England by the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the distinction has been retained in Australian courts: Public Service Association Case at 141, 149 and 165; Craig v State of South Australia (1995) 184 CLR 163 at 179.
The expressions “excess of jurisdiction” and “want of jurisdiction” are well understood. The expressions are not terms of art. Speaking generally, it can be said that there is a “want of jurisdiction” when a court or tribunal does an act which is beyond its general power or authority and that there is an “excess of jurisdiction when it does an act, the doing of which is within its general authority or power, but which was done in breach of the conditions which authorise the doing of acts of that class or nature”: Public Service Association Case (supra) per McHugh J at 164 and the cases there cited.
Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in a particular way: Public Service Association Case per Brennan J at 142. In Craig at 177 the High Court defined four kinds of jurisdictional error which might be made by an inferior court. As the Tribunal is an inferior court, the propositions are apposite. The four instances of jurisdictional error are:
1.where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers;
2.where the inferior court, while acting wholly within the general area of its jurisdiction, does something which it lacks authority to do;
3.where the inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case; and
4.where the inferior court misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.
The Court expressly acknowledged (at 178) that in the case of the fourth category the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.
In Re Refugee Tribunal;Ex parteAala (2000) 204 CLR 82 at [163] Hayne J commented on the observation that the distinction may be difficult to draw in these terms:
“As was noted in Craig v South Australia, that distinction may be difficult to draw. The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.” (footnotes omitted).

The applicant also relies on constructional jurisdictional error, a principle defined by Jordan CJ in Ex parteHebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420 in these terms:
“I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R v Minister of Health. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’: Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust; or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’: The King v War Pensions Entitlement Appeal Tribunal; or ‘to misunderstand the nature of the opinion which it is to form’: R v Connell, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R v Board of Education.” (footnotes omitted).
That principle has since been affirmed on a number of occasions by the High Court. It is sufficient to note the Public Service Association Case at 143-144 and 159; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31]; Re Minister for Immigration and Multicultural Affairs; Ex parteMiah (2001) 206 CLR 57 per Gaudron J at [80]. As is the case with the fourth category of jurisdictional error identified in Craig, it is not easy to distinguish a factual or legal error in the course of reaching a decision from cases where that error is classified as a constructive failure to exercise jurisdiction: Coal and Allied Operations at [81] to [82] Miah case at [81].
In order to determine the issues in this case, it is unnecessary to rely on the views of Dixon CJ in The King v Hickman; Ex parteFox and Clinton (1945) 70 CLR 598 at 614-615 or those of the High Court in Plaintiff S517/2002 v The Commonwealth (supra) since the appellant seeks only to demonstrate that the two decisions of the Tribunal were reviewable for jurisdictional error.
The contention that the Tribunal exceeded its jurisdiction in holding that the applicant and the Corporation did and were entitled to exclude or modify the operation of s 35 of the Act is grounded on the terms of s 35 (6a) and (6b). One basic form of workers’ compensation is, of course, maintenance of income in the form of weekly payments. That kind of compensation is provided for by s 35 of the Act. Section 42 provides that the worker and the Corporation may agree to redeem by a capital payment to the worker the liability to make weekly payments or the liability to make a capital payment for loss of future earning capacity. Section 42A (which is in Division 4B of Part 4 of the Act), invests the Corporation with power unilaterally to assess a capital payment for the worker’s loss of future earning capacity. Such an assessment may only be made where the worker suffers a compensable disability that results in incapacity for a period exceeding two years: s 42A(1). The Corporation had assessed the disability caused by the second accident to this worker as a total incapacity. Section 42A(6) provides that where the Corporation pays or commences to pay compensation under s 42A, the worker ceases to be entitled to weekly payments under Division 4. Division 4 of the Act includes s 35. Sub-section (6) is subject to the terms of sub-section (7) but sub-section (7) has no relevance in this application.
Sub-sections (6a) and (6b) of s 35 provide for the consequences for weekly payments in the case of either a redemption agreement under s 42 or an assessment under s 42A of the Act. They are in these terms:
“(6a)If a liability to make weekly payments is redeemed, the worker is taken, for the purposes of this section, to be receiving the weekly payments that would have been payable if there had been no redemption.
(6b)If a worker ceases to be entitled to weekly payments because the Corporation makes a capital payment for loss of earning capacity under Division 4B, the worker is presumed, for the purposes of this section, to be receiving the weekly payments the worker would have been receiving if there had been no such capital payment.”
It is apparent from the terms of each sub-section that the result is the same in each instance, namely, that the worker is deemed to be receiving the weekly payments that would have been payable if there had been either no redemption agreement or no assessment under s 42A.
The challenge to the jurisdiction of the Tribunal is grounded on the opening words of each sub-section. The contention was not clearly articulated in argument. It appears to be that the Tribunal did not draw a distinction between sub-section (6a) and sub-section (6b) nor between a redemption under s 42 and an assessment under s 42A. The submission must fail for the following two reasons. The first is that each sub-section is not a jurisdictional provision but simply a provision which states the consequences for weekly payments of either a redemption agreement or an assessment under s 42A. Each is a kind of deeming provision. The opening words do no more than identify the circumstances in which each shall operate. Secondly, the same consequence ensues no matter whether the agreement signed on 13 May 1996 is a redemption agreement under s 42 or an assessment by the Corporation under s 42A. In each case, the worker is deemed to be receiving the weekly payments that would otherwise have been payable. That fact only serves to highlight that the opening words of each sub-section do not give rise to any question of jurisdiction. In no sense do those words create any kind of jurisdictional issue. This conclusion is reinforced by the fact that it would have been possible to draft these two provisions so that they constituted one sub-section. The two provisions could have been combined to read:
“In the event either that a liability to make weekly payments is redeemed or a worker ceases to be entitled to weekly payments because the Corporation makes a capital payment for loss of earning capacity under Division 4B, the worker is taken for the purposes of this section to be receiving the weekly payments that would have been payable if either there had been no redemption or no such capital payment.”
No doubt in order to achieve a higher degree of clarity, the draftsperson has preferred to set out those consequences in two sub-sections.
The Tribunal had jurisdiction to determine the dispute between the applicant and the Corporation. The proper determination of that dispute required the Tribunal to have regard to either sub-section (6a) or sub-section (6b) and to engage in the task of interpreting those provisions. For these reasons the Tribunal has neither exceeded its jurisdiction nor embarked on an issue where it had no jurisdiction. This Court cannot, therefore, decide whether the Deputy President or the Full Bench is correct.
Furthermore, the Full Bench did not determine that either the applicant or the Corporation was entitled to exclude, modify or restrict the operation of s 35 or that either was entitled to do so. To the contrary, even a cursory examination of the reasons of the Full Bench on 11 May 2001 discloses that the Full Bench was careful to state that the amount of the weekly payment being made to the worker at the relevant time is a question of fact and that any figure included in a redemption agreement as a statement of weekly earnings is but one item of evidence to be considered in determining what in fact was the amount of the weekly payment. Finally, an examination of the reasons of the Deputy President delivered on 6 March 2002 and of the Full Bench delivered on 20 June 2002 shows that each was endeavouring to determine as a question of fact what the amount of the weekly payments had been.
For these reasons, there has been no error as to jurisdiction.
The Other Grounds
In no sense does the second ground give rise to any question of jurisdiction. The Tribunal, be it constituted by the Deputy President or the Full Bench, had jurisdiction to determine whether the agreement redeemed the applicant’s liability to make weekly payments under s 42 or under s 42A of the Act. The same consequences result in either case. This ground is entirely misconceived.
The third ground raises an issue clearly within jurisdiction. As is apparent from the account of the events leading to this application, the Tribunal, constituted by either the Deputy President or the Full Bench, was endeavouring to determine what was the intent of the redemption agreement in respect of the period over which the capital sum had been determined. That task was undertaken at the invitation of the applicant for the purpose of determining whether it threw any light on the determination of the amount of the weekly payment. Again, it does not give rise to an issue as to the jurisdiction of the Tribunal. It was a matter within its jurisdiction. If the Tribunal has erred, it was an error within its jurisdiction.
The fourth ground involves the question whether the determination of the Corporation contravened s 119 of the Act. That is a matter which is clearly within the jurisdiction of both the Deputy President and of the Full Bench of the Tribunal. The Workers Rehabilitation and Compensation Act is expressed in such a way that it is clear that the Tribunal has to determine whether the Corporation has not acted in breach of s 119. Again, this ground is entirely misconceived.
For these reasons none of the grounds relied on by the applicant involved either an excess or want of jurisdiction on the part of the Tribunal.
The Constitutional Issue
The applicant contends that s 88I is invalid in that it is inconsistent with Chapter III of the Commonwealth Constitution. He relies on the remarks of McHugh J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 114. After expressing the view (at 110) that Chapter III implies the continued existence of a system of State courts with a Supreme Court at the head of the State judicial system, McHugh J continued at 114:
“An essential part of the machinery for implementing that supervision of the Australian legal system and maintaining the unity of the common law is the system of State courts under a Supreme Court with an appeal to the High Court under s 73 of the Constitution. The judgment of the High Court in such an appeal is “final and conclusive”. Without the continued existence of a right of appeal from the Supreme Court of each State to the High Court, it would be difficult, indeed probably impossible, to have the unified system of common law that the Constitution intended should govern the people of Australia. Moreover, although it is not necessary to decide the point in the present case, a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and Ch III envisages.”
Those views received some support from Gummow J at 139 - 141. See also the remarks of Gummow J in Gould v Brown (1998) 193 CLR 346 at [194] - [196]. The applicant points to those remarks and contends that s 88I of the Act excludes any appeal or other form of review by the High Court and so infringes Chapter III of the Commonwealth Constitution.
The remarks of McHugh and Gummow JJ in Kable were obiter dicta. The opinion their Honours expressed is not consistent with a long established view that State Parliaments have the power to restrict rights of appeal to or rights of review by superior courts within the State: see Clancy v Butchers’ Shop Employees’ Union (1904) 1 CLR 181 per O’Connor J at 204; Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114 per Barton J at 140 and per O’Connor J at 146; Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 per Gaudron and Gummow JJ at 634. That power may be exercised because a State Parliament believes that a particular court or tribunal is best qualified to determine the issues which come before it. That has for a long time been the view of the parliaments of this State in respect of industrial issues and workers’ compensation.
It appears, therefore, that it is open to a State Parliament to enact a privative clause to exclude review for error other than jurisdictional error so long as such a clause satisfies the principles expressed in Hickman and Plaintiff S517 v The Commonwealth: Darling Casino Limited v New South Wales Casino Control Authority (supra) at 634. However, it is not I think necessary to determine this issue as s 88I does not entirely proscribe any right of review.
Where a Parliament creates a provision which completely bars any avenue of appeal or review, the issue identified by McHugh J might arise: see, for example, Mitchforce v Industrial Relations Commission (2003) 57 NSWLR 212. That was a case where a privative clause was expressed in extremely wide terms, terms which were wider than s 88I. The particular clause was s 179 of the Industrial Relations Act 1996 (NSW) which provided:
“179 (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted):
(a) is final, and
(b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise).
(2)A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted.
(3)To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.”
I respectfully agree with Handley JA in Mitchforce at [204] that s 179 is a privative clause in the widest terms. It is certainly the widest such clause I have seen.
By contrast with s 179 of the Act in New South Wales, s 88I permits judicial review, albeit on the relatively limited ground of jurisdictional error. Furthermore, the Act provides one other form of review in that s 86A authorises the Full Bench to state a question of law for the opinion of the Full Court. There are, therefore, two avenues by which a decision of the Tribunal is capable of being subjected to review. Thus, even if the constitutional principle identified by McHugh J does exist, it is not infringed in this case.
Conclusion
For these reasons, neither the Deputy President nor the Full Bench of the Tribunal acted in excess of or with a want of jurisdiction on either 6 March 2002 or on 20 June 2002. It follows that the application must be dismissed.
GRAY J. This application should be dismissed. I agree with the reasons of Debelle J.

[2004] SASC 124

30 April 2004