WorkCover Corp v Elderly Citizen Homes of SA Inc No. Scgrg-99-267 Judgment No. S332

[1999] SASC 332

WORKCOVER REHABILITATION AND COMPENSATION CORPORATION V ELDERLY CITIZENS HOMES OF SA

Full Court

Coram: Millhouse, Duggan and Lander JJ

1. MILLHOUSE J.        I will ask our brother Lander to give his vote on this question first. 

2. LANDER J                This is an appeal from an order by a judge of this court on an application by the respondent for judicial review.  

3. The orders made included orders that the respondent on the appeal was entitled to disclosure to it of a report to a Committee constituted by the appellant, to consider an application for registration by the respondent as an exempt employer.  This report was referred to in Workcover Corporation’s (the Corporation) letter to Elderly Citizen Homes dated 9 March 1999.  His Honour also ordered that there be an injunction directed to the appellant to forthwith disclose the report to the respondent. 

4. The application for that report by the respondent arose out of an application made by the respondent to the Corporation for approval as an exempt employer under s60 of the Workers Rehabilitation and Compensation Act 1986.

5. On that application the appellant refused to release to the respondent the report which later became the subject of his Honour's order.  After his Honour had made orders  first declaring that the respondent was entitled to the report and secondly the order in the nature of an injunction requiring the appellant to disclose the report to the respondent, the appellant sought a stay of the order pending an appeal to this Court against the declaration and the order in the nature of an injunction. 

6. The appellant argued on that stay application that to refuse a stay would render the appeal to this court nugatory.  On the other hand, the respondent argued that the refusal of a stay would still leave alive the principal question to be determined, and that is whether or not a report of this kind was ever required to be released by the Corporation in its decision making process. 

7. The application for the stay by the appellant was refused.  The judge refused the stay because he said the stay would interfere with the respondent's principal application for it to be approved as an exempt employer.   In a sense, the Judge was faced with something of a dilemma.  If he was to allow the stay, then the respondent's application for approval as an exempt employer could not be heard before 1 July 1999, which would have necessitated the postponement of that application for about 12 months with consequent cost to the respondent.  On the other hand, if he was to refuse the stay, then it might be said that the appellant's rights of appeal had been rendered nugatory.  In the end, he refused the stay for the reasons which I have mentioned. 

8. The appellant, in compliance with his order, disclosed the report to the respondent.  That had the effect, of course, of, in effect, deciding the issues which were raised on the application before the learned trial judge. 

9. More particularly, and I think more importantly however, the substantive application made by the respondent for approval as an exempt employer has been heard by the appellant and approval has been granted.  There is therefore no longer any issue between the parties at all.   The provision of the report is no longer an issue but, more particularly, the respondent has obtained that which it sought, namely approval as an exempt employer. 

10. In those circumstances it seems to me that there is no longer a lis between the parties which necessitates the hearing of this appeal. 

11. It was put by Mr White QC, who appeared for the appellant, that this Court should hear the appeal for at least two reasons.  First, because this was a matter of public law.  In my opinion, that is not so.  This is not a matter of public law.  It is true to say, of course, as Mr White said, that the appellant is a public institution and corporation and it is no doubt right, as he said, that the appellant is keen to observe the law, but this is not a matter of public law as that term is usually understood.  This was an inter partes matter between two citizens of the State. 

12. Next he said it would be in the appellant's interests for the matter to be determined so that the Corporation could deal with further applications of this kind. 

13. I think that second submission should fail for two reasons.   First, because this matter was a matter which depended upon its facts.  It was a particular report which was called for by the respondent and which the learned judge ordered to be disclosed. 

14. Secondly, and probably as importantly, it would appear from the documents produced to the learned Trial Judge and which are in the appeal books, that the system for applications for exempt employer status, which has been employed by the Corporation, has changed since 1 July 1999.  It is probable, at least so far as I can understand the documents before me, that in the future there will be consultation process in relation to reports of this kind.  Therefore, probably the matter is of less importance now than it was when it came before the learned Judge. 

15. In all of the circumstances, it appears to me that it would be inappropriate for this court to embark upon what is really a hypothetical question for the purpose of determining rights which are no longer important as between the parties.  In my opinion, the appeal should be dismissed for that reason. 

16. MILLHOUSE J:       I agree, and I agree with what my brother Lander has said.  Not to put too fine a point on it, to go on with the appeal would be, despite Mr White's arguments, just a waste of time. 

17. DUGGAN J:  I agree that the appeal should be dismissed for the reasons given by my brother Lander. 

18. MILLHOUSE J:       The order of the court is therefore appeal dismissed. 

19. MR HAYES:  I make application for the costs of the appeal.  I think in the circumstances there's no reason at all why costs shouldn't just follow in the normal way. 

20. MILLHOUSE J:       What do you say to that?

21. MR WHITE:  We resist that.  We say in the circumstances it would be appropriate to make no order as to costs.  The fact of the matter is that it was the present respondent who put the submission to the trial judge that our appeal would not be rendered nugatory by the refusal of the stay.  His Honour has relied on that, so it's, in effect, the present respondent who has contributed to the situation which we are in today. 

22. MILLHOUSE J:       We are all of the view that there should be no order as to costs of the appeal.