WorkCover Corporation of South Australia v Davey; Davey v WorkCover Corporation of South Australia

The Supreme Court of South Australia heard an appeal concerning a dispute between WorkCover Corporation of South Australia and Mr. Malcolm Lloyd Davey, a worker. The core of the dispute involved WorkCover's determination under section 35B of the *Workers Rehabilitation and Compensation Act 1986* (SA) that Mr. Davey had a current work capacity, leading to the cessation of his weekly payments. Mr. Davey contended that WorkCover failed to provide him with notice of this assessment or an opportunity to make submissions, thereby breaching procedural fairness. Following an unsuccessful conciliation, the matter proceeded to the Workers Compensation Tribunal, and subsequently to the Full Bench of the Tribunal, before reaching the Supreme Court on appeal.

The Supreme Court was required to determine two principal legal issues. Firstly, whether the *Workers Rehabilitation and Compensation Act 1986* (SA) conferred jurisdiction upon the Workers Compensation Tribunal to adjudicate on matters of judicial review or complaints regarding a lack of procedural fairness. Secondly, the Court had to consider whether the Act itself afforded Mr. Davey a right to procedural fairness at the specific stage of the section 35B assessment.

The Court allowed the appeal, holding that the Workers Compensation Tribunal lacked jurisdiction to make orders concerning collateral issues of procedural fairness. It reasoned that the Act, by necessary intendment, excluded the right to procedural fairness in relation to the making of a section 35B determination. Consequently, the Tribunal had acted without jurisdiction in considering the procedural fairness complaint. The Court also dismissed separate proceedings that had sought judicial review of WorkCover's actions.