York Civil P/L v Workers Compensation Trib & Anor No. Scgrg-98-800, Scgrg-98-801 Judgment No. S173

YORK CIVIL PTY LTD v WORKERS’ COMPENSATION
TRIBUNAL and ANOR
[1999] SASC 171

Full Court: Prior, Perry and Mullighan JJ

PRIOR J. I agree with the orders proposed by Perry J for the reasons given by him.
PERRY J. The Court has before it two proceedings.
The first is an application for judicial review (“the review proceedings”) sought by York Civil Pty Ltd (“York”) with respect to a decision of the Full Bench of the Workers’ Compensation Tribunal (“the Tribunal”) delivered on 14 May 1998. In that decision the Full Bench upheld a judgment of the Tribunal constituted by a single Presidential member, who had determined that the Workers’ Rehabilitation and Compensation Corporation (“the Corporation”) was entitled to recover from York an amount of $151,659.80. That sum was the amount of compensation which the Corporation had paid to James Michael Ahern (“Ahern”) with respect to a work injury suffered by Ahern on 30 April 1992.
The basis of the judgment against York was the finding that it was a person “other than the employer” within the meaning of s54(5) of the Workers’ Rehabilitation and Compensation Act 1986 (“the Act”), and that there was a right of action for damages against York at the suit of Ahern in the circumstances to which I refer later in these reasons.
In the review proceedings, York claims an order in the nature of certiorari quashing the decision of the Tribunal. The ground upon which that order is sought, is that the Tribunal allegedly lacked jurisdiction to hear and determine the proceedings.
The other proceedings are by way of appeal, Debelle J having purported to give leave pursuant to s191 of the Industrial and Employee Relations Act 1994 to appeal against the decision of the Tribunal. I use the expression “purported to give leave” for reasons which I will come to.

Background

At the relevant time, Ahern was employed by Skilled Engineering Pty Ltd (“Skilled”) as a rigger. Skilled was engaged in the business of supplying labour for hire. York was performing construction work for the Department of Road Transport on a site at South Road, Wingfield. Skilled made Ahern available to York, who in turn engaged him to work at the construction site.
On 30 April 1992, Ahern was carrying a half-sleeper which was used as a base underneath the outrigger of a crane. He struck his foot on a piece of reinforcing rod. This caused him to stagger and fall backwards, resulting in an injury to his lower back and lumbar spine.
The Corporation paid compensation to Ahern pursuant to the Act. It did so on the footing that he was employed at the relevant time by Skilled. It then brought proceedings in the Industrial Relations Court against York pursuant to s54(5) of the Act for recovery of the compensation which it had paid to Ahern.
To understand s54(5), one must first have regard to s54(1), which relevantly provides:
“... no liability attaches to an employer in respect of a compensable disability arising from employment by that employer except-
(a).... a liability under this Act ...”

Section 54(5) is in the following terms:

“Where-
(a).... compensation is paid or payable under this Act in respect of a compensable disability;
(b)a right of action exists against a person other than the employer for damages in respect of the disability,

the person by whom the compensation is paid or payable is entitled to recover from that other person the amount of the compensation in accordance with subsection (7).”

Although the action was commenced in the Industrial Relations Court, as I have said, it was the Tribunal constituted by a Deputy President, which heard the action. This is a consequence of amendments to the Act which became operative in 1996.
On 19 April 1995, before those amendments came into force, the action was instituted by a summons issued in the Industrial Relations Court.
On 3 June 1996 the Workers’ Rehabilitation and Compensation Act No 75 of 1995 (“the amending Act”) came into force.
Until the amending Act came into force, proceedings pursuant to s54(5) to recover amounts paid by way of compensation commonly were heard and determined in the Industrial Relations Court, constituted by the Industrial and Employee Relations Act 1994, which came into operation on 8 August 1994.[1] I use the word “commonly” in view of the terms of s54(7)(g) as it stood before the amending Act was enacted, which relevantly were:
“An action for the recovery of compensation under this subsection-
(i).... may be heard and determined by the Industrial Court; and
(ii)............”
[1] See s8 of the Act, pursuant to which the Industrial Court, as it then was, continued in existence as the Industrial Relations Court.
Having regard to transitional provisions to be found in the Industrial and Employee Relations Act, the reference in s54(8)(g) of the Workers’ Compensation and Rehabilitation Act to the Industrial Court was to be read as a reference to the Industrial Relations Court.[2]
[2] See the Industrial and Employee Relations Act 1994, Schedule 1, paragraph 5.
Pursuant to the amending Act, placitum (i) of s54(7)(g) was struck out, and in its place was substituted the following:
[An action for the recovery of compensation under this subsection:-]
“(i)may be heard and determined by the Tribunal (constituted of a Presidential member); and”
The reason why I have stated that the proceedings for recovery of compensation under s54(5) of the Act were, before the s54(7)(g)(i) was amended, commonly heard in the Industrial Relations Court, is because of the suggestion by counsel that the use of the word “may” in the subsection should be taken as a tacit indication that the jurisdiction of the Court (before the section was amended) and the Tribunal (after the section was amended), should not be taken to be exclusive.
It is unnecessary in this case to determine the correctness of that suggestion.
What is clear is that after the amending Act came into force on 3 June 1996, the Industrial Relations Court had no jurisdiction to hear and determine proceedings for recovery under s54(5) unless, with respect to pending proceedings, such proceedings might have been continued in the Court either by reason of common law principles, or by reason of provisions in the Acts Interpretation Act 1915 to which I will in due course refer.

The proceedings before Debelle J

As I have explained, in one of the two proceedings before us, Debelle J purported to give leave to appeal under the Industrial and Employee Relations Act.
In that Act, appeals to the Supreme Court are dealt with in s191. Relevantly, that section provides:
“191(1).. An appeal lies to the Supreme Court from a judgment, order or decision of the Full Court if-
(a).... the appeal is based on an alleged excess or deficiency of jurisdiction; or
(b).... the Supreme Court grants leave to bring the appeal.
(2)... The appeal must be heard by the Full Court of the Supreme Court.
(3) ..........”
In that section, the words “Full Court” where they first appear are a reference to the Industrial Relations Court sitting as a Full Court.[3]
[3] See Industrial and Employee Relations Act 1994 s21.
Debelle J gave leave to appeal under s191, as he considered that the matter gave rise to a “question of the jurisdiction of the Tribunal”. It appears from the written reasons which he gave for his decision[4] that he took the view that as the action had been commenced in the Industrial Court (in fact it had been commenced in the Industrial Relations Court), it stood to be continued in the Industrial Relations Court. Apparently he regarded the ability to continue the proceedings in the Industrial Relations Court, and the ability to seek leave to appeal to the Supreme Court from a decision of the Full Industrial Relations Court, as “rights” which could not be taken away by an amendment of the statute made during the pendency of the action. He observed:
“The fact that the action instituted by the Corporation was heard by the Tribunal and not by the Industrial Relations Court does not displace the right, nor is it an indication of any contrary legislative intention. It was simply an administrative arrangement.”
[4] (Unreported) 17 August 1998, judgment No S6749.
In his reasons, Debelle J observed:
“... the right to apply for leave to appeal under s191 of the Industrial and Employee Relations Act is available to York. The matter is fit for leave since it goes to the question of jurisdiction of the Tribunal.” (emphasis added)
With respect to Debelle J, the approach which finds expression in that passage appears confusing, as if by the words “question of jurisdiction” he was referring to “an alleged excess or deficiency of jurisdiction”, no leave was required.
Be that as it may, for reasons which I will come to, there are other difficulties in accepting that s191 could be invoked at all.

The review proceedings

As for the other proceedings in this Court, that is, the review proceedings, the amended inter partes summons pursuant to which the application for judicial review is advanced does not set out any grounds upon which the order in the nature of certiorari is sought. Rather, the grounds appear in the supporting affidavit of David William Johns, a solicitor.
In paragraph 9 of his affidavit, Mr Johns deposes as follows:
“York Civil Pty Ltd claim that the Workers’ Compensation Tribunal did not have jurisdiction to determine that the Corporation had an entitlement to recover from it damages representing amounts paid by the Corporation to or for the benefit of James Michael Ahern pursuant to the Act as York Civil Pty Ltd was at all material times an employer of James Michael Ahern.”
To deal with the question of jurisdiction, it is first necessary to determine whether, in fact, the proceedings leading to the orders sought to be reviewed, are properly to be regarded as proceedings of the Tribunal, or of the Court.
With respect to Debelle J, I do not regard the hearing of the matter by the Tribunal as a purely “administrative arrangement”. The Presidential member who constituted the Tribunal at first instance was clearly sitting as the Tribunal and not as the Industrial Relations Court. This is confirmed by the formal order which was drawn up following the pronouncement by him of his decision and the publication of his reasons. That formal order confirms that it was an order of the Tribunal and not of the Court. Likewise, the order of the Full Bench of the Tribunal, which appears in the appeal papers as a fiat signed by the President of the Tribunal, confirms that it was sitting as the Full Bench of the Tribunal and not as the Full Industrial Relations Court.
Quite apart from the provisions which appear in the Industrial and Employee Relations Act 1994 and the Workers’ Rehabilitation and Compensation Act 1986, which deal with the recognition to be given to a seal affixed by the Court and the Tribunal respectively,[5] this Court must give appropriate effect to an apparently authenticated formal expression of an order of a Court or Tribunal from which a matter is brought to this Court, whether by an appellant or an applicant for judicial review. In any event, on an application for judicial review in the nature of certiorari, this Court may have regard to any relevant material placed before it.[6]
[5] See as to the Industrial and Employee Relations Act 1994, ss10 and 234 and as to the Workers’ Rehabilitation and Compensation Act 1986, s77A.
[6] This is so where the applicant asserts jurisdictional error, as opposed to error on the face of the record. See Craig v The State of South Australia (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 176:
“Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. [See, eg Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 167; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 353.] In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.”
At all events, whether one simply looks at the formal terms of the orders disposing of the matter in the Tribunal, or if one looks at the nature of the underlying proceedings, it is clear that the proceedings, although instituted in the Industrial Relations Court, came on for hearing before the Tribunal, and were heard and determined by the Tribunal, both at first instance and the Full Bench.
Although there is a degree of commonality between the judicial officers constituting the Tribunal on the one hand and the Industrial Relations Court on the other, whether they are sitting in one jurisdiction or another is not a matter of mere administrative arrangement.
If a Presidential member of the Tribunal established under the Workers’ Rehabilitation and Compensation Act 1986 sits either a single Presidential member or as a member of the Full Bench of the Tribunal, he or she does so pursuant to that Act, and may only exercise the jurisdiction given to the Tribunal by that Act.
The fact that the same person may also be a judge of the Industrial Relations Court established under the Industrial and Employee Relations Act 1994 does not mean that that person can exercise the jurisdiction conferred upon the Industrial Relations Court other than in proceedings properly before that Court, as opposed to the Tribunal.
At times during the course of his argument, Mr Walsh QC of counsel for York seemed to be suggesting that the hearing before the Tribunal was in fact to be regarded as a sitting of the Court. For the reasons which I have given, that is, with respect, untenable.
Of course, the proceedings for judicial review would succeed if it could be shown that the Tribunal otherwise lacked jurisdiction to determine the claim now in question.
This raises the separate question whether the Tribunal had jurisdiction to hear and determine a claim advanced in proceedings which, before the amending Act, had been instituted in the Industrial Relations Court.
As I have already observed, there were no relevant transitional provisions to deal with that situation. However, the proceedings were at all times proceedings by which the Corporation sought to effect a recovery of compensation paid pursuant to the provisions of s54(5), a provision not affected by the amending Act.
The question whether the amending Act applied to proceedings already in train before the Industrial Relations Court so as to oblige the continuation of the proceedings in the Tribunal, is essentially a question of construction of the amending Act.
It is true that the “... general rule of the common law .... [is] .... that, in general, when the law is altered during the pendency of an action the rights of the parties are decided according to the law as it existed when the action was begun unless the new statute shows a clear intention to vary such rights ....”.[7] But the rights which are there referred to are the substantive rights of the parties, not those which have to do with questions of practice and procedure. See Maxwell v Murphy:[8]
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed.” (emphasis added)
[7] Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Incorporated (1960) 103 CLR 422 per Kitto J at 427.
[8] (1957) 96 CLR 261 per Dixon CJ at 267.
Here, the substantive right was that conferred by s54(5), namely, a right of recovery of compensation paid to a worker from a third party, in the circumstances postulated by the sub-section. But the mechanism by which that right might be enforced was changed, in that the venue of the proceedings to enforce the right became the Tribunal rather than the Court. That an action previously instituted in the Industrial Relations Court and in train at the time of the amending Act might, by reference to the common law principle to which I have referred, be continued in the Tribunal seems to me, as a matter of statutory construction, to be reinforced by reference to the wording of s54(7)(g) which, in the relevant respects, remained the same after the amending Act came into force.
With respect to actions for the recovery of compensation under the sub-section, the amendment to s54(7)(g) was expressed in terms which perpetuated the phrase, “may be heard and determined by”, substituting only the Tribunal for the Court. I see no reason to read those words down to apply only to proceedings which had been instituted after the amending Act came into operation. Given the terms of the sub-section as amended, I see no reason to suppose that its application was intended to be limited to proceedings instituted after the amendment was effected.
Thus the application of the common law principle that procedural changes effected by statutory amendment are generally to be taken to apply to existing proceedings, and the process of construction of the terms of the amending Act, both lead to the same conclusion. Putting it another way, on a proper construction of the amending Act, its terms do not displace, but rather reinforce the application of the common law rule applicable to changes in practice and procedure.
The question whether the Industrial Relations Court might have retained the jurisdiction to continue with the proceedings and determine them, having regard to the Acts Interpretation Act 1915, is a separate question, the answer to which does not detract from my conclusion that the Tribunal did have jurisdiction, after the amending Act came into force, to hear and determine the proceedings now in question.
The relevant provisions in the Acts Interpretation Act are as follows:
“16(1).... Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not-
(a). ......
(b). affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or
(c). affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable, or any status or capacity existing, prior to the repeal, amendment or expiry; or
(d). ........
(e). affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
(2)... Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).
(2a).. Where any office, court, tribunal or body would, apart from this section, cease to exist by reason of the repeal, amendment or expiry, then, for the purpose of instituting, continuing or enforcing any such investigation, legal proceeding or remedy, the office, court, tribunal, or body continues in existence (and, if necessary, new appointments may be made to it) as it the repeal or amendment had not been effected, or as if the expired Act or enactment had not expired (as the case may be).
(3)... Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.
(4)... In this section-
......... ‘legal proceeding’ includes any proceeding pursuant to an Act, enactment or law whether of a juridical or administrative nature.”

Mr Walsh QC seemed to be suggesting that the institution of the proceedings before the Industrial Relations Court and their continuation were the expressions of a “right” within the meaning of s16(1)(c). On the contrary, in my opinion, the proceedings instituted in the Industrial Relations Court were no more than the legal mechanism by which the right on the part of the Corporation to recover compensation paid from a person other than the employer under s54(5) could be enforced.
The right to make the recovery under s54(5) was in no way affected by the amending Act. All that the amending Act changed was the procedure by which the right might be pursued. The proceedings were to be heard and determined in the Tribunal rather than in the Court.
When s16(2) speaks of “legal proceedings ... being continued ... as if the repeal or amendment had not been effected ...”, this applies to legal proceedings of a kind described in s16(1)(e). They are in turn legal proceedings to enforce “any such right, interest”, et cetera. The relevant right or interest, et cetera, is one as to which the repeal or amendment of an Act affects, within the meaning of s16(1)(c). For the reasons which I have explained, the substantive right in question is the right of recovery under s54(5), and that was unaffected in the relevant sense by the amending Act.
True it is that if the proceedings had continued in the Industrial Relations Court, a decision of the Full Industrial Relations Court might have been the subject of an application for leave to appeal under s191 of the Act, or an appeal without leave based on an “alleged excess or deficiency of jurisdiction”.
It might be thought that the decision of the Judicial Committee of the Privy Council in Colonial Sugar Refining Co Ltd v Irving[9] supports the proposition that changes effected by statute, which are otherwise procedural but which have the effect of removing a right of appeal, should be regarded as amounting to “more than a matter of procedure”.[10]
[9] [1905] AC 369.
[10] Ibid at 372.
In that case, in the course of an action in the Supreme Court of Queensland, a special case was stated by the parties for the opinion of the Full Court. After the case was stated but before it came on for hearing, the Judiciary Act (1903) (Cth) was passed. Relevantly, it provided that decisions of State courts from which, before the establishment of the Commonwealth, an appeal lay to the Privy Council, were to be regarded as “final and conclusive” except insofar as an appeal might be brought to the High Court.
After the Judiciary Act came into force, the Full Court determined the special case, from which one of the parties then appealed to the Privy Council. On the application of the respondent to strike out the appeal, their Lordships constituting the Judicial Committee[11] observed:
“As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, Was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.”
[11] Lord Macnaghten, Lord Davey, Lord Robertson, Lord Lindley, Sir Ford North and Sir Arthur Wilson.
In my opinion, the Colonial Sugar Refining case may be distinguished for present purposes in that it concerned a change to the law which had the effect of removing the right of appeal attaching to pending proceedings. One can readily understand the sense in a decision to the effect that where pending proceedings may be continued after the relevant amending Act comes into force, they should be allowed to continue with whatever rights of appeal might previously have been exercised.
Here, however, the change was of a different kind. It had the effect of changing the venue in which the claim might be pursued. I have already given reasons for the view which I have reached that, as a matter of statutory construction, the amendment was intended to be retrospective and to apply to proceedings already in train before the Industrial Relations Court. The change to the tribunal carried with it a right to exercise appeal rights to the Full Bench of the Tribunal, but then to the Full Court of this Court only in the limited circumstances postulated by s88I of the Act, to which I refer below. If that is to be construed as an “interference with existing rights”, in my opinion, it is one as to which “a clear intention to that effect is manifested” in the amending Act.
In any event, having regard to the decision of the High Court in Maxwell v Murphy (supra), which is binding on the court, changes in the law regulating the manner in which a legal right might be “enforced by judicial remedy” are to be regarded as procedural only.
The situation might be different if the proceedings had been seen through in the Industrial Relations Court before the amending Act came into force. Any pending appeal or application for leave to appeal might then, with the assistance of s16, be allowed to continue. In those circumstances, the relevant right, namely, the right of appeal, would have arisen, and its exercise invoked, prior to the amending Act.[12]
[12] See Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Inc (1960) 103 CLR 422.
To summarise, in my opinion, arguments based on s16 of the Acts Interpretation Act fail for two reasons.
The first is because, in my view, a “contrary intention appears” in the amending Act, displacing the potential operation of s16(1).
The second reason is that even if s16(1) was otherwise of application, there is no relevant “right” or “interest” or the like within the meaning of s16(1)(c), which was affected by the amendment so as to enable York to invoke the section.
In any event, if, contrary to that view, the section might be invoked in favour of the appellant, it could only operate to permit the continuation of proceedings in the Industrial Relations Court. In other words, if, contrary to the view which I have reached, s16 was to be of application, it could only have given to York the ability to continue the proceedings in that Court. The consequence of that is that if York wrongly chose to acquiesce in the hearing and determination of the proceedings by the Tribunal, and if (again, contrary to my view) the Tribunal lacked jurisdiction, those proceedings were a nullity and York would now have to take the matter back to the Industrial Relations Court.
However the matter is approached, given my view that the decision was a decision of the Tribunal and not of the Industrial Relations Court, s191 of the Industrial and Employee Relations Act is not of application. I would revoke the purported leave to appeal given under that Act.
If the appeal is to be considered as an appeal against a decision of the Tribunal rather than the Court, which, in my view, is how the matter is properly to be approached, the appellant faces the hurdle posed by s88I of the Act.
The right of appeal from the Tribunal is created and conditioned by s88I of the Act, which provides:
“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 of want of jurisdiction.”
Within the meaning of s88I, there is no other right of appeal or review “provided” in the Act other than pursuant to that section. Furthermore, properly understood, the appeal does not allege an “excess or want of jurisdiction”, or if it does, no such “excess or want of jurisdiction” applies to the Tribunal’s decision. What the appellant asserts is that the Tribunal reached a wrong decision within jurisdiction, rather than a decision which lay outside its jurisdiction.
“The distinction between an erroneous decision by a body having jurisdiction to deal with a particular subject matter, and a decision by a body having no jurisdiction over the matter decided, is familiar to all lawyers and must be steadily borne in mind .......”.[13]
[13] General Assembly of Free Church of Scotland v Lord Overtoun and Ors, Macalister and Ors v Young and Ors [1904] AC 515 per Lord Lindley at 702.
A somewhat analogous situation was the subject of the decision of Lander J in Selamis v WorkCover Corporation and Ors.[14] In that case, the applicant, while employed as a truck driver with a company carrying on business in South Australia, was injured in a motor vehicle accident in Western Australia. The question in the case was whether he brought himself within s6 of the Act and was entitled to worker’s compensation benefits under the Act. This in turn depended upon whether or not there was a sufficient nexus within the meaning of s6 of the Act between his employment and the State of South Australia. Having regard to the terms of s6 of the Act as it then stood, it was incumbent upon him to prove that his “... usual place of residence” was in South Australia at the relevant time.
[14] (Unreported) [1998] SASC 6902.
A Deputy President of the Tribunal and on appeal, the Full Bench of the Tribunal both answered that question in the negative. An application to this Court for judicial review was struck out.
In the course of his reasons for the order striking out the application, Lander J observed:
“... the Tribunal was exercising its jurisdiction in considering whether or not the plaintiff was entitled to benefits under the Act because the plaintiff was within the territorial application of the Act.
It was put by the plaintiff that the decisions arrived at by the Deputy President and the Full Bench went beyond the limits of the jurisdiction conferred upon them. It was said that to find that the plaintiff did not have a usual place of residence in the State was an error which led the Deputy President and the Full Bench to arrive at a conclusion which amounted to an excess of jurisdiction. I cannot accept that argument. The task for the Tribunal, however constituted, was to decide inter alia whether the plaintiff came within the territorial application of the Act. That is exactly what the Tribunal did. It decided both at first instance and on appeal that the plaintiff did not come within the territorial application of the Act because there was no nexus between the plaintiff’s employment and the State. To make that decision was not to assume a jurisdiction not given to the Tribunal. It was the very question which had to be decided. An error of fact leading to a decision of rejecting a party’s application for benefits under the Act does not mean that the Tribunal has made a decision which indicates an excess or want of jurisdiction. It merely indicates the erroneous decision of fact within jurisdiction which is not susceptible to judicial review.”[15] (emphasis added)
[15] See also Marksman Training Systems Pty Ltd v Industrial Relations Commission of South Australia and Anor (1998) 71 SASR 72.
In this case, if at the relevant time York was the employer of Ahern within the meaning of s54(1), the Corporation had no right of recovery under s54(5).
Whether York was in the relevant sense the employer of Ahern was the central issue before the Tribunal, both at first instance and on appeal to the Full Bench of the Tribunal. The Presidential member at first instance found that Ahern was employed by Skilled and not by York. For somewhat different reasons, the Full Bench came to a similar conclusion.
To use the expression adopted by Lander J in Selamis, in addressing that question, the Tribunal was not assuming a jurisdiction not given to it, “It was the very question to be decided”.
In the application for judicial review, as well as seeking the order of certiorari quashing the decision of the Full Bench of the Tribunal, a declaration is sought that York “is entitled to appeal against the decision of the Workers’ Compensation Tribunal .....”. It appears that that claim for declaration is based upon a suggestion that s88I of the Act offends s73 of the Commonwealth Constitution. That argument was not pursued during the hearing before this Court.
During the course of the hearing of the proceedings before this Court, the parties suggested that there are a number of matters being heard elsewhere, the resolution of which would be assisted by a decision of this Court upon the substantive question, that is, whether or not Ahern was an employee of York within the extended sense in which the concept of employment is used in the Act. In particular, it appears that there are proceedings pending in the District Court for damages arising out of work injuries suffered by workmen whose services have been provided pursuant to labour hire contracts of a kind similar to that pursuant to which Ahern’s services were provided to York.
Insofar as in any such cases the defendant pleads s51(1) by way of a defence, rights of appeal against a decision given in any such case may be exercised to bring the matter to this Court. But it should be borne in mind that the circumstances in which a worker engaged under a labour hiring contract of this kind may be employed, including questions of the degree of control and supervision of his or her work, are bound to vary considerably between one case and another. Ultimately, the question will have to be resolved by reference to the particular facts of each case.
In my opinion, for these reasons, the application for judicial review should be dismissed.
I would make the following orders:
In action 801 of 1998, an order revoking leave to appeal and dismissing the appeal.

In action 800 of 1998, an order dismissing the application for judicial review.
MULLIGHAN J. I agree that the application for judicial review should be dismissed and that there should be an order revoking leave to appeal as proposed by Perry J and for the reasons given by him.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

See s8 of the Act, pursuant to which the Industrial Court, as it then was, continued in existence as the Industrial Relations Court.
See the Industrial and Employee Relations Act 1994, Schedule 1, paragraph 5.
See Industrial and Employee Relations Act 1994 s21.
(Unreported) 17 August 1998, judgment No S6749.
See as to the Industrial and Employee Relations Act 1994, ss10 and 234 and as to the Workers’ Rehabilitation and Compensation Act 1986, s77A.
This is so where the applicant asserts jurisdictional error, as opposed to error on the face of the record. See Craig v The State of South Australia (1995) 184 CLR 163 per Brennan, Deane, Toohey, Gaudron and McHugh JJ at 176:

“Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. [See, eg Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 167; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 353.] In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.”

Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Incorporated (1960) 103 CLR 422 per Kitto J at 427.
(1957) 96 CLR 261 per Dixon CJ at 267.
[1905] AC 369.
10. Ibid at 372.
11. Lord Macnaghten, Lord Davey, Lord Robertson, Lord Lindley, Sir Ford North and Sir Arthur Wilson.
12. See Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Inc (1960) 103 CLR 422.
13. General Assembly of Free Church of Scotland v Lord Overtoun and Ors, Macalister and Ors v Young and Ors [1904] AC 515 per Lord Lindley at 702.
14. (Unreported) [1998] SASC 6902.
15. See also Marksman Training Systems Pty Ltd v Industrial Relations Commission of South Australia and Anor (1998) 71 SASR 72.

[1999] SASC 173

18 May 1999