Ali Ali v Rockdale City Council

[2015] NSWSC 1481

Supreme Court

New South Wales

Medium Neutral Citation:	Ali Ali v Rockdale City Council [2015] NSWSC 1481
Hearing dates:	18 February 2015; 17 March 2015 (directions), 17 August 2015 (directions) and 9 September 2015; further written submissions on 18 and 24 September 2015
Decision date:	09 October 2015
Jurisdiction:	Common Law - Administrative Law
Before:	Stevenson J
Decision:	Further Amended Summons to be dismissed
Catchwords:	ADMINISTRATIVE LAW – judicial review of orders of the Workers Compensation Commission – whether jurisdictional error established – whether relief should be declined on basis that a more convenient and satisfactory remedy exists
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) Workers Compensation Commission Rules 2011 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18; 88 ALJR 624 Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Kioa v West [1985] HCA 81; 159 CLR 550 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141 Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315 Steggles Pty Ltd v Sorcevski (Court of Appeal (NSW), 29 July 1994, unrep)
Category:	Principal judgment
Parties:	Mohamad Ali Ali (Plaintiff) Rockdale City Council (First Defendant) Marshal Douglas, Dr Neil Berry, Dr Brian Noll as members of the Appeal Panel of the Workers Compensation Commission of New South Wales (Second Defendant) Dr John Garvey (Third Defendant) Registrar of the Workers Compensation Commission of New South Wales (Fourth Defendant) The Workers Compensation Commission of New South Wales (Fifth Defendant)
Representation:	Counsel: M Allars SC (Plaintiff) J W Dodd (First Defendant) Solicitors: Martin Bell & Co Solicitors (Plaintiff) Workplace Law (First Defendant) Crown Solicitor’s Office (NSW) (Second, Third, Fourth and Fifth Defendants)
File Number(s):	SC 2014/243750

Judgment

Introduction

1. On 4 January 2011, the plaintiff, Mr Ali Ali, whilst employed by the first defendant, Rockdale City Council (“the Council”), was injured while engaging in bush regeneration work on behalf of the Council.

2. Mr Ali Ali contends that as a consequence of that injury he was required to take medication which has affected his upper and lower gastrointestinal tracts.

3. On 10 January 2013, Mr Ali Ali commenced proceedings (“the Proceedings”) in the Workers Compensation Commission of New South Wales (“the Commission”) against the Council in respect of those injuries.

4. In the Proceedings, Mr Ali Ali sought medical expenses and lump sum compensation.

5. On 14 April 2014, the second defendant, the Appeal Panel of the Commission, made a decision in the Proceedings (“the Decision”) pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the Act”). The Appeal Panel purported to confirm a medical assessment certificate (“the Certificate”) issued by the third defendant, Dr John Garvey, on 7 November 2013.

6. In the Certificate, Dr Garvey expressed the opinion that Mr Ali Ali did suffer from upper or lower gastrointestinal tract symptoms, and that those symptoms were causally related to the injury that Mr Ali Ali sustained on 4 January 2011. However, he concluded that Mr Ali Ali had not sustained “whole person impairment” (“WPI”) for the purposes of the Act.

7. By a Summons filed on 19 August 2014, Mr Ali Ali seeks declarations that the Decision and the Certificate are void and orders in the nature of certiorari quashing the Decision and the Certificate.

8. The Summons named the Council, Dr Garvey, the members of the Appeal Panel and the Registrar of the Commission as defendants. Each has entered a submitting appearance.

9. The proceedings were commenced a little over a month beyond the time limit prescribed by Uniform Civil Procedure Rules 2005 r 59.10(1) (which provides that proceedings for judicial review of a decision must be commenced within three months of the date of the decision).

10. At the outset of the hearing before me on 18 February 2015, Ms Allars SC, who appeared for Mr Ali Ali, sought leave pursuant to UCPR r 59.10(2) to extend the time for the commencement of the proceedings.

11. In opposing that application, Mr Dodd, who appeared for the Council, drew my attention to orders made by the Commission on 24 June 2014 (“the 24 June 2014 Orders”) and submitted that they were a complete answer to Mr Ali Ali’s application. Mr Dodd had foreshadowed this submission in his opening written submissions filed on 16 January 2015.

The 24 June 2014 Orders

12. The 24 June 2014 Orders were made following a teleconference (“the Teleconference”) between Arbitrator Deborah Moore from the Commission, a solicitor appearing for Mr Ali Ali (Mr Andrew Silk), and a solicitor appearing for the Council (Mr Shane Koelmeyer). Mr Ali Ali and an interpreter were also present with Mr Silk. Mr Silk is an employee of Mr Martin Bell, the solicitor on the record in these proceedings for Mr Ali Ali.

13. The 24 June 2014 Orders are headed “Certificate of Determination – Consent Orders” and in the following terms:

“In this matter a telephone conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules2011, the determination of the Commission in this matter is as follows:

1.   In accordance with the decision of the High Court in ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18 the applicant has no entitlement to lump sum compensation.

2.   In respect of the claim for section 60 expenses, the respondent agrees to pay reasonably incurred section 60 expenses up to 9 May 2012 on production of accounts, receipts or Medicare charge.

3.   The respondent agrees to pay the applicant’s costs in respect of a section 60 claim only.

Deborah Moore

Arbitrator”.

14. On 24 June 2014, the Commission sent a copy of the 24 June 2014 Orders to Mr Bell, under cover of a letter headed “Final Outcome of Application for Dispute Resolution”. The letter stated:

“You are advised that the Application to Resolve a Dispute between the above parties has now been determined by the Commission. The matter has now been finalised and the Commission will close its file.

A copy of the sealed Certificate of Determination of the Commission (and Statement of Reasons where required) is enclosed for your records in accordance with section 294 of the [Act].”

15. Neither Ms Allars nor Mr Dodd addressed any submissions to me as to whether the High Court’s decision in Goudappel did in fact have the consequence that Mr Ali Ali was not entitled to lump sum compensation; nor that this was relevant to the questions before me.

The argument before me on 18 February 2015 and events thereafter

16. On 18 February 2015, notwithstanding Mr Dodd’s reference to the 24 June 2014 Orders, argument proceeded concerning Mr Ali Ali’s challenge to the Certificate and the Decision.

17. At the conclusion of that argument, Ms Allars applied to have the proceedings adjourned in order to formulate an amended summons to deal with the 24 June 2014 Orders. Mr Dodd did not oppose the adjournment, and I allowed it.

18. The matter was listed before me for directions on 17 March 2015. On that occasion, I was told that Mr Ali Ali had made an application to the Commission, the outcome of which might obviate the need for me to consider the matter further. Accordingly, by consent, I adjourned the proceedings for directions on 17 August 2015.

19. The application that Mr Ali Ali made to the Commission was for reconsideration of the 24 June 2014 Orders pursuant to s 350(3) of the Act (“the Reconsideration Application”). In the circumstances I discuss below, the Reconsideration Application was made on 26 February 2015 and refused on 7 May 2015 (“the Reconsideration Decision”).

20. When the matter returned before me for directions on 17 August 2015, I was told of the Reconsideration Decision. Ms Allars filed in Court a Further Amended Summons seeking, in addition to the existing relief concerning the Certificate and the Decision, orders in the nature of certiori quashing the 24 June 2014 Orders and the Reconsideration Decision. As the Further Amended Summons seeks orders quashing decisions of the Commission, the Commission has been joined as the fifth defendant. It has entered a submitting appearance.

21. I heard argument about those matters on 9 September 2015.

22. It is common ground that the 24 June 2014 Orders (if they stand) are a complete answer to Mr Ali Ali’s claim for prerogative relief concerning the Certificate and the Decision. Ms Allars accepted that, if the challenge to the 24 June 2014 Orders failed, it would be futile for me to grant any relief in relation to the Decision or the Certificate, as the Decision would, in those circumstances, have been overtaken by the 24 June 2014 Orders.

The Reconsideration Application

23. As I have said, Mr Ali Ali made the Reconsideration Application on 26 February 2015. The application was made pursuant to s 350(3) of the Act.

24. Section 350 of the Act is in the following terms:

“(1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.

(2) A decision of or proceeding before the Commission is not:

(a) to be vitiated because of any informality or want of form, or

(b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court.

(3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

25. The Reconsideration Application was made by a letter dated 26 February 2015 sent to the Commission by Mr Ali Ali’s solicitor, Mr Bell.

26. The basis upon which Mr Bell argued for a reconsideration of the 24 June 2014 Orders was that, contrary to the terms of the orders, Mr Ali Ali’s “representative” (Mr Silk) had not consented to order 1. Mr Bell accepted that Mr Silk had consented to orders 2 and 3 (for “section 60 expenses” up to 9 May 2012 and Mr Ali Ali’s costs in respect of his “section 60 claim”).

27. As I have set out above (at [13]), order 1 stated that “in accordance with” the decision of the High Court in Goudappel, Mr Ali Ali “has no entitlement to lump sum compensation”.

28. In the Reconsideration Application, Mr Bell stated that:

“Reconsideration is sought under s 350(3) of the [Act] on the ground of clerical error in the formal presentation, in the [24 June 2014 Orders], of the outcome of a teleconference held in the matter on 23 June 2014. [Mr Ali Ali] relies upon Mr Silk’s statutory declaration.”

29. Mr Silk’s statutory declaration did not give an account of Mr Silk’s recollection of what was said during the Teleconference.

30. Instead, it:

1. stated that “on 23 June 2014, as Mr Bell was away from the office I attended” the Teleconference;

2. annexed a copy of notes that Mr Silk made during the Teleconference;

3. annexed a court attendance note that Mr Silk completed “shortly after the conclusion of” the Teleconference;

4. annexed a letter that Mr Bell sent to Mr Ali Ali on 20 May 2014 (that is, after the Appeal Panel’s Decision but before the Teleconference) in which Mr Bell said he would seek an opinion from “an Administrative Law specialist” as to whether there had been a “denial of procedural fairness” (presumably in respect of the Decision) “such as to require a reassessment”; and

5. stated that “there is no material on the file to indicate” that Mr Ali Ali’s instructions had changed from those implicit in Mr Bell’s letter of 20 May 2014.

31. Mr Bell made his submissions on the basis of Mr Silk’s notes.

Mr Silk’s notes

32. So far as concerns order 1 made on 24 June 2014, the file note Mr Silk made during the Teleconference reads as follows:

“C.O.D [Certificate of Determination]:* Note: app[licant] [i.e. Mr Ali Ali] has no entitlement to lump sum comp[ensation] in accordance with decision of Goudappel.”

33. The court attendance note that Mr Silk completed after the Teleconference was a pro forma document. Under the heading “Orders Made”, Mr Silk wrote:

“Order:   1. note App[licant] not entitled to lump sum under s.66 in accordance with Goudappel

2. Res[pondent] to pay App[licant’s] s60 expenses up to 9/5/12 on production of receipts/accounts/medicare notices

3. res[pondent] to pay app[licant’s] costs on basis of a s60 claim.”

34. Under the heading “Enter succinct summary of day into Progress”, Mr Silk wrote:

“[T]eleconference – orders, no s66, Res[pondent] pay s60s to 9/5/12, costs per s60 claim”.

35. Under the heading “Next Stage”, Mr Silk wrote:

“15/4/14 – filed Summons for J.R. in Sup[reme] C[ourt].”

36. As to the last entry, 15 April 2014 was the day after the Appeal Panel made the Decision. Although Mr Silk’s notes refer to a summons as being “filed”, the proceedings in this Court were not commenced until 19 August 2014 (see [7] above).

37. In the Reconsideration Application, Mr Bell submitted:

“The handwritten notes…taken by the applicant’s legal representative at the teleconference, Mr Silk, record that it was noted that in accordance with the High Court’s decision in ADCO Constructions Pty Ltd v Goudappel…the applicant has no entitlement to lump sum compensation.

The handwritten notes indicate that what was noted stood in contrast to the orders made by consent relating to the application for s 60 expenses and the costs in respect of the s 60 claim…Those orders were stated to be ‘agreed’, whereas the discussion in the teleconference concerning Goudappel was ‘noted’.”

38. Thus, Mr Bell submitted that Mr Silk’s notes indicated that what appears in order 1 of the 24 June 2014 Orders was merely “noted” and not an order. On this basis, Mr Bell sought:

1. “correction of the [24 June 2014] Orders by removal of ‘Consent’ from the title and by recording the content of order 1 separately, and not as an order, but after the words ‘the Commission noted’”; and

2. “withdrawal” of the Commission’s “covering letter” (being the letter referred to at [14] above).

Mr Koelmeyer’s note

39. On 18 March 2015, the Council’s solicitor, Mr Koelmeyer, responded to Mr Bell’s submissions. The response attached a copy of a file note made by Mr Koelmeyer during the Teleconference.

40. Relevantly, Mr Koelmeyer’s file note is as follows:

“Arb[itrator] said A[pplicant] has no entitlement as per Goudappel. R[espondent] agreed & wants usual order from [the Commission] that A[pplicant] has no entitlement.

A[pplicant] said might be going to Supreme Court for judicial review of Panel decision, has 90 days to do that from date of Panel decision.”

The Reconsideration Decision

41. The Reconsideration Application was dealt with by Arbitrator Moore, notwithstanding the fact that she had made the orders that Mr Ali Ali sought to have reconsidered. Ms Allars informed me that this is the usual practice at the Commission and made no complaint about it.

42. In her “Statement of Reasons” for the Reconsideration Decision, Arbitrator Moore said that:

“The Application is not entirely clear, but as I understand it, the applicant submits that Orders 2 and 3 were agreed, but that Order 1 reflected ‘the discussion in the teleconference’ and was a matter simply to be ‘noted’.”

43. Arbitrator Moore first set out the background and the terms of s 350(3). In that regard she said:

“18.   [Section 350(3)] gives the Commission a wide discretion to reconsider its previous decisions (Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141 (Samuel)). The Commission does have power to set aside a prior consent award, if it can be established that the worker had not consented to the terms of the consent orders. The discretion must be exercised with fairness to all parties, with due regard to relevant considerations such as any delay in bringing the application. A mistake or oversight by a legal adviser will not give rise to a ground for reconsideration (Samuel)”.

44. Arbitrator Moore then dealt with “the delay issue” in the following terms:

“19.   The applicant submits that a delay has occurred in submitting the Application because the solicitor present at the teleconference on 23 June 2014, Mr Silk, ‘did not ordinarily have carriage of the matter’. It is noted that the Orders were received by the applicant on 25 June 2014. In addition, the applicant submits: ‘A summons seeking judicial review of the Appeal panel decision confirming Dr Garvey’s medical assessment certificate, and review of the certificate, was filed in the Supreme Court on 19 August 2014.’

20.   These submissions of themselves do not adequately explain the reason for the delay. The applicant submits that the matter should be the subject of a reconsideration application rather than an appeal because ‘the present case seeks correction of a ‘slip rule’ nature, rather than review of an error…’ If such is the thrust of the applicant’s submission, then I am frankly at a loss to understand why it has taken some eight months for the applicant to seek to ‘correct’ what he describes as an ‘obvious error’. There is considerable weight in the respondent’s submission that ‘the applicant’s apparent acquiescence for an eight-month period is indicative that there was no error, clerical or otherwise, recorded and that the applicant was content that the Consent Orders reflected the Orders made by Arbitrator Moore.’

21.   There is frankly no adequate explanation for the delay other than that the solicitor present at the last teleconference was not the one with carriage of the matter. There is no explanation as to why the applicant’s legal representatives did not immediately upon receipt of the Orders seek to have them amended or altered if they considered that the Orders did indeed contain a ‘clerical error’ which may have been altered under the ‘slip rule’.

22.   In these circumstances, I am disinclined to allow the reconsideration on the ‘delay’ issue of its own, but I nonetheless think it appropriate to consider the substance of the Application for reasons that follow.”

45. Arbitrator Moore then considered the Reconsideration Application itself.

46. First, Arbitrator Moore referred to Mr Bell’s letter to Mr Ali Ali of 20 May 2014, which she said she assumed related to Dr Garvey’s Certificate and the Appeal Panel’s Decision of 14 April 2014.

47. Arbitrator Moore continued:

“26.   None of this was raised at the teleconference. Mr Silk does not claim that it was. His Statutory Declaration is utterly silent on what Mr Bell submits is a ‘clerical error’ in the Orders. He concludes by stating: ‘There is no material on the file to indicate that the instructions of Mr Ali Ali referred to in [the letter to him dated 20 May 2014] altered’.

27.   I am at a loss then to understand the substance of Mr Bell’s Application which does not appear to be supported by Mr Silk’s Statutory Declaration.”

48. Arbitrator Moore then considered Mr Silk’s file note and court attendance note.

49. In reference to what Mr Silk wrote under the heading “Next Stage” in the court attendance note (see [35] above), Arbitrator Moore said:

“34.   It seems clear to me that the applicant had already commenced proceedings in the Supreme Court, as I understand it, to challenge the MAC of Dr Garvey and/or the Appeal Panel findings. I have no notes nor recollection of any such issue being raised at the teleconference. The notes made by Mr Koelmeyer, the solicitor for the respondent, and annexed to the respondent’s submissions, contain no such reference, nor do Mr Silk’s notes taken at the time of the teleconference and prior to him completing the ‘File Note’ document.”

50. Arbitrator Moore continued:

“35.   As I interpret Mr Silk’s notes, he clearly considered the outcome of the section 66 claim to be an ‘Order’ notwithstanding his reference to the word ‘note’.

36.   In any event, my own notes of the teleconference clearly confirm that the parties consented to the Orders in the form they were produced by the Commission. My notes and recollection of that teleconference accord with the notes made by Mr Koelmeyer. As the respondent submits, the Orders ‘were consistent with the respondent’s understanding of the Orders made at the teleconference’. Those handwritten notes accurately reflect the Orders: no mention is made of any notation or other amendments or changes or indeed other proceedings discussed at the teleconference.

37.   In supplementary submissions filed by Mr Bell on 9 April 2015, he states:

‘With respect to…Shane Koelmeyer’s handwritten notes during the teleconference, the applicant notes that Mr Koelmeyer:

(a)   Did not write ‘note’ next to clause (1) [the first Order];

(b)   Did not record a response of consent by Mr Andrew Silk to what the arbitration (sic) said about Goudappel; and

(c)   Recorded that Mr Silk said that judicial review of the Appeal Panel decision was under consideration by the client’.

38.   Mr Bell’s submissions are, at the very least, disingenuous, if not downright spurious. He did not attend the teleconference. Mr Koelmeyer and I did. Mr Silk has not provided a further statement or submissions in response to those made by the respondent.

…

40.   Both parties have made reference to a number of decisions by the Commission on the issue of reconsideration. I do not propose to reiterate their comments. I acknowledge that I have a fairly wide discretion to reconsider consent orders in accordance with Samuel referred to above, but it must be exercised fairly.

41.   In the present case, I am not persuaded that the applicant has demonstrated that any error was made in the Orders for the reasons stated above, and accordingly, the Application is refused.”

Mr Ali Ali’s challenge to the 24 June 2014 Orders

51. In his Further Amended Summons, Mr Ali Ali alleges that the Commission, constituted by Arbitrator Moore, acted in excess of its jurisdiction under s 294(1) of the Act and r 15.9(1) of the Workers Compensation Commission Rules 2011 (NSW) (“the Rules”) by including in the 24 June 2014 Orders the statement that Mr Ali Ali had agreed that “in accordance with the decision of the High Court in [Goudappel] the applicant has no entitlement to lump sum compensation” and by stating in its letter to Mr Bell (set out at [14] above) that Mr Ali Ali’s application had been finally determined by the Commission.

52. Section 294(1) of the Act is in the following terms:

“If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.”

53. Rule 15.9(1) of the Rules is in the following terms:

“Where the parties…to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order.”

54. As particularised in the Further Amended Summons, Mr Ali Ali’s case is that the Commission acted in excess of its jurisdiction in that:

1. Mr Ali Ali’s legal representative (that is, Mr Silk) did not agree to an order in the terms of order 1 of the 24 June 2014 Orders, but merely accepted that this matter was “noted”;

2. Mr Ali Ali had not given instructions to consent to a final determination of the Proceedings before the Commission, but instead had given instructions to pursue judicial review of the Decision and the Certificate and did not alter those instructions; and

3. Mr Ali Ali and the Council had not agreed to an order determining the entire dispute between them so as to enliven the Commission’s power to make order 1 of the 24 June 2014 Orders.

55. As developed by Ms Allars in her final submissions, Mr Ali Ali’s case was that the Commission had no jurisdiction to make a determination under s 294(1) of the Act unless the parties had agreed to the terms of the determination for the purposes of r 15.9(1) of the Rules.

56. Ms Allars submitted:

“Agreement by the relevant parties to the dispute is a precondition that must be satisfied in order to enliven the power of the Commission to determine a dispute by consent orders.

Agreement by the relevant parties is a jurisdictional fact which must exist in order for the Commission to have power under rule 15.9(1) to make consent orders…

The jurisdictional fact question is whether the arbitrator could reasonably have been satisfied that the parties appearing at the conference agreed to the terms of Order 1.”

57. Mr Dodd did not dispute the correctness of that submission.

58. This aspect of Mr Ali Ali’s case involves a question of fact. What happened during the Teleconference? What did Mr Silk say, or not say, about the making of order 1?

59. The material before me relevant to these questions comprises the file notes made by Mr Silk (set out at [32] to [35] above) and Mr Koelmeyer (set out at [40]), and Arbitrator Moore’s statement in the chapeau to the 24 June 2014 Orders (set out at [13] above).

60. Conspicuously absent is evidence from Mr Silk (beyond his file notes) of what occurred. He was certainly available to give such an account. He was present in Court before me, instructing Ms Allars. As I have mentioned, Mr Silk made a statutory declaration in support of the Reconsideration Application. He has also affirmed three affidavits in these proceedings. Each of those affidavits annexes documents relevant to the making of the 24 June 2014 Orders, and the Reconsideration Decision. And yet Mr Silk said not one word in those statutory declarations (or at all) about what happened during the Teleconference. Mr Silk did not depose that he has no recollection of what occurred. He did not depose that he did not consented to the making of the order, nor that he made any statement on the subject of whether Mr Ali Ali had “no entitlement to lump sum compensation”, as result of the High Court’s decision in Goudappel or at all.

61. Mr Koelmeyer’s file note appears to be a more ordered account of the events of 23 June 2014 than Mr Silk’s file note. In my opinion, it is probable that the critical events occurred in the sequence set out in Mr Koelmeyer’s file note, namely that:

1. Arbitrator Moore expressed her opinion that Mr Ali Ali had no entitlement to lump sum compensation by reason of the decision in Goudappel;

2. Mr Koelmeyer said that he agreed, and wanted the “usual order” from the Commission that Mr Ali Ali had no such entitlement; and

3. Mr Silk said that Mr Ali Ali might be going to the Supreme Court for judicial review of the Appeal Panel’s Decision, and had 90 days to do so as from the date of the Decision.

62. The critical question is what, if anything, Mr Silk said after (b) and before (c).

63. It is clear from Mr Silk’s file note and court attendance note that he understood that the result of the Teleconference was that a determination and orders had been made. Thus, in his file note he wrote “COD”, which must be his abbreviation for “Certificate of Determination”. In his court attendance note, he described what had occurred as being the making of “orders”.

64. Ms Allars submitted that I should find that during and immediately after the Teleconference, Mr Silk understood that:

“As a matter of law the decision in Goudappel meant that [Mr Ali Ali] had no entitlement to lump sum compensation under s 66 because of the determination made by the Appeal Panel that he did not suffer more than 10% WPI, but that this would be subject to any right the plaintiff had to seek judicial review”.

65. As I have said, Mr Silk has not given evidence to this effect. But if, as Ms Allars invited me to accept, this was his understanding, it is probable that he said nothing to suggest that he (or Mr Ali Ali) did not accept the correctness of the proposition evidently advanced by Arbitrator Moore, and embraced by Mr Koelmeyer (that is, that the effect of Goudappel was that Mr Ali Ali had no entitlement to lump sum compensation). I think it likely that, as Ms Allars submitted, Mr Silk understood, or at least assumed, that Arbitrator Moore and Mr Koelmeyer were correct in their conclusions as to the consequences of Goudappel.

66. Mr Silk has not given evidence of what caused him to write “note” in his file note and court attendance note. In those circumstances, I would not draw any inferences favourable to him (and thus to Mr Ali Ali) about that question: see Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–419 per Handley JA; approved by the High Court in Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 per Heydon, Crennan and Bell JJ at [63].

67. Thus, I would not infer, for example, that Mr Silk said anything to the effect that he “noted” (but did not endorse or agree with) what Arbitrator Moore and Mr Koelmeyer were saying about the effect of Goudappel.

68. The form of the 24 June 2014 Orders suggests to me that what may well have happened was that Arbitrator Moore, following her own observation and Mr Koelmeyer’s ready acceptance of it (as evidenced by Mr Koelmeyer’s note), said something to the effect:

“I note that in accordance with the decision of the High Court in [Goudappel] the applicant has no entitlement to lump sum compensation and propose to make an order to that effect.”

69. However that may be, I think it probable that Mr Silk became aware that Arbitrator Moore proposed to make an order and issue a Certificate of Determination on this basis, but because he understood that Arbitrator Moore and Mr Koelmeyer were correct in their view as to the effect of Goudappel, said nothing to indicate that he (or Mr Ali Ali) opposed the making of the order.

70. What happened then?

71. According to Mr Koelmeyer’s note, the next event was:

“A[pplicant] [Mr Ali Ali] might be going to Supreme Court for judicial review of Panel decision, has 90 days to do that from date of Panel decision”.

72. Thus, Mr Silk was foreshadowing that Mr Ali Ali “might” make an application to this Court for judicial review of the Appeal Panel’s Decision.

73. It is common ground that such a proposition was inconsistent with the making of an order to the effect that Mr Ali Ali had no entitlement to lump sum compensation (in terms of order 1 of the 24 June 2014 Orders). An order to that effect would finally determine Mr Ali Ali’s claim in the Commission, and leave no room for any later judicial review of the Decision (see [22] above).

74. Clearly, Arbitrator Moore understood that Mr Silk, and thus Mr Ali Ali, consented to order 1. Thus, in the chapeau to the order she stated that the parties “assisted by me” had “come to an agreed resolution of the issues in dispute” (see [13] above). Arbitrator Moore then issued a Certificate of Determination described as “Consent Orders” and caused the Commission to close its file (as stated in the Commission’s letter of 24 June 2014: see [14] above).

75. The question that arises is whether Arbitrator Moore could reasonably have been satisfied that Mr Silk (and thus Mr Ali Ali) in fact consented to order 1 in light of Mr Silk’s statement concerning what Mr Ali Ali “might” do.

76. I do not know the precise context in which Mr Silk made this remark. Was it said as a rejoinder to Arbitrator Moore’s statement as to what she intended to do? Was it merely said as an aside? With what vigour did Mr Silk make the statement? Mr Silk could easily have explained these matters. He has not done so.

77. Absent evidence from Mr Silk, I am not prepared to conclude that Mr Silk made his remark about what Mr Ali Ali “might” do in circumstances compelling the conclusion that Arbitrator Moore could not reasonably have been satisfied that he, and thus Mr Ali Ali, agreed that order 1 should be made.

78. In any event, even if I had been persuaded that Arbitrator Moore could not reasonably have been satisfied that Mr Silk, and thus Mr Ali Ali, agreed that order 1 be made, I would not, as a matter of discretion, have granted the prerogative relief sought.

79. I do not see why this Court should intervene to quash an order of the Commission when the Act provides a number of mechanisms whereby orders of the Commission, including the 24 June 2014 Orders, can be challenged.

80. The first of those mechanisms is one that Mr Ali Ali in fact pursued; application under s 350(3) of the Act for reconsideration.

81. It is not in dispute that, on an application for reconsideration under s 350(3), the Commission can set aside a purported consent order on the basis that consent was not in fact given. Indeed, that was the basis on which Mr Bell made the Reconsideration Application, citing such cases as Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315 (affirmed in Steggles Pty Ltd v Sorcevski (Court of Appeal (NSW), 29 July 1994, unrep)) and Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33.

82. Mr Ali Ali had also available to him the right of appeal under s 352 of the Act, which provides, relevantly:

“(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

…

(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

83. Under this section, Mr Ali Ali could have appealed against the 24 June 2014 Orders, as well as the Reconsideration Decision. Mr Dodd so submitted, and Ms Allars did not suggest that these avenues of appeal were unavailable.

84. It is well established that “if a more convenient and satisfactory remedy exists”, prerogative relief may, as a matter of discretion, be refused (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 at 400; affirmed in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [56]).

85. This seems to me to be a quintessential example of a case where a “more convenient and satisfactory remedy exists”.

86. As I have set out above, in these proceedings Mr Ali Ali sought prerogative relief in respect of the Decision of the Appeal Panel. When confronted with the implications of the 24 June 2014 Orders, he sought to have those orders reconsidered under s 350(3) of the Act. Now that the Reconsideration Application has been dismissed, rather than seeking to appeal against that dismissal, he seeks intervention from this Court by way of judicial review.

87. In my opinion, it is not appropriate in those circumstances that this Court, as a matter of discretion, interfere with orders made by the Commission when the Act itself provides means by which errors made in orders pronounced by the Commission can be corrected by the Commission itself.

88. A further basis upon which, as a matter of discretion, prerogative relief may be denied is if the party seeking it has “been guilty of unwarrantable delay” (Ozone Theatres at 400).

89. In this case, after the Teleconference, the Commission wrote to Mr Bell in the terms I have set out at [14] above, enclosing the Certificate of Determination. That correspondence made quite clear what had happened. Mr Ali Ali’s delay in bringing his application to quash the 24 June 2014 Orders is also a matter which would dissuade me from granting prerogative relief.

90. It follows that Mr Ali Ali’s challenge to the making of the 24 June 2014 Orders fails.

Mr Ali Ali’s challenge to the Reconsideration Decision

91. Mr Ali Ali challenges the Reconsideration Decision on a number of grounds, some of which are related to each other.

92. It was common ground that the privative clauses in ss 350(1) and (2) of the Act are not effective to preclude judicial review by this Court on the basis of jurisdictional error (Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [100]).

Ground one – alleged constructive jurisdictional error – delay

93. As I have set out above (at [44]), Arbitrator Moore included in her reasons consideration of what she described as “the delay issue”.

94. Ms Allars submitted that Arbitrator Moore thereby misconceived the Commission’s jurisdiction as being subject to a discretion to decline reconsideration on the ground of delay.

95. I do not accept that submission. I do not see in Arbitrator Moore’s reasons any sign that she thought the Commission’s jurisdiction was so confined. At [18] of the Reconsideration Decision, Arbitrator Moore made clear that she understood that all “relevant considerations” should be taken into account.

96. It was Mr Bell who raised the question of delay in the Reconsideration Application. Evidently, he did so in conformity with a document published by the Commission entitled “Registrar’s Guideline” concerning “Requests for Reconsiderations” under, amongst other sections, s 350(3) of the Act. Those guidelines state that parties making an application for reconsideration may do so by way of letter, which includes “[w]here relevant, the special circumstances which justify any delay in the making of the application for reconsideration”.

97. In any event, although Arbitrator Moore was seemingly dissatisfied with the explanation for the delay, and expressed a disinclination to allow the Reconsideration Application on that basis, she nonetheless considered the balance of the arguments advanced on behalf of Mr Ali Ali.

Ground two – alleged misconception of the nature of jurisdiction

98. Ms Allars submitted that the Commission’s jurisdiction on a reconsideration application under s 350(3) of the Act is a merits or de novo review, and thus entirely discretionary. Ms Allars submitted that Arbitrator Moore, relying upon the decision of Roche ADP in Samuel (to which Arbitrator Moore referred at [18] and [40] of the Reconsideration Decision), misconceived the nature of the Commission’s jurisdiction as limited to correcting any error apparent in the 24 June 2014 Orders.

99. I see nothing in the Reconsideration Decision to suggest that Arbitrator Moore misconceived the nature of her jurisdiction. As I have set out at [43] above, she cited Samuel as authority for the proposition that s 350(3) “gives the Commission a wide discretion to reconsider its previous decisions” (at [18] of the Reconsideration Decision).

100. The reason that she addressed the question of whether there had been an error made in relation to the 24 June 2014 Orders is because that is precisely the question to which the Reconsideration Application was directed.

Ground three – alleged misconception of the power to make consent orders

101. Ms Allars submitted that Arbitrator Moore misconceived the Commission’s jurisdiction by failing to make any finding as to whether Mr Ali Ali consented to the 24 June 2014 Orders.

102. I do not accept this submission. Arbitrator Moore directed herself to this very question and concluded that Mr Ali Ali, by his solicitor Mr Silk, had consented to the orders. Arbitrator Moore drew attention (at [26] of the Reconsideration Decision) to the fact that Mr Silk’s statutory declaration was “utterly silent on what Mr Bell submits is a ‘clerical error’” and interpreted Mr Silk’s notes as revealing that “he clearly considered the outcome of the section 66 claim to be an ‘Order’ notwithstanding his reference to the word ‘note’” (at [35] of the Reconsideration Decision).

103. Whether or not Arbitrator Moore was correct in that analysis of the evidence, it cannot be said that she failed to address the question or misconceived the power to make consent orders.

Ground four – alleged error in law in finding that Mr Silk’s understanding of the outcome of the Teleconference was not merely a “note”

104. As developed orally, Ms Allars submitted that there was no evidence to justify Arbitrator Moore’s conclusion (at [35] of the Reconsideration Decision) that Mr Silk “considered the outcome of the section 66 claim to be an ‘Order’ notwithstanding his reference to the word ‘note’”.

105. I do not accept this submission.

106. There was some evidence to justify that conclusion; namely, the entries in Mr Silk’s court attendance note which I have set out at [33] and [34], to which Arbitrator Moore referred in her Reconsideration Decision.

107. Whether or not Arbitrator Moore’s interpretation of Mr Silk’s notes was correct, it cannot be said that there was no evidence to justify the conclusion to which she came.

Ground five – alleged taking into account of an irrelevant consideration – that Mr Ali Ali had already commenced judicial review proceedings and that Mr Koelmeyer’s file note did not refer to Mr Ali Ali’s intention to commence proceedings

108. Ms Allars submitted that Arbitrator Moore took into account an irrelevant consideration; namely, her perception that, at the time the Reconsideration Decision was made, Mr Ali Ali had already commenced the proceedings in this Court, and that Mr Koelmeyer’s file note made no reference to Mr Ali Ali’s intention to commence judicial review proceedings.

109. Ms Allars submitted that there was no evidence before Arbitrator Moore to justify her coming to that conclusion.

110. At [34] of her Reconsideration Decision, Arbitrator Moore said that “it seems clear to me that the applicant had already commenced proceedings in the Supreme Court…to challenge the [Certificate] and the [Decision]”. This was not correct. As I have set out above, Mr Ali Ali commenced these proceedings on 19 August 2014, several months after the Teleconference and 24 June 2014 Orders.

111. However, it is not correct to say that there was no evidence before Arbitrator Moore to justify her statement that judicial review proceedings had “already commenced”. As she noted at [33] of her Reconsideration Decision, in his court attendance note, Mr Silk referred to the “filed Summons for JR [Judicial Review]” immediately after the date “15/4/14”.

112. Arbitrator Moore was also mistaken when she said that Mr Koelmeyer’s note made no reference to Mr Ali Ali’s intention to commence judicial review proceedings. Mr Koelmeyer’s file note did, in fact, record that Mr Ali Ali “might be going to Supreme Court for judicial review of [the Decision]” (see [40] above). But as Arbitrator Moore had already concluded, evidently on the basis of Mr Silk’s note, that a summons for judicial review had been “filed”, and as there was some evidence upon which she could base that conclusion (even though it was wrong in fact), I do not see her misapprehension concerning Mr Koelmeyer’s file note as bespeaking a relevant or causative jurisdictional error.

Ground six – alleged taking into account of an irrelevant consideration – treating Mr Bell’s submissions as an attempt to present evidence

113. Ms Allars submitted that [37] and [38] of the Reconsideration Decision show that Arbitrator Moore treated Mr Bell’s submissions of 9 April 2015 as an attempt to present evidence.

114. I do not accept that submission. Although Arbitrator Moore expressed herself somewhat emphatically and noted that Mr Bell “did not attend the teleconference”, I read her observations at [37] and [38] of the Reconsideration Decision as no more than a rejection, in robust terms, of Mr Bell’s submissions concerning the significance of Mr Koelmeyer’s file note.

115. I agree that it is clear that Mr Bell was doing no more than making a submission. But I do not read Arbitrator Moore’s reasons as showing that she thought otherwise.

Ground seven – alleged denial of procedural fairness

116. Ms Allars drew attention to Arbitrator Moore’s statement (at [36] of the Reconsideration Decision) that “my own notes of the teleconference clearly confirm that the parties consented to the [24 June 2014 Order]” and that “my notes and recollection of that teleconference accord with the notes made by Mr Koelmeyer”.

117. Ms Allars submitted that this passage revealed that:

“Without notice to the plaintiff, the Commission took into account its own notes and recollection of the teleconference, and drew an inference, based in part on its notes and recollection, that the plaintiff consented to Order 1.

Affording the plaintiff a reasonable opportunity to present his case required that at least the substance of the Commission’s notes be disclosed to him, and that he be given an opportunity to respond, before the Reconsideration Decision was made. The denial of procedural fairness constituted a jurisdictional error.”

118. Ms Allars drew my attention to authority to the effect that a decision maker must disclose to a party information available to it that is adverse to the party’s interest and is credible, relevant and significant (for example see Kioa v West [1985] HCA 81; 159 CLR 550 at 628-9; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [14]-[19]).

119. In my opinion, this submission involves a misunderstanding of what Arbitrator Moore was referring to when she said “my own notes of the teleconference”. Ms Allars’s submission assumes that the “notes” referred to were private, unrevealed notes kept by Arbitrator Moore. This appears to me to be unlikely.

120. As Mr Dodd submitted, Arbitrator Moore’s reference to her “own notes” is more likely to be a reference to the words in the chapeau to the 24 June 2014 Orders (set out at [13] above), where Arbitrator Moore stated that the parties “assisted by me” had “come to an agreed resolution of the issues in dispute” and that the Commission’s determination was “by reason of their agreement”.

121. In my opinion, there has been no denial of procedural fairness.

122. For those reasons, I do not accept any of the bases upon which Mr Ali Ali sought to challenge the Reconsideration Application.

123. In any event, as a matter of discretion, I would have declined prerogative relief in respect of the Reconsideration Decision on the basis that a “more convenient and satisfactory remedy” to judicial review exists, namely an appeal against the Reconsideration Decision under s 352 of the Act (see [79] to [87] above).

Conclusion

124. For those reasons, my opinion is that Mr Ali Ali’s challenge to the 24 June 2014 Orders and to the Reconsideration Decision fails.

125. As I have said, Ms Allars accepted that in these circumstances, it would be futile for me to grant any relief in relation to the Decision or the Certificate, as the Appeal Panel’s Decision has been overtaken by the final orders made on 24 June 2014 disposing of Mr Ali Ali’s claim.

126. The orders that appear appropriate are that the Further Amended Summons be dismissed and that Mr Ali Ali pay the Council’s costs. However, I will hear the parties before making final orders.

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Decision last updated: 09 October 2015