Day v Yuendumu Social Club Inc & Anor - [2010] NTSC 7

Day v Yuendumu Social Club Inc & Anor [2010] NTSC 07
PARTIES:DAY, Sandra Mary

v
YUENDUMU SOCIAL CLUB INC (ABN 42 701 311 843)
AND:
JOHNSON, Julian

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:No 16 of 2010 (21005572)
DELIVERED:  17 March 2010
HEARING DATES:  1 and 3 March 2010
JUDGMENT OF:  MARTIN (BR) CJ
CATCHWORDS:

ADMINISTRATIVE LAW -- JUDICIAL REVIEW -- CERTIORARI -- JURISDICTIONAL ERROR -- ERROR WITHIN JURISDICTION – PROCEDURAL FAIRNESS

Application for judicial review of a decision of a Judicial Registrar sitting as the Work Health Court – refusal of an application for interim payments of workers compensation – powers of court to exercise supervisory jurisdiction – whether orders in nature of certiorari available – whether jurisdictional error or error within jurisdiction – whether denial of procedural fairness – application dismissed.

Local Court Act 1989 (NT); Occupational Health and Safety Act 1983 (NSW) s 15; Workers Rehabilitation and Compensation Act 1986 (NT) ss 65(1), 65(2), 93(4), 94, 97, 98, 99, 102, 107, 110A, 114A(1), 114A(3), 115, 116(1).

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Craig v The State of South Australia (1995) 184 CLR 163; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; R v Lewis (1988) 165 CLR 12; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Stead v State Government Insurance Commission (1986) 161 CLR 141; The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission & Anor [1999] 2 VR 203; Wormald International (Aust) Pty Ltd v Aherne [1994] NTSC 59, cited.

REPRESENTATION:
Counsel:
Plaintiff:B O’Loughlin
Defendant:M Crawley
Solicitors:
Plaintiff:Priestleys
Defendant:CridlandsMB
Judgment category classification:      B
Judgment ID Number:  Mar1004
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Day v Yuendumu Social Club Inc & Anor [2010] NTSC 07

No. 16 of 2010 (21005572)
BETWEEN:

SANDRA MARY DAY

Plaintiff

AND:

YUENDUMU SOCIAL CLUB INC

Defendant

AND:

JULIAN JOHNSON
Second Defendant

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 17 March 2010)

This is an application for judicial review of a decision of a Judicial Registrar refusing an application for interim payments of compensation under the Workers Rehabilitation and Compensation Act (“the Act”). The plaintiff seeks orders by way of certiorari quashing the decision and remitting the application to the Work Health Court for rehearing according to law.
In substance the plaintiff contends that errors by the Judicial Registrar in the application of s 65(2) of the Act amounted to jurisdictional errors and that the Judicial Registrar denied procedural fairness to the plaintiff.
For the reasons that follow the application is dismissed. In my view the Judicial Registrar did not misconstrue the operation of s 65(2) or misapprehend the nature of his function or power. The Judicial Registrar made a significant error of fact, but it was within jurisdiction. Further, the plaintiff was not denied procedural fairness.
Background
On about 28 December 2007 the plaintiff sustained an injury during the course of her employment with the first defendant (“the employer”). A claim for benefits under the Act was accepted by the employer on 15 April 2008 and benefits, including compensation for incapacity, were paid to the plaintiff until late 2009.
Following receipt of a medical report containing an opinion that the plaintiff’s incapacity was not caused by the injury sustained in the course of her employment, on 11 December 2009 the employer’s insurer advised the plaintiff that benefits would cease. Representing herself, the plaintiff requested mediation, which was unsuccessful, and weekly benefits ceased at the end of December 2009.
On 29 January 2010 the plaintiff filed an application in the Work Health Court seeking a determination pursuant to s 107 of the Act that the plaintiff was entitled to the payment of interim benefits. The plaintiff filed a lengthy affidavit in support of her application to which was annexed a medical certificate by a general practitioner dated 7 December 2009 stating that the plaintiff was fit to return to restricted duties for eight hours per week. The plaintiff also provided a medical report dated 1 February 2010 in which an orthopaedic surgeon expressed the opinion that the accident in the course of the plaintiff’s employment resulted in an “exacerbation of her pre-existing spondylosis” and that there was a “direct causal link” between the plaintiff’s current symptoms and the work-related accident. The surgeon also expressed the opinions that the plaintiff was unable to return to her former employment and that, although she might be suitable for non-physical types of work, such employment would be subject to restrictions on lifting and the plaintiff would be required to avoid work above her head.
In response, the employer presented a medical opinion that any symptoms being experienced by the plaintiff, and any incapacity existing as a result of those symptoms, were due to the natural progression of her pre-existing degenerative spinal condition and was not causally linked to the work-related accident. The employer also provided a medical opinion that the plaintiff was able to perform “sedentary duties” for 40 hours a week. That opinion stated that the plaintiff’s symptoms precluded her from performing “heavy physical work”.
The Hearing
The employer having ceased weekly payments, s 107 of the Act empowered the Work Health Court to make an interim determination as to the plaintiff’s entitlement to compensation. The Court is established by s 93 which provides that each Magistrate is a Magistrate of the Court and that the Registrar or a Judicial Registrar of the Court will also constitute the Court when exercising powers under s 102. Pursuant to s 102, the Registrar and a Judicial Registrar may exercise such powers of the Court as the Chief Magistrate determines and, while exercising those powers, such person is deemed to constitute the Court. Practice Direction 5 issued by the Chief Magistrate on 13 September 1999 provides that Judicial Registrars of the Court:
“shall be authorised to exercise all powers of the Court save and except the following:
1. To hear and finally determine a matter;
2. To hear and determine an application for summary judgment;
3. An assessment of compensation under part 21 of the Rules;
4. Consideration of a memorandum of agreement under section 108 of the Act.”
The hearing of the application for a determination of interim benefits was conducted before a Judicial Registrar. The employer accepted that the plaintiff suffered a work injury in December 2007, but contested liability on the basis of causation. The extent of the plaintiff’s incapacity was also in issue. Counsel for the employer noted that although a general practitioner had certified the plaintiff fit for only eight hours per week of work, the plaintiff’s specialist practitioner had not commented upon the number of hours of non-physical type work that the plaintiff could reasonably undertake. Based on the plaintiff’s history of employment in a number of positions since June 2009, emphasis was placed by the employer on the fact that the plaintiff possessed some capacity to work. Counsel for the employer addressed lengthy submissions to the question of expenses and hardship and suggested that the balance of convenience did not lie in favour of making an interim award.
Principles to be applied
It is common ground that it has been the accepted practice in the Work Health Court to approach an application for interim payments in the same way as an application for an interlocutory injunction is approached. This practice conforms with the views expressed by Mildren J in Wormald International (Aust) Pty Ltd v Aherne.[1]In that decision, Mildren J accepted, for the purposes of that appeal, “that the approach to the exercise of the discretion to award interim payments is the same as in an application for an interlocutory injunction – ie that the worker must establish that there is a serious question to be tried and that the balance of convenience favours the making of an interim award”. Following the decision of the High Court in Australian Broadcasting Corporation v O’Neill,[2] it may be more appropriate to ask whether the plaintiff has established a prima facie case in the sense of showing “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”.[3] However, no issue is taken that the Judicial Registrar erred in following the existing practice of determining that there was a serious question to be tried rather than determining whether the plaintiff had established a prima facie case in the sense identified by the High Court.
Judicial Registrar’s reasons
The Judicial Registrar found that although the plaintiff had established the existence of a serious issue to be tried, the plaintiff had failed with respect to the balance of convenience. It is appropriate to set out the brief ex tempore reasons in full:
“I think that, on balance, the question of whether there is a serious issue to be tried or not probably does lie with the worker. However, I don’t think the same can be said for the balance of convenience. Although, with respect, Ms McLean, my reasons for coming to that conclusion are somewhat different than yours.
There is no doubt that the worker does have some earning capacity. The extent of that earning capacity varies from Dr Cassando, who says she is fit to return to full-time work, is the effect of what he’s saying; to Dr Allroy who says she is probably capable of working eight hours per week.
The actual extent of her earning capacity is not going to be determined until trial. I accept that. That’s the proper place for it to be determined. There is also an issue as to what component of her current incapacity is brought about by work-related injuries as opposed to other injuries. And, again, that’s an issue that will need to be determined at trial.
However, whatever the worker’s earning capacity is, as I said before, it varies between, I think, full-time work and eight to ten hours per week. To me, the important factor seems to be the section 65(2) provision which effectively deems that, earning capacity, the most profitable earning capacity that the worker has, effectively deems it to be available to her whether it is or not after that first 104 weeks kicks in. And, as you’re both aware, I’m sure that 104 weeks kicked in at around about the same as interim benefits were ceased.
So, I think there is a serious issue to be tried. I don’t criticise the worker for her disclosure. I think there are some issues concerning capacity to repay, but I’m not sure that they would tip the balance. What does tip the balance, in my view, is the section 65(2) provision, which, as I say, is virtually a deeming provision and it requires, I think, that the worker’s earning capacity, whatever that may be, and that’s not a matter for me to determine, that whatever that working capacity is something that is deemed to be exercised, whether or not it can be. It’s difficult for me to tell on the papers, but it seems to me that the employer has provided some degree of rehabilitative support. As I say, it is difficult for me to determine the extent of that. But, certainly, there’s been a market survey of jobs which does identify jobs available, albeit with some travel involved. But then again, that’s the work of section 65(2), I think.
In the circumstances, I think the balance of convenience lies with the employer and the application is dismissed.” (my emphasis)
In considering whether there was a serious question to be tried, the Judicial Registrar correctly identified two critical issues to be determined at trial. First, the extent of the earning capacity. Secondly, whether any incapacity was “brought about by work-related injuries as opposed to other injuries”. After finding that there was a serious question to be tried with respect to those issues, the Judicial Registrar observed that whatever earning capacity was possessed by the plaintiff, “the important factor" was the operation of s 65(2). In considering the operation of s 65(2), the Judicial Registrar was addressing himself to the balance of convenience.
Section 65(2) and Error
As I have said, the plaintiff seeks an order by way of certiorari quashing the decision of the Judicial Registrar on the basis that jurisdictional error occurred as a consequence of the Judicial Registrar misconstruing the operation of s 65(2). The plaintiff submitted that the Judicial Registrar erred in construing s 65(2) as a provision which deemed the plaintiff to possess an earning capacity which, in fact, she did not possess. In substance, the Judicial Registrar proceeded on the basis that s 65(2) deemed that incapacity did not exist and, in this way, jurisdictional error occurred because the Judicial Registrar “misapprehended the nature of [his] functions or powers”.
Section 65(2) of the Act is concerned with assessing the loss of earning capacity for the purposes of compensation to be paid under s 65(1). In respect of the period after the first 104 weeks of total or partial incapacity, s 65(2) provides that the loss of earning capacity is the difference between the worker’s normal weekly earnings and:
“the amount [the worker] is from time to time reasonably capable of earning in a week in work [the worker] is capable of undertaking if [the worker] were to engage in the most profitable employment that could be undertaken by that worker, whether or not such employment is available to [the worker].”
In other words, for the purposes of assessing the loss of earning capacity, s 65(2) requires the court to assume that the worker would engage in the most profitable employment capable of being undertaken within the limits of the worker’s working capacity, regardless of whether such most profitable employment is likely to be available or otherwise. For these purposes, s 65(2) deems that the worker will undertake the most profitable employment that could be undertaken by the worker within the limits of the worker’s capacity for work.
The reasons of the Judicial Registrar could have been expressed more clearly but, in my view, the references in the reasons to s 65(2) do not support the plaintiff’s contention. The wording of the reasons does not suggest that the Judicial Registrar construed s 65(2) as deeming that the plaintiff did not suffer from any incapacity. The Judicial Registrar specifically recognised that there was a serious question to be tried with respect to the extent of the plaintiff’s incapacity and that this issue was not to be determined by him. It was an issue to be determined at trial. In the passages I have emphasised from the reasons, the Judicial Registrar correctly stated that s 65(2) operates to require that the worker’s earning capacity, “whatever that may be”, is “deemed to be exercised”.
Further, in my opinion the wording of the reasons does not support the contention that the Judicial Registrar construed s 65(2) as necessarily defeating the plaintiff’s application. As I have said, the Judicial Registrar had regard to the operation of s 65(2) when considering the question of the balance of convenience. He specifically referred to the operation of s 65(2) as “the important factor” and the factor which, in his view, tipped the balance against the plaintiff. Having referred to the question of disclosure, the Registrar stated that there were issues concerning the capacity to repay, but said he was “not sure that they would tip the balance”. He specifically went on to say:
“What does tip the balance, in my view, is the section 65(2) provision …”
Although the wording of the reasons of the Judicial Registrar does not support the plaintiff’s contentions, in determining whether the Judicial Registrar misconstrued the operation of s 65(2), it remains necessary to consider how the Judicial Registrar applied s 65(2) and why he reached the view that the operation of s 65(2) tipped the balance of convenience against the plaintiff. The answers to these questions are not readily apparent from the reasons.
In Wormald,[4] Mildren J identified a number of factors which might be relevant in considering the balance of convenience. His Honour did not purport to set out an exhaustive list and emphasised that the weight to be given to each factor will depend upon the circumstances of the individual case. In summary, the factors his Honour identified were as follows:
·Hardship to the worker.
·The Court’s perception of the strength of the worker’s case.
·The amount of compensation at stake.
·Any delay in making the application.
·The period of time which might elapse before the substantive application is heard.
·The degree of prejudice to the employer if the employer is required to make interim payments.
·Whether the worker is outside the jurisdiction.
·Whether the worker has made full disclosure of all relevant circumstances.
As I have said, the Judicial Registrar referred to the question of disclosure and issues concerning the capacity to repay. He did not regard these matters as tipping the balance of convenience against the plaintiff. There was no issue of delay.
In the particular circumstances before the Judicial Registrar, s 65(2) was not relevant to the strength of the worker’s case which depended upon establishing both causation and incapacity. The operation of s 65(2) could only have been directly relevant to the question of the amount of compensation at stake. Indirectly, it might also have been relevant to assessing the degree of hardship to the applicant if interim payments were not made.
Immediately before referring to the impact of s 65(2), the Judicial Registrar noted that whatever earning capacity was possessed by the plaintiff, it varied between “full-time work and eight to ten hours per week”. It appears the Judicial Registrar was referring to the competing medical evidence and that his reference to “full-time work” was a reference to the medical evidence provided by the employer that the plaintiff was fit to perform sedentary duties for 40 hours per week. It was after referring to the variation between full-time and eight to ten hours per week that the Judicial Registrar identified s 65(2) as “the important factor” and went on to find that the operation of s 65(2) tipped the balance of convenience against the plaintiff.
The structure and content of the Judicial Registrar’s reasons suggests that the Judicial Registrar regarded the operation of s 65(2) as “the important factor” because it bore upon the amount of compensation at stake. This interpretation is supported by the reference to a market survey of jobs available (“the APM report”), albeit with some travel involved. This reference to the possible travel was followed by the Judicial Registrar stating that “then again, that’s the work of s 65(2), I think”. The Judicial Registrar appears to have viewed the existence of travel in order to take up an available job as irrelevant because of the operation of s 65(2).
If the Judicial Registrar treated s 65(2) as relevant to the amount of compensation at stake, his reasoning as to how s 65(2) impacted on that question is not apparent from his reasons. As it was “the important factor” that tipped the balance against the plaintiff, it appears likely that the Judicial Registrar reasoned that if the plaintiff was found fit to undertake “full-time” work, as s 65(2) would deem such work to be available, there would be little or no loss of earning capacity. Hence the balance of convenience favoured not making an order for interim payments.

If the Judicial Registrar reasoned that the operation of s 65(2) would result in little or no compensation being awarded, with respect I disagree with his conclusion. On the material before the Registrar, as at April 2008 the plaintiff’s normal weekly earnings were $1,371.06 gross per week. Indexed to 2010, such amount would be in the order of $1,494 per week. This amount stood in contrast to the most profitable employment identified in the APM report which would return maximum earnings in the order of $900 per week. On the evidence before the Judicial Registrar, therefore, even if the plaintiff was fit to undertake 40 hours per week of the most profitable employment identified in the APM report, her loss of earning capacity for the purposes of assessing compensation payable under s 65(2) was a minimum of approximately $600 per week. In this context it should be borne in mind that on the material before the Judicial Registrar a strong case existed with respect to a loss of some earning capacity. Even on the medical evidence provided by the employer, the plaintiff suffered symptoms which resulted in a degree of incapacity. The plaintiff had also established a good case with regard to hardship.
In my opinion, if the Judicial Registrar concluded that little or no compensation was at stake, he must have reached that conclusion as a consequence of a misunderstanding of the evidence or an error in calculations. If the Judicial Registrar had properly applied the evidence, he could not reasonably have reached the conclusion that the operation of s 65(2) tipped the balance of convenience against the plaintiff. The alternative view is the view advanced by the plaintiff that, notwithstanding the wording of the reasons, the Judicial Registrar erroneously treated s 65(2) as deeming that the plaintiff possessed full working capacity.
In my opinion, having regard to the passages in the reasons to which I have referred, the Judicial Registrar did not treat s 65(2) as deeming that the plaintiff possessed a full working capacity. In particular, the Judicial Registrar spoke of the plaintiff’s earning capacity, “whatever that may be”, as the capacity that is deemed to be exercised.
In my view, the Judicial Registrar fell into error in the assessment of what he identified as “full-time work”. It appears that the Judicial Registrar misapprehended the evidence presented by the employer as to “full-time work”. As I have said, on the employer’s case the plaintiff was suffering from an incapacity to the extent that the plaintiff was fit to work 40 hours per week, but only in a sedentary occupation which precluded the plaintiff from performing heavy physical work. I can only conclude that the Judicial Registrar erroneously treated that evidence as suggesting that, at best on the employer’s case, there was no restriction on the work that the plaintiff could undertake. Alternatively the Judicial Registrar must have misunderstood the impact of the APM Report.
In my opinion, therefore, although the decision reached by the Judicial Registrar was not a reasonable decision in the sense that the operation of s 65(2) could not reasonably tip the balance of convenience against the plaintiff, it was a decision brought about by factual error. The error was significant, but it related to the facts and not the construction of s 65(2).
It is in these circumstances that I am required to determine whether, in the absence of a right of appeal, this Court is able to exercise its supervisory jurisdiction by way of certiorari. The supervisory jurisdiction in this form is only enlightened if the error by the Judicial Registrar amounted to jurisdictional error rather than error within jurisdiction.
Certiorari
The line between jurisdictional error and error within jurisdiction can be difficult to draw and the approach of the court is likely to be influenced by whether the error is committed by a court or a tribunal. As Phillips JA noted The Returned and Services League of Australia v Liquor Licensing Commission,[5] it is important to identify the task given by the Legislature to the body in question and, in particular, “whether that task includes not only the power to decide but also the power to decide wrongly (and whether on questions of fact or law) without attracting prerogative relief …”.
The Work Health Court (“the Court”) was established by s 93 of the Act and s 93(4) provides that it is a court of record. The powers of the Court are set out in s 94 and include powers to hear and determine claims for compensation “and all matters and questions incidental to or arising out of such claims”. Each Magistrate is a Magistrate of the Court. In addition to powers conferred under the Act, in relation to proceedings under the Act the Court or Magistrate has, generally speaking, all the powers of a Local Court or a Magistrate sitting under the Local Court Act, including powers with respect to witnesses and the production of documents.[6] Parties before the Court may be represented by a legal practitioner and those representing parties have the same protection and immunity as a legal practitioner representing a party before a Local Court. Witnesses possess the same obligations and protections as witnesses in proceedings before a Local Court.[7] Section 110A provides that the proceedings of the Court shall be conducted with as little formality and technicality as the requirements of the Act and a “proper consideration of the matter” permits and that, subject to the Act, the Court “is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks fit”.
The primary jurisdiction of the Court is to hear and determine claims for compensation. A Magistrate may also hear and determine an appeal from a Registrar or Judicial Registrar.[8] The Court may reserve questions of law for determination by the Supreme Court[9] and parties are given a right of appeal against a decision of a Magistrate, but only on a question of law.[10]
While accepting that the Work Health Court is, generally speaking, a court of law, counsel for the plaintiff submitted that when a Judicial Registrar sits as the Court for the purposes of determining an application for interim payments, the Judicial Registrar sits in a manner more akin to a tribunal than a court of law. This contention was advanced on the basis of the limited powers conferred on Judicial Registrars and notwithstanding that s 102 specifically provides that when exercising the powers conferred by the Chief Magistrate, the Registrar (and Judicial Registrars) “shall be deemed to constitute the Court” and that anything done or an order made by the Registrar while exercising a power of the Court “shall be deemed to be in order of or thing done by the Court”.
It is correct to say that only limited powers are conferred on Judicial Registrars by the practice direction which is set out in para [8] of these reasons. These powers do not include a power to finally determine a matter of substance other than the question of interim payments. However, the legislative scheme created by s 102 cannot be ignored. The Legislature empowered the Chief Magistrate to confer upon the Registrar and Judicial Registrars all the powers of the Court. When exercising the powers conferred by the Chief Magistrate, the Registrar and Judicial Registrars are “deemed to constitute the Court” and their orders are deemed to be orders of the Court. The intention of the Legislature as to the function to be performed by Judicial Registrars is not altered by the subsequent decision of the Chief Magistrate to confer only limited powers of the Court upon Judicial Registrars.
Notwithstanding the nature of the statutory scheme to which I have referred, regard must be had to another feature of the scheme relating to rights of appeal. The intention of the Legislature that, at the discretion of the Chief Magistrate, Judicial Registrars should be capable of exercising all the powers of the Court is hedged by the existence of appeal provisions which confer rights of appeal against decisions of Judicial Registrars which are significantly different from rights of appeal against decisions of Magistrates.
An appeal against a decision of a Magistrate is to the Supreme Court, but only against a decision on a question of law.[11] While no appeal lies from a decision of a Judicial Registrar as to interim payments, in respect of all other decisions an appeal lies to a Magistrate of the Court by way of a hearing de novo.[12] In this way the Legislature has drawn a sharp distinction between decisions of Judicial Registrars and those of Magistrates. It has not entrusted to Judicial Registrars decisions in respect of any matters other than interim payments that are, in any relevant sense, “final” or “authoritative”.
In summary, the key features of the position of a Judicial Registrar are as follows:
·     If the Chief Magistrate so determines, a Judicial Registrar is capable of exercising all the powers of the Court.
·     When exercising the powers of the Court, a Judicial Registrar is deemed to constitute the Court and an order by the Judicial Registrar is deemed to be an order of the Court.
·     The Chief Magistrate has determined that Judicial Registrars shall possess limited powers which do not include the power to determine substantive applications for compensation.
·     No appeal lies against a decision of a Judicial Registrar with respect to an interim determination as to worker’s entitlement to compensation.
·     In respect of any other decision by a Judicial Registrar, each party has a right of appeal to a Magistrate by way of hearing de novo.
Subject to the exercise of a discretion by the Chief Magistrate, the Legislature has conferred on Judicial Registrars all the powers of the Court and declared an intention that when exercising those powers the Judicial Registrar is deemed to constitute the Court. In exercising the power to determine an application for interim payments, Judicial Registrars are exercising a power to make an “authoritative” or “final” decision in the sense that it is not subject to an appeal. In exercising any of their powers, Judicial Registrars exercise the same powers as a Magistrate of the Court. In my opinion, having regard to the statutory scheme in its entirety, when hearing and determining applications for interim payments, Judicial Registrars sit in a judicial capacity and their decisions must be made judicially. The Legislature has entrusted to Judicial Registrars a task with respect to applications for interim payments that includes “not only the power to decide but also the power to decide wrongly.”
As to the principles governing the exercise of the Court’s supervisory jurisdiction by way of certiorari, it is sufficient to refer briefly to the recent examination of the principles by the High Court in Kirk v Industrial Relations Commission of New South Wales.[13]The Court was concerned with convictions for offences against the Occupational Health and Safety Act 1983 (NSW) (“the OH&S Act”) recorded by the Industrial Court of New South Wales and the dismissal of an appeal by the New South Wales Court of Appeal. In a joint judgment, six Justices held that the Industrial Court misconstrued the operation of s 15 of the OH&S Act and this misconstruction led to the Industrial Court making orders of conviction and sentence which it had no power to make. In this way the Industrial Court misapprehended “the limits of its functions and powers” and jurisdictional error occurred. In addition, jurisdictional error occurred because the Industrial Court “misapprehended a limit on its powers by permitting the prosecution to call [the defendant] at the trial”.
The majority judgment observed that the distinction between jurisdictional and non-jurisdictional errors has been maintained in Australia and cited the following passage from the judgment of Hayne J in Re Refugee Review Tribunal; Ex parte Aala:[14]
“…The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.”
The application of the relevant principles to decisions of inferior courts is different from their application to decisions of “other tribunals exercising Governmental powers” and was discussed in the following passages:[15]
“The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between “on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ. The Court said that:
“If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”
By contrast, demonstrable error on the part of an inferior court “entrusted with authority to identify, formulate and determine” relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that:
“a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error”.
The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) “either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law”. By contrast, it was said that “the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine”.
Behind these conclusions lies an assumption that a distinction can readily be made between a court and an administrative tribunal. At a State level that distinction may not always be drawn easily, for there is not, in the States’ constitutional arrangements, that same separation of powers that is required at a federal level by Ch III of the Constitution. No less importantly, behind the conclusions expressed in Craig lie premises about what is meant by jurisdictional error. Unexpressed premises about what is meant by jurisdictional error give content to the notion of “authoritative” when it is said, at it was in Craig, that tribunals cannot “authoritatively” determine questions of law, but that courts can.
When certiorari is sought, there is often an issue about whether the decision is open to review. If “authoritative” is used in the sense of “final”, a decision could be described as “authoritative” only if certiorari will not lie to correct error in the decision. To observe that inferior courts generally have authority to decide questions of law “authoritatively” is not to conclude that the determination of any particular question is not open to review by a superior court. Whether a particular decision reached is open to review is a question that remains unanswered. The “authoritative” decisions of inferior courts are those decisions which are not attended by jurisdictional error. That directs attention to what is meant in this context by “jurisdiction” and “jurisdictional”. It suggests that the observation that inferior courts have authority to decide questions of law “authoritatively” is at least unhelpful.” (footnotes omitted)
It is unnecessary to examine the principles further. For the reasons I have given, in my opinion the Judicial Registrar was sitting as a court of law and did not misconstrue the relevant law or misapprehend the limits of his powers and function. The Judicial Registrar made an error of fact which led to an incorrect decision. Counsel for the plaintiff submitted that the High Court in Kirk expanded the ambit of the operation of the supervisory jurisdiction, but even if this submission is correct, the jurisdiction has not been expanded to include correction of the type of error of fact committed by the Judicial Registrar in a judicial capacity.
Given the significance of the error, it is regrettable that this Court is unable to exercise the supervisory jurisdiction, but it is always open to the plaintiff to make a further claim for interim payments in light of these reasons. Having determined that there was a serious question to be tried and that factors other than the operation of s 65(2) did not result in a finding that the balance of convenience favoured refusal of the application, by reason of his error of fact the Judicial Registrar reached an unreasonable decision that the operation of s 65(2) tipped the scales of the balance of convenience against the plaintiff.
Procedural fairness
As to the question of procedural fairness, the plaintiff submitted that a denial of procedural fairness occurred because she was not given a reasonable opportunity to address the operation of s 65(2). I do not agree. Although the employer did not rely upon s 65(2), at the conclusion of submissions by counsel for the plaintiff the Judicial Registrar raised the question of s 65(2) in the following passage:
“JUDICIAL REGISTRAR:      All right, Ms Dunne, what do you say about section 65(2)?
MS DUNNE:        About not being available – whether it’s available or not?
JUDICIAL REGISTRAR:        Yes.
MS DUNNE:        We say that, firstly, the employer needs to identify some employment that she is capable of doing and with the eight hours and the lifting restrictions. Ms Day has already experienced difficulty in identifying any employment. So it needs to be a real identifiable employment. Then I think section 65(2) then comes into account, whether that’s available.
JUDICIAL REGISTRAR:        All right. And the APM report?
MS DUNNE:        The APM report. Basically with the APM report, some of the jobs that are identified are not within the restrictions, or most of them weren’t within the restrictions. I guess this is where their argument comes into it, one doctor saying she’ll be fit for those jobs, the other says she wouldn’t be fit for a lot of those jobs and especially with her qualifications.”
The APM report identified potential jobs, but did not purport to address the extent of the plaintiff’s incapacity and whether she was capable of undertaking the identified jobs.
As I have said, the Judicial Registrar apparently had in mind the impact of s 65(2) in deeming that, whatever working capacity was possessed by the plaintiff, the Court was required to assume it was able to be exercised in the most profitable employment regardless of whether such employment was available or not. Specific attention was drawn to s 65(2). Counsel had the opportunity of addressing the impact of that section. It was not incumbent upon the Judicial Registrar to debate the operation of s 65(2) or to give an indication as to whether he regarded that section of importance or otherwise. The circumstances of this case are far removed from those cases in which a party was not given an opportunity to present submissions with respect to a critical issue.[16] The requirements of procedural fairness were met.

The position might have been different if the Judicial Registrar had misconstrued the operation of s 65(2) in the way suggested by the plaintiff (a suggestion I have rejected). In that event of erroneous construction, the plaintiff would have been denied the opportunity of addressing an issue of statutory construction that, in the view of the Judicial Registrar, necessarily defeated the plaintiff’s claim.
The application is dismissed.

[1] [1994] NTSC 59.

[2] (2006) 227 CLR 57.

[3] Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 [66].

[4] Wormald v Aherne [1994] NTSC 59.

[5] [1999] 2 VR 203 at 214 [27].

[6] Section 97.

[7] Section 99.

[8] Section 114A.

[9] Section 115.

[10] Section 116.

[11] Section 116(1).

[12] Section 114A(1) and (3).

[13] [2010] HCA 1.

[14] [2010] HCA 1 at [66] citing (2000) 204 CLR 82 at 141 [163].

[15] [2010] HCA 1 at [67] – [70].

[16] Stead v State Government Insurance Commission (1986) 161 CLR 141; R v Lewis (1988) 165 CLR 12.