Richdale v WorkCover WA as director of KARIN LEE - [2025] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   RICHDALE -v- WORKCOVER WA as director of KARIN LEE [2025] WASC 284
CORAM:   SEAWARD J
HEARD:   28 FEBRUARY 2025
(FURTHER SUPPLEMENTARY SUBMISSIONS ON 10 & 12 MARCH 2025)

DELIVERED          :   23 JULY 2025
FILE NO/S:   CIV 1986 of 2024
BETWEEN:   GLENN BEVAN RICHDALE
Applicant
AND
WORKCOVER WA as director of KARIN LEE
First Respondent
WORKCOVER WA as delegate of ROBYNANN BOUWHUIS
Second Respondent

Catchwords:

Judicial Review - Application for Judicial Review - Where there is no longer any controversy between the parties to quell - Declaratory relief - Discretion - Whether it is appropriate to grant declaratory relief in all the circumstances - Public interest considerations

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA) (repealed)
Workers Compensation and Injury Management Act 2023 (WA)
Workers Compensation and Injury Management Conciliation Rules 2024 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	P E Jarman
First Respondent	:	R C Panetta
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Eureka Lawyers
First Respondent	:	State Solicitor's Office
Second Respondent	:	No appearance

Cases referred to in decision:

Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation [1996] FCA 1580; (1996) 68 FCR 406
Australian Competition & Consumer Commission v Eurong Beach Resort Ltd [2005] FCA 1134
CMA19 v Minister for Home Affairs [2020] FCA 736
Director of Consumer Affairs Victorian v Mecon Insurance Pty Ltd [2016] VSC 42
Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80
Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173
Public Service Association of SA Inc v Industrial Relations Commissioner of SA [2013] SASCFC 5; (2013) 115 SASR 413
Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89
Touhey v Salini Australia Pty Ltd [2022] FCA 55
University of New South Wales v Moorhouse (1975) 133 CLR 1
VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146
Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762

SEAWARD J:

Introduction

By application filed 20 August 2024 (and subsequently amended on 14 October 2024) the applicant, Glenn Richdale, seeks judicial review of a decision of the delegate of the Director of WorkCover WA to refuse to accept his application for conciliation on the basis that the application does not refer a 'dispute' for conciliation. The purported dispute concerned the failure of Mr Richdale's employer, Australian Fire Control Pty Ltd (Australian Fire Control), to make income compensation payments following an injury Mr Richdale sustained in the course of his employment. It is alleged by Mr Richdale that the delegate made a jurisdictional error in refusing to accept the application.
Whilst originally seeking writs of certiorari and mandamus, events which occurred after the application for judicial review was filed have resulted in Mr Richdale now only seeking declaratory relief.
The application raises a number of issues for consideration. Aside from the merits of Mr Richdale's claim of jurisdictional error, this application raises questions as to whether there remains any controversy between the parties to quell and whether the court should exercise its discretion to grant declaratory relief.
For the following reasons, the application for judicial review should be dismissed.

Background Facts

The background facts are not in dispute. The following summary is taken from the submissions of the parties and the affidavits filed in support of the application.
Mr Richdale was employed by Australian Fire Control as an operations coordinator. On 18 October 2023, Mr Richdale sustained an injury to his lower back in the course of his employment. On 18 December 2023, Mr Richdale made a claim to his employer pursuant to the provisions of the Workers' Compensation and Injury Management Act 1981 (WA) (repealed) (the former Act).
On 19 January 2024, the employer's workers' compensation insurer, Zurich Australian Insurance Limited (Zurich), issued a notice to Mr Richdale that liability was accepted for the lower back injury, with respect to weekly compensation payments and other statutory entitlements.
Mr Richdale commenced receiving weekly compensation payments shortly thereafter. However, on or about 18 July 2024, Mr Richdale's weekly compensation payments suddenly ceased without any explanation.
On 29 July 2024, a number of events occurred:
(a)Mr Richdale sent an email to Sheryl Parola of Vitelergy Services advising that he had not been paid and seeking an update. Mr Richdale received an email in response from Ms Parola stating that she would follow up the issue and revert to him as soon as she could;
(b)Mr Richdale and Ms Parola then spoke by telephone;
(c)Mr Richdale sent a further email to Ms Parola thanking her for the phone call and stating:
As discussed you are waiting on the Zurich to pay you so you can pay me? Thanks for letting me know.
(d)Mr Richdale's solicitors sent an email to his employer's solicitors, advising that Mr Richdale had not been paid his compensation payments for the period 18 July 2024 - 24 July 2024, and requesting processing of the payments. The employer's solicitors responded advising that they would forward the email to the employer. Mr Richdale's solicitors also spoke to a representative of Zurich, but no details of that conversation are provided.
There is no information before me as to what Vitelergy Services is or its role. Information contained at the bottom of one of the emails reveals that Vitelergy Services is the trading name of Westcom Group (WA) Pty Ltd, which appears to be a separate corporate entity from Australian Fire Control. However, no further information is before me as to the role or function of Vitelergy Services or its relationship with Australian Fire Control.
On 30 July 2024, Mr Richdale's solicitors filed an application for conciliation at WorkCover WA (the first application). The application sought immediate reinstatement of the weekly compensation payments and back payment from 18 July 2024 to the then current date.
On 1 July 2024, the Workers Compensation and Injury Management Act2023 (WA) (the Act) came into effect. The transitional and savings provisions provide for the application of the Act to claims that were made under the former Act, but which continued after 1 July 2024.[1] Specifically, the Act applies to a dispute arising before, on or after commencement day of the Act, including a dispute arising on or after commencement day about a matter arising under the former Act.[2] Accordingly, the Act applied to the first application. Further, under the Act, weekly compensation is now known as income compensation.
[1] The Act, s 546 (and the definition of 'pending matter' in s 542), s 550 and s 555.
[2] The Act, s 572.
On 1 August 2024, Ms Parola emailed Mr Richdale, stating:
We've submitted a claim to the insurer for your wages from 25.7.24‑31.7.24 but as yet we haven't received their payment. As soon as we do, we will onforward the payment to you.
On 6 August 2024, the second respondent rejected the first application. The following explanation was provided:
Based on the information before me, I am not satisfied that the application relates to a dispute that can be dealt with by the Conciliation Service. Therefore, I am unable to accept the application.
On 7 August 2024, Mr Richdale requested that the second respondent reconsider her decision, but Mr Richdale was informed that there was no provision for the reconsideration of a decision.
On 8 August 2024, Mr Richdale filed a further application for conciliation at WorkCover WA (the second application).
The Director of WorkCover WA (the first respondent) delegated her power to accept or reject an application for conciliation pursuant to s 312 of the Act to Robynann Bouwhuis (the second respondent) in relation to the second application.
On 16 August 2024, the second respondent rejected the second application. The following explanation was provided:
Based on the information before me, I am not satisfied that the application relates to a dispute that can be dealt with by the Conciliation Service. Therefore, I am unable to accept the application.
On 20 August 2024, Mr Richdale filed an application for judicial review in this court.
On 9 September 2024, Mr Richdale's solicitors received an email from Zurich requesting that Mr Richdale complete a Tax Declaration Form and a Direct Credit Request Form in order for Zurich to make income compensation payments to Mr Richdale directly.
On 11 September 2024, those documents were provided to Zurich. On the same day, Zurich's solicitors informed Mr Richdale's solicitors that Zurich would assume payment of income compensation directly to him, including processing the outstanding income compensation.
By 18 September 2024, Mr Richdale had received the outstanding compensation payments owed to him, and since 14 October 2024, Mr Richdale has been receiving fortnightly income compensation payments direct from Zurich.
During the hearing, the first respondent tendered an ASIC current and history company extract for Australian Fire Control dated 27 February 2025. The extract records the following:
(a)that Australian Fire control is externally administered;
(b)on 10 April 2024, a form 205M Notification of Resolution of Winding up was lodged;
(c)on 10 April 2024, a form 505J Notice by External Administrator/controller - Appoint/cease Appointment of Liquidator (Creditors' Voluntary Winding up) was lodged;
(d)on 10 July 2024, a form 5601A Statutory Report from Liquidator was lodged;
(e)on 25 October 2024, a form 505X Notice by External Administrator/controller - appoint/cease Cessation of controller (Other than Receiver or Managing Controller) was lodged;
(f)on 25 October 2024, a form 5603H End of Administration Return End Return of controller (Other than Receiver/Manager) was lodged; and
(g)there is no reference to Vitelergy Services or Westcom Group (WA) Pty Ltd.

Application for judicial review

Mr Richdale filed his original application for judicial review on 20 August 2024. That application sought review of the second respondent's decision to reject Mr Richdale's second application for conciliation made on 16 August 2024. Mr Richdale sought writs of certiorari and mandamus.
On 14 October 2024, Mr Richdale filed an amended application for judicial review. The application still relates to the decision in respect of the second application, but added to the remedies by seeking a declaration.
In both his written and oral submissions, Mr Richdale confirmed that he no longer seeks writs of certiorari or mandamus, and now only seeks a declaration.
In his written submissions, the terms of the declaration sought are as follows:
(a)A declaration that non-payment of income compensation, in circumstances where liability for the claim is accepted under the Act, constitutes a dispute pursuant to s 303 of the Act.
(b)A declaration that conciliation applications involving disputes relating to the payment, or non-payment, of income compensation should be accepted by the Director pursuant to s. 312(1) of the Act.
During the course of the hearing, counsel for Mr Richdale submitted that if the scope of the declaration sought in the submissions was too broad, Mr Richdale would seek a declaration in terms of ground 2 of the amended application for judicial review as follows:
The applicant's application for conciliation, filed at WorkCover WA, relates to a dispute as defined by s 303(a) and/or s 303(c) of the Workers Compensation and Injury Management Act 2023 (Act) and should have been accepted by the Director pursuant to s 312(1) of the Act.
Mr Richdale's application is supported by affidavits of Mong Tuyen Le, sworn 20 August 2024 and 14 October 2024.
The second respondent has filed a notice of intention to abide by the decision of the court, and did not take an active part in the hearing.
The first respondent participated in the hearing, but did not file any affidavit evidence.

Legal principles - judicial review

The basis of the present application for judicial review is that the second respondent committed a jurisdictional error in mistakenly concluding that she did not have jurisdiction to consider the second application. That is, in mistakenly concluding that the second application did not reveal a 'dispute' for the purposes of the Act.
Jurisdictional error refers to a breach of an express or implied condition of a statutory conferral of decision‑making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to the exercise of that authority by statute.[3] This court, in exercising its supervisory jurisdiction to review a decision for jurisdictional error, is concerned with the limits of the powers and functions given to the decision‑maker and not the merits of the decision. If the decision is made within those limits, then it cannot be impugned.[4]
[3] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [2].
[4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 citing Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 (Lord Greene MR).
Mr Richdale bears the burden of proving jurisdictional error, including the burden of proving, on the balance of probabilities, all of the facts on which the allegation of jurisdictional error is founded.[5]
[5] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 [24].
The categories of jurisdictional error are not closed.[6] However, relevantly for present purposes, a mistaken denial of the existence of jurisdiction or a misapprehension of the nature or limits of the decision‑maker's functions or powers may amount to jurisdictional error on the part of an administrative decision‑maker (not being an inferior court).[7]
[6] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 [71]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [3].
[7] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [3].
In addition, an error will only be jurisdictional if the error was also material to the decision that was made. Some errors (eg actual bias or outcome unreasonableness in the final result) will, of their nature, always be jurisdictional errors.[8] However, for most cases, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could (not would) have been different if the error had not occurred.[9] What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error, but the threshold is not demanding or onerous.[10]
[8] See MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506 [33] and [182]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [98] ‑ [102].
[9] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [6] ‑ [7]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [32] ‑ [33], [46], [63].
[10] LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 [14] ‑ [15]; Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [46] ‑ [47], [127].

Legislative framework

Overview

In order to consider the application for judicial review, it is only necessary to provide an outline of the key provisions of the statutory framework in which that decision was made.
The long title to the Act provides that it is an Act to provide, amongst other matters, for employers to be liable to compensate workers who suffer injuries from employment and for the resolution of disputes.
A review of the Act reveals that it establishes a regime requiring an employer to compensate any worker who suffers an injury from their employment. As part of that regime, there is a requirement for employers to hold workers' compensation insurance. The statutory regime establishes a system whereby applications for compensation are first made to the employer. If liability is accepted, compensation is then required to be paid by the employer. The regime provides for several different types of compensation. The statutory regime also provides for a system of dispute resolution which first requires all disputes to be conciliated by a conciliator at WorkCover WA, and then if not resolved at conciliation, a party may apply to an arbitrator for a decision in relation to the dispute.

Specific provisions

Section 17(1) of the Act provides that an employer is liable for compensation if a worker suffers an injury from employment with the employer. Section 17(2) provides that
If an employer's liability to pay compensation has been accepted (or is taken to have been accepted) or has been determined by an arbitrator, the employer must pay compensation to the worker.
Section 17 provides that the penalty for failing to comply with that section is a fine of $10,000.
In the present case, there is no dispute that Mr Richdale was an employee of Australian Fire Control and was therefore a worker; that Mr Richdale suffered an injury from his employment; and that Australian Fire Control's liability to pay compensation was accepted by Australian Fire Control's insurer, Zurich.
Section 18 of the Act details the different forms of compensation. Relevant for present purposes is income compensation which is payable for injury that results in total or partial incapacity of the worker for work.
Part 2 div 3 of the Act concerns income compensation. Section 46 provides that a worker is entitled to be paid income compensation if the worker's injury results in total or partial incapacity of the worker for work. Section 47 of the Act details the employer's obligation to pay income compensation, as follows:
(1)An employer's obligation to pay income compensation to a worker for an injury arises when the insurer or self-insurer accepts (or is taken to have accepted) or an arbitrator determines that —
(a) the employer is liable to compensate the worker for the injury; and
(b) the compensation for which the employer is liable includes income compensation.
(2)The employer must, except as otherwise provided under this Act —
(a)make the first payment of income compensation within 14 days after the employer's obligation to pay income compensation arises, with the first payment to include payments that have accrued from the day on which the worker first has an incapacity for work as a result of the injury; and
(b)make subsequent payments of income compensation to the worker on the employer's usual pay days and in the way the worker would normally be paid.
Penalty for this subsection: for each income compensation payment not made when due — a fine of $5 000.
(3)The employer must make a payment in compliance with this section whether or not the employer has been indemnified for the payment by the employer's insurer.
(4)A person is not liable to be convicted of an offence under subsection (2) and under section 17(2) in respect of the same failure.
(note omitted)

In the present case, there is no dispute that Mr Richdale was entitled to be paid income compensation and there is no dispute as to the calculation of that income compensation.
Part 2 div 3 subdiv 4 is concerned with reducing, suspending and discontinuing income compensation. Section 62 provides that an employer must not reduce, suspend or discontinue income compensation payments to a worker, except to give effect to any provision of the Act as to the calculation of the amount of income compensation that is payable; to give effect to a direction of a conciliator or an order of an arbitrator; in accordance with s 63 (on account of the worker returning to work); s 64 (on the basis of medical evidence); s 65 (on the basis of the worker residing outside of Western Australia failing to provide the required declarations); s 66 of the Act (on the basis of the worker being in custody); or with the consent of the worker. The penalty for an employer's breach of s 62 is a fine of $10,000.
Part 5 of the Act is concerned with insurance. Broadly speaking, an employer must at all times have a current workers compensation policy issued by a licensed insurer.[11] The licensing of insurers is a function of WorkCover WA.[12]
[11] The Act, s 202.
[12] See the Act, pt 5 div 3 subdiv 1.
Section 244 of the Act concerns an insurer's liability in circumstances where an employer cannot be proceeded against by a worker and relevantly provides:
(1)If the employer insured under a workers compensation policy becomes incapable of being proceeded against —
(a)the insurer has, to the extent of its liability under the policy, the same liability to a worker of the employer and the same rights and remedies in respect of that liability that the employer otherwise would have had to that worker and in respect of that liability; and
(b)a worker of the employer may proceed against and recover from the insurer on the basis of the liability that the insurer has under paragraph (a).
(2)For the purposes of this section, an employer becomes incapable of being proceeded against if the employer —
(a)in the case of a corporation — has commenced to be, or has been, wound up or has ceased to exist; or
(b)dies, cannot be found or no longer resides in Australia; or
(c)has ceased to carry on the business, or business of the kind, to which the policy related.
Part 6 of the Act concerns dispute resolution.
Section 304(1) provides that a proceeding for the determination of a dispute cannot be brought other than under pt 6 of the Act. Section 304(2) provides that, subject to the Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
The term 'dispute' is defined in s 303 of the Act as follows:
dispute means —
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act; or
(b)a dispute in connection with an obligation imposed under Part 3; or
(c)any matter for which provision is made under this Act for a determination by an arbitrator; or
(d)any other matter of a kind prescribed by the regulations;
Part 6 div 2 of the Act establishes the Workers Compensation Conciliation Service and the Workers Compensation Arbitration Service and the roles of the Director and the Registrar and makes provision for staff, including conciliators and arbitrators. The Director is responsible for, inter alia, the administration of the arrangements under the Act for the conciliation of disputes, including allocating work to conciliators.[13] The Director may delegate any power or duty given to the Director under another provision of the Act to a WorkCover WA officer or a conciliator.[14]
[13] The Act, s 308.
[14] The Act, s 310.
Part 6 div 3 is concerned with conciliation. Section 311 provides that:
A party to a dispute may apply to the Director in accordance with this Act and the conciliation rules for resolution of the dispute by conciliation.
Section 312(1) provides that an application for conciliation cannot be accepted by the Director unless the Director is satisfied that it relates to a dispute. Section 312(2) provides that the conciliation rules may impose requirements that must be satisfied before an application for conciliation can be accepted and specify grounds on which an application for conciliation must or may be rejected. Section 312(3) provides that the onus is on the applicant to satisfy the Director as to any matter that is relevant to the acceptance or rejection of an application.
The powers of a conciliator include the power to require a party to the dispute to attend at a conciliation conference; to require a party to answer questions put by the conciliator; and to require a party to produce documents.[15]
[15] The Act, s 317.
A conciliation dispute ends when:[16]
(a)agreement is reached by the parties on all matters in dispute; or
(b)the conciliator believes that there is minimal chance of agreement or further agreement, as the case may be, being reached; or
(c)the time limit for conciliation, as provided or extended under the conciliation rules, has expired; or
(d)the applicant for conciliation discontinues conciliation in accordance with the conciliation rules.
[16] The Act, s 319(1).
At the end of a conciliation of a dispute, the conciliator must issue a certificate in accordance with the relevant rules setting out the outcome of the conciliation and the terms of any direction currently in force under pt 6 div 3 subdiv 2 requiring, suspending or reducing the payment of compensation.[17]
[17] The Act, s 319(2).
Section 320(1) of the Act provides that a conciliator may give a direction, called an interim compensation direction, requiring the payment of compensation by the employer if the conciliator considers that it would be reasonable to expect that the resolution or determination of a dispute would result in the compensation becoming payable. Section 320(2) goes on to specify the scope of the power and the content of an interim compensation direction. For present purposes, it is sufficient to note that the power includes a power to require the payment of income compensation.[18]
[18] The Act, s 320(2)(a).
If an insured employer fails to make a payment required by an interim compensation direction, the Director may require the employer's insurer to make the payment on behalf of the employer, including any remaining payments.[19]
[19] The Act, s 322.
A person to whom money is payable under a conciliation decision or a conciliation agreement, may enforce the conciliation decision or conciliation agreement in a court of competent jurisdiction.[20]
[20] The Act, s 328.
Pt 6 div 4 of the Act is concerned with arbitration. Section 331 provides that if a dispute has not been resolved by conciliation, a party to the dispute may apply to the Registrar in accordance with the Act and the arbitration rules, for determination of the dispute by arbitration.
When an application for arbitration is accepted, the Registrar must allocate the dispute to an arbitrator for determination.[21]
[21] The Act, s 333.
It is not necessary for the purposes of considering this application for judicial review to consider in detail the procedures applicable to an arbitration, or to traverse in detail the scope of the powers of an arbitrator during an arbitration. It is sufficient to note that s 337 provides that the granting of relief or redress under the Act is not necessarily to be restricted to the specific claim made nor to the subject matter of the claim and that an arbitrator is not prevented from determining that a matter is beyond the scope of the application for conciliation that preceded the application for arbitration and should be the subject of another application for conciliation.
It is relevant, however, to outline the scope of some of the decisions which an arbitrator can make. Subject to the Act, an arbitrator may make decisions the arbitrator thinks fit.[22] Section 30 of the Act provides the arbitrator with the power, to determine whether an employer is liable to compensate a worker for an injury and, if so, the compensation to which the worker is entitled. The wording of s 30 is of some importance, and it relevantly provides:
(1)If a liability decision notice given by an insurer or self-insurer states that liability for compensation is not accepted, an arbitrator may on application by the worker hear and determine the question of liability.
…
(3)When an arbitrator determines the question of the employer's liability to compensate the worker for the injury, the arbitrator may also determine the compensation (if any) to which the worker is entitled and make any order the arbitrator considers appropriate in the circumstances.
[22] The Act, s 348(1).
An arbitrator may also determine whether payment of income compensation to a worker was lawfully reduced or discontinued on account of the worker returning to work (s 63 of the Act); on the basis of medical evidence (s 64 of the Act); on the basis of the worker residing outside of Western Australia failing to provide the required declarations (s 65 of the Act); on the basis of the worker being in custody (s 66 of the Act).
Section 68 of the Act provides that an arbitrator may review the payment of income compensation to a worker on the application of the worker or the employer and, on a review under this section, may:
make any order for the payment of income compensation to the worker to be suspended, adjusted or discontinued as the arbitrator considers appropriate.

Issues

This application for judicial review raises the following issues for consideration:
(1)In circumstances where Mr Richdale is now being paid his income compensation payments, and has now been paid all previously missed income payments, is there a controversy between the parties to quell, or is the application for declaratory relief akin to seeking an advisory opinion only?
(2)In circumstances where Mr Richdale is now being paid his income compensation payments, and has now been paid all previously missed income payments, is it appropriate to grant declaratory relief in all the circumstances?
(3)If the answer to issues (1) and/or (2) is no, is it nonetheless in the public interest to make the declarations sought?
(4)If the answer to issues (1) and/or (2) and/or (3) is yes, has the decision‑maker made a jurisdictional error in concluding that the second application by Mr Richdale does not identify a dispute for the purpose of the Act?

Issues 1 - 3

It is convenient to deal with issues 1 - 3 together, as they each deal with overlapping or interrelated issues.

Standing and utility

Mr Richdale seeks a declaration from the court. The scope of the court's power to grant declaratory relief was outlined by Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission as follows:[23]
It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have 'a real interest' and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if 'the Court's declaration will produce no foreseeable consequences for the parties'.
[23] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581 ‑ 582 (citations omitted).
In Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation,[24] the Full Court of the Federal Court summarised the authorities relating to the power of superior courts to grant declaratory relief as follows:
For a party to have sufficient standing to seek and obtain the grant of declaratory relief it must satisfy a number of tests which have been formulated by the courts, some in the alternative and some cumulative. I shall formulate them in summary form as follows:
●The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies: Re Judiciary Act 1903 and Navigation Act 1912 (1921) 29 CLR 257. The answer to the question must produce some real consequences for the parties.
●The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen': University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10; 6 ALR 193 per Gibbs J; or if the court's declaration will produce no foreseeable consequences for the parties: Gardner v Dairy Industry Authority New South Wales (1977) 18 ALR 55; 52 ALJR 180 per Mason J at 180 and per Aickin J at 189.
●The party seeking declaratory relief must have a real interest to raise it: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 per Gibbs J at 437 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 per Lord Dunedin at 448.
●Generally there must be a proper contradictor: Russian Commercial and Industrial Bank at 448; and Ainsworth per Brennan J at CLR 596.
[24] Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation [1996] FCA 1580; (1996) 68 FCR 406, 414 (Lockhart J with Spender & Cooper JJ agreeing).
Even if the above criteria are established, the power to grant relief, including by way of a declaration, is discretionary.[25] Whilst the circumstances in which a court may decline to grant relief are not closed, one example in which a declaration may be refused is if there is no utility in granting the declaration, including where there has been a change in circumstances since the decision in question was made. [26]
[25] VB v Chief Executive Officer of the Department of Communities [2020] WASCA 146 [58] and the authorities cited therein.
[26] Public Service Association of SA Inc v Industrial Relations Commissioner of SA [2013] SASCFC 5; (2013) 115 SASR 413 [40], [53] and the authorities cited therein.
There is no dispute that in the present case, Mr Richdale has a real interest in the second application before WorkCover and the application for judicial review before this court. There is also no dispute that there is a proper contradictor in the form of the first respondent.
However, given the change in circumstances since the application for judicial review was filed, I am not satisfied that the declaration is directed to the determination of a legal controversy between the parties; or that a declaration will produce foreseeable consequences for the parties; or that it is otherwise appropriate to exercise my discretion to make the declaration sought.
At the time the application for judicial review was filed in this court, there was an extant legal controversy between the parties, being whether the second respondent had misdirected herself on the scope of her jurisdiction and whether a 'dispute' existed for the purpose of the Act. At that point in time, Mr Richdale had ceased to be paid his income compensation. Assuming for now (without deciding) that the second respondent made the jurisdictional error alleged, a declaration would have been directed to the determination of a legal controversy between the parties and would, in combination with writs of certiorari and mandamus, have produced foreseeable consequences for the parties - being the acceptance of the second application for conciliation and thereafter the conciliation of that dispute by WorkCover and the ability of Mr Richdale to access the dispute resolution processes under the Act.
However, by the time the application for judicial review was heard, the position had changed. Mr Richdale was being paid his income compensation and had been back paid all outstanding income compensation payments. Mr Richdale is also no longer pressing his claims for writs of certiorari and mandamus; is not seeking to have the second application referred for conciliation; and is not seeking to have the respondents take any action in relation to his second application at all. In these circumstances, it cannot be said that the application for a declaration is concerned with any continuing issue between the parties.
It is also not clear what function or utility a declaration will serve. It will not resolve any legal controversy between the parties and will not produce any foreseeable consequences, legal or practical, for the parties.
This is not a case, such as in Touhey v Salini Australia Pty Ltd,[27] where the declaration was sought in the context of a wider on‑going dispute between the parties, and therefore would serve the function of informing parties of their legal rights or obligations under the relevant legislation and would serve the purpose of defining the basis upon which upcoming penalty proceedings were to proceed.
[27] Touhey v Salini Australia Pty Ltd [2022] FCA 55 [65].
This is not a case such as Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation,[28] where the question of whether Aussie Airlines was a 'new entrant to the domestic aviation industry' was of real practical importance to Aussie Airlines under the relevant airport leases and in terms of future negotiations.
[28] Aussie Airlines Pty Ltd v Australian Airlines Ltd, Qantas Airlines Ltd & Federal Airports Corporation [1996] FCA 1580; (1996) 68 FCR 406, 415 (Lockhart J with Spender & Cooper JJ agreeing).
This is also not a case, such as in Ainsworth v Criminal Justice Commission,[29] where non‑legal consequences, such as amelioration of reputational harm following a failure to observe procedural fairness, are present.
[29] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 581.
The decision of University of New South Wales v Moorhouse,[30] referred to by Mr Richdale in his written submissions, does not assist. That case involves alleged breaches of copyright by the University of NSW (the University) in reproducing or authorising the reproduction of a book in a material form without consent by a person using a photocopier in the University library. The High Court held that a broad declaration that the University had authorised an unknown number of breaches of copyright had been wrongly made. McTiernan ACJ and Jacobs J held that the declaration had been wrongly made because it was founded on breaches of copyright which had not been proved.[31] Gibbs J held that the declaration had been wrongly made because it was purely hypothetical and not based on the facts of each alleged circumstance of offending.[32] However, the court allowed a cross‑appeal and made a narrower declaration limited to the one established circumstance of a breach of copyright.[33] That is, the declaration did concern a continuing issue as between the parties, and did resolve the legal rights and obligations as between the parties concerning the one circumstance of copyright infringement.
[30] University of New South Wales v Moorhouse (1975) 133 CLR 1.
[31] University of New South Wales v Moorhouse (1975) 133 CLR 1, (7) (McTiernan ACJ) and (24) (Jacobs J).
[32] University of New South Wales v Moorhouse (1975) 133 CLR 1, (10 ‑ 11) (Gibbs J).
[33] University of New South Wales v Moorhouse (1975) 133 CLR 1, (7) (McTiernan ACJ), (17) (Gibbs J) and (23 ‑ 24) (Jacobs J).
That the declaration sought is not directed to the resolution of a legal controversy between the parties is reflected in the declaration sought by Mr Richdale. Mr Richdale's written submissions seek a declaration in the following terms:
(a)A declaration that non-payment of income compensation, in circumstances where liability for the claim is accepted under the Act, constitutes a dispute pursuant to s 303 of the Act.
(b)A declaration that conciliation applications involving disputes relating to the payment, or non-payment, of income compensation should be accepted by the Director pursuant to s. 312(1) of the Act.

This declaration suffers from being so high level and broad that it borders on being more in the nature of an advisory opinion and based on hypothetical and assumed facts, seeking a general ruling on the meaning of a 'dispute' under the Act. It is divorced from the facts of Mr Richdale's case as before the court.
In response to a submission to this effect, Mr Richdale's alternative wording for the declaration is as follows:
The applicant's application for conciliation, filed at WorkCover WA, relates to a dispute as defined by s 303(a) and/or s 303(c) of the Workers Compensation and Injury Management Act 2023 (Act) and should have been accepted by the Director pursuant to s 312(1) of the Act.
This wording is directed to Mr Richdale's specific circumstances. Subject to identifying which of Mr Richdale's applications it is concerned with, it may be accepted that it is not too broad; not based on hypothetical facts; and that it does not seek a general ruling on the meaning of a 'dispute' under the Act. However, that more specific wording simply raises the issue of the utility of seeking such a declaration given the change in circumstances.
In his written submissions, Mr Richdale raised the following three reasons for submitting that there is a continuing issue as between the parties:
(a)Mr Richdale's workers compensation claim is ongoing, and he continues to receive income compensation payments. Mr Richdale submits that Australian Fire Control's prior conduct regarding payment of compensation is relevant, particularly in the event that the same issues arise again;
(b)Mr Richdale may decide to elect to retain the right to seek damages and commence common law proceedings under s 423 of the Act. Mr Richdale submits that in any such proceedings, Australian Fire Control's conduct may be relevant; and
(c)a declaration would be relevant to any prosecution proceedings which may be initiated by WorkCover regarding Australian Fire Control's non‑compliance with its obligations under the Act.
Mr Richdale also submitted that the declaration sought would have utility for the following reasons:[34]
(a)there is an ongoing relationship between Mr Richdale and Australian Fire Control, and Australian Fire Control has an ongoing obligation to make income compensation payments to Mr Richdale under the Act. However, those income compensation payments are currently being made by Australian Fire Control's insurer, Zurich, in contravention of s 17 of the Act. Accordingly, the declaration would serve to inform Australian Fire Control of its obligations under the Act;
(b)the question of whether a dispute exists under the Act is not dependent on the particular circumstances surrounding the non‑payment of income compensation. Rather, Mr Richdale submits that it is sufficient for the purpose of a dispute that there has been non-payment of income compensation, irrespective of the circumstances giving rise to that non‑payment. Therefore, Mr Richdale submits that:
A declaration informs [Australian Fire Control] (which is currently liable to make payments of income compensation, Zurich, the Respondents and employers and insurers generally, that an illegal cessation of income compensation payments will constitute a dispute for the purposes of the Act and thereby entitle aggrieved workers to the dispute resolution procedures provided by the Act.
[34] Applicant's Responsive Submissions Addressing the Scope of the Declarations Sought, dated 12 March 2025 [20] - [23].
I do not consider that any of these matters mean that the declaration is concerned with a continuing issue as between the parties or that there is any utility in making the declaration sought.
The parties to the present dispute are Mr Richdale, the Director of WorkCover and her delegate. The matters referred to in [85(a)] and [85(b)] above are concerned with Australian Fire Control's conduct towards Mr Richdale and whether he may take certain action in the future. The matter referred to in [85(c)] concerns WorkCover alone, and whether it decides, in the exercise of its prosecutorial discretion, to prosecute Australian Fire Control. The matter referred to in [86(a)] above is concerned with whether Australian Fire Control or their insurer, Zurich is the appropriate entity to pay Mr Richdale's income compensation. The declaration sought is not concerned with any of these matters and is only concerned with whether a dispute exists under the Act such that the second application ought to have been accepted for conciliation. Whilst in the future there may be other issues arising as between Mr Richdale and Australian Fire Control or Zurich in relation to his workplace injury, a finding that there is a dispute in this instance does not inform either of Mr Richdale, Australian Fire Control, Zurich or WorkCover of their rights or obligations in relation to any of these three matters. Rather, it would only inform the parties that a dispute under the Act exists, which would result in a conciliation taking place, and Mr Richdale being able to access the dispute resolution processes under the Act. The outcome of the dispute resolution process would not be informed by or dictated by the declaration sought.
In any event, there is also no evidence before me that Mr Richdale may cease to be paid weekly payments again in the future. For present purposes, that is mere speculation. Even if that were to occur, there would be nothing preventing Mr Richdale from making a new application for conciliation, and if that is also not accepted, making an application for judicial review of that decision. If that were to occur, that application would need to be considered in the context of the relevant facts - which may be different to those present in this case. Court procedures exist to enable Mr Richdale to seek orders that any such judicial review application is heard expeditiously.
The first respondent submitted that even if there were to be a situation where Mr Richdale ceased to be paid in the future, that application was likely to involve different facts to the present case. In this regard, the first respondent submits that the only reasonable inference to draw from the evidence before the court is that at the time of non‑payment of income compensation in July 2024, Australian Fire Control was in the process of being acquired by Vitelergy Services, and that it was waiting on the insurer, Zurich, to make the payments.[35] The first respondent also submitted that the involvement of Vitelergy Services around this period of time is consistent with Australian Fire Control being in the process of being wound up or that it had ceased to exist.[36] The first respondent submits Mr Richdale had been advised of the involvement of Zurich, and that these steps are consistent with s 244 of the Act being applicable.[37] In these circumstances, the first respondent submits that if there is a failure to pay income compensation in the future, that will involve a different set of facts and will involve Zurich and not Australian Fire Control.
[35] First respondent's submissions dated 13 February 2025 [88].
[36] ts 28 - 29, 34.
[37] First respondent's submissions dated 13 February 2025 [88]; ts 28 - 29, 34, 36.
In all the circumstances, I am not satisfied on the basis of the evidence before that I can draw an inference that Australian Fire Control was in the process of being purchased, or it ceased to exist in the manner submitted by the first respondent. In this regard, I observe that the ASIC extract reveals that Australian Fire Control has not ceased to exist. Further, there is no evidence before me explaining the role of Vitelergy Services with regards to Australian Fire Control or in the payment of Mr Richdale's income compensation. The ASIC extract and the fact that Zurich is paying the income compensation raises the question of whether any of the circumstances referred to in s 244 of the Act may apply. However, on the basis of the information before me, I am not satisfied that the only reasonable inference I can draw is that submitted by the first respondent.
As mentioned in [86(b)] above, Mr Richdale submits that the question of whether a dispute exists under the Act is not dependent on the particular circumstances surrounding the non‑payment of income compensation. Rather, Mr Richdale submits that it is sufficient for the purpose of a dispute that there has been non-payment of income compensation, irrespective of the circumstances giving rise to that non‑payment.
I do not accept this submission.
Resolution of the application for judicial review will involve a question of statutory construction as to the meaning of the term 'dispute' in s 303 of the Act. It is not immediately clear to me that as a matter of statutory construction the non‑payment of income compensation, irrespective of the circumstances giving rise to that non-payment will constitute a 'dispute' for the purposes of the Act. This involves not only a consideration of s 303 of the Act and the natural meaning of the term 'dispute', but also a consideration of the meaning of the term in the context of the Act as a whole. I consider this may require consideration of the scope of the powers of both a conciliator and an arbitrator, and the extent to which a matter which purports to be a dispute is one which falls within the scope of the dispute resolution process under the Act. In this context, it is relevant to observe that Australian Fire Control has accepted liability to pay compensation and there is no evidence before the court that the failure to pay for the period of time in question was because of any of the matters identified in s 63, s 64, s 65 or s 66 of the Act. The evidence before the court is also that there was an acceptance of the need to pay Mr Richdale and that steps were put in place to do so (even if those steps subsequently ended up taking approximately eight weeks). These facts raise a question of statutory construction as to whether a conciliator, in these circumstances, has the power to give an interim compensation direction under s 320(1) of the Act, and whether an arbitrator has the power to determine the amount of compensation to which a worker is entitled under s 30 of the Act. I also observe that there is insufficient evidence before the court to make any finding as to the applicability of s 244 of the Act.
In these circumstances, I am not satisfied that it can be said with certainty that the declaration will have any broader utility in manner submitted by Mr Richdale.
Further, Mr Richdale's submission as outlined in [86(b)] above is contradictory. On one hand he submits that the reasons for the cessation of income compensation is immaterial, yet at the same time he submits that there is utility in informing various entities that the illegal cessation of income compensation payments will constitute a dispute. This characterisation necessarily invites consideration of the reasons for the cessation of income compensation.

Public interest

Mr Richdale submits that notwithstanding the above matters, it is nonetheless in the public interest to grant a declaration.
Mr Richdale submits that the issue raised by the application for judicial review is of such general importance, not only to Mr Richdale but also to the industry generally, including the first respondent, that the declaration should be made.[38] Counsel for Mr Richdale submitted that:[39]
its not an infrequent occurrence that weekly payments or income compensation has simply ceased … for a variety of different reasons. And our issue is that if workers are left without a remedy, if that's not considered a dispute by the Director of WorkCover, then workers are left with a lacuna.
[38] ts 15 and 20.
[39] ts 15.
The courts have recognised that in appropriate circumstances, it may be in the public interest to grant a declaration, even if the declaration will have no legal or practical consequences.
For example, in Australian Competition & Consumer Commission v Eurong Beach Resort Ltd,[40] Kiefel J (as her Honour then was) held that there was a public interest in making declarations regarding past conduct under the then Trade Practices Act 1974 (Cth). Her Honour, referring to Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2),[41] accepted that there was a public interest in a declaration being obtained by a regulatory authority that particular conduct is in breach of a statutory provision, regardless of whether or not injunctive relief is an appropriate remedy. That public interest in a bare declaratory relief included an educative purpose.
[40] Australian Competition & Consumer Commission v Eurong Beach Resort Ltd [2005] FCA 1134 [5] ‑ [6].
[41] Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89.
In Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission,[42] Cavanough J conducted an extensive and very helpful review of the authorities which have considered the issue of when a declaration may be granted even where the issue has no practical significance for the moving party, if there is a wider public interest in the making of the declaration. Examples of situations where a declaration has been granted in the public interest include where a party had engaged in conduct contrary to particular legislation;[43] to vindicate a claim that conduct has contravened relevant legislation and to indicate the court's disapproval of such conduct;[44] and to declare the law to ensure that public officials are aware of the law and the manner in which it should be administered.[45]
[42] Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762 [110] ‑ [116].
[43] Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (No 2) (1993) 41 FCR 89.
[44] Director of Consumer Affairs Victorian v Mecon Insurance Pty Ltd [2016] VSC 42 [28].
[45] CMA19 v Minister for Home Affairs [2020] FCA 736 [211].
Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission itself concerned an application for preliminary discovery in support of an application for a number of declarations. Relevantly, the applicants sought a declaration that the Commercial Passenger Vehicle Commission had been issuing refunds and rebates to some participants in the Victorian taxi industry in a manner which was 'ultra vires, erroneous, not in accordance with law and/or actuated by irrelevant considerations or improper purposes'. Cavanough J held that the application for preliminary discovery should be granted because:[46]
having regard to the line of cases relating to declarations in the public interest, and to the prospect that this case, insofar as it relates to the rebate and refund policy, may be one of those rare cases in which the executive and/or a statutory authority has pretended to dispense with the laws of the land, the applicants' claim for preliminary discovery of documents should not be defeated by the Commission's contention that any declaration would lack utility or foreseeable consequences for the parties.
[46] Victorian Taxi Families Inc and Redfield Court Holdings Pty Ltd v Commercial Passenger Vehicle Commission [2020] VSC 762 [117].
Mr Richdale relies in particular on the authorities of Plaintiff M61/2010E v Commonwealth,[47] and Gedeon v Commissioner of NSW Crime Commission,[48] in support of his submission that it is in the public interest for the court to make the declaration sought.
[47] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.
[48] Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120.
In Plaintiff M61/2010E v Commonwealth,[49] two citizens of Sri Lanka entered Australia at the Territory of Christmas Island without a valid visa and were detained under the Migration Act 1958 (Cth). Each claimed to be a person to whom Australia had protection obligations. Officers of the relevant department undertook refugee status assessments and concluded that each claimant was not a person to whom Australia had protection obligations. An independent merits review was then conducted, and the appointed independent reviewers reached the same conclusions. The plaintiffs sought judicial review of the decisions, claiming (amongst other matters) that each was not afforded procedural fairness during the original assessment or the subsequent review; and that the persons who undertook the assessment and the relevant review made errors of law by not treating themselves as bound to apply relevant provisions of the Migration Act and what Australian courts have held about the way in which the criterion of being a person to whom Australia owes protection obligations must be understood and applied.
[49] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.
The High Court held that the independent reviewers had made an error of law by failing to afford the plaintiffs procedural fairness, and by treating Australian legislation and case law as no more than an aid to the interpretation of the Refugees Convention, rather than as binding on those who made or reviewed the assessments.[50] However, given the particular statutory provisions, and the role played by the independent review in that statutory process, the High Court concluded that the plaintiffs' claims for writs of mandamus and certiorari should be refused.[51]
[50] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, [86] ‑ [91] and [96] ‑ [98].
[51] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, [86] ‑ [91] and [96] ‑ [101].
The High Court went on to consider whether the plaintiffs' claims for a declaration should nonetheless be made. In a joint judgment, the High Court observed that in many cases, the conclusion that certiorari and mandamus do not lie would require the further conclusion that no declaration of right should be made. However, in this case, the court held that it was appropriate to make a declaration because the declaration would produce foreseeable consequences for the parties and because it was in the public interest to make the declaration. The court held:[52]
The power to grant declaratory relief is a power which '[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise'. As pointed out in Ainsworth v Criminal Justice Commission, it is a form of relief that is confined by considerations which mark out the boundaries of judicial power.
In the circumstances of this litigation it cannot be said that a declaratory order by the Court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a 'real interest' in raising the questions to which the declaration would go. In these cases, the procedures which are said to be infirm were conducted for the purpose of informing the Minister of matters directly bearing upon the exercise of power to avoid breach by Australia of its international obligations. The statutory powers to the exercise of which the inquiries were directed are placed in the statutory and historical context earlier described. That context demonstrates the importance attached to the performance of the relevant international obligations by both the legislative and executive branches of the Government of the Commonwealth. Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers.
[52] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319, [102] - [103] (emphasis added; citations omitted).
In Gedeon v Commissioner of NSW Crime Commission,[53] the Crime Commissioner issued authorities under the relevant state legislation for six controlled operations to supply cocaine to an informant for sale to third parties. However, the controlled operation was also an offence under Commonwealth law, and the Crime Commissioner failed to obtain a certificate under the relevant Commonwealth Act authorising the controlled operations. The plaintiffs were charged under State legislation with taking part in the supply of the cocaine sold to them by the informant under the authorities. The plaintiffs applied for declarations that the authorities granted by the Crime Commissioner were invalid, thereby rendering illegal the obtaining of the evidence by means of the controlled operations and thereby providing scope for the exclusion of that evidence under s 138 of the Evidence Act 1995 (NSW) on the basis that the evidence was obtained improperly or illegally.
[53] Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120.

The High Court held that the 'power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings unless it is in the interest of justice'. In particular, the fragmentation of the criminal process is to be 'actively discouraged' and a declaration may be of limited utility where founded on facts admitted only for the purposes of the satellite litigation.[54] However, the High Court held that it was appropriate to make declarations that the relevant authorities were invalid because:[55]
as the outcome in this Court in Sankey v Whitlam itself indicates, in particular circumstances the interests of justice may militate in favour of the making of a declaratory order. In the present litigation none of the respondents has at any stage suggested that the proceedings for declaratory relief were inappropriate. Indeed, the applicants moved in the Supreme Court in apparent response to the stance taken by the Commissioner during the committal proceedings. That stance reflected an appreciation that what was at stake was more than a question of the admissibility of evidence in the ordinary sense mentioned by Stephen J in Sankey v Whitlam. There is a considerable public interest in the observance of due process by law enforcement authorities by putting beyond doubt important questions of construction of the LECO Act.
[54] Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [23].
[55] Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [25] (citations omitted).
I am not satisfied on the facts of this case that there is a public interest in making the declaration sought.
The declarations sought are not directed to declaring particular conduct constitutes a breach of the requirements of the Act, and thereby clarifying and educating the public; it is not a case whereby it is necessary to declare that the obligation to accord procedural fairness is applicable under the Act; and it is also not a case involving observance of due process of law enforcement authorities.
At its heart, the question raised by this application for judicial review concerns the appropriate construction of the term 'dispute' under s 303 of the Act in particular factual circumstances. Resolution of that question will involve a question of statutory construction as to the meaning of the term 'dispute' and then the application of that definition to the facts before the second defendant. Whilst it may be of interest for some participants in the system, including the regulator, to know the answer to the question posed by the application for judicial review, I do not consider the present case can be said to be of such public importance or be of a class of public interest litigation that warrants the making of a declaration notwithstanding there being no continuing controversy between the parties and where the declaration will not have any legal or practical consequences for the parties themselves.
I am also not satisfied, for the reasons outlined earlier, that resolution of question of statutory construction can be resolved independently of the facts of the case before the court. Further, in the present case there is a lack of evidence before the court regarding the role of the Vitelergy Services and the possible application of s 244 of the Act.
Finally, whilst it has been submitted that this is a case of general importance as the cessation of income compensation is a 'not infrequent occurrence', there is no evidence of that before me, and no concession from the first respondent to this effect.

Issue 4

In light of my conclusion in relation to issues 1-3, it is not necessary or appropriate to consider the meaning of the 'dispute' in the context of issue 4.

Conclusion

For the above reasons, I would dismiss Mr Richdale's application for judicial review. I will hear further from the parties in relation to the issue of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HY
Associate to the Hon Justice Seaward
23 JULY 2025