State of South Australia v Clarke
[2016] SADC 13
•10 February 2016
District Court of South Australia
(Civil)
STATE OF SOUTH AUSTRALIA v CLARKE
[2016] SADC 13
Judgment of His Honour Judge Slattery
10 February 2016
WORKERS' COMPENSATION
The State of South Australia claims for payments to it the sum of $233,324.06 paid to the defendant Darryl Clarke as workers compensation in the period between 2003 and 2006.
Clarke was formerly the Superintendant of Police in the position of Disciplinary Officer in charge of the Disciplinary Review Office with the South Australian Police force. Clarke made a claim for compensation under the Act due to alleged psychiatric disabilities that was accepted on 5 December 2000.
In 1998, Clarke was charged with 28 counts of breaching police regulations and Clarke was stood down from the police force. On 13 February 2003, the Police Disciplinary Tribunal found 17 of the 28 charges proved. Clarke’s appointment as Superintendant of Police was terminated on 30 October 2003.
On 3 November 2003, the Police discontinued weekly payments to Clarke on the basis that Clarke had been dismissed for conduct that amounted to serious and wilful misconduct (s 36(1)(e) of the Act). Subsequently on 20 November 2003, Clarke delivered a Notice of Dispute under s 36(4) of the Act and challenged the decision of the Police. As a result, the discontinuance determination was suspended under s 36(4)(a) and Clarke continued to receive the weekly payments. On 28 November 2003, the Police reconsidered and confirmed the discontinuance determination. Conciliation conferences were scheduled to be held in 2004 but they were adjourned by agreement of the parties by administrative order without attendance. On 16 September 2004, the matter was referred to the suspense list.
On 12 March 2003, Clarke lodged an appeal in the District Court against the findings of guilt made by the Tribunal. The hearing before Judge Smith in this Court commenced on 7 February 2005 and his Honour delivered his judgment on 15 September 2006 dismissing Clarke’s appeal.
Following Judge Smith’s decision, the Police made an application in November 2006 to lift the suspension of the discontinuance decision but that application was refused. In December 2006 the Police made a determination to discontinue the weekly compensation payments under s53(8) of the Act. Clarke issued a Notice of Dispute against the s53 rejection determination. By application commenced in 2009 the Police sought summary relief orders that Clarke was estopped from alleging that he had not been dismissed for serious and wilful misconduct. Summary relief was granted by orders made on 12 March 2010. Clarke further appealed the Tribunal’s decision and on 2 August 2010 the Full Bench of the Tribunal dismissed Clarke’s appeal. On 30 August 2011 the Tribunal set aside Clarke’s Notice of Dispute against the s53 rejection determination by consent of the parties.
Whether a decision made on 3 November 2003 by the Police to discontinue the weekly payments to Clarke was suspended by the delivery of a Notice of Dispute from Clarke and which had the effect of reinstating (the obligation to make) weekly payments.
Whether the lodgement by Clarke of a Dispute Notice on 20 November 2003 had the effect of suspending the operation of the Dispute Notice pursuant to s 36(4) of the Act.
Whether the Notice of Dispute of Clarke of 20 November 2003 came before a conciliator under the operation of Part 6A of the Act and if so, the date upon which the dispute first came before a conciliator.
Whether the dispute between Clarke and the Police was ultimately resolved and if so, the date upon which the dispute was ultimately resolved.
Whether the suspension of the operation of the Police decision under s 36(4)(a) of the Act continued until the date that the dispute was ultimately resolved.
Whether and if so to what extent any debt is owed by Clarke to the Police under the Act.
If any debt is owed by Clarke to the Police, whether the expression “(the)... amounts that were paid because of (the) suspension...” means or includes the gross or net of taxation amounts so paid by the Police and if so why.
Held:
1.The decision made on 3 November 2003 by the Police to discontinue the weekly payments to Clarke (that were made by the Police following its decision to accept the claim of Clarke on 5 December 2000) was suspended by the delivery of a Notice of Dispute from Clarke.
2. The lodgement by Clarke of a Dispute Notice on 20 November 2003 had the effect of suspending the operation of the discontinuance decision pursuant to s 36(4) of the Act.
3. The Notice of Dispute of Clarke of 20 November 2003 did not come before a conciliator under the operation of Part 6A of the Act until November 2006.
4. The dispute between Clarke and the Police was ultimately resolved on 2 August 2010.
5. The suspension of the operation of the Police decision under s 36(4)(a) of the Act continued until the date that the dispute was ultimately resolved.
6. If s 36(5) has application, Clarke is indebted to the Police in the amount of $233,324.06 but the claim of the Police is now based on the operation of s 34(5c) of the Act following the 1997 amendments and the amount payable by Clarke is in the sum of $166,408.06. The Police are entitled to a judgment in that sum.
7. If it was necessary to decide whether the Police could obtain an extension of time to bring a claim in restitution for payments made under a mistake of law, fact or fact and law, the Police had not fulfilled the requirements of the Limitations of Action Act 1936 to obtain an extension of time to bring proceedings.
8. The Court will hear the parties as to interest and costs.
Workers Rehabilitation and Compensation Act 1986 s34(5), s35, s36(1), s36(1)(e), s36(4), s36(4)(a), s53, s61, s63, s78, s81, s83A, s90, s90A, s90B, s91, s92, s92C, s92D, Division 3 and Division 4 of Part 6A; 1996 amendments to the 1986 Act s34(5c) ; Limitation of Actions Act 1936 s48(3) and (3a) ; Workers Compensation Tribunal Rules 2005 (SA) Second Schedule, cl 3(a); Workers Compensation Tribunal Rules 2005 (SA) Rule 16 ; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 Schedule 1, section 5; 1996 amendments to the 1986 Act s34(5c) ; Limitation of Actions Act 1936 s48(3) and s48(3a) ; Cheshire and Fifoot’s Law of Contract (2008) Seddon, M. 9 Ed.; Workers Rehabilitation and Compensation Regulations 2010 Regulation 36 ; Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 s5(2) Schedule 1, Transitional Provisions; Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act Second Reading, 17 October 1995, pages 271-273; Evidence Act s45A, s59(j) ; Acts Interpretation Act. s22 ; Statutory Interpretation in Australia 7th Edition DC Pearce and RS Geddes at paragraph 2.4; Taxation Administration Act s14ZW and s14ZX ; Stroud’s Judicial Dictionary of English Words and Phrases 8th Edition, page 3054; Income Tax Assessment Act 1997 (ITAA97) s6-5; Income Tax Assessment Act 1936 (ITAA36) 25(1) ; Gummow, “Moses v Macferlan: 250 years on” Australian Law Journal Vol. 84 (2010) 756, referred to.
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355, applied.
Local Government Association v Delle-Donne BC 9602741; SCGRG 2145 of 1995; S5661; Della Flora v Workers Rehabilitation and Compensation Corporation of South Australia BC9802070; (1998) SASC 6691 26 May 1998 (unreported); Burch v SA (1998) 71 SASR 12; Michael Dancer v Workcover Corporation (Australian Pty Ltd) [2010] SAWCT 50; Repatriation Commission v Vietnam Veterans Association of Australia New South Wales Branch Inc (2000) 48 NSWLR 548; Teachers Investment Co-operative v S H Properties Ltd (1984) 33 AltaLR (2d) 132; Bank of Nova Scotia v Zink (1934), 7 MPR 476; McDougall v Garipey (1922) 17 AltaLR 209; Re Wales: Parkinson v Woodfull [1934] VLR 297; Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd and Anor. (2014) 253 CLR 560; Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548; Brown v The Federal Commissioner of Taxation 42 ATR 118; Daniels v Anderson (1995) 37 NSWLR 438; Sola Optical Australia Pty Ltd v Mills [1987] 46 SASR 364; Trevorrow v The State of South Australia [2007] SASC 285; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Ulowski v Miller [1968] SASR 277; Forbes v Davies and Commonwealth of Australia (1994) Australian Torts Reports 81-279; McPhee v Blyth (1992) 166 LSJS 236; Luscombe v State of South Australia (1984) 118 LSJS 221; Williamson v Commissioner for Railways (1960) SR (NSW) 252, discussed.
Clarke v Commissioner of Police [2006] SADC 109 ; Lovett v Le Gall (1975) 10 SASR 479; Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003) 229 LSJS 14; Napolitano v Coyle (1977) 15 SASR 559; Transfield Services (Australia) Pty Ltd v Seal [2008] SAWCTC 62; Peter Nicholas Moloney Trading as Moloney and Partners v The Workers Compensation Tribunal [2010] SASCFC 17; Clarke v Burns [2008] SADC 148; Clarke v South Australia Police [2010] SAWCT 8; Clarke v The State of South Australia (South Australia Police) [2010] SAWCT 31; Reiter v Commissioner of Taxation (2001) 113 FCR 492; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; New South City Council v GIO General Limited (1997) 191 CLR 85; Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75; Christea v Workers Rehabilitation and Compensation Corporation (1993) 61 SASR 487; David Securities v Commonwealth Bank (1992) 175 CLR 353; Mills v Meeking (1990) 169 CLR 214; Southerland Publishing Co Ltd v Caxland Co Publishing Co Ltd [1938] 1 Ch 174; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; Kelly v R (2004) 218 CLR 216; R v Abdulla (2005) 93 SASR 208; Hall v City of Burnside and City Apartments Pty Ltd (2005) 92 SASR 579; R v Clarke (2008) 100 SASR 363; DPP v George (2008) 102 SASR 246; Peter Nicholas Moloney trading as Moloney & Partners v The Workers Compensation Tribunal [2010] SASCFC 17; SA v Lampard-Trevorrow (2000) 106 SASR 331; Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417; Zobori v Commissioner of Taxation (1995) 64 FCR 86; Baker v Courage [1910] 1 KB 56; Haines v Bendall (1991) 172 CLR 60 ; British Transport Commission v Gourley [1956] AC 185; Stewart v Glen Taggart Ltd (1963) SC 300; Parsons v BNM Laboratories Ltd [1964] 1 QB 95; Julien Praet Et Cie S/A v HG Poland Ltd [1962] 1 Lloyds Rep 566; Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 ; Atlas Tiles Ltd v Briers (1978) 144 CLR 202; Groves v United Pacific Transport Pty Ltd [1965] Qe R 62 , considered.
STATE OF SOUTH AUSTRALIA v CLARKE
[2016] SADC 13JUDGE SLATTERY
The action: a summary
In this action, the plaintiff Police claims for payments to it of the sum of $233,324.06 paid to the defendant Darryl Clarke as workers compensation in the period between 2003 and 2006.
Clarke was a senior police officer. In 1998 he was charged with a number of breaches of regulations in the discharge of his duties that the Police contended amounted to serious and wilful misconduct. In 2000 the Police Complaints Authority (Mr Prescott CM) found him guilty of some of the charges made against him. During this investigation, Clarke was stood down from his senior position in the police force. His appointment was terminated on 30 October 2003.
Clarke challenged the findings of the Police Complaints Authority and brought an appeal to this Court both as to the findings of the Police Complaints Authority on the charges brought against him and on penalty. The appeal on the charges was commenced in 2003, was heard in 2005 and judgment was given in 2006. The appeal against penalty was dismissed in 2008.
At the time of his dismissal on 30 October 2003, Clarke had made a claim for and was being paid workers compensation due to alleged stress. On 3 November 2003, the police exercised their rights under s36(1) of the Workers Rehabilitation and Compensation Act 1986 (the Act) to discontinue weekly payments to Clarke. The basis of the decision (the discontinuance determination) was that Clarke had been dismissed for conduct that amounted to serious and wilful misconduct (s36(1)(e) of the Act). Clarke then delivered a Notice of Dispute under s36(4) of the Act and challenged the decision of the police; as a result, the discontinuance decision was suspended under s36(4)(a) of the Act.
The suspension operated until the dispute first came before a conciliator under s36(4) of the Act. If the dispute was ultimately resolved in favour of the Police then the Police were entitled to proceed against Clarke for repayment of amounts paid because of the suspension of the discontinuance decision.
Clarke’s fate on all matters rested upon the result of his appeal in this Court. If he was successful in that appeal, then he was in a position to seek re-instatement and other orders. Until that time, Clarke continued to be paid weekly payments of workers compensation.
By decision of 15 September 2006 Clarke’s appeal was dismissed and in 2008 his appeal against penalty was dismissed. In November 2006 the police sought an order of the Workers Compensation Tribunal entitling them to discontinue weekly payments to Clarke. The Tribunal refused to make such an order on the basis that there was insufficient certainty at that time that the appeal findings created a res judicata/issue estoppel against Clarke. In December 2006 the Police discontinued the workers compensation payments to Clarke under s53 of the Act.
In an application before Deputy President McCouaig that was commenced in 2009, the Police sought orders for summary relief that Clarke was estopped from contending that he was not dismissed for conduct amounting to serious and wilful misconduct following the Police Complaints Tribunal decision and the District Court appeal decision. Deputy President McCouaig affirmed the decision of the Police of 30 October 2003 to dismiss Clarke and the decision to suspend weekly payments. The decision of the learned Deputy President was affirmed by the Full Bench of the Tribunal in its appeal decision of 2 August 2010.
The application of the Police that had been commenced in November 2006 seeking orders for the lifting of the suspension and to allow the discontinuance decision to be operative was not resolved until the decision by Deputy President McCouaig on 12 March 2010. The dispute was not ultimately resolved until the decision on appeal by Clarke of 2 August 2010. That was a time when, for s36(5) of the Act or s36(5c) of the 1997 amendments to the 1986 Act (hereineafter referred to as the 1997 amendments) the dispute was ultimately resolved. The right of the Police to make recovery against Clarke arose under s36(5) or, as later contended, under s36(5c) of the Act, but only under the operation of the suspension of the discontinuance decision namely until the dispute first comes before a conciliator. The Police conceded that the applicable subsection was s36(5c) and not s36(5) as that provision was originally to be found in the 1986 Act.
Once the dispute was ultimately resolved, then under the Regulations and within two years, the police were entitled to bring this action for recovery of the amounts that were paid because of the suspension.
Clarke contended that there was no entitlement to make recovery from him as any suspension of the discontinuance decision of the police lasted only until the dispute between Clarke and the police first came before a conciliator. Clarke contended that this occurred in 2003 or 2004.
Clarke also later contended that any such claim was time barred because any payment made to him by police after the matter first came before a conciliator was paid under a mistake of fact, law or of fact and law. If the police sought restitution on that basis, it would need an extension of time under the Limitation of Actions Act 1936. An extension of time should not be granted because he also said that if the gross amounts of the salary paid were recoverable against him, he would be unable to obtain an extension of time to object against the assessments made by the Commissioner of Taxation of the tax payable upon his salary in each of the years of income that he was paid workers compensation between 2003 and 2006.
In the result, I have decided that the amounts of workers compensation paid to Clarke between 2003 and 2006 are recoverable from him by the Police. The matter did not come before a conciliator until November 2006. In the period before November 2006 the parties all awaited the appeal decision of this Court. If the appeal failed then the Police intended to press their contention that the discontinuance decision (s36(1)(e) of the Act) was correct. Until that decision was known, there could be no conciliation as contemplated under the Act because the ‘metes and bounds’ of the ‘dispute’ were unknown. There was nothing that a conciliator could conciliate about and once the appeal was dismissed, it was the decision of the Tribunal which prevented the suspension of the discontinuance decision being lifted. That issue was not resolved until the decision of Deputy President McCouaig of 12 March 2010 and the appeal decision on 2 August 2010.
If contrary to those findings, it became necessary for the Court to consider concepts of restitution, the claim of the Police would be dismissed because the Police did not comply with the common law requirements to obtain an extension of time to bring proceedings. The Police failed to present the necessary evidence about the ascertainment of a material fact in accordance with the requirements of s48(3) and (3a) of the Limitation of Actions Act 1936.
The Police are entitled to judgment in their favour in the amount of $166,408.06 plus interest.
The background
The plaintiff is the State of South Australia in right of the South Australian Police. The Police are a self insured employer under s61 of the Workers Rehabilitation and Compensation Act 1986 (SA) (the Act). Under s63 of that Act, the powers and discretions of the Workcover Corporation of South Australia set out in the Act have been delegated to the Police.
The defendant Clarke was formerly the Superintendant of Police in the position of Disciplinary Officer in charge of the Disciplinary Review Office within the South Australian Police force. In 1998 he was charged with 28 counts of breaching police regulations and those charges were heard before the Police Disciplinary Tribunal. That Tribunal found 17 of the 28 charges proved, comprising 12 counts of neglect of duty, 4 counts of falsehood or prevarication and 1 count of discreditable conduct.
In December 2006 the Police made a determination under s53 of the Act to discontinue payments of workers compensation. Clarke put a challenge to that decision on 12 January 2007 which challenge was not resolved until 30 August 2011 when the Tribunal set aside Clarke’s Notice of Dispute against that rejection determination by consent of all parties.
In November 2006, the Police made an application to remove the suspension and to allow the discontinuance decision to become operative. Although that matter was listed for Judicial Determination, that determination did not occur because the employer pre-empted the matter by redetermining the original claim under s53 of the Act. The question of the application of the Police to remove the suspension was not dealt with until 12 March 2010. By a decision of that date, Deputy President McCouaig made a decision, on an application for summary judgment by the Police, to strike out the Notice of Dispute filed by Clarke. The Deputy President decided that Clarke was precluded from contending that he was not dismissed for conduct which amounted to serious and wilful misconduct having regard to the decisions of the Police Disciplinary Tribunal and the judgment of the District Court of 15 September 2006. The learned Deputy President decided to accept the evidence and transcript from both the Police Disciplinary Tribunal and the District Court proceedings in assisting him to make his decision.
An appeal from that decision was delivered by the Full Bench of the Tribunal on 2 August 2010. The Full Bench decided that the appeal of Clarke should be dismissed.
The charges against Clarke were heard after complaints about his performance were received by the Commissioner of Police. During the time that the complaints were investigated, Clarke was relieved of his duties. The investigation into Clarke’s conduct started on 4 July 2000 following formal charges laid against him by the Commissioner of Police alleging breaches of the Police Regulations 1982 and the Police Regulations 1988.
On 30 January 1999, Clarke made a claim for compensation under the Act. Clarke claimed that he suffered a compensable disability, namely psychiatric disabilities, which he alleged arose in the course of his employment with the Police. On 5 December 2000, the police accepted Clarke’s claim for compensation. The police then commenced making weekly payments of income maintenance to Clarke pursuant to s35 of the Act.[1]
[1] Weekly payments
Section 35. (1) Subject to this Act, where a worker suffers a compensable disability that results in
incapacity for work, the worker is entitled to weekly payments in respect of that disability in
accordance with the following principles.
On 13 February 2003, Mr Prescott CM of the Police Disciplinary Tribunal found that Clarke was guilty of 17 of the 28 allegations of breaches of the Police Regulations 1982 and 1988 respectively. It was then necessary for Mr Prescott CM, sitting as the Police Disciplinary Tribunal, to remit issues of penalty arising out of the findings of guilt that he had made to the Commissioner of Police. On 28 February 2003, the Commissioner of Police delegated his task of determining penalty to Assistant Commissioner Burns.
On 12 March 2003, the defendant lodged an appeal in this Court against the findings of guilt made by Mr Prescott CM sitting as the Police Disciplinary Tribunal.
By letter of 30 October 2003, Clarke was notified by Assistant Commissioner Burns that he had been dismissed from his employment with the Police with immediate effect. This was the notification of penalty given to Clarke. Clarke then commenced his appeal in this Court in respect of penalty.
Judge Smith of this Court heard the appeal against the findings of Mr Prescott CM. In paragraphs 1-4 of his Honour’s judgment, the relevant background to the appeal and other matters are set out. Those paragraphs read as follows:[2]
This matter being Action No. 94 of 2003 is an appeal instituted by Darryl John Clarke (“the appellant”) on the 12th March 2003 pursuant to s46 of the Police (Complaints and Disciplinary Proceedings) Act 1985 (SA) against a decision of the Police Disciplinary Tribunal (“the Tribunal”) constituted by Mr Kelvyn Prescott CM (“the Chief Magistrate”), made on the 13th February 2003, whereby the appellant was found guilty of 17 of 28 counts of breaching Police Regulations. The breaches in respect of which the appellant was found guilty could be conveniently characterised as 12 counts of neglect of duty, four counts of falsehood or prevarication and one count of discreditable conduct. The Tribunal duly remitted the matter to the Commissioner for the imposition of punishment (see section 39(3) of the said Act).
On the 9th May 2003, the Tribunal ordered that the appellant pay within 28 days the respondent’s costs of the proceedings before the Tribunal, which it fixed at $65,000. The appellant appealed to this Court against that decision (see Action No. 258 of 2003). In this Court, on the 5th June 2003, Judge Bishop ordered a stay of that costs order pending the determination of this appeal.
On the 30th October 2003, the delegate of the Commissioner, by way of punishment, dismissed the appellant from the South Australia Police. The appellant appealed to this Court against that penalty (see Action No. 609 of 2003). The appeal against penalty was not argued before me, but like the costs order, awaits the outcome of this matter.
On the 3rd February 2005, before me, the appellant applied to have an application to stay the penalty of dismissal heard prior to the hearing of the appeal (see s42D of the District Court Act 1991). The penalty of dismissal had been put into effect as long ago as the 30th October 2003. The application was opposed, inter alia, on the ground that it was incompetent. On the 7th February 2005, which was the date upon which the hearing of this appeal was due to commence, I indicated that I would not entertain a stay application, but would allow the parties to further argue it at the conclusion of argument on this appeal. That did not occur. The application is therefore still in abeyance.
[2] Clarke v Commissioner of Police [2006] SADC 109 at 3.
The hearing before Judge Smith commenced on 7 February 2005 and was not complete until 28 April 2005 over some 40 hearing days. Judge Smith delivered his judgment on 15 September 2006. The judgment comprises some 107 pages and it is not necessary for present purposes that I canvass the matters set out in Judge Smith’s judgment. However it is appropriate to reiterate the overall conclusion of his Honour which he describes at paragraph [420] as follows:[3]
For the above reasons, I am of the view that there are no “cogent reasons” to depart from the decisions of the Police Disciplinary Tribunal made on the 13th February 2003 in relation to the 17 counts in respect of which the appellant was found guilty. Further, for the above reasons I am of the view that the grounds of appeal which were not focussed on particular counts were unfounded. Therefore, in accordance with section 42F(a) of the District Court Act 1991 I affirm the decisions appealed against.
[3] Clarke v Commissioner of Police [2006] SADC 109.
On 7 November 2008, Judge Smith published a second judgment dismissing the appeal of Clarke in respect to the penalty. Judge Smith said at [145] and [146] that the dismissal was an appropriate punishment and that his Honour would have arrived at the same conclusions as the Deputy Commissioner of Police.
The discontinuance decision
On 3 November 2003 the Police notified Clarke by letter of its intention to discontinue his weekly payments of income maintenance within a 21 day period pursuant to s36(1)(e) of the Act. Section 36(1)(e) of the Act then relevantly provided as follows:
Discontinuance of weekly payments
36(1)Subject to this Act, weekly payments to a worker who has suffered a compensable disability must not be discontinued unless:-
(a) The worker consents to the discontinuance; or
(b) The corporation is satisfied on the basis of a certificate of a recognised medical expert, that the worker has ceased to be incapacitated for work by the compensable disability; or
(c) The worker has returned to work; or
(d) The worker has obtained work as an employee, or as a self employed contractor that is providing remuneration equal to or above the workers notional weekly earnings; or
(e) The worker is dismissed from employment for serious and wilful conduct;
(f) …
(g) ….
(h) ….
The Police alleged that as a result of the circumstances concerning Clarke’s conduct which led to the decision of the Deputy Commissioner to impose a penalty of dismissal of employment, (which was upheld by Judge Smith of this Court) there were grounds to discontinue the weekly payments in respect of the Police’ (apparently) compensable disability (see s36(1)(e)).
On 20 November 2003 Clarke filed a notice of dispute with the South Australia Workers Compensation Tribunal. The notice of dispute challenged the discontinuance determination made by the Police. The notice was filed pursuant to s90 of the Act. That provision read as follows:
Notice of dispute
90.(1) A person with a direct interest in a reviewable decision (the "applicant") may lodge a notice of dispute with the Registrar.
(2) A notice of dispute must be in writing and in the form prescribed by regulation.
(3)A person has a direct interest in a reviewable decision if the person—
(a)is directly affected by the decision; or
(b)is the employer from whose employment the compensable disability arose or is alleged to have arisen.
Time for lodging notice of dispute
90A. (1) The notice of dispute must be lodged within one month after the applicant receives notice of the reviewable decision unless the Tribunal allows an extension of time.
(2) The Tribunal’s power to extend time may only be exercised by the President or a presidential member or conciliation and arbitration officer to whom the President has delegated the power to allow an extension of time.
(3)An application an extension of time must be made as in the manner and form prescribed by the regulations.
Notice to be given by Registrar
90B. (1) On receiving a notice of dispute, the Registrar must immediately send copies of the notice of dispute to the other parties to the dispute.
(2)The copy of the notice of dispute sent to the relevant compensating authority must be accompanied by copies of any documentary materials lodged with the notice of dispute.
When there is a discontinuance of weekly payments in respect of a person who has (allegedly) suffered a compensable disability there are a number of requirements under the Act. The first requirement is a notice under s36(3) of the Act. The Police were required to give notice in writing to Clarke setting out the information required by the regulations under the Act about the reasons why the Corporation had decided to discontinue the payments and informing Clarke of his review rights. Under s36(3)(a) it was necessary to give that notice at least 21 days before the decision is to take effect.
Once that is done, s36(4) comes into operation. That section reads as follows:
S36 …
(4)If a worker lodges a notice of dispute disputing a decision by the Corporation to discontinue or reduce weekly payments under this section within one month after the worker receives notice of the decision—
(a) the operation of the decision is suspended, and the weekly payments must continue or, if the decision has already taken effect, be reinstated (to their previous level), until the dispute first comes before a conciliator; and
(b) the Tribunal may further suspend the operation of the decision (from time to time) to allow a reasonable opportunity for resolution of the dispute by conciliation, arbitration or judicial determination (as the case requires) without prejudice to the worker’s financial position in the meanwhile.
Clarke’s challenge to the discontinuance decision
In action 8076 of 2003N in the South Australian Workers Compensation Tribunal, Clarke challenged the discontinuance decision of the Police concerning the alleged compensable disability suffered by him. Under s36(4) of the Act and in the absence of any notice of dispute by a worker in the position of Clarke, then weekly payments would be suspended. It is to be recalled that s36(4) only operates in very limited circumstances. Those are the circumstances set out in s36(1) of the Act, the relevant parts of which I have already set out earlier in this judgment. These are circumstances which form the basis of a limited range of exclusion provisions under which weekly payments due to an employee may be terminated. That limited range of circumstances is in accord with the general philosophy of the Act connected with the rehabilitation of injured workers and, as the objects of the Act indicate[4] the need to achieve an injured worker’s return to work.
[4] Section 2 Objects of Act
(1) The objects of this Act are –
(a) to establish a workers rehabilitation and compensation scheme –
(i)that achieves a reasonable balance between the interests of employers and the interests of workers; and
(ii)that provides for the effective rehabilitation of injured workers and their early return to work; and
(iii)that provides fair compensation for employment-related injuries; and
(iv)that reduces the overall social and economic cost to the community of employment-related injuries; and
(v)that ensures that employers’ costs are contained within reasonable limits so that the impact of employment-related injuries on South Australian businesses is minimised; and
(b) to provide for the efficient and effective administration of the scheme; and
(c) to establish incentives to encourage efficiency and discourage abuses; and
(d) to ensure that the scheme is fully funded on a fair basis; and
(e) to reduce litigation and adversarial contests to the greatest possible extent.
(2)A person exercising judicial, quasi-judicial or administrative powers must interpret this Act in the light of its objects without bias towards the interests of employers on the one hand, or workers on the other.
(3)The Corporation, and the employer from whose employment a compensable injury arises, must seek to achieve an injured worker’s return to work (taking into account the objects and requirements of this Act).
Thus, for s36(4), if there is a dispute by the employee about the decision of the Corporation to discontinue or reduce weekly payments then particular circumstances pertain. The first is that the operation of the decision is suspended and the weekly payments must continue “…until the dispute first comes before a conciliator.” There is also a power for the Tribunal to further suspend the operation of any decision from time to time to allow a reasonable opportunity for resolution of a dispute by conciliation, arbitration or, judicial determination if required. This power is without prejudice to the worker’s financial position in the meantime. No distinction is to be made between the reference to the conciliator in the first sub-paragraph of sub-section (4) and the Tribunal in the second sub-paragraph of sub-section (4). This is because, by definition, the Tribunal can include a conciliator.[5]
[5] Workers Rehabilitation and Compensation Act 1986 (SA) ss 78, 81.
The effect of Clarke’s Notice of Dispute
As a result of the Notice of Dispute lodged by Clarke, the weekly payments to Clarke were reinstated and thus the discontinuance determination was suspended. Under s36(1) of the Act, the decision made by the Police as employer of Clarke was called a discontinuance determination based upon his dismissal from his employment with the Police for conduct amounting to serious and wilful misconduct. The Police recommenced making payments of weekly income maintenance to the defendant under s36(4) of the Act. After Clarke lodged his Notice of Dispute with the Tribunal against the discontinuance determination, the Police reconsidered and then confirmed the discontinuance determination pursuant to s91 of the Act[6]. I will deal with those actions later in these reasons.
[6] Section 91.
(1) The relevant compensating authority must, on receiving a copy of a notice of dispute under this Part—
(a) assign a suitable person to reconsider the disputed decision; and
(b) have the decision reconsidered in the light of the matters set out in the notice of dispute.
(2) A person assigned to reconsider the disputed decision—
(a)may (but need not be) an officer of the relevant compensating authority but must not be the person who made the disputed decision; and
(b)must be a person who has been nominated to the Registrar in accordance with the regulations as a person who may be assigned to reconsider disputed decisions under this Division.
(3) On completion of the reconsideration, the relevant compensating authority must confirm or vary the disputed decision to conform with the result of the reconsideration and give the Registrar a written notice stating—
(a) the result of the reconsideration; and
(b) whether the compensating authority has confirmed or varied the decision as a result of the reconsideration and, if the decision has been varied, how the decision has been varied.
(4) If the disputed decision is varied, the written notice must also be given to the other parties to the dispute.
(5)The relevant compensating authority must complete the reconsideration and give the notice or notices stating the result of the reconsideration within 7 days after receiving the notice of dispute or a longer time allowed by the Registrar on the authority’s application.
Penalty: $5 000.
(6)The variation of a decision under this section is not to be regarded as a redetermination of a claim.
(7)A decision on a claim by the Tribunal itself, made in the exercise of the Tribunal’s special jurisdiction to expedite decisions on claims2, is not liable to reconsideration under this section; if such a decision is disputed, the Registrar must immediately refer the dispute for conciliation.
The referral of the dispute to conciliation
Upon the confirmation of the discontinuance determination by the Police on 28 November 2003, s91A of the Act has application.[7] Under that section, on reconsideration of the disputed decision, if the Police confirms the decision, then the Registrar must refer the dispute for conciliation. The initial reconsideration and the reference of the dispute to conciliation occurs pursuant to Division 3 of Part 6A of the Act.[8]
[7] Section 91A.
If—
(a)the relevant compensating authority, on reconsideration of a disputed decision, confirms the decision; or
(b) the relevant compensating authority, on reconsideration of a disputed decision, varies the decision and a party to the dispute expresses dissatisfaction with the result of the reconsideration in accordance with the rules, the Registrar must refer the dispute for conciliation.
[8] Division 1 of that Part set outs preliminaries including what are reviewable decisions. Division 2 of that part prescribes notices of dispute, the time for the lodging of the notices of dispute, and notices to be given by the Registrar.
Once the matter is referred by the Registrar for conciliation, Division 4 of Part 6A comes into operation. This Division comprises sections 92, 92A, 92B, 92C and 92D of the Act.
When the dispute is referred for conciliation, then under s92 of the Act, a presidential member or a conciliation officer must be assigned to preside at the conciliation proceedings. Each party is required to disclose to the conciliator the existence and nature of all evidentiary material in the party’s possession relevant to the dispute and at the request of another party give the party access to that relevant evidentiary material. Under s92A, in conducting the conciliation proceedings the conciliator is required to seek to identify the issues in dispute and to narrow the range of disputes and explore the possibilities of resolving the dispute by agreement.
Therefore, s92 and s92A may be seen as a code or list of preliminary matters to be attended to prior to the embarkation by the conciliator on what may be described as a conciliation conference as prescribed and described in s92B and following. Section 92 of the Act sets out the obligations of the Conciliator and the parties to the dispute who each are required to comply with the rules about disclosure to each other and to the Tribunal of all evidentiary material concerning the dispute. Section 92A speaks of a conciliator conducting “conciliation proceedings”. That expression is undefined but it contemplates some action on the part of the conciliator with the parties. Section 92 prescribes the procedure in conciliation proceedings however, it does not purport to prescribe what actually constitutes conciliation proceedings.
Conciliation: mandatory steps
Under s92B of the Act there are a number of mandatory provisions. The section reads as follows:
92B.(1) A compulsory conference of the parties to a dispute that has been referred for conciliation must be called within the time fixed by the rules.
(2) The Tribunal may summon the parties to the dispute and any other persons who may be able to assist in resolving the dispute to appear at the conference.
(3) A compulsory conference may, at the discretion of the conciliator, be held in public or private or partly in public and partly in private.
(4) A person who fails to attend a compulsory conference as required by summons or who, having attended, fails to participate in the conference as required by the conciliator presiding at the conference, commits a contempt of the Tribunal.
Under this section, the compulsory conference (of the dispute) referred for conciliation must be called within the time limit fixed by the Rules. That time limit is 21 days under Rule 16 of the Workers Compensation Tribunal Rules 2005 (SA). The Tribunal has power to summon persons other than the parties under s92B of the Act and any person who fails to attend the compulsory conferences as required, whether that person be a party or a person other than a party to the dispute commits a contempt of the Tribunal. Obviously enough, the conciliation conference is an essential feature of dealing with disputes. It is a pro active process.
The process of a conciliation conference
That background, in turn, informs the procedure in conciliation proceedings which is set out in s92C of the Act. That section reads as follows:
92C.(1) In the course of conducting conciliation proceedings, the conciliator may interview the parties to the dispute separately or together.
(2) The conciliator presiding at a conference may (subject to the rules) adjourn the conference from time to time to allow the parties to gather further information, to consider their respective positions or for other purposes relevant to the resolution of the dispute.
(3) Evidence of anything said or done in the course of conciliation proceedings is only admissible in subsequent proceedings by consent of all parties to the proceedings.
(4) However—
(a)evidence of a settlement reached in conciliation proceedings is admissible (without the consent of all parties) in subsequent proceedings; and (b) evidence of the offers made in the course of conciliation proceedings is admissible (without the consent of all parties) in subsequent proceedings for the purpose of applying provisions for deciding questions about costs.
(5) A settlement to which counsel or another representative of a party agrees at a conference is binding on the party.
(6) The conciliator presiding at a conference may make a determination or order to give effect to a settlement reached at the conference.
(7) A determination or order under subsection (6) is a determination or order of the Tribunal.
The conciliation proceedings are directed towards a settlement of the dispute between the parties. Section 92C(6) of the Act does not give rise to any separate power of a conciliator to make any decision which in any way binds the parties prior to them reaching a settlement. The operation of the sub-section is conditional upon a settlement having been reached between the parties. It is only then that a conciliator may make a determination or make an order to give effect to a settlement reached at the conference. There are also ancillary powers of a conciliator in order to carry into effect the settlement reached between the parties.
It is only if the conciliation proceedings did not result in an agreed settlement that the conciliator may refer the dispute into the Tribunal for judicial determination. At that time, Division 6 of Part 6A of the Act comes into operation. A Judicial Determination is required to be made by a Tribunal constituted of a single presidential member or, if the President decides, the full bench of the Tribunal.[9] It is therefore possible that a conciliator may be a full presidential member and that the person constituting the Tribunal under the referral under s92D may be another single presidential member.
[9] Workers Rehabilitation and Compensation Act 1986 (SA) s 94A(1) and (2).
The importance of the conduct of the conciliation proceedings becomes apparent when consideration is given to the operation of s36(5) of the Act which reads:
If the dispute is ultimately resolved in favour of the Corporation, the Corporation may, at the Corporation’s discretion (but subject to the regulations)—
(a) recover amounts that were paid because of suspension of the operation of the Corporation’s decision from the worker as a debt; or
(b) …
The questions for consideration
There are a number of questions that arise from this recitation of the facts and the background. These include: when it may be said that a dispute first comes before a conciliator for s36(4)(a) of the Act; and, when may it be said that a dispute is ultimately resolved for s36(5) of the Act. Those are matters that require consideration in this action as well as the other questions that I set out in paragraphs [95] and [203] hereof.
A conciliator was appointed by the Tribunal following the initial reconsideration of the Notice of Dispute of Clarke and its rejection under s91 of the Act. In accordance with the mandatory requirements of s91A of the Act, the Registrar referred the dispute for conciliation. There is no evidence disclosing that the machinery provisions of Division 4 of Part 6A then came into operation. For example, the mandatory requirements of s92(1)(b)(i) and (ii) were not complied with by the parties. A conciliator did not convene a meeting in which the conciliator sought to identify the issues in dispute and to narrow the range of the dispute or to explore the possibilities of resolving the dispute by agreement as required by s92A. Whatever conference may have been required under s92B and whatever may have occurred there was no conduct of any procedure within what may be contemplated to be conciliation proceedings for s92C of the Act.
The chronology discloses that on 20 January 2004, the first conciliation conference was scheduled to be held. It was adjourned by agreement of the parties without attendance. This was done by administrative order and so without the attendance of the parties. The same procedure was followed on 9 March 2004, 19 April 2004, 17 June 2004, and 13 August 2004. On 16 September 2004, the dispute was referred to the suspense list. I will assume for present purposes that this was, similarly, an administrative decision made by the member of the Tribunal.
The conciliation and Clarke’s appeal
The reason why the matter was adjourned was that the dispute which was before the Tribunal centred around the decision by the Police (c.f. s36(1)(e) of the Act) to dismiss Clarke from his employment for conduct which amounted to serious and wilful misconduct. At that time, Clarke’s appeal before this Court had not reached the hearing stage. The hearing before Judge Smith commenced on 17 February 2005 and concluded on 22 April 2005. The decision of Judge Smith was brought down on 15 September 2006 (concerning the charges) and the decision about penalty on September 2008.
The position apparently taken by all concerned was that it would be necessary for this Court to have disposed of the appeal of Clarke against the decision of Mr Prescott CM in the Police Disciplinary Tribunal before any resolution could occur in the Workers Compensation Tribunal concerning the dispute raised by Clarke. In the meantime, Clarke continued to be paid under his Notice of Dispute. The Police had recommenced payment of weekly income maintenance to the defendant under s36(4) of the Act from soon after 20 November 2003 when Clarke lodged the Notice of the Dispute in the Tribunal against the discontinuance determination.[10]
[10] On 12 March 2003 Clarke lodged his appeal to the District Court against the decision of the Police Disciplinary Tribunal; on 6 November 2003 Clarke instituted his appeal against penalty to the same court.
After 18 May 2006, Clarke’s dispute application remained in the suspense list in the Tribunal. Then on 15 September 2006 Judge Smith dismissed the appeal of Clarke from the Police Disciplinary Tribunal. On 3 November 2006 the Police made an application in the Tribunal that the s36(4) suspension be lifted and that weekly payments made pursuant to s36(4) cease. In the application the Police sought the following orders:[11]
That the operation of the suspense of the section 36(1)(e) notice be lifted and that weekly payments pursuant to section 36(4) of the Act cease.
That this application be made specially returnable.
…
[11] Exhibit GN2 to the Affidavit of Grantley Brian Thomas Newell sworn 29 January 2014 (FDN 20).
This application was supported by an affidavit of Prudence Margaret Reid of the Crown Solicitor’s Office.[12] In the affidavit Ms Reid identified the topic of the application, the background to the application including the details in relation to the various appeals brought by Clarke, the decision of Judge Smith, and the fact that Judge Smith had affirmed the decisions appealed against. Ms Reid emphasised that at page 106 of his decision, Judge Smith said:-
In all, the journey through the evidence adduced in respect of each and every one of the 17 counts, far from producing unease in respect of the findings of guilt, has produced an overwhelming conviction that the appellant was not attending to the important job he had in SA Police and on the occasion the subject of certain charges when he was required to account he sought to cover his defaults by falsehood and deceit. So in all, an analysis of the evidence adduced in the tribunal, far from weighing against the findings of the Chief Magistrate, well and truly support them.[13]
[12] Ibid FDN 20.
[13] Ibid paragraph 14.
Ms Reid sets out at paragraph 19 of the affidavit the grounds upon which the application is made. In my opinion, the grounds as stated by Ms Reid in her affidavit of 3 November 2006 are revelatory about a number of the issues for my consideration in this matter. It is necessary that I set out some of the portions of that affidavit as follows:-
19The applicant says that the suspension of the operation of the decision of the applicants section 36 notice should be lifted on the following basis:
1. The applicant says that the findings of the District Court satisfy the test of “serious and wilful misconduct”.
2. At this stage the dismissal of the respondent stands although it is acknowledged that this is still subject to the appeal before the District Court. The respondent is pursuing the appeal with respect to penalty in spite of the clear findings of Judge Smith referred to… above.
3. The respondent has been in receipt of income payments since approximately 30 October 2003 with, the applicant submits, limited chances of success on this challenge to the section 36(1)(e) notice.
4.It is contended that the applicant being the employer in this case is able to rely upon the findings on the basis of issue estopple (sic).
6. …
7. The quantum of recovery in the event the exempt employer is successful in maintaining its successful notice is approximately $227,000 to date. The exempt employer has fears that as the amount of weekly payments made increases, the less likely it will be that a full recovery can be made from the worker.
…
20.I now seek an order from this honourable Tribunal that the operation of the suspension of this decision be lifted.
The affidavit of Ms Reid was read by consent and Ms Reid was not required for cross-examination. The affidavit forms part of the evidence before me in this action. I refer to the contents of the affidavit in full later in these reasons.
In my opinion, these paragraphs illuminate a number of facts from which conclusions can be drawn actually or by inference. The first is that that the parties (and the Tribunal) were abiding the event of the District Court proceedings. That is, the application of Clarke under s36(4) of the Act and the dispute which arose thereafter which was to be dealt with under Part 6A of the Act awaited the final decision of Judge Smith about the appeal from the decision of the Police Disciplinary Tribunal. That was both appropriate and understandable in all of the circumstances. There were very good public policy reasons for the Tribunal abiding the event of the decision of Judge Smith. At one level the parties and the conciliator could really do little else. The argument before Judge Smith ranged over some 40 days of hearing time and my summation of the matter from my perusal of Judge Smith’s decision is that many issues were thoroughly canvassed at great length before Judge Smith. That observation emphasises the importance of the public policy rule to avoid duplication of proceedings.
Clarke’s reliance on the appeal decision in the Tribunal
The issue before the Tribunal was whether the application of s36(1)(e) of the Act could be satisfied in these particular circumstances. The question for the Tribunal was whether Clarke had been dismissed from his employment due to conduct which amounted to serious and wilful misconduct. It was only once the decision was made on this issue, that the Tribunal could be satisfied (or not) that the discontinuance of weekly payments which was decided upon by the Police, was justified in all of the circumstances. In my opinion, that was the starting point for any consideration by any conciliator under Part 6A of the Act.
Another question that remained was the issue of penalty but that was a matter that did not affect the finding of Judge Smith that informed the decision of the Police about the conduct of Clarke.
That situation brought into sharp focus the question of ongoing payments made under s36(4) of the Act. Once the decision of Judge Smith was delivered, the Police contended that they were able to rely upon these findings as a ground of issue estoppel before the Tribunal. If it be the case that the Tribunal accepted that an issue estoppel/res judicata arose upon the decision of Judge Smith, then that would be an end of the matter from the point of view of Clarke. This was a matter for the Tribunal. This in turn rendered nugatory the conduct of the conciliation process if the appeal before Judge Smith failed. The result is that the key to the future conduct of the proceeding was the decision of Judge Smith. There was no conciliation process because it would have been a wasted exercise for the same reasons.
This was the basis upon which the Police were proceeding in the Tribunal. Once the issues that informs the issue of “serious and wilful misconduct” were decided by Judge Smith, the Police contended for their part that an issue estoppel arose. Ms Reid also avers in her affidavit (paragraph 19.5) that there has been a reasonable opportunity for the matter to be resolved. It is not entirely clear what Ms Reid refers to here but it may be understood that sufficient time has elapsed between the decision of Judge Smith on 15 September 2006 and the affidavit of Ms Reid on 3 November 2006 for the matter to be resolved.
Appeal decision: the Police seek to terminate payments to Clarke
On 13 November 2006, the application of Clarke was removed from the suspense list and a Directions Hearing was conducted in the Tribunal. The purpose of the Directions Hearing was to ventilate an application of the Police for the matter to be listed for trial and to suspend for discontinuance of the payments of income maintenance compensation. I have set out above the orders sought in the application. The police relied upon the decision of Judge Smith of 15 September 2006 as well as upon the matters set out by Ms Reid in her affidavit, particularly that the amount paid to Clarke now totalled somewhere in the amount of $220,000.
Clarke maintains that he neither consented to nor opposed the application to lift the suspension under s36(4) of the Act. In light of his subsequent conduct, it is difficult to comprehend that assertion.
On 13 November 2006 the Tribunal declined the application of the Police. I do not have in evidence before me the transcript of the hearing of this application. It appears that the Tribunal were not satisfied that an issue estoppel/res judicata necessarily arose as a consequence of the decision of Judge Smith. On one view it may be said that the Tribunal wished to preserve the status quo until the disposal of the whole application of Clarke including on penalty. That would be understandable but speculative and it is unnecessary to consider that matter any further. Orders were then made listing the dispute for a directions hearing in March 2007. That directions hearing was preparatory to the application by the Police being heard and determined by the Tribunal and for the making of final orders. When the Tribunal declined the application of the Police on 13 November 2006, it did so on a preliminary basis. It did not finally determine the application and it was necessary for that matter to proceed to a full hearing of the issues.
The Police decision to reject Clarke’s claim
Then on 13 December 2006 the Police re-determined to reject the claims of Clarke pursuant to s53 of the Act and on 21 December 2006 Clarke’s weekly payments were discontinued. On 12 January 2007 Clarke lodged a Notice of Dispute with the Tribunal against this determination by the Police of 13 December 2006. This is entirely consistent conduct; since 2003, Clarke has maintained a right to continue to receive weekly payments without suspension of his entitlements and by and large he had been very successful. It was not until 30 August 2011 that the Tribunal set aside Clarke’s Notice of Dispute against the rejection determination by consent of all parties.
The dispute between the Police and Clarke about the original determination remained before the Tribunal. On 18 December 2009, the Tribunal heard an application by the Police for a determination of their application for a summary judgment striking out of Clarke’s Notice of Dispute filed in 2003. The issues before Deputy President McCouaig were described at paragraph 3 of his decision as follows:-
1. Whether the respondent is precluded from contending that the worker was terminated for serious and wilful misconduct by reason of the absence of any reference to “serious and wilful misconduct” in the Notice of Termination dated 30 October 2003.
2. Whether the worker is estopped from contending that he was not dismissed for serious and wilful misconduct by the decisions of the Police Disciplinary Tribunal on 13 February 2003 and the judgment of the District Court on 15 September 2006.
3. Should the evidence and transcript from the Police Disciplinary Tribunal and District Court proceedings be precluded from the ultimate hearing of the dispute herein or be admitted and if so for what purpose.
The learned Deputy President then surveyed the whole of the evidence before the Police Complaints Authority and before Judge Smith. The learned Deputy President then reached the following conclusions:-
65 The worker is bound by the findings of Assistant Commissioner Burns and Judge Smith as to the propriety of his dismissal and as to the character of his wrongdoing that founded his dismissal.
66 That said, neither Assistant Commissioner Burns nor Judge Smith specifically found the worker guilty of ‘serious and wilful misconduct’.
The respondent might say that it is a fine point, and that the findings made were in effect findings of serious and wilful misconduct. I think they were, but that involves an element of interpretation of those findings on my part and this characterising of the findings was not essential for the earlier decisions.
67 In the circumstances I am unpersuaded that an issue estoppel arises from the decisions of the Police Disciplinary Tribunal or the judgments of the District Court that precludes the worker from contending that he was not dismissed for serious and wilful misconduct.
68 Nonetheless, it is in my view clear beyond reasonable argument that the worker was lawfully dismissed for misconduct that was regarded by the respondent as both serious and wilful. I reject the worker’s contention to the contrary. That the phrase ‘for serious and wilful misconduct’ does not appear in the worker’s notice of termination, or e ven Assistant Commissioner Burns ’ re port of 1 August 2003, does not gainsay that conclusion.
69 It is, in my view, also clear beyond reasonable argument that the worker’s misconduct was indeed both serious and wilful, and that the dismissal was a lawful dismissal.
70 Whilst I am mindful that summary relief should be granted only in the clearest of circumstances, when on any possible view of the facts or law it is clear that there is no real question to be tried, I am satisfied that it is appropriate here.
...
Summary
81 I find that the respondent is not precluded from contending that the worker was terminated for serious and wilful misconduct by reason of the absence of any reference to ‘serious and wilful misconduct’ in the notice of termination dated 30 October 2003.
82 I find that the worker is bound by the findings of Assistant Commissioner Burns and Judge Smith as to the propriety of his dismissal and as to the character of his wrongdoing that founded his dismissal.
83 I find that the respondent is entitled to summary relief on the basis that the worker’s contention, that he was not dismissed for serious and wilful misconduct, is so obviously untenable that it cannot possibly succeed.
84 The respondent’s determination dated 3 November 2003 is confirmed.
The learned Deputy President decided that he was in a position to remove the suspension and to allow the discontinuance decision to become operative.
An appeal from that decision was heard before the Full Bench of the Tribunal on 7 June 2010. In a decision delivered on 2 August 2010 the Full Bench of the Tribunal unanimously dismissed the appeal of Clarke.
I have previously set out above the content of s36(4) and (5) of the Act. The Police are able to recover amounts that were paid to Clarke during the suspension under s36(4) if the dispute is ultimately resolved in the favour of the Police. That amount may be recovered as a debt. In these proceedings the Police seek an order that Clarke pay to it the sum of $233,324.06 plus interest and costs and other relief.
The contentions of the Police
The Police plead in paragraph 30 of the Statement of Claim of 30 July 2012 and Clarke does not contest that Schedule 1, section 5, of the Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008 provides that s36(4) and s36(5) of the Act continue to apply in relation to a decision that was a subject of a notice of dispute lodged before the commencement of the operation of that provision in the 2008 Act. The Police plead that the dispute between the parties was ultimately resolved in favour of the Police after the decision on 2 August 2010 in which the full bench of the Tribunal dismissed the appeal from the decision at first instance. In reliance upon s36(5) of the Act the Police seek an order for recovery of the amount as debt.
Clarke’s contentions
For his part, Clarke contends in his Second Amended Defence that following the lodgement of his Notice of Dispute, s90 of the Act operated to ensure that weekly payments continued to be paid to him pursuant to s36(4) of the Act, that it was necessary for there to be a reconsideration by the Police and that upon the confirmation of the decision on reconsideration by the Police then s91A of the Act operated and the dispute was to be referred for conciliation. The conciliation officer was assigned to preside at the conciliation proceedings first listed on Tuesday 20 January 2004 at 9.15am. Clarke contends that the matters which came before the conciliation officer on 20 January 2004 constituted conciliation proceedings. Consequently, Clarke pleads that the matter having come before the conciliator and in the absence of any request by him (Clarke) to further suspend the operation of the discontinuance decision, no burden fell upon the Police to make payments and the burden fell upon Clarke to seek a further suspension of the discontinuance decision. No such request was made and the payments continued. It follows, on Clarke’s argument that in the absence of any suspension of the decision after 20 January 2004, the right to recover, if any, was limited to the period up to and including 20 January 2004 (period 24 November 2000 – 20 January 2004). In argument Clarke accepted that upon his argument he had no entitlement to receive payments from 20 January 2004. It was a mistake on the part of the Police to continue making payments to him after that date.
Clarke then pleads that on 13 December 2006 the Police re-determined the claim[14] and rejected it, and the weekly payments ceased on 21 December 2006, 7 days later. Under s53(8), a rejection of a claim does not give rise to any right on the part of any employer to recover in the absence of a fraud on the workers part. He also pleads that all amounts were paid under the previous determination made on 5 December 2000 and there is no right in the Police to recover anything from Clarke. Clarke also pleads that the dispute was ultimately resolved on 12 March 2010 when Deputy President McCouaig made a judicial determination confirming the discontinuance determination. Under regulation 36 of the Regulations under the Act, the Police were required to commence proceedings within 2 years after the date on which the Police became entitled to take action under the Act. Clarke contends that it was necessary to commence proceedings on or before 12 March 2012 and therefore these proceedings were out of time.
[14] Section 53(7) Workers Rehabilitation and Compensation Act 1986.
Clarke also pleads aspects of estoppel arising out of the Police’s unconscionable conduct in the following terms:
26. …
(a)Failing to act in the best interest of, or under its obligations to, the defendant who has sustained a workplace injury
(b)Failing to expedite or ensure the timely completion of the District Court appeals whether in accordance with the District Court Rules, procedures or otherwise
(c)Allowing the matter to languish in the Workers Compensation Tribunal so that the total payments made became substantial before taking any steps to have them cease so that any attempt to recover will impose a substantial and significant burden on the defendant
(d)Delayed the rejection determination to the detriment of the defendant when it could have been made some considerable time earlier as it was not based upon any new information that was not available when the original determination was made or alternatively could have been made at a time considerable (sic) earlier than 13 December 2006
The detriment that Clarke alleges that he suffers is that he is prevented from recovering amounts paid by way of taxation due to the delays. I deal with that issue later in these reasons at paragraph [231] to [257]. In my opinion no detriment is suffered by Clarke as a result of these matters connected with issues of taxation.
The evidence and a multitude of late pleadings
For the purposes of the evidence in this action the parties read a number of affidavits. There was only limited cross examination on the affidavits. The arguments were, generally, limited to questions of law although there were references to factual matters which were in dispute between the parties. I am satisfied that whatever factual differences have arisen between the parties, they may be resolved upon the papers.
One issue that arose late in the proceedings was an amended plea by the Police in their reply. That Reply was filed on 18 December 2013[15] after the completion of the initial hearings before me. Clarke claimed no prejudice in relation to the amendment. In the Reply and after reciting the relevant factual matters in paragraphs 1-6, the Police plead that on 20 December 2006, as a consequence of the re-determination of the Clarke’s claim for compensation, the Police discontinued weekly income maintenance payments. In paragraph 8 of the reply the Police plead as follows:
8.At all relevant times, and in particular between 20 November 2003 and 20 December 2006 the plaintiff reasonably believed that:
8.1 The dispute did not come before a conciliation officer in the sense required by section 36(4)(a) of the …Act
8.2 The operation of its discontinuance determination remains suspended; and
8.3 It was required by virtue of section 36(4)(a) of the Act to continue to make weekly income maintenance payments
9.If the suspension of the operation of the plaintiff’s discontinuance determination lapsed, or was lifted or otherwise ceased to operate at law, whether on 20 January 2004 or on some subsequent time up to and including 20 December 2006 (which is denied) the plaintiff continued to make weekly income maintenance payments to the defendant because of a mistake of fact, mistake of law or mistake of fact and law
10.If in the alternative to the plaintiff’s primary case as pleaded in the Statement of Claim some or all of the weekly income maintenance payments made to the defendant between 20 November 2003 and 20 December 2006 were made as a consequence of mistake of fact, a mistake of law, or mistake of fact or law the plaintiff is entitled to recover those payments
[15] FDN 19.
Clarke was self-represented. In argument, I informed Clarke that in light of this further pleading in the reply proposed by the Police, Clarke would be given leave to file a rejoinder to that pleading. Clarke indicated in argument that he would seek to file such a rejoinder and in particular he wished to plead an effluxion of time even if the Police succeeded in making out a claim of mistake of law or a mistake of fact.[16] Clarke did not file a rejoinder however, in light of the fact that he was self-represented, and that he did specifically raise the challenge to the efficacy of the mistake of law/ mistake of fact pleading of the Police, I will consider those matters in this decision.
[16] David Securities v Commonwealth Bank (1992) 175 CLR 353 at [376]; Cheshire and Fifoot’s Law of Contract (2008) Seddon, M. 9 Ed.
The requirements for the Police to replead their case
I was not then satisfied that the Police had properly pleaded the position for which they contended in the Reply. I was not satisfied that sufficient was pleaded to substantiate this plea. I was also not satisfied that there was a sufficient evidentiary basis to justify the plea on the materials before me. I was particularly concerned about the position of the defendant as a self-represented person. I therefore decided to reconvene the Court and make further orders and directions.[17]
[17] At T.91.35-92.14.
1.File and deliver an amended Reply within seven business days of this day.
2.That the defendant be at liberty to file and deliver any amended pleading which would be in the nature of a general rejoinder on or before Tuesday 14 January 2014.
3.That insofar as any party wishes to lead further evidence in the matter, they shall of so by affidavit which affidavits are to be filed and delivered to each other by close of business on Friday 24 January 2014.
Insofar as either party is required to make further disclosure having regard to the contents of their pleading, they shall do so by close of business on Friday 24 January 2014.
4.I give liberty to apply at short notice.
5.I fix a directions hearing for 9 am on Thursday 30 January 2014 at 2.00 pm.
The further evidence
Following the making of those orders and directions I heard further from the parties and I gave leave for further evidence to be led by the parties. That evidence comprised of the following:
Affidavit of Krystyna Ucinek (FDN18) sworn 18 December 2013.
Affidavit of Grantley Brian Thomas Newell (FDN20) sworn 28 January 2014.
Affidavit of Darryl John Clarke (FDN21) sworn 30 January 2014.
Affidavit of Christopher Alan Sargent (FDN22) sworn 5 February 2014.
Affidavit of Krystyna Ucinek (FDN 23) sworn 7 February 2014.
Affidavit of Darryl John Clarke (FDN24) sworn 17 February 2014.
Affidavit of Loretta Maria Condoluci (FDN26) sworn 10 November 2014.
Affidavit of Cheryl Myra Miburn (FDN27) sworn 19 November 2014.
Affidavit of Mark Andrew Nicholas (FDN31) sworn 27 November 2014.
Affidavit of Martin Ross Penhale (FDN32) sworn 27 November 2014.
Another matter about which I asked for further submissions was the plea in paragraph 27 of Clarke’s Defence on the issue of detriment within the defendant’s estoppel plea. I was not satisfied that either party had addressed that matter. I was also not satisfied that the authorities necessarily supported Clarke’s plea. I formed the view that the parties should address that matter further if they so chose. On one view, it may have been necessary for the defendant to have reconsidered his defence and the plea of detriment. I then received further submissions from the parties.
Subject to the matters set out above, the evidence in this matter comprises the following affidavits: affidavit of Krystyna Ucinek sworn 18 December 2013;[18] affidavit of Grantley Brian Newell sworn 29 January 2014;[19] affidavit of Darryl John Clarke sworn 3 January 2014;[20] affidavit of Christopher Alan Sergent sworn 6 February 2014;[21] affidavit of Krystyna Ucinek sworn 10 February 2014;[22] affidavit of Darryl John Clarke sworn 17 February 2014.[23] The parties consented to the receipt into evidence of a tender bundle which has been marked as exhibit P1. The parties also consented to the tender of trial materials. These consisted of the following: s36 Workers Rehabilitation and Compensation Act 1986 (November 2003); Regulation 36 Workers Rehabilitation and Compensation Regulations 2010; s5(2) Schedule 1, Transitional Provisions, Workers Rehabilitation and Compensation (Scheme Review) Amendment Act 2008; Second Reading, Workers Rehabilitation and Compensation (Dispute Resolution) Amendment Act (17 October 1995, pages 271-273); Transfield Services (Australia) Pty Ltd v Seal [2008] SAWCTC 62; Peter Nicholas Moloney Trading as Moloney and Partners v The Workers Compensation Tribunal [2010] SASCFC 17; Clarke v The Commissioner of Police [2006] SADC 109; Clarke v Burns [2008] SADC 148; Clarke v South Australia Police [2010] SAWCT 8; and, Clarke v The State of South Australia (South Australia Police) [2010] SAWCT 31.
[18] FDN 18.
[19] FDN 20.
[20] FDN 21.
[21] FDN 22.
[22] FDN 23.
[23] FDN 24.
I have set out in detail earlier in these reasons the content of s36 of the Act. Regulation 36 of the Regulations sets the two year time limit within which the Police were required to commence the recovery proceedings of amounts allegedly due under s36(4) under the Act. Section 5(2) of Schedule 1 of the Transitional Provisions provides that s36 (4), 4(a) and (5) of the principal Act in existence immediately before the substitution by s16 of the 2008 Amendment Act continue to apply in relation to a decision that is the decision that is the subject of the Notice of Dispute lodged under s36(4) before the relevant days.
Clarke’s challenge on quantum
The affidavits of Krystyna Ucinek respond to the contentions of Clarke that he did not receive the amounts which comprise the claim as described in the Statement of Claim. Clarke contended that he had received less than the amount claimed. At first appearances there were some alleged payments that seemed to be slightly anomalous. These payments were greater than the surrounding payments made to Clarke by the Police.
In the Tender Book (Exhibit P1) commencing at page 31 is an affidavit of Krystyna Ucinek of 19 November 2013. Ms Ucinek is a technical specialist employed by the South Australian Government agency within Department of Premier and Cabinet which is responsible for payroll functions for the South Australian public sector employees. She is employed within the South Australian Police department. She was requested to provide historical information about payroll payments to Clarke between 27 November 2003 and 20 December 2006. Ms Ucinek made an examination of Clarke’s payslips stored on microfiche records and she then prepared a schedule of payments. That schedule is exhibited to her affidavit and is marked ‘KU1’. Ms Ucinek said[24] that for the payslips received by Clarke on 14 September 2005, a net payment was recorded ($3,148.40) but on that day only $2,202.80 was paid with a net payment of $945.60 having been made prior to that day. Also, the payslip for 21 December 2005 records a net payment of $4,575.20 but that only $2,109.20 was paid on that day, with a net payment of $2,466.00 having been made prior to that day.
[24] Paragraphs 7, 8, 9.
Ms Ucinek could find no reasons recorded on the payslip for the advance net payments to Clarke. She could only identify was that the payment records disclosed that those amounts, $3,148.40 and $4,575.20 respectively were paid to Clarke. These were the alleged anomalies referred to by Clarke.
Clarke challenged those records which would otherwise be admissible under s45A of the Evidence Act. In response Ms Ucinek prepared a further affidavit (FDN 18) in which she said that she was able to retrieve the microfiche records. She said that she prepared a hardcopy of the microfiche record upon which the schedule in the earlier affidavit was based. She also was able to identify that information for the production of payslips at the relevant time for South Australian Police was produced by the South Australian Police and produced to Electronic Data Systems (EDS) for the printing of the hardcopy payslips. She was then able to identify that the same data provided to EDS was provided to the agency engaged to create the microfiche records of payslips. As a consequence Ms Ucinek confirmed that the hardcopy payslips and the microfiche records were created from identical data. Ms Ucinek also said that from time to time manual adjustments were made to payslips to reflect late applications for leave without pay or late notification of terminations. Manual adjustments were required to be made and were recorded on hardcopy payslips but any manual adjustments would, generally, be reflected in subsequent printed payslips. Ms Ucinek was not able to identify in the microfiche records any manual adjustments having been made for Clarke.
In the final affidavit prepared by Ms Ucinek, FDN 23, Ms Ucinek said that she prepared a PAYG pay summary for the 2005-2006 year for Clarke and the same summary for the 2006-2007 financial year for Clarke. Those summaries disclose the payments to Clarke as recorded. Therefore, the records of the South Australian Police indicated that the original records of the Police Department were accurate, that Clarke has received all of the payments as recorded including the earlier payments which were identified as slightly unusual in amount having regard to the flow of payments received by Clarke and that, for tax purposes, PAYG tax has been remitted by the Police to the Commissioner of Taxation on the amounts paid to Clarke.
The business records are to be accepted
Notwithstanding the contentions of Clarke that he was not able to ascertain records disclosing that these amounts had been received by him, I am satisfied on the balance of probabilities of the correctness of the material put forward by Ms Ucinek I am satisfied that on the evidence that that the amounts that were paid to Clarke following the suspension of the operation of the determination decision (under s36(1)(e) of the Act) until the further re-determination by the Police in December 2006 were, gross $233,324.06, net $166,408.06 and that a provision for tax in the amount of $66,916.00 was made. In his affidavit of 30 January 2014[25] Clarke challenges the receipt of the relevant amounts as deposed to by Ms Ucinek by reference to his own personal banking records. In my opinion, the records of the Police are properly received and the amounts claimed have been proved on the balance of probabilities.
[25] FDN 21.
A question for my consideration is, if the Police are successful in these proceedings, what is the appropriate order to be made. This question is connected to the plea of detriment in paragraph 27 of the Defence of Clarke. I will consider that matter later in these reasons. The second affidavit filed by Clarke sworn 17 February 2014[26] relates to the matters which transpired before Deputy President McCouaig in November 2006. That arose out of an assertion by Mr Sargent in his affidavit[27] that when in 2006, the Police had made an application to have the matter relisted for trial and to lift the suspension of the discontinuance of the Clarke’s payments of income maintenance as compensation, Clarke opposed the application to discontinue the income maintenance payments. Clarke contested that assertion. On the material before me I have real doubts about this assertion by Clarke. The history of this matter shows that Clarke assiduously challenged every circumstance where he was at risk of losing his weekly payments. I think that as a matter of common sense, it is quite unlikely for the Tribunal to have rejected the application of the Police in November 2006 to discontinue payments if Clarke neither consented to nor opposed the application. In light of what follows it is unnecessary for me to further consider these matters.
[26] FDN 24.
[27] FDN 22.
The agreed facts and the weakness of the position of Clarke
I have already addressed the letter of 9 December 2003 in the comments that I have made about the affidavit of Mr Nicholas. Mr Penhale went on to say:
…
11My initials on the letter dated 9 December 2003 indicate that I read the letter on 9 December 2003. I was also involved in the formulation of the proposal.
12.On 16 December 2003, this Court listed the worker’s stay application for hearing on 28 January 2004.
13.On 18 December 2003, I was instructed by Ms Jo Parsons of the SAPOL legal branch to seek an adjournment of the first Conciliation Conference until after the scheduled hearing of the stay application, noting that the defendant would have the comfort of ongoing weekly payments until such time as the matter first came before the Conciliator.
14.As at 18 December 2003, I was of the belief that the defendant’s notice of dispute would not first come before a Conciliator until the parties attended before a Conciliator, with the defendant being provided with an opportunity to seek the continued suspension of the discontinuance decision. It was my belief that an administrative adjournment of the kind sought in respect of the conference listed for 20 January 2004 would not satisfy the requirements of section 36(4)(a) of the WRC Act. The instructions I received from Ms Parsons were consistent with my belief on this issue.
15.On 19 January 2004, I spoke with Ms Catherine Parsonage of Duncan Basheer Hannon (the defendant’s solicitors) regarding the Tribunal proceedings.
15.1 I was informed by Ms Parsonage that the stay application in this Court was to be further adjourned to 25 February 2004.
15.2 I indicated to Ms Parsonage that the Tribunal proceedings should therefore be adjourned until at least March 2004.
15.3 I informed Ms Parsonage that SAPOL wished to retain its right to contest any application by the worker for continuation of the suspension of the discontinuance decision.
At this time, I remained of the belief that the dispute had not yet first come before a Conciliator and that the automatic suspension of the discontinuance decision continued. I believed that plaintiff had, and would continue to have, a statutory obligation to make weekly income maintenance payments until the parties appeared before a Conciliator and had the opportunity to address the issue. I believed that the approach put to, and agreed to by, Ms Parsonage, on the defendant’s behalf, was reasonable given that the subject matter of the stay application, i.e. the validity of the dismissal, would need to be determined before the Tribunal could deal with the validity of the section 36 notice based upon that dismissal.
16.On 19 January 2004, I spoke to an officer of the Tribunal to explain why the parties wished the matter to be adjourned. I informed that officer that the section 36 proceedings in the Tribunal depended on the outcome of the proceedings in this Court relating to an application by the defendant for a stay of the decision to dismiss and on an appeal against the findings of guilt in the Police Disciplinary Tribunal. I was advised that fresh hearing notices would be sent to the parties.
In paragraph 16, Mr Penhale informs the Court that the adjournment of the matters before the Tribunal resulted from the fact that the outcome of the s36 proceedings in that Tribunal depended upon the outcome of the proceedings in this Court. The proceedings in this Court related to the appeal from the decision of the Police Complaints Tribunal. If that proceeding in this Court brought by Mr Clarke had been unsuccessful, then there would have been grounds under s36 of the Act for termination of Mr Clarke on the basis of conduct amounting to serious and wilful misconduct. The basis for the termination of the workers compensation payments to Mr Clarke would therefore have been justified. The operation of the suspension would have been lifted. Importantly, Mr Penhale says that he was informed by the Tribunal that fresh hearing notices would be sent to the parties. Those hearings on 9 March 2004, 19 April 2004 and 17 June 2004 did not proceed because of the absence of a decision from this Court.
Mr Penhale goes on to say in his affidavit as follows:
18.On or about 3 June 2004, I was concerned about the delay in the Tribunal proceedings consequent upon the appellate proceedings in this Court. I gave consideration to the question of having the suspension of the discontinuance decision revoked.
19.During the week of 21 June 2004, a private settlement conference was arranged between the parties to be held on 7 July 2004 with a view to addressing all outstanding issues.
20.Throughout July and early August 2004, the parties unsuccessfully engaged in settlement negoatiations.
21.On 16 August 2004, I raised with Ms Parsons of SAPOL the future conduct of the Tribunal proceedings. I confirmed my view that:
21.1 weekly payments were continuing by virtue of section 36(4) of the WRC Act as the discontinuance determination was suspended; and
21.2 as a matter of agreement, the first conciliation conference had been adjourned pending the outcome of proceedings in this Court.
22.Settlement negotiations continued throughout September and October 2004.
23.By letter dated 15 September 2004, Conciliation and Arbitration Officer Mostowyj informed me that the Tribunal proceedings had been placed in the Suspense List.
24.By letter dated 23 November 2004, I was informed by the defendant’s solicitors that they were no longer instructed to act in the Tribunal proceedings.
25.The Tribunal proceedings remains in the Suspense List throughout 2005 and into 2006.
26.In about June 2006, primary responsibility for the Tribunal proceedings file for the plaintiff was transferred to Ms Prudence Reid. However, I continued to have some oversight of the file and was directly engaged in the conduct of the file from time to time.
27.On 18 June 2006, the Tribunal proceedings came before Deputy President McCouaig. By consent the Tribunal proceedings remained in the Suspense List with a review date to be set for November 2006.
28.On 15 September 2006, His Honour Judge Smith dismissed the defendant’s appeal from the findings of the Police Disciplinary Tribunal.
29.On 19 October 2006, the worker provided the Crown Solicitor’s Office with a supplementary notice of appeal. At a directions hearing on the same day, it became apparent that the defendant’s appeal in this Court against the penalty imposed by the Commissioner of Police was not likely to be heard before 2007.
30.On 3 November 2006, an application was filed on behalf of the plaintiff in the Tribunal proceedings seeking an order that the suspension of the discontinuance determination cease.
31.Throughout the period during which I had primary conduct of the Tribunal proceedings on behalf of the plaintiff and up to the date of filing of the application referred to in [30] above, I was of the opinion that the matter had not come before a Conciliation Officer within the meaning of section 36(4)(a) of the WRC Act. I was at all times, and remain today, of the opinion that the statutory suspension of the discontinuance decision remained in force until superseded by the redetermination decision.
32.I do not recall, at any time, the defendant or any solicitor acting on his behalf informing me of any contrary view or position. To the contrary, my assumption (and, I thought, the assumption of all parties) was that SAPOL did not apply, prior to November 2006, for the suspension of the discontinuance determination to cease in order to give the defendant ample opportunity to pursue his appeal rights in this Court, without in any way prejudicing SAPOL’s entitlement to recover weekly payments made, in the event that the section 36 notice was upheld.
In his evidence, Mr Penhale does not address the issues raised in the letters sent by the Crown Solicitor’s Office to Duncan Basheer Hannon, solicitors for Mr Clarke dated 30 June 2004 and 3 August 2004 respectively.
Those affidavits were filed in support of an application for extension of time to plead a remedy based upon a factual assertion that the payments made after the matter (allegedly) first came before a conciliator were made on a mistake of fact or law or a mistake of fact and law.
In order to decide that issue it is necessary to look to review the operation of the Limitation of Actions Act 1936.
Section 48 of the Limitation of Actions Act reads as follows:
48—General power to extend periods of limitation
(1) Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a) instituting an action; or
(b) doing any act, or taking any step in an action; or
(c) doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a) the court has jurisdiction to entertain; or
(b) the court would, if the action were not out of time, have jurisdiction to entertain.
(3) This section does not—
(a) apply to criminal proceedings; or
(b) empower a court to extend a limitation of time prescribed by this Act unless it is satisfied—
(i)that facts material to the plaintiff's case were not ascertained by him until some point of time occurring within twelve months before the expiration of the period of limitation or occurring after the expiration of that period and that the action was instituted within twelve months after the ascertainment of those facts by the plaintiff; or
(ii)that the plaintiff's failure to institute the action within the period of the limitation resulted from representations or conduct of the defendant, or a person whom the plaintiff reasonably believed to be acting on behalf of the defendant, and was reasonable in view of those representations or that conduct and any other relevant circumstances, and that in all the circumstances of the case it is just to grant the extension of time.
(3a) A fact is not to be regarded as material to the plaintiff's case for the purposes of subsection (3)(b)(i) unless—
(a) it forms an essential element of the plaintiff's cause of action; or
(b) it would have major significance on an assessment of the plaintiff's loss.
Example—
In a case involving personal injury, a fact might qualify as a fact material to the plaintiff's case if it establishes—
(a) a substantial reduction of the plaintiff's capacity to work; or
(b) that the plaintiff will require substantially more medical care than previously expected; or
(c) a significant loss of expectation of life.
(3b)In determining whether it is, in all the circumstances of a case, just to grant an extension of time, the court should have regard to—
(a) the period of extension sought and, in particular, whether the passage of time has prejudiced a fair trial; and
(b) the desirability of bringing litigation to an end within a reasonable period and thus promoting a more certain basis for the calculation of insurance premiums; and
(c) the nature and extent of the plaintiff's loss and the conduct of the parties generally; and
(d) any other relevant factor.
(4) Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings.
(6) This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
In order to obtain an extension of time to bring a proceeding (based upon restitution for funds paid under a mistake of fact) it is necessary for the Police to satisfy the Court that the facts material to its case were not ascertained by it until some point of time after the expiration of the period of limitation and that the action was instituted within 12 months after the ascertainment of those facts by the Police. Section 48(3a) now qualifies matters that may be regarded as material. A fact is not to be regarded as material unless it forms an essential element of the Police’s cause of actions; or it would have major significance on an assessment of the Police’s loss.
Section 48 of the Act, in its then form, was considered by the Full Court of the Supreme Court of South Australia consisting of five justices in Sola Optical Australia Pty Ltd v Mills.[72] This decision considered s48 absent the inclusion of sub-section (3a). The inclusion of that sub-section overcomes a number of issues that arose in the Sola Optical decision. However, as is plain from other decisions of the Courts, a number of the views expressed in Sola Optical v Mills remain pertinent and are applicable here.
[72] [1987] 46 SASR 364.
On the question of the operation of s48(3)(b)(i), Gray J in Trevorrow v The State of South Australia[73] said as follows:
[73] [2007] SASC 285.
912.The meaning of the words, “facts material to the plaintiff’s case” in section 48(2) of the Limitation of Actions Act was considered in Lovett v Le Gall.[74] Bray CJ, with the agreement of Walters J, concluded:[75]
[74] Lovett v Le Gall (1975) 10 SASR 479.
[75] Lovett v Le Gall (1975) 10 SASR 479 at 483.
[A] fact is material within the meaning of the sub-section if it is of such significance as to be able to influence the determination of the case.
Wells J expressed the meaning of the phrase in the following terms:[76]
[76] Lovett v Le Gall (1975) 10 SASR 479 at 485-486.
It seems to me that that passage must be read as a whole. When it is so read, the word “material” denotes, in my opinion, facts that are not only relevant to the issues – which, I apprehend, may include the issue of damages – but are also of such a nature and of such weight that they may fairly be taken into account by a plaintiff who is in the course of considering whether he should or should not prosecute his claim to trial. Similarly, the word “case” has a much wider purview than the expression “cause of action”; it comprehends, in my opinion, all evidence, law and argument to be relied on in court by the party concerned.
913.The meaning of materiality within the context of section 48 of the Limitation of Actions Act was also considered by the High Court in Sola Optical Australia Pty Ltd v Mills. The Court, approving Lovett, observed:[77]
[77] Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 636-637.
There is no warrant for writing into the Act a further qualification that, to attract the operation of s. 48(3)(b)(i), there must be some interaction between the material fact and the plaintiff’s decision to sue. It is materiality to the plaintiff’s case that must be shown. This is a broad general requirement that is capable of satisfaction by objective inquiry. To introduce notions, related to the decision to sue, that would require an examination of the subjective workings of the plaintiff’s mind would complicate the court’s task and impede rather than advance the purpose of the Act. A fact is material to the plaintiff’s case if it is both relevant to the issues to be proved if the plaintiff is to succeed in obtaining an award of damages sufficient to justify bringing the action and is of sufficient importance to be likely to have a bearing on the case. The Shorter Oxford English Dictionary defines the word “material”, inter alia, to mean “Of such significance as to be likely to influence the determination of a cause”. Although a definition attributed to the sixteenth century, in our opinion it provides an apt guide to the intention of the legislature in choosing to refer, without any elaboration, to “facts material to the plaintiff’s case”.
914.In Finlay & Ors v Silcon Industrial Pty Ltd & Anor, Doyle CJ, with whom Nyland and Lander JJ agreed, adopted the High Court’s observation about materiality, stating that it:[78]
[78] Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003) 229 LSJS 14 at [73].
reflects a liberal approach to the meaning of s 48(3)(b)(i), and makes the exercise of the ultimate discretion all the more important.
915.What is to be ascertained by the plaintiff is a new material fact. This is to be distinguished from the discovery of new evidence of a known fact. The circumstance that the plaintiff may have been aware of information relevant to a potential claim at an earlier time is not to the point. Provided that the proceedings are initiated within 12 months of the discovery of a new material fact, the discretion to extend time pursuant to section 48 is enlivened.
916.The State disputed that the facts asserted by the plaintiff to be the new material facts learned by him on 3 July 1997 were in fact, material facts. The State asserted that the plaintiff gave no evidence as to what material facts he learned on that day, nor did he testify that he did not know one or more of those facts prior to that date.
917.Counsel for the State further contended that Ms Richardson’s advice to the plaintiff on 3 July 1997, that he now had enough information to bring a cause of action against the State, was not sufficient to enliven the discretion to extend time. In this respect it is relevant to note the observations of Bray CJ in Napolitano v Coyle:[79]
[I]t is the ascertainment of fact which is required, not the ascertainment of opinion. I do not think that the receipt of advice from counsel that the party has a good cause of action could be regarded as the ascertainment of a material fact for the purpose of s. 48.
Consequently, in order for the discretion to be enlivened, the plaintiff must demonstrate that the file contained information, not previously known to the plaintiff personally, that is materially relevant to these proceedings.
918.The 300 documents shown to the plaintiff on 3 July 1997 by Ms Richardson were complete copies of departmental files relating to the plaintiff. From a perusal of these documents, the effect of which was explained to him by Ms Richardson, the plaintiff ascertained for the first time the details of the circumstances of his removal from his family and his early placement in foster care. In particular, the plaintiff first learnt that the records did not contain any document or reference to the plaintiff’s parents’ consent to his placement in a foster situation, nor did the documents suggest that his parents’ consent was either sought or obtained by the APB or by officers of the Aborigines Department. The records did not contain any document or reference to any court order for the placement of the plaintiff with Martha, nor did the documents suggest that court orders were either sought or obtained for this placement by the APB or by officers of the Aborigines Department. The records revealed that the APB did not seek details about the plaintiff’s circumstances prior to his placement in a foster home, and only did so afterwards, when on 15 January 1958, the secretary of the APB wrote to the police officer at Meningie asking that the APB be provided with details of how the plaintiff was placed in the Children’s Hospital and where his mother was at that time.
919.The suggested new material facts have relevant parallels to those put forward by the plaintiffs in Finlay, where the Court concluded that those facts enlivened the discretion to extend time pursuant to section 48(3)(b)(i).
920.In Finlay, the Court concluded that the information disclosed on the face of numerous cheques constituted facts material to the plaintiffs’ case. It found that even though that information corresponded with the information that was on the butts, which had been previously known to the plaintiffs, it was material to ascertain whether or not the butts were accurate.[80] The plaintiffs also wanted to know whether the documents seized by the police included invoices or other primary documents that would explain or justify the payments made by cheque and the cheques cashed. The Court concluded that it was material for the plaintiffs to ascertain what information was available from such records as might be available and that therefore, the nature and extent of the information available from the records in the possession of the police was itself a material fact or matter.[81] Finally, the Court held that, on the basis of Sola Optical, the fact that the plaintiffs might have inspected the documents held by the police sooner than they did was not a reason to exercise the discretion against them.[82]
921.Accordingly, in the present case, the discretion to extend time pursuant to section 48 of the Limitation of Actions Act is enlivened on the basis of the discovery of new material facts. The plaintiff discovered these new material facts within the relevant period of time.
[79] Napolitano v Coyle (1977) 15 SASR 559 at 570.
[80] Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003) 229 LSJS 14 at [78].
[81] Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003) 229 LSJS 14 at [79].
[82] Finlay & Ors v Silcon Industrial Pty Ltd & Anor (2003) 229 LSJS 14 at [82].
On the question of the exercise of the discretion, Gray J held[83] that the ascertainment of the material fact and therefore the satisfaction of the criteria in s48(3) of the Act does not give a presumptive right to an order for extension. His Honour referred to the decision of McHugh J in Brisbane South Regional Health Authority v Taylor at para [923] as follows:
[83] Trevorrow (as above) at [922].
923.In Brisbane South Regional Health Authority v Taylor, McHugh J discussed the underlying rationale for limitation periods:[84]
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates.” Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable, even by the parties.
…
The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. … Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
924.In Ulowski v Miller,[85] Bray CJ observed that the discretion to extend time should not be fettered by any absolute or inflexible rules. However, Bray CJ went on to outline what he referred to as five paramount matters to be considered in the exercise of the discretion. Those factors are the length of the delay; the explanation for the delay; the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred; the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and the conduct of the defendant in the litigation. Bray CJ then went on to say:[86]
I think the discretion [to extend time] should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.
925.In Lovett v Le Gall,[87] Bray CJ held that the following two considerations could be added to the list in Ulowski: the conduct of the plaintiff; and the nature, importance and circumstances surrounding the ascertainment of the new material facts.
926.In Forbes v Davies and Commonwealth of Australia,[88] Kearney J agreed with Bray CJ as to the relevant factors to consider when contemplating an exercise of the discretion to extend time, and added a further factor to the list – the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed.
927.In McPhee v Blyth,[89] Olsson J reaffirmed the view adopted by Legoe J in Luscombe v State of South Australia[90] that the five factors outlined by Bray CJ in Ulowski were relevant to applications made pursuant to section 48 of the Limitation of Actions Act. These factors form the basis for any consideration of an application for an extension of time. An analysis of the circumstances of a matter relevant to these factors assists the Court to ascertain whether, in the interests of justice, the application for extension of time should be granted.
[84] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-553 (footnotes omitted).
[85] Ulowski v Miller [1968] SASR 277.
[86] Ulowski v Miller [1968] SASR 277 at 281.
[87] Lovett v Le Gall (1975) 10 SASR 479.
[88] Forbes v Davies and Commonwealth of Australia (1994) Australian Torts Reports 81-279.
[89] McPhee v Blyth (1992) 166 LSJS 236 at 242.
[90] Luscombe v State of South Australia (1984) 118 LSJS 221.
Addressing first s48(3a) of the Limitation of Actions Act, it is to be observed that the operation of this sub-section more narrowly confines the jurisdiction of the Court to give an extension of time. It addresses what fell from King CJ in Sola Optical and p370 where his Honour said:
In Lovett v Le Gall Construction, it must be conceded, has the effect which to many minds may seem strange, that the consequences of failing to institute an action within time may be avoided by the ascertainment of a fact, ignorance of which played no part in the failure to institute the action and the ascertainment of which played no part in the decision to proceed. One means of ameliorating the harsh consequences of the statutory limitation open to Parliament was to make the power to extend time conditional upon the existence of one or both of those factors. It did not use language appropriate to achieve that result. An alternative method of amelioration was to select a qualifying trigger, not necessarily important in itself in every situation, for the existence of a discretion to extend time, leaving control of the proper functioning of the ameliorative provision to the exercise of judicial discretion. I think that it is evident from the language used that the latter method was selected.
Parliament has chosen now to confine the discretion of the Court to those circumstances where the material fact must form an essential element of the cause of action and have a major significance on an assessment of the plaintiff’s loss.
From at least the time of the decision of the Full Court in Lovett v Le Gall,[91] it has been necessary that the material fact must be ascertained personally by the Police and not by some solicitor or agent. So much was confirmed by the High Court in the appeal from the decision of the Full Court of the Supreme Court of South Australia.[92]
[91] (1975) 10 SASR 479.
[92] Sola Optical Australia Pty Ltd v Mills (1987) 62 ALJR 3.
The affidavit evidence filed on behalf of the Police relevant to that issue consists only of the affidavit of Cheryl Myra Milburn sworn 19 November 2014. Ms Milburn has been employed by the Police since 2012. She was not a member of the police force at the relevant time in 2003 and following. No affidavit has been filed by any person employed by the Police at that time. Ms Milburn has deposed to the content of the police file. It is an affidavit on information and belief and is not an affidavit of the Police in the fashion described by the High Court in Sola Optical Australia Pty Ltd v Mills. The affidavit does not prove that the material fact was ascertained by the Police personally. Obviously enough, any material fact ascertained by the Police would be ascertained by a person then employed by the Police. That person may or may not have informed the Commissioner but that is not essential to this exercise. The issue is that evidence is required from a person who is in a position to inform the Court of what was ascertained by the Police.
This is important on a number of levels. The first is that it is necessary for the Police to prove that the Police personally and not some solicitor or agent has ascertained the fact. The second is that the affidavit of Ms Milburn does not address factually the content of the evidence of Mr Nicholas and the evidence of Mr Penhale. Mr Nicholas informed the Court that the continued suspension of the discontinuance decision was associated with an attempt by the Police to negotiate a resolution of all issues with the defendant. Mr Penhale informed the Court that the reason the Police did not apply for the suspension of the discontinuance determination to cease was because the matter had not come before a Conciliation Officer. Therefore, s36(4)(a) of the WRC Act did not apply and the discontinuance decision remained in force until superseded by the re-determination decision.
In my assessment, the Police has not discharged the onus upon it under s48 of the Limitation of Actions Act to obtain an extension of time to amend its Statement of Claim to include a cause of action for restitution based upon payments made under a mistake of fact or law to the defendant. I am not satisfied that the technical requirements of s48(3) have been complied with in accordance with the decision of the High Court in Sola Optical Australia Pty Ltd v Mills. The issue is the question of the belief operating upon the minds of the relevant persons. The issue of what was in the mind of Mr Penhale at the relevant time is not informative of the test under ss48(3) and (3a) of the Limitation of Actions Act. Also, Mr Penhale appears to be operating upon a view of the law and Mr Nicholas was operating upon an understanding of the actions of the Police based upon the desire of the Police to resolve all matters as between Police and defendant. The two matters are different and although they are not to be described as irreconcilable, they do not constitute material upon which I am prepared to place reliance in coming to any decision in favour of the Police on this application.
I will therefore refuse the application of the Police for an extension of time to plead payment under a mistake of law or fact. In those circumstances it is not necessary to address the question of mistake.
I turn then to answer the questions posed by me at paragraphs [95] and [203] as follows:
1.Whether a decision made on 3 November 2003 by the Police to discontinue the weekly payments to Clarke (that were made by the Police following its decision to accept the claim of Clarke on 5 December 2000) was suspended by the delivery of a Notice of Dispute from Clarke and which had the effect of reinstating (the obligation to make) weekly payments.
Answer: yes.
2.If yes to question one, whether the Police reconsidered and confirmed the discontinuance determination pursuant to s91 of the Act by its decision of 28 November 2003.
Answer: yes.
3.If yes to questions one and two, whether the lodgement by Clarke of a Dispute Notice on 20 November 2003 had the effect of suspending the operation of the Dispute Notice pursuant to s36(4) of the Act.
Answer: yes.
4.If yes to question three, whether the Notice of Dispute of Clarke of 20 November 2003 came before a conciliator under the operation of Part 6A of the Act.
Answer: yes, but only on 6 November 2006.
5.If yes to question four, the date upon which the dispute first came before a conciliator.
6 November 2006.
6.Whether the dispute between Clarke and the Police was ultimately resolved and if so, the date upon which the dispute was ultimately resolved.
Answer: yes on 2 August 2010.
7.Whether the suspension of the operation of the decision of the Police under s36(4)(a) of the Act continued until the date that the dispute was ultimately resolved.
Answer: yes.
8.Whether and if so to what extent any debt is owed by Clarke to the Police under s36(5) of the Act.
Answer: if s36(5) has application, Clarke is indebted to the Police in the amount of $233,324.06 but the Police claim is now based on the operation of s36(5c) and the amount payable by Clarke is in the sum of $166,408.06.
9.If the answer to the first part of question eight is yes, whether the expression “(the).. amounts that were paid because of (the) suspension…” means or includes the gross or net of taxation amounts so paid by the Police and if so why.
Answer: see answer to question 8 above.
10.Whether the payments were made under a mistake of law, fact or fact and law.
Answer: unnecessary to answer because of the answer to question 12.
11.Whether, if yes to 10, the Police have a cause of action in restitution against Clarke.
Answer: unnecessary to answer because of the answer to question 12.
12.If yes to 11, the applicable time limit for bringing such an application and whether, if it be necessary, the Court would grant an extension of time to bring such a proceeding.
Answer: no.
In the result, the Police are entitled to a judgment against Clarke in the principal sum of $166,408.06.
I will hear the parties as to interest and costs.
[30] The Police in the case at bar is an exempt employer.
7
1