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[2001] WAIRComm 3497
appellant. Appeal upheld; decision at first instance quashed (the revocation order was beyond jurisdiction and is quashed).
The Full Bench held that a Commissioner could not, under the general correction power s.27(1)(m) or by reference to s.26(1)(a), revoke a final perfected discontinuance order. Once the Commission's order was deposited in the Registrar it became a decision and the Commission was functus officio in respect of that matter; the correct route to challenge or overturn that decision was by appeal under s.49. The first-instance revocation was therefore beyond jurisdiction and was quashed.
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1,739 words · generated 18/06/2026
John Lane lodged an unfair dismissal application (No. 1039 of 2000) in the Western Australian Industrial Relations Commission on 7 July 2000 (summary at Reasons [2], [8]). The parties attended a conciliation conference under s.32 on 28 November 2000. Following that conference the parties and their solicitors discussed settlement terms, and the Commission wrote to Lane's solicitors on 30 January 2001 asking for confirmation or a notice of discontinuance by 14 February 2001, warning that the matter would be discontinued on the Commission's own motion if there was no reply (see reproduced letter at Reasons [9]). No response was received to that letter.
1 cited instrument linked from this judgment.
On 15 February 2001 the Commission made an order discontinuing Lane's application, and that order was perfected (deposited with the Registrar) on 16 February 2001 (Reasons [13]). Lane later filed application No. 440 of 2001 (12 March 2001) seeking revocation of the discontinuance order. A single Commissioner heard No. 440 and, on 17 May 2001, revoked the earlier discontinuance order, relying principally on s.27(1)(m) of the Industrial Relations Act and also invoking the general equitable language of s.26(1)(a) (see Reasons [20]–[31]). That revocation reinstated Lane's application to the point of conciliation.
Aussie Online appealed to the Full Bench under s.49. The Full Bench unanimously allowed the appeal, holding that the single Commissioner had no jurisdiction or power to revoke a perfected order in the manner attempted; the revocation order was beyond power and was quashed (Reasons 'Issues and Conclusions').
The Full Bench's reasoning rests on a short chain of statutory and institutional propositions.
A perfected order, deposited with the Registrar, is a "decision" within the Act: the Act's s.7 defines "decision" to include an "award, order, declaration or finding", and compliance with s.36 by deposit renders an order perfected and final for present purposes (Reasons [26]–[31]). Once the order was perfected it was a final dispositive act in the matter.
Finality and functus officio: once a decision has been made and perfected, the Commission is functus officio in relation to that matter, having exhausted its powers over it except through the appellate route. The Bench emphasised the established position that where a tribunal has finally disposed of the matter by a decision, it cannot thereafter re-open the decision except as authorised by statute (see Reasons [5]–[9], and authorities cited).
The correction power in s.27(1)(m) is limited: s.27(1)(m) permits correction of "any error, defect or irregularity whether in substance or in form" but begins with "Except as otherwise provided in this Act". The Bench read that provision in the context of ss.36 and 49, concluding it does not authorise a Commissioner to revoke a perfected final order which is a decision and the subject of statutorily-preserved appeal rights (Reasons [50]–[62]). The Court stressed that s.27(1)(m) cannot be used to circumvent the formal appellate processes.
s.26(1)(a) (equity/good conscience/substantial merits) is not a source of jurisdiction: the Bench held s.26 is a manner-of-exercise provision and cannot be used to create jurisdiction where the statute has not given it (Reasons [61]–[65]). The Commissioner's reliance on s.26(1)(a) therefore failed.
Slip rule analogy rejected: the Commissioner invoked a slip-rule rationale (citing Cook v Australian Postal Corporation) to justify setting aside an order. The Full Bench noted the slip rule in the Rules of Court depends on rule-based authority and is not a free-standing common law rule inhering in decision-making bodies; the analogue in the Commission's statutory powers is s.27(1)(m), which the Bench found did not apply to the perfected order (Reasons [46]–[52]).
Putting these points together, the Bench concluded the single Commissioner lacked power to revoke the perfected discontinuance order. The revocation was therefore beyond jurisdiction and incompetent; the appeal was allowed and the order quashed (concluding paragraph).
Before this decision practitioners could point to occasions where tribunals corrected certain classes of errors. The decision clarifies two critical limits:
It affirms that a perfected order deposited with the Registrar is a statutory "decision" (s.7) and is treated as final for the Commission's exercise of power regarding that matter; the correct mechanism to disturb such a decision is the appeal process (s.49).
It limits the scope of s.27(1)(m): that provision is not a broad curative power permitting a Commissioner to revoke a final perfected order once it is a decision and appeal rights are engaged. The provision is to be read subject to the Act's other provisions, notably ss.36 and 49.
After this decision, parties and practitioners should accept that attempts to revive a matter by an interlocutory application or a "correction" application under s.27(1)(m), where the order sought to be corrected is a final perfected order, will be vulnerable to a jurisdictional challenge. The proper course when a party wishes to challenge a perfected decision is appeal under s.49 (or any express statutory mechanism). The decision thus reinforces procedural finality and the primacy of statutory appeal routes.
Note: bracketed paragraph citations refer to the judgment's internal numbering as reproduced in the reasons.
"The perfected order, by definition, constitutes also a 'decision' for the purposes of s.49 of the Act." (Reasons [31])
"S.27(1)(m) ... does not and did not provide any power to the Commission at first instance to make the order which it did." (Reasons [60])
"S.26(1)(a) ... does not confer a general jurisdiction to do whatever is thought to be in accordance with equity, good conscience and the substantial merits of the case." (Reasons [64])
"We therefore upheld the appeal, for those reasons, and quashed the decision at first instance." (Concluding paragraph)
This decision is engaged any time a party or a tribunal attempts to disturb, withdraw or otherwise alter a final, perfected order of the Western Australian Industrial Relations Commission (or a similar statutory tribunal) by use of internal correction powers rather than following the statute's appeal mechanisms. In particular:
Where an order has been deposited in the Registrar's office (perfected) and a party later files an application seeking its revocation or correction on grounds that settlement was not in fact reached or that a recital in the order was erroneous.
Where a Commissioner purports to correct an order after perfection by relying upon a general correction power (s.27(1)(m)) or equitable language in s.26(1)(a) without an express statutory basis for revocation.
Where the attempted correction would have the practical effect of reviving a matter that had been finally dealt with, thereby bypassing the prescribed appeal process.
If the intended remedy would alter the final legal status of a decision rather than correct a typographical or evidently clerical slip, this decision supports the proposition that the correction should not be attempted except through appeal.
The reasons of the Full Bench are based on statutory construction and long-standing administrative law principles (finality, functus officio, and the proper construction of curative powers). Read together with authorities cited in the reasons (for example Cook v Australian Postal Corporation and Shaddock), the decision forms part of a line emphasising that correction powers are not to be used as a backdoor to avoid appeal mechanisms. Practitioners should expect later tribunals to follow this approach when presented with a perfected order and an attempted post-perfection correction that affects substantive rights.
(As this deep dive is constrained to the single judgment, any discussion of subsequent judicial treatment should be verified against later reported decisions in the WAIRComm, Industrial Appeal Court, or Supreme Court. The Full Bench itself relied on a range of WA Industrial Appeal Court and Full Bench authorities to support its statutory reading.)
Narrow vs broad errors: The decision stresses that s.27(1)(m) permits correction of errors in substance or form but rejects its use to revoke perfected orders. A borderline question remains about what concrete categories of "errors in substance" could be corrected without engaging functus officio. The Bench noted no authority was cited defining "error in substance" (Reasons [52]); future cases will need to elaborate that phrase.
Findings vs decisions: The judgment notes that some orders may be 'findings' (a different category under s.7) and that findings do not always finally dispose of the proceedings (Reasons [35]–[36]). Where an order is arguable as a "finding" rather than a final decision, different corrective powers or interlocutory correction might be available. The precise line between correctable findings and finalised decisions may occasion future litigation.
Interaction with confidentiality or settlement mechanics: The facts involved settlement negotiations and a draft deed of settlement. When settlement negotiations are incomplete but the tribunal is asked to record a discontinuance, the decision highlights the risk of premature perfection of an order. Questions remain about best practice: should registrars ensuring perfection delay deposit until all parties file formal discontinuances? Or should the Commission's correspondence practices change to avoid inadvertent perfection of orders? Administrative practice adjustments may be required.
Comparative institutional practices: The Full Bench compared the slip rule known from court rules with the statutory correction provision. Whether other tribunals with differently worded curative provisions should reach the same conclusion will depend on the specific statutory language. The broader question of whether tribunals should have an express internal mechanism to rectify substantive mistakes in final orders without appeal remains open for legislative or rule-based reform.
Practical takeaway for practitioners: where a party considers a perfected decision erroneous, the safer and usually necessary route is to pursue the statutory appeal mechanism; attempts to seek revocation by interlocutory correction should be approached with caution and expect a jurisdictional challenge based on functus officio and the statutory scheme.
PARTIES AUSSIE ONLINE LIMITED (ACN 004 160 927)
CITATION NO. 2001 WAIRC 03497
_______________________________________________________________________________
Decision Appeal upheld and decision at first instance quashed.
Appellant Mr S K Shepherd (of Counsel), by leave
Respondent Mr M L Bennett (of Counsel), by leave, and with him,
_______________________________________________________________________________
"WHEREAS this is an application made pursuant to section 27(1)(v) of the Industrial Relations Act 1979 (the Act) seeking to set aside the order discontinuing matter number 1039 of 2000; and
WHEREAS this matter came on for conference pursuant to section 32 of the Act on 9 and 23 April 2001; and
WHEREAS the matter was unable to be resolved and was referred for hearing and determination; and
WHEREAS the Commission finds that the order of 16 February 2001 in matter number 1039 of 2000 was made in error;
NOW THEREFORE, the Commission, pursuant to powers under section 27(1)(m) of the Act and having regard to equity, good conscience and the substantial merits of the matter hereby orders -
THAT the order of 16 February 2001 in matter number 1039 of 2000 be revoked."
"1 The Commission erred in law in that the order of the Commission to revoke the order of the Commission made on 16 February 2001 in matter number 1039 of 2000 ("the Revocation Order") was beyond the jurisdiction of this Commission as granted by the Industrial Relations Act 1979 ("the Act").
(a) The jurisdiction of the Commission is granted by the express terms of the Act.
(b) Section 26(1)(a) of the Act is not a provision which vests the Commission with jurisdiction - it is not a source of jurisdiction. That provision controls the manner in which the Commission is to exercise its jurisdiction, once granted.
(b) The Commission has no jurisdiction to grant orders in a separate application (No. 440 of 2001) where those orders purport to have an effect on an earlier application (No. 1039 of 2000), without an express grant of jurisdiction.
(c) The Revocation Order ought to have been sought through the appellate procedure in the Act.
2 The Commission erred in law and in fact in finding that it had power to make the Revocation Order.
(a) There is no power in the Act which supports the making of the Revocation Order.
(b) The power in section 27(1)(m) of the Act did not support the making of the Revocation Order.
(c) Upon the making of the order on 16 February 2001 the Commission was functus officio with respect to the respondent's claim for unfair dismissal.
(d) The slip rule has no application to the exercise by the Commission of its powers under the Act and, in any event, that rule had no application to the circumstances of the present case.
3 The Commission erred in law and in fact in exercising its discretion to make the Revocation Order.
(a) No evidence was led by the respondent as to the circumstances whereby the respondent's solicitors failed to respond to the Commission's letter of 30 January 2001. There was thus no probative evidence to support the exercise of the Commission's discretion.
(b) The Commission failed to give any or any sufficient weight to the fact that the discontinuance of matter number 1039 of 2001 (sic) was caused by the respondent's solicitors.
(c) The Commission failed to give any or any sufficient weight to the fact that the discontinuance of matter number 1039 of 2001 (sic) was not caused or contributed to in any way by the appellant or its solicitors."
The abovenamed objector hereby objects to the whole of the abovementioned application.
1. the notice of appeal has not been validly instituted;
2. the appeal is based on the decision of Commissioner Wood which constitutes a finding, as defined in Section 7 of the Industrial Relations Act 1979 ("the Act"); and
3. section 49(2A) (sic) of the Act provides that an appeal does not lie under Section 49 from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie;
4. there is no public interest raised by the appeal;
5. the Commission had jurisdiction pursuant to section 23 of the Act to enquire into and deal with any industrial matter. Application no. 440 of 2001 was an industrial matter brought before the Commission, in that, it was a matter affecting or relating to the work, privileges and rights or duties of the Applicant. Section 27(l)(m) of the Act in particular by enabling the correction of an "error" provided sufficient power for the Commissioner's decision to revoke the discontinuance.
6. there was no appealable error made by Commissioner Wood in the exercise of his discretion to revoke his order discontinuing application no. 1039 of 2000.
The objector is or is likely to be affected by the application in the following manner, namely:
1. The objector has suffered financial hardship because of the dismissal. The objector should not be deprived of his right to seek relief and compensation in relation to that dismissal.
2. The objector will incur further costs in preparing for the appeal and being represented at the appeal.
3. The objector will be deprived of the fruits of his litigation in that there may be a further delay in the hearing and final determination of the objector's industrial matter before the Commission.
4. The objector's application for an order pursuant to Section 29 of the Industrial Relations Act 1979 was lodged on 7 July 2000 and is still to be heard. To further delay the hearing would accentuate the hardship experienced by the objector and in all the circumstances would be unjust.
1. In the event that the Appellant is successful in its appeal on the grounds that the Commissioner did not have the requisite jurisdiction to revoke the order and as a consequence application no. 440 of 2001 is dismissed, the objector seeks an order for an extension of time to lodge an appeal against the decision of Commissioner Wood made on 15 February 2001 in application no. 1039 of 2000 and for that appeal to be heard at the same time as this Appeal. A draft Notice of Appeal is attached.
2. Further and in the alternative, if the Appellant is successful to the extent that the discontinuance of application no. 1039 of 2000 is not set aside, the objector seeks an order for an extension of time to lodge a fresh application for harsh, oppressive and unfair dismissal."
Draft Notice of Appeal - Matter No 1039 of 2000
"A conciliation conference pursuant to section 32 of the Industrial Relations Act 1979 was held before Commissioner Wood on 28 November 2000. At the conclusion of which the matter was settled and the Commission advised that the matter would be adjourned for seven days.
On 6 December 2000 correspondence was received from the applicant's solicitor indicating that the matter was settled and a notice of discontinuance would be filed within 10 days.
Please advise the Commission, in writing, of progress with the matter or alternatively file a notice of discontinuance by close of business Wednesday 14 February 2001. If the Commission has not had a reply by this date the matter will be discontinued on the Commission's own motion."
"WHEREAS this is an application pursuant to section 29(1)(b)(i) of the Industrial Relations Act 1979; and
WHEREAS on 28 November 2000 a conference was held pursuant to section 32 of the Act, at which time terms of settlement were agreed; and
WHEREAS the Commission wrote to the applicant on 30 January 2001 advising that the application would be discontinued on the Commission's own motion unless advised otherwise by the applicant by 14 February 2001; and
WHEREAS there has been no response on behalf of the applicant;
NOW THEREFORE the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders -
THAT the application be and is hereby discontinued."
(See pages 22-23 of the appeal book (hereinafter referred to as "AB").)
"1. We have received no correspondence from you since our letter of 6 December.
3. If no or no adequate response is received by that time, we propose writing to the Commissioner requesting a directions hearing in the new year and a date for trial."
"WHEREAS on 28 November 2000 a conference was held pursuant to section 32 of the Act, at which time terms of settlement were agreed...."
" We write to confirm that the matter has now been settled between the parties with the only outstanding matter being the execution of the Deed of Settlement - now substantially settled between the parties - the payment of the settlement sum, and the filing of the Notice of Discontinuance (which must await the execution of the Deed and payment of the settlement sum).
We shall write to you immediately if there are any difficulties experienced in the settlement of the above Application, which we anticipate should be completed, and a Notice of Discontinuance filed within the next 10 days."
"correct, amend or waive any error, defect or irregularity whether in substance or in form."
"the functus officio concept is referable only where the duty concerned has been finally performed by a relevant order or award or decision and not where some mere interim or preliminary conclusion has been reached; an interlocutory order may be set aside."
""decision" includes award, order, declaration or finding"
""finding" means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate"
""Court" means the Western Australian Industrial Appeal Court continued and constituted under this Act"
Aussie Online Limited (ACN 004 160 927)
John Lane [2001] WAIRComm 3497
Appeal upheld; decision at first instance quashed (the revocation order was beyond jurisdiction and is quashed).