HEARING DATES: 27 July 2001; 17 and 18 September 2001

JUDGMENT OF: His Honour Deputy President Judge BP Gilchrist

Judicial determination - Worker had previously executed a redemption agreement in respect of earlier compensable disabilities and purportedly redeemed an ongoing entitlement of over $1000 per week - Worker sustains a subsequent compensable disability - Corporation rejects claim for weekly payments on the ground that the effect of s 35(6) and s 35(6a) having regard to the earlier redemption is that the worker has no entitlement - Evidence establishes that the worker did not in fact receive competent professional advice about the consequences of the redemption agreement - Worker contends that the receipt of competent professional advice about the consequences of the redemption agreement was a condition precedent to the making of a redemption agreement and because that did not occur here the Corporation cannot rely upon the redemption agreement - The Corporation contends because it relied upon the worker's signed acknowledgment that he received competent professional advice about the consequences of the redemption agreement the worker is estopped from asserting otherwise - Principles of estoppel discussed - Corporation's contention upheld - Corporation's rejection of the worker's claim confirmed - S 32, s35, s 42, s 43 and s 58B Workers Rehabilitation and Compensation Act 1986.

Blocki v WorkCover/CGU Workers Compensation (SA) Ltd (Pyrotech Fire Protection Pty Ltd) [2001] SAWCT 91.

Tsimpinos v WorkCover [2001] SAWCT 138

Harrington v Harrington [1981] HCA 42; (1981) 155 CLR 317

Coates v Commissioner for Railways (1961) 78 WN (NSW) 377

Simm v Anglo-American Telegraph Co (1879) 5 QBD 118

General Motors Holden v D'Andrea (1985) 122 LSJS 301

WorkCover v Grigor (1993) SAWCAT 62

Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 999

Trenorden v Martin [1934] SASR 340

Sarat Chunder Dey v Gopal Chunder Laha (1892) 19 LR Ind App 203

Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305

Dr Robertson "Reasonable Reliance In Estoppel By Conduct" [2000] UNSWLawJl 27; (2000) 23 UNSW Law Journal 87

Adelaide Assemblers Ltd v Kutos (1974) 9 SASR 102

Smith v Baker (1873) LR 8 CP 350

1 This is a judicial determination of a dispute between Walter Blocki ("the worker") and the WorkCover Corporation ("the Corporation"), the resolution of which turns upon the effect of an agreement made between the worker and the Corporation that purportedly redeemed the Corporation's liability to pay to the worker weekly payments of income maintenance and medical expenses in connection with compensable disabilities sustained by him from his employment with GR and Fiedler Pty Ltd and Rexco Pty Ltd on 13 November 1994 and 3 August 1995 ("the redemption agreement") in accordance with s 42 of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

2 Immediately prior to the execution of the redemption agreement the worker was receiving weekly payments of income maintenance in the amount of $1,037.15 per week. In executing the redemption agreement in respect of the specified compensable disabilities the worker purportedly redeemed all of his future entitlements to weekly payments in the sum of $49,000 and all of his future entitlements to s 32 expenses in the sum of $1,000. Collateral agreements were also reached in respect of the worker's s 43 entitlements.

3 On 13 July 1997 the worker commenced employment with Pyrotech Pty Ltd ("Pyrotech") earning an average amount of $724 per week.

4 On 13 July 1998 the worker suffered a compensable disability in the course of his employment with Pyrotech in respect of which he claimed weekly payments of income maintenance.

5 Although the Corporation accepted that the worker was totally incapacitated for work as a result of this disability it rejected the worker's claim. It did so, on the grounds that the combined effect of the redemption agreement and s 35(6a) were such that the worker was deemed to be earning $1037.15 per week such that he had no entitlement.

6 Part of this statement is obviously wrong because neither the redemption agreement nor s 35(6a) refer to "earnings".

7 Presumably what the determination purported to convey was that because pursuant to s 35(6) "a worker is not entitled to receive for two or more disabilities weekly payments in excess of the worker's notional weekly earnings" and because the redemption agreement declared that the worker was taken to be receiving a continuing weekly payment of $1037.15, he had no entitlement to weekly payments in respect of the later disability because his notional weekly earnings in respect thereof were less than that amount.

8 Herein lies the nub of the dispute between the parties.

9 The worker contends that he did not receive competent professional advice about the consequences of the redemption of weekly payments as required by s 42(2)(a) of the Act and that as a consequence, the redemption agreement is invalid and cannot be relied upon by the Corporation.

10 In a statement of claim that the worker filed in connection with these proceedings, he particularised his allegation that he did not receive competent professional advice as follows:-

"The applicant worker did not receive adequate or appropriate information and competent advice about the redemption from his solicitors on the following matters: -

(a) that if he suffered a further compensable disability he could be treated as receiving a continuing weekly payment of weekly payments of income maintenance which would be deducted from any weekly payments to which he might otherwise have been entitled.

(b) the basis for the computation of $1,037.15 per week deduction.

(c) the alternatives to the deduction of $1,037.15 per week, including any actuarial calculation based on partial or total incapacity spread over the years of his available working life.

(d) information concerning the guidelines or criteria used by WorkCover in reaching agreement as to redemption of future weekly payments.

(e) the effect in agreeing to the sum of $1,037.15 per week for deduction and its effect with regard to any future entitlements to weekly payments.

(f) the effect of the redemption on any entitlement to Commonwealth Benefits and in particular the period of preclusion of the applicant worker from any Commonwealth benefits."

11 The relevant terms of s 42 are as follows:-

"(1) Any of the following liabilities may, by agreement between the worker and the Corporation, be redeemed by a capital payment to the worker-

(b) a liability to pay compensation under section 32;

(2) An agreement for the redemption of a liability under this section cannot be made unless-

(a) the worker has received competent professional advice about the consequences of redemption; and

(b) the worker has received competent financial advice about the investment or use of money to be received on redemption; and

(d) a recognised medical expert has certified that the extent of the worker's incapacity resulting from the compensable disability can be determined with a reasonable degree of confidence.

(3) The amount of the redemption payment is to be fixed by the agreement.

(9) However, if agreement is not reached, a party cannot be compelled to agree to redemption of the liability.

(10) The Corporation may accredit professional and financial advisers for the purpose of giving advice under this section (but a worker is not required to obtain the necessary advice from the accredited adviser).

(11) However, the Corporation incurs no liability for advice given by an accredited professional or financial adviser."

12 At this point I think it is helpful to set out some of the details of the redemption agreement. It included within its preamble the following statements:-

"(2) The Corporation has an undischarged liability to the worker to make weekly payments of income maintenance pursuant to Division 4 of the Act.

(3) The worker and the Corporation have entered into negotiations for the redemption of the undischarged liability referred to in clause 2 above.

(4) The worker in compliance with Section 42(2)(a) of the Act has received competent professional advice about the consequences of redemption as appears from Annexure "A". ..."

13 Annexure A which I shall hereinafter refer to as "the acknowledgment" is in the terms following:-

SUBJECT: Redemption under section 42 of the Workers Rehabilitation and Compensation Act, 1986

I Walter Blocki have received competent professional advice about the consequences of a redemption payment from David Gilfillan.

Although not limited to, I have received advice on the following: -

- That on the receipt of this redemption payment I have no further entitlement to weekly payments, in relation to my compensable disability suffered on 13th November 1994 and 3rd August 1995;

- That I am aware of the application of section 35(6a) and/or section 35(6b) of the Workers Rehabilitation and Compensation Act, 1986 and I acknowledge that I will be taken to be receiving a continuing weekly payment of $1,037.15;

- Taxation implications of the redemption payment, if any;

- Department of Social Security implications in relation to the redemption payment, if any, and that the amount specified in a Department of Social Security Notice of Charge, if any, will be deducted by WorkCover Corporation from my redemption payment;

- The receipt of a redemption payment of medical expenses may restrict my entitlement to claim future medical expenses, incurred as a result of this compensable disability, from Medicare or my private Health Fund.

14 The evidence at trial comprised of witness statements produced by the worker, his oral evidence and evidence from the solicitor, Mr Gilfillan, various documents including those relating to the worker's initial and subsequent claims for compensation, the redemption agreement, Mr Gilfillian's file and the worker's diary for the calendar year 1997.

15 Mr Gilfillan's evidence came before the Tribunal as a result of a direction given by me. It seemed to me that his evidence might be critical to the determination of the dispute and in view of the fact that neither party wanted to call him as part of their case, it seemed to me that the most expeditious course was for me to call him and to allow both parties the right to cross-examine him. I explained why I took this course in the reasons published by me in [2001] SAWCT 91.

16 The evidence reveals that following the disabilities that were the subject of the redemption agreement the Corporation was actively pursuing a plan to rehabilitate the worker and in that context had secured employment for him in the nature of a work hardening program with Bunnings, a hardware supplier, on about 28 November 1996.

17 The worker instructed Mr Gilfillan on 21 March 1996. He did so because he was feeling harassed by the Corporation and by its alleged threats that his weekly payments of income maintenance would cease if he did not cooperate with it. The worker's frustrations with his continued dealings with the Corporation, culminated with an attendance with Mr Gilfillan on 18 October 1996 wherein they discussed the possibility of approaching the Corporation's agent to negotiate an all inclusive resolution of the worker's outstanding entitlements including a redemption of any entitlement to ongoing weekly payments of income maintenance and medical and like expenses. Presumably on 22 October 1996 when the outstanding disputes that the worker had were called on for a conciliation conference at the Workers Compensation Tribunal such a possibility was flagged with the Corporation's agent. This resulted in Mr Gilfillan receiving a letter dated 6 November 1996 advising him that the Corporation would not entertain such a proposal because the worker had been incapacitated for less than two years.

18 On 10 February 1997 Mr Gilfillan again attended on the worker's behalf at the Workers Compensation Tribunal. Mr Gilfillan took the opportunity to raise again, with the Corporation's solicitors, the possibility of a redemption.

19 On 27 February 1997 Mr Gilfillan saw the worker at his office and discussed the prospects of resolving the matter. Mr Gilfillan was in possession of a medical report from Dr John Meegan, an occupational physician, and on the basis of the assessments contained in that report he calculated the worker's s 43 entitlements as amounting to $36297. He indicated to the worker that it was his understanding that the maximum that the Corporation would allow for a redemption of future weekly payments of income maintenance was $50000 and that no higher sum would be entertained. Although the worker thought the figure was low, anxious as he was to "get off the system", he instructed Mr Gilfillan to formulate a claim for the redemption of his future entitlements of income maintenance in the amount of $50,000 and for the redemption of future entitlements to medical expenses in the amount of $3000.

20 The worker again attended with Mr Gilfillan on 15 April 1997 to discuss these issues.

21 It would appear that the worker's instructions at that time were to settle his s 43 entitlements for an overall amount of $35208.09 and agree to redeem his future entitlements to weekly payments of income maintenance in the sum of $49000 and to redeem his future entitlements to medical expenses in the sum of $1000. These revised figures might have resulted from some discussions that Mr Gilfillan had with the Corporation's solicitors. Be that as it may the worker's instructions were communicated by Mr Gilfillan to the Corporation's solicitors on 17 April 1997 and culminated in a letter on 18 April 1997 from Scammell and Co to the Corporation's solicitors confirming those terms.

22 The Corporation's solicitors obtained instructions to accept the worker's offer and by letter dated 22 April 1997 to Scammell and Co, they indicated that fact and declared that the settlement was subject, amongst other things, to the worker agreeing that he was redeeming "his full current rate of income maintenance for the purposes of section 35(6a) of the Act."

23 It appears that this letter was supplied to Mr Gilfillan at a pre-arbitration conference, which took place at the Workers Compensation Tribunal the following day, that is 23 April 1997. Mr Gilfillan said that he undertook a long and detailed discussion with the worker in respect of the various matters raised in the letter.

24 Mr Gilfillan candidly admitted that at that time he was not aware of the clear implications of s 35(6a) or of the acknowledgment within a redemption agreement that a worker was taken to be receiving a specified amount of income maintenance for the purposes of the Act. Mr Gilfillan was of the view that if a worker suffered a further compensable disability that was not related to the disability that was the subject of the redemption agreement, there was no impediment to that worker pursuing a further claim for weekly payments of income maintenance in respect of the later disability for the full amount of his or her entitlements.

25 In any event, the worker instructed Mr Gilfillan to agree to the terms proposed. This was communicated to the Corporation's solicitors who duly prepared the necessary documents to record the agreement.

26 On 1 May 1997 the worker attended Mr Gilfillan's office and was invited to read the documents. He was given advice from Mr Gilfillan about the consequences of the redemption agreement along the lines just indicated. Mr Gilfillan told the worker that Centrelink would have an interest in the resolution of the claim, either by recovering amounts paid or by limiting access to benefits in the future. He also told him that he was not an expert in these matters and that the worker needed to consult with Centrelink to obtain full details of any interest that they may have. The worker then signed the redemption agreement and the acknowledgment that he had received competent professional advice as set out above.

27 The following day the worker attended upon his accountant and received financial advice.

28 The documents were forwarded to the Corporation and on 5 June 1997 the worker received his settlement money.

29 Immediately following the worker's execution of the redemption agreement his work hardening program with Bunnings ceased and as I said earlier, shortly thereafter he commenced employment with Pyrotech and later suffered the disability that is the subject of this dispute.

30 The parties agreed that as a consequence of the redemption agreement the Corporation acted to its detriment in a number of respects. These were itemised as follows:-

* It discontinued the weekly payments of income maintenance it was paying until that time to the worker.

* It did not continue with the rehabilitation and return to work plans which it had, prior to 1 May 1997, put in place for the worker, and pursuant to which the worker was engaged in work hardening activities.

* It did not implement or put in place other rehabilitation and return to work plans.

* It was deprived of the opportunity, of invoking the review of the worker's payments pursuant to s 38 of the Act or taking any action by way of reduction of income maintenance payments having regard to the worker's work capacity, as demonstrated in work hardening with Bunnings and the worker's demonstrated work capacity as a Boiler Maker demonstrated at least by 13 July 1997.

* It was deprived of an opportunity to reduce the worker's weekly payments of income maintenance pursuant to s 36 of the Act because of his demonstrated capacity for work.

* He did not after 1 May 1997 continue to invoke the use of the RISE scheme in relation to the worker as it had done prior to that date.

* It paid to the worker $49000 by way of redemption of income maintenance.

* It paid to the worker $1000 by way of redemption of medical and like expenses pursuant to s 32 of the Act.

* It paid lump sums in respect of permanent disabilities allegedly sustained by the worker pursuant to s 43 of the Act and did not seek to exercise its entitlement to have independent assessments of those disabilities to which the payments related.

* It did not contest, nor continue to contest, the notices of dispute then extant having been filed in the Tribunal by the worker.

* It had not since May 1997 otherwise taken steps by way of rehabilitation programs or rehabilitation and return to work plans in respect of the worker, nor completed any other steps it may have such as, for example, continuing the worker's involvement in the RISE scheme.

* It had not since May 1997 generally involved itself in the rehabilitation and return to work of the worker.

* It was deprived of the opportunity of invoking or inducing compliance with the statutory duty under s 58B of the Act to request the worker's employers to provide suitable employment in circumstances where that compliance had not been previously sought.

31 It was further agreed between the parties that prior to 1 May 1997 the worker had participated in rehabilitation and return to work plans put in place by the Corporation and that he had participated in the RISE scheme.

32 The RISE scheme is an incentive scheme established by the Corporation wherein it provides certain benefits to employers as an incentive for them to offer employment to workers who have suffered work related disabilities and who are unable to return to their original job.

33 Ms Layton QC, counsel for the worker, contends that the advice that the worker received from Mr Gilfillan about the consequences of the redemption agreement was wrong. Next she says that as a result, the statutory requirement prescribed by s 42(2)(a) that: "the worker ... [receive] ... competent professional advice about the consequences of redemption" was not met. She submitted that this was an absolute requirement that was a necessary precondition to the making of a redemption agreement and having not been met the redemption agreement was void.

34 Mr White QC, counsel for the Corporation, contended that the advice given satisfied the relevant legislative requirement. He said that the focus of the provision was directed towards the competence of the professional, not the competence of the advice. He argued that whatever view I might have about the accuracy of the advice given was not to the point, because Mr Gilfillan was a competent professional.

35 Some of the advice that Mr Gilfillan gave to the worker about the consequences of the redemption agreement was in my view wrong. As the Full Bench observed in Tsimpinos v WorkCover [2001] SAWCT 138, the basic notion underpinning a redemption is as described by Wilson J in Harrington v Harrington [1981] HCA 42; (1981) 155 CLR 317 at 332 where he said:-

"I think it is true to say, as a matter of history, that the fundamental idea implicit in the notion of redemption was always that of conversion from form to another of the liability of an employer to pay compensation to a worker. The concept of fair exchange lay at the heart of it."

36 The redemption agreement purported to exchange a recurring entitlement to weekly payments of $1037.15 per week for a lump sum of $49000. Through the application of s 35(6) and s 35(6a) the amount of $1037.15 per week must be taken into account in respect of any subsequent compensable disability, whether the later disability related to the original compensable disability or not.

37 As was explained by the Full Bench in Tsimpanos (supra) Parliament has through a process of legislative amendments dramatically changed the process of converting a recurring liability to a lump sum. It has replaced a limited and highly regulated regime with one that has no limitations on the amount payable, has no independent review, and which leaves it up to the parties to determine by agreement whether there will be a conversion and if so on what terms, subject to certain criteria being met. These include requirements that the worker must receive competent professional and financial advice about the matters prescribed as well as advice from a recognised medical expert about the predictability of the extent of his or her incapacity.

38 These requirements are clearly intended to act as safeguards. Amongst the dictionary definitions of the word "competent" is "suitable or sufficient for the purpose". In my opinion, that is the meaning to be attributed to it here. That is, that competent, professional and financial advice means advice that is sufficiently comprehensive to enable a worker to make an informed decision as to whether or not to agree to the proposed redemption.

39 In my view Mr White's suggested construction calls for an unnecessarily restrictive interpretation of the relevant provision that does not fulfil the provision's objective. I therefore agree with Ms Layton that the word "competent" qualifies the advice given, not the person who gives the advice.

40 Looked at it in this light, it is plain to see that the professional advice that the worker received about the consequences of the redemption agreement was not competent.

Incompetent professional advice - is the worker bound by the redemption agreement?

41 The Corporation contends that none of this is to the point anyway because firstly, the acknowledgment signed by the worker that he received competent professional advice and that which followed it leads to the application of the principle of estoppel such that the worker is estopped from contending that he did not receive competent professional advice and is estopped from contending that the redemption agreement that he entered into on 1 May 1997 is therefore invalid. Secondly, it was contended that the worker had lied in giving his evidence before me and that charged as I am with the obligation to "act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms": s 85, I should for this reason deny him relief.

42 The law generally attempts to ascertain the truth and to apply itself to the truth. There are, however, some notable exceptions to this. In the context of workers compensation an obvious example is a deeming provision. As Kinsella and Collins JJ observed in Coates v Commissioner for Railways (1961) 78 WN (NSW) 377 at 384, when commenting upon a deeming provision in the Workers Compensation Act 1926 (NSW):

"Where a statute provides that something shall be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact."

43 The principle of common law estoppel can have the same effect. This principle prevents a person who has through his or her words or conduct made a representation to another in the expectation that that representation would be relied upon, to resile from that representation if the other person has relied upon it and in doing so has acted to his or her detriment. The application of the principle can, as Lord Justice Bramwell noted in Simm v Anglo-American Telegraph Co (1879) 5 QBD 118 at 202 require that "a person ... [be] compelled to admit that to be true which is not true, and to act upon a theory which is contrary to the truth."

44 Accordingly, if the principle of estoppel applies in this case the worker will be taken to have received competent advice, even though he did not.

45 Mr White took me to an extract from the Law Book Company "The Laws in Australia" dealing with estoppel and I think correctly contended that the following defines what that principle means:-

"Estoppel is a substantive principle of law which operates to preclude a party to legal proceedings from asserting against another party facts, legal rights or the absence of legal obligations, to the extent that it would be unconscionable to do so. The object of estoppel is to preclude the unconscientious departure by a party from an assumption for which he or she bears some responsibility, and which has been adopted by another party as the basis of a course of conduct, act or omission which would operate to that other party's detriment if the assumption were not adhered to."

46 He then drew me to the following further passages, which I again respectfully adopt as a correct statement of the law:-

"Three elements must be demonstrated in order to establish an estoppel.

First, the party claiming the estoppel must have adopted an assumption as the basis of an act or omission;

Secondly, the claimant, upon the basis of the assumption, must have so acted or abstained from acting that a detriment will be suffered if the person against whom the estoppel is asserted is afterwards allowed to set up rights inconsistent with it;

Thirdly, the party against whom the estoppel is alleged must have played such a part in the adoption of, or persistence in, the assumption that freedom to act otherwise than in a manner consistent with it would be unfair or unjust."

47 Mr White contends that each of these elements is present in this case.

48 Mr White submitted that in executing the acknowledgment the worker was asserting that the proper formalities required by s 42 had been complied with and in so doing he had obtained an advantage for himself then, namely the payment of a lump sum. It was submitted that it would be unconscionable for him now to contend otherwise so as to obtain some further advantage from the Corporation, namely the receipt of weekly payments in respect of his most recent compensable disability.

49 It was contended that the principle of estoppel has been found to apply to workers compensation legislation in the state. Reference was made to cases such as General Motors Holden v D'Andrea (1985) 122 LSJS 301 and WorkCover v Grigor (1993) SAWCAT 62 in support of this.

50 Ms Layton submitted that the receipt of competent professional advice was a statutory requirement that had to be fulfilled such that the principles of estoppel have no role to play.

51 Next she said that the worker's completion of the acknowledgment did not amount to a representation of fact but rather, if anything, it was a mere expression of a value judgment about the advice he received that was not intended to be relied upon, such that the pre-requisites to the application of the principle of estoppel have not been established.

52 I think the first point that needs to be dealt with is whether the principle of estoppel can apply so as to effectively override a statutory requirement.

53 The judgment of the Privy Council in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 999 makes it plain that in some circumstances it can. Viscount Radcliffe in delivering the judgment of the Board at 1015 - 17 explored this. After citing some cases where it had been held that the statutory obligation was of an unconditional character that did not permit the application of the principle of estoppel and others involving statutes that declared transactions to be unenforceable or void and yet did not preclude estoppels, His Lordship said this:-

"It has been said that the question whether an estoppel is to be allowed or not depends on whether the enactment or rule of law relied upon is imposed in the public interest or "on grounds of general public policy" (see In re A Bankruptcy Notice [1924] 2 Ch 76 at 97 per Atkin LJ). But a principle as widely stated as this might prove to be rather an elusive guide, since there is no statute, least a public general statute_,_ for which this claim might not be made. In their Lordships' opinion a more direct test to apply...is to ask whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public, despite any rules of evidence as between themselves that the parties have created by their conduct or otherwise."

54 His Lordship then identified some examples of a general social policy evinced by legislation that might displace the principle of estoppel. He cited categories of persons requiring protection such as infants and those who might require protection from dealings with specific persons such as the creditors of a bankrupt.

55 Important as the statutory requirements upon which the making of a redemption agreement is conditional are, they do not, in my opinion, reflect a social policy that requires the displacement of the principle of estoppel. We are not here dealing with a special or disadvantaged group. We are dealing with adult workers, many of whom I suspect would be insulted by the suggestion that they require special protection because they are unable to discern for themselves whether the advice that they have received is competent.

56 Perhaps another way to approach this issue is to discern from the relevant provisions whether Parliament intended for the principle of estoppel to apply. Adopting that approach, I come to the same result.

57 In the first place, the making of a redemption agreement would, for practical purposes, be almost impossible to achieve if the principle of estoppel did not apply.

58 In Simm v Anglo-American Telegraph Co (supra) at 202, Lord Justice Bramwell in noting that the principles of estoppel are essential, said: "I do not know how business life could go on, unless the law recognised their existence."

59 That observation is entirely apposite to the making of a redemption agreement pursuant to the Act.

60 Parliament has through s 42 given the parties the freedom to negotiate the finalisation of their respective liabilities and entitlements to compensation. If the principle of estoppel did not apply how could the Corporation be confident that that the liabilities it thought it had discharged through the redemption agreement had in fact been finalised? The purported extinguishment of an outstanding liability would be susceptible to challenge perhaps years after the agreement was made on the simple assertion by the worker that he or she did not receive competent advice, despite an earlier assertion from the worker that the advice that he or she received was competent. Does this mean that the Corporation would have to satisfy itself that the advice given was competent? Without knowing precisely what professional advice a worker was given, how could the Corporation be in a position to know that? It might be suggested that the Corporation could give the advice itself either personally or through its agent. But, as Mr White I think quite correctly pointed out, that would be utterly impractical. There are all sorts of reasons why a worker might want to negotiate a redemption agreement that the worker would not want to and ought not to be compelled to disclose to the Corporation. The worker might be dying from a non compensable disability, be planning a trip overseas, have secure employment lined up, or for good reason be far more optimistic about his or her medical prognosis or future employment prospects than others who have provided medical or other expert reports. These are matters that one could imagine might be discussed with a professional adviser in determining whether or not the proposed exchange, that is, the proposed redemption, was fair, that might suggest that what otherwise looks like a bad bargain is in fact a good deal for the worker.

61 Once it is accepted as I think it must be, that the Corporation must rely upon a professional adviser who is not its agent, and once it is accepted that is not feasible for the Corporation to be provided with complete details of the advice that might be given, one might then ask how else could the Corporation confidently enter into a redemption agreement unless it was able to rely upon an apparently genuine declaration by the worker that he or she has received competent professional advice? The answer is, it could not.

62 I am fortified in reaching the view that Parliament intended for the principle of estoppel to apply to redemption agreements by the terms of s 42 (10) and s 42 (11). Those provisions provide for the accreditation by the Corporation of professional and financial advisers in connection with a redemption agreement and an immunity to the Corporation in respect of advice given by an accredited adviser. If the fact of incompetent professional or financial advice meant that the redemption agreement was void, how could the provider of that advice incur a liability in respect of which the Corporation requires immunity? It seems to me that in making the Corporation immune from liability for advice given by an accredited adviser, Parliament is recognising that a worker can be bound by the terms of a redemption agreement notwithstanding the receipt of incompetent professional or financial advice.

The acknowledgment - a mere value judgment or a representation intended to be relied upon?

63 The next issue that I need to deal with is, whether the acknowledgment amounts to a mere value judgment or whether it amounts to a representation that can create an estoppel.

64 Obviously a casual expression of opinion that was not and could not reasonably have been expected to be relied upon would not create an estoppel. But, I do not think that this was a casual expression of opinion. The worker well knew that the payment of the redemption sum and the other benefits he sought through his negotiations, such as his s 43 entitlements and his release from rehabilitation, were contingent upon his execution of the documents that the Corporation's solicitors had provided to Mr Gilfillan. As to be expected the worker had taken a keen interest in his dealings with the Corporation. Prior to the execution of the redemption agreement he had frequent meetings with Mr Gilfillan and attended before the Workers Compensation Tribunal on a number of occasions at which his claim was discussed. On his evidence he kept a diary throughout this period recording amongst other things important events in connection with his workers compensation claim. On the issue of the acknowledgment, the worker had this to say in cross-examination (tr 121 - 3):-

"Q Mr Blocki, at the time that you signed annexure A did you know, firstly, that it was necessary for you to sign that statement in order that you could receive a lump sum by way of redemption.

Q Did you think that you could get your lump sum without signing that.

Q Did you think that you would have to sign it in order to get the lump sum.

Q Did you not have any view at all about signing it.

A That's basically true. Yes, I had no view on it. To me it was, `I have to read this out to you and you have to sign it so that they can - at least I've done my job right,' okay. That's how I viewed it.

Q Did you think that WorkCover therefore wanted to know that Mr Gilfillan had done his job properly.

A Again, I don't - I can't really answer that, because to me - it didn't bother me at that particular time. I just wanted to get off the system, so - - -

Q Why did you think you were being asked to sign this statement.

A Because of everything that's in here - is basically what I'm doing, is redeeming myself at those things, that the information that he's giving me here is supposed to be the information that he's supposed to give me.

Q Why did you think you were being asked to sign it.

A Well, I suppose that if I ever had any problems I couldn't sue him. I assume that it's standard policy that every lawyer has to have this sort of thing done, that there's no ratifications towards them.

Q Why did you think it would form part of the redemption agreement.

A I don't know. I can't answer that, because I don't - I didn't even know that this was part of a redemption agreement. I thought the redemption agreement was this part, redemption of weekly payments. Yes, and in the part of, yes, like you say, that I have to receive competent advice so that everything is above board, I suppose.

Q It was clearly part of the redemption agreement, wasn't it.

A Yes, I can see that, yes, and I would assume that the reason why I had to sign is to make sure that everything is above board.

Q Mr Gilfillan told you, didn't he, that he would be sending back the signed redemption agreement as well as the annexure A and the other annexure, B.

Q He said that he would be sending it back to WorkCover's claims agent.

Q And that it would be necessary then for that agreement to be submitted to WorkCover for its approval to be obtained before the redemption could take place.

Q You understood that in due course it was returned to Gun and Davey; it was submitted to WorkCover, and WorkCover approved the redemption taking place.

65 The worker's seemingly cavalier attitude to the redemption agreement and that, which followed it, does not in my view ring true. In analysing what was said and done I think is important to bear in mind the statement made by Murray CJ, Angas Parsons and Napier JJ in Trenorden v Martin [1934] SASR 340 at 343 where, in undertaking a like exercise, their Honours said:-

"...it is necessary to remember that the intention can be implied, that is to say, "a man is taken to intend the natural and probable consequences of his acts, and cannot evade civil responsibility for these consequences by saying that he never intended any result to ensue." See Cababe on Estoppel, p 64, and see Sarat Chundr Dey v Gopal Chunder Lala, (1892) 56 JP 741 Lr 19 Ind Ap 203 at pp 215-219"

66 Despite some evidence from the worker to the contrary, I find that the worker appreciated the significance of the acknowledgment and I find that he intended through the acknowledgment to represent to the Corporation that he had received competent professional advice about the consequences of the redemption agreement and that he understood that the Corporation would rely upon that acknowledgment in keeping its end of the settlement that had been struck.

Does it matter what the worker actually thought of the advice that he received?

67 It might be said: How would the worker have known that the advice he received was competent? The short answer is that it does not matter. The authorities make it clear that the focus of the principle of estoppel is directed towards the representee, not the representor. In Sarat Chunder Dey v Gopal Chunder Laha (1892) 19 LR Ind App 203 at 215, for example, the Privy Council said that in order to create estoppel, the law does not require that the representor "must have been under no mistake himself". Isaacs J (as he then was) put it thus in Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 at 327:-

"...the law of estoppel looks chiefly at the situation of the person relying on the estoppel; next, as a consequence of the first, the knowledge of the person sought to be estopped is immaterial..."

Was it reasonable for the Corporation to rely upon the representation?

68 Ms Layton finally contends that the redemption agreement is so "outrageous" that the worker, having been the innocent recipient of incompetent advice should not be bound by it. As I understand her, she contended that in this case the settlement offer made by the worker through his solicitor was so low that the Corporation should have appreciated that something was awry.

69 As it was, the worker agreed to exchange an ongoing entitlement of over $1000 per week for a lump sum payment of less that $50000. The size of the return on investment to generate that weekly amount from that lump sum was of the order of 100 per cent. Without making allowance for the effects of inflation and without factoring a discount to reflect that fact of a present payment for a future entitlement, the worker had through the redemption agreement agreed to exchange a potential entitlement of $1.4 million for less than $50000.

70 It was, on the face of it, an extremely favourable deal for the Corporation.

71 Dr Robertson in his article "Reasonable Reliance In Estoppel By Conduct" [2000] UNSWLawJl 27; (2000) 23 UNSW Law Journal 87 makes a powerful argument in favour of qualifying the application of the principle of estoppel by a consideration of the reasonableness of the representee's reliance upon the relevant representation and the infusion of policy considerations and contemporary notions of fairness. He wrote at 94 and 95:-

"Although the nature of the reasonableness inquiry has not been considered in any detail in the estoppel cases or literature, assistance can be derived from the law of negligence which is, of course, structured around the norm of `reasonable care'. It is generally accepted in the law of negligence that the reasonableness question requires the court to make a policy decision as to what is prudent and sensible behaviour, taking into account the behavioural norms of the time and place. Although evidence as to the standard practice of those engaged in a particular activity may be relevant, the question of reasonableness is clearly not entirely, or even predominantly, a factual question, because standard practice may itself be regarded by the courts as deficient. As Francis Trindade and Peter Cane have observed, it is a function of the law of negligence to identify which risks are socially acceptable, and this is a `social question' which must ultimately be answered by the courts. Peter Cane has developed this point further: "Reasonableness is not a question of what people actually do but of what courts think is a reasonable standard of conduct for society to enforce against its citizens through the mechanism of tort law. What people actually do provides a starting point for this inquiry, but it is only a starting point. The courts have a constitutional responsibility to establish standards of conduct for society." Jules Coleman has suggested that this approach is inherent in the principle of corrective justice. Coleman has argued that corrective justice is a principle which is neither entirely independent of human practices, nor entirely fixed by the practices existing at any given time. A reliance-based doctrine of estoppel is founded on the principle of corrective justice. The reasonableness requirement in estoppel must, therefore, require the courts to determine the circumstances in which reliance on another person's conduct is socially acceptable, and the extent of reliance that is acceptable in particular circumstances. The reasonableness standard imposes responsibility on a representee to take care to protect his or her own interests, and defines the standard of care that must be taken. As Patrick Atiyah has observed, reliance on a promise alone cannot justify the imposition of liability on the promisor, something extra is required. The reasonableness standard provides that extra element, ensuring "compliance with some socially acceptable values which determine when ... [reliance is] sufficiently justifiable to give some measure of protection". The application of the reasonableness standard thus involves a sophisticated policy question which requires the court, while taking into account community standards, to establish norms of conduct. In defining the limits of the neighbourhood responsibility of representors for harm resulting from the reliance of others on their conduct, the reasonableness standard implicitly imposes a level of individual responsibility on representees to take care to prevent harm to themselves. The development of those standards of acceptable behaviour and acceptable reliance necessarily involves the allocation of risk and responsibility."

72 But as the learned author noted further on in his article at 102:-

"... where an express representation is made with the intention that it be acted upon, then the representor cannot avoid the estoppel on the basis that the representee should not reasonably have believed the representation."

73 That I think is a correct statement of the law and it reflects the position here. The worker made an express representation with the intent that it was to be relied upon. I therefore conclude that a consideration of the reasonableness of the Corporation's belief that the representation about the competence of the advice given does not arise.

74 In any case, however, favourable as the deal seemingly was for the Corporation, I do not think that it can be said that it acted recklessly or negligently in relying upon the acknowledgment. After all, it was the worker, not the Corporation that was vigorously pursuing the finalisation of his entitlements and his exit from the system. The Corporation's primary objective was to reduce its liability by rehabilitating the worker and it initially would not countenance an overall settlement. It was the worker who put up the proposal that was ultimately agreed to, and he did so through a solicitor who has practised in workers compensation matters in this State for over 20 years. Why would the Corporation assume that something was amiss? I think it was entitled to assume that the worker was content to take a lump sum and to look after himself without the Corporation's interference. It is notable that the worker obtained employment a little over a month after the after he received the settlement money.

Can I mould a remedy less severe than that which the Corporation seeks?

75 At times during my deliberations in this matter I have thought that the outcome is too harsh and that some other remedy might be more just. But whether or not that is the case it is not a matter that I can concern myself with. Whilst I can apply a rule of evidence founded in equity, as cases such as GMH v D'Andrea (supra) demonstrate, I cannot exercise the equitable jurisdiction of a superior court of record to mould a remedy in equity to suit the circumstances. See, for example: Adelaide Assemblers Ltd v Kutos (1974) 9 SASR 102.

76 Even if I could, the equitable principle that a person may not both approbate and reprobate would suggest that the same result would ensue. As Honyman J observed in Smith v Baker (1873) LR 8 CP 350 at 357:-

"A man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage."

77 Maybe the short answer to my concern lies in an action against the provider of the advice, if that advice was given negligently and has resulted in damage in the relevant sense.

78 I conclude that in this case the Corporation is entitled to rely upon the redemption agreement to resist the worker's claim for compensation. I therefore uphold its determination.

79 Having reached this conclusion it is not necessary for me to deal with Mr White's alternative contention, but as this matter may go further I think I should deal with it.

80 The worker gave evidence fortified by an alleged contemporaneous diary entry that he discussed the redemption agreement with Mr Gilfillan at the Tribunal on 7 July 1997, a month after he received the settlement money. A hearing had been scheduled for that date but did not proceed because the matter had settled. Mr Gilfillan has no recollection of attending the Tribunal on that day. The worker was unable to satisfactorily explain why he would have needed to discuss the matter then, the case having already settled. Mr White asked me to find that no such meeting occurred. He asked me to find that the purported contemporaneous diary entry was a fabrication and that the worker had lied about all of this in the mistaken belief that it would help his case. To find that someone has deliberately lied as opposed to being mistaken is a strong thing but it is difficult to come to any other conclusion here. But, I know of no authority that supports the submission that Mr White advances and he cited none. If this was all that stood in the way of the worker succeeding I would find in his favour.

Parties are advised that if a party wishes to appeal against any part of this decision which is appealable pursuant to s 86(1) of the Act such appeal must be filed with the Registrar in accordance with the form titled Notice of Appeal within 14 days of the delivery of this decision and must be served on all parties.