Bunney v Department for Education and Children's Services [2004] SAWCT 77

3 On 29 July 2002 the employer, pursuant to s 53 of the Act, rejected the worker's claim on the basis that he did not sustain a compensable disability for the purposes of the Act.

4 On 14 August 2002 the worker filed a notice of dispute challenging the correctness of the employers rejection of his claim.

5 This ultimately culminated in a conciliation conference and the recording of the following consent orders:-

"With the consent of the parties I make the following orders:-

1. The decision of the Exempt Employer dated 29 July 2002 made pursuant to Section 53(5) and (6) of the Workers Rehabilitation and Compensation Act 1986 ("the Act") to reject the worker's claim dated 19 March 2002 is set aside.

2. That the worker's claim dated 19 March 2002 for reactive depression/anxiety is accepted for weekly payments from 16 March 2002 and all section 32 expenses. The worker's Notional Weekly Earnings figure is set at a rate of $854.11 and the worker will receive weekly payments at this rate for the period from 16 March 2002 until 30 September 2002. On 1 October 2002 the weekly payments are increased to the rate of $888.27 in accordance with S 39 of the Act and they will continue at this rate until varied in accordance with the Act..." ("the consent order")

6 The consent order was signed on behalf of the worker on 30 January 2003 by Ms Nadia Zivkovic, the worker's then representative. Ms Zivkovic was an Industrial Officer employed by Public Service Association and she was entitled by the Act to represent the worker.

7 The notional weekly earnings figure specified in the consent order was based upon the rate payable to an AS04 pursuant to the relevant industrial instrument. The worker had unsuccessfully contended in separate proceedings that when he was carrying out duties for the employer as a senior project officer he should have been paid the AS06 rate.

8 Underpinning the within application is the worker's contention that the AS06 rate should apply to the calculation of his notional weekly earnings.

9 It would appear that shortly following the entry of the consent order, the employer advised the worker, that as over 12 months had elapsed since the time of the commencement of his incapacity for work his weekly payments would be reduced to 80 per cent of his notional weekly earnings. The worker lodged a notice of dispute challenging that determination and in doing so he asserted that the notional weekly earnings figure was incorrect. This notice of dispute ultimately resulted in a series of conciliation conferences the last of which occurred on 14 August 2003. The worker contends that it was only upon being informed at the last conference that it was necessary for him to challenge the consent order that he became aware of the need to do so and thereafter he acted promptly in lodging the within application. The Application for Directions that seeks to vary the consent order was filed on 21 August 2003.

The worker's case in support of the application and consequential findings

10 In support of the application I heard oral evidence from the worker and from Ms Zivkovic, and both provided written statements.

11 The worker contends that when he attended upon Ms Zivkovic on 30 January 2003, he did not provide her with specific instructions to sign the orders. He says (tr 19):-

"I explained to Ms Zivkovic that I was of the understanding that because the date of my injury related to the period of time when I was working as a senior project officer, that I expected the rate to be set in accordance with that - the ASO6 - and I suggested that she wasn't familiar with the contents of - or the history of my case and I believe she agreed to have a look through the documents that had been provided to her by the department including my medical reports, and I expected to hear back from her on that."

12 The worker contends that he did not become aware that his notional weekly earnings had been based on the lower rate, namely the ASO4 classification until he received a letter from the employer notifying him of its intention to reduce the rate of payments.

13 What emerges from Ms Zivkovic's evidence is that she thought that the setting of average weekly earnings based on the AS04 rate was probably correct. She understood that the worker was pursuing an appeal in respect of his assertion that he should have been paid wages based on an AS06 level and that her belief was that if the worker was successful through that process, that that might provide the opportunity to revisit the calculation of income maintenance for the purposes of his entitlements. Her focus, however, was to have orders recorded in the Tribunal so as to provide the worker with a level of income maintenance, because following the rejection of the worker's claim, his level of income had eventually been reduced to social security benefits.

14 I accept Ms Zivkovic's evidence. I found her to be a candid and honest witness. I find that Ms Zivkovic, in signing the consent orders, did so genuinely believing that she had instructions from the worker to consent to their terms.

15 Having carefully reflected upon the worker's evidence I am struggling to accept that he did not appreciate that the consent order fixed his notional weekly earnings and that he did not appreciate that he was instructing Ms Zivkovic to consent to those terms. It is not however necessary for me to make positive findings regarding these matters because even if I was to find as the worker asserts, I would nevertheless dismiss the application.

16 The best that can be said for the worker in support of this application is that there may have been some misunderstanding between he and Ms Zivkovic about the consequences of the consent order. She appreciating that they were binding with the possibility that a successful appeal in connection with the AS06 classification possibly providing grounds to revisit the setting of notional weekly earnings. He apparently thinking that the setting of notional weekly earnings in the consent order did not stop him from asserting that he was entitled to a higher amount.

17 As a principle of general law a solicitor has the implied authority to compromise a dispute on behalf of his or her client and in respect of the other party to the dispute the normal rules of agency apply. In other words, if the solicitor exceeded his or her authority or acted outside of or without instructions, provided the other party was not aware of that fact or was recklessly indifferent in the face of evidence that might indicate a lack of authority, the party is bound in his or her dealings with the other party by the solicitor's conduct and the party's redress is against his or her solicitor.

18 The rule is not an absolute one. Rules of court may expressly or impliedly enable a consent order to be revoked or varied. See, for example Henderson v State of South Australia 2003 SAIRC 88.

19 But, absent a finding vitiating the consent, such as duress, or an obvious mistake or slip, a court will, even if authorised by rules to do so, be reluctant to intervene because it will be mindful that a consent order carries with it the same authority as an adjudicated outcome. It will also be mindful that it is in the public's and more often than not the parties' interest that the litigation come to an end, and that the effective conduct of litigation and its disposition demands that parties be held to the bargains that they negotiate.

20 The principle of agency referred to above is based upon a fundamental premise that in matters of commerce where parties are represented by agents, parties dealing with those agents are entitled to take them at their word. It is notable that the notion that the agreement of a party's representative binds the party is enshrined in the Act: s 92C(5). The Act does not relevantly differentiate between solicitors and other authorised representatives and in approaching this matter nor do I.

21 All that can be said in support of the worker is that he may have an arguable case that he has been underpaid, the employer has been on notice that the worker queried the notional weekly earnings figure within weeks of the consent order, if the worker is to be accepted he did not knowingly give instructions to agree the weekly rate and the only prejudice that the employer might suffer, if the consent order is varied, are the costs associated with a hearing of this issue and the exposure to a higher judgement sum.

22 On the other hand there is no hint or suggestion that the employer in any way acted improperly in the recording of the consent order, although it is arguable that a full hearing will reveal that it is wrong that is by no means a certain outcome, the Tribunal and the employer were entitled to proceed upon the basis that Ms Zivkovic had instructions from the worker to consent to the consent order signed by her and the costs associated with a hearing of this issue and the exposure to a higher judgement sum are real prejudices. In addition to these the policy considerations to which I have earlier referred must be taken into account.

23 Having considered all of these matters, in my view the matters in support of the worker's application are not collectively sufficient to conclude that it is in the interests of justice to vary the consent order. I therefore dismiss the application.

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.