Bunney v Department of Education and Children's Services [2005] SAWCT 35

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:-

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.

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."

3 It was the appellant's case before the learned Deputy President that whereas the notional weekly earnings figure specified in the consent orders was based upon the rate payable to an ASO4 pursuant to the relevant industrial instrument, it should have been the ASO6 rate that was applied.

4 It was the appellant's contention that when he met with Ms Zivkovic on 30 January 2003 he did not give her specific instructions to sign the consent orders, but rather that he explained to her his belief that his rate of income maintenance should be set in accordance with the ASO6 rate, and that he left the meeting on the understanding that she would look into the matter and get back to him.

5 The appellant contended that he did not become aware that his notional weekly earnings had been set on the lower rate, ie the ASO4 classification, until he received a letter from his employer notifying him of its intention to reduce the rate of payments.

6 The learned Deputy President heard oral evidence from the appellant and from Ms Zivkovic, and both provided written statements.

7 The learned Deputy President set out his factual findings. He accepted Ms Zivkovic's evidence and found that she signed the consent orders genuinely believing that she had the appellant's instructions to consent to their terms. Having "carefully reflected upon the worker's evidence", he said he was "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". However, he said it was unnecessary for him to make positive findings regarding the appellant's evidence because "even if I was to find as the worker asserts, I would nevertheless dismiss the application". That, he went on to explain, was because:-

"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."

The appeal

8 On appeal, the appellant contended that the learned Deputy President had misconstrued the evidence, made wrong factual findings ie findings that were not open on the evidence, and that the exercise of his discretion pursuant to s 88H of the Workers Rehabilitation and Compensation Act 1986 ("the Act") had therefore miscarried.

9 The erroneous factual findings were identified as follows:-

(1) The learned Deputy President's assertion, in par 2 of his reasons, that the appellant had submitted a claim for compensation alleging that he had suffered from reactive depression and anxiety as a result of workplace management and poor management practices and processes within the employer "over a period of time up until 14 March 2002".

The appellant had not indicated anything in the claim form as to when the disability had occurred. He had left this blank. This was important, the appellant contended, because it led the learned Deputy President to an erroneous focus on March 2002 as being the relevant time to consider when incapacity commenced.

(2) The learned Deputy President's finding, in par 7 of his reasons, that "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 ASO6 rate". It was submitted that the evidence established that at all times when the appellant was working as a Senior Project Officer he was paid at the ASO6 rate. The learned Deputy President's indicated lack of awareness of this fact, it was submitted, meant that he gave no or insufficient consideration to the appellant's contention that he was in fact being paid at the ASO6 rate when his incapacity allegedly commenced.

(3) The learned Deputy President's conclusion in par 16 of his reasons that "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". It had always been the appellant's case that there had been a misunderstanding between he and Ms Zivkovic as to whether or not he had instructed her to consent to the orders that incorporated the ASO4 rate, and the learned Deputy President's apparent confining of the misunderstanding to the consequences of the consent orders was, it was submitted, beyond the evidence. There was, it was said, no evidence that the appellant gave Ms Zivkovic his consent for her to sign the orders off at the ASO4 rate. It was not just a misunderstanding about the consequences of the consent orders being approved. This was a critical error, it was submitted, critical to the exercise of the learned Deputy President's discretion.

10 Over and above these alleged erroneous findings of fact, the appellant further submitted that the learned Deputy President had erred in unduly elevating the Tribunal's interest in seeing the dispute brought to an end and in applying or giving too much weight to the principle that parties should be held to the bargains they negotiate, ahead of ensuring that justice was done and seen to be done for the appellant. It was contended that here there had been no consideration given by the respondent, and no compromise negotiated by the parties in relation to the rate of notional weekly earnings, so that application of the principle of holding parties to their negotiated bargain was inappropriate. Application of this principle had led to a miscarry of the exercise of the learned Deputy President's discretion.

11 The respondent submitted that the discretionary power invested in the Tribunal under s 88H of the Act was a power to be exercised sparingly, and that no error of law had been demonstrated on the part of the learned Deputy President in his consideration of whether the interests of justice required that the consent orders of February 2003 be set aside.

Consideration

12 S 88H of the Act empowers the Tribunal to amend or set aside an order of the Tribunal by consent of the parties in order to correct an error or if the interests of justice require that the order be amended or set aside.

13 Clearly the exercise of a discretion is involved in assessing the requirements of the interests of justice in any given case. How the Tribunal's discretion is exercised is governed by recognised principles, as are the circumstances in which an appeal against an exercise of discretion will be exercised.

14 In an oft cited passage from the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 it was said:-

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such as case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

15 S 86(1) of the Act, however, limits appeals to the Full Bench of the Tribunal to questions of law, and this imposes significant limitations on the Full Bench's appellate role in relation to issues of fact. The Full Bench of the Tribunal in Mitsubishi Motors Australia Ltd v Lupul [2004] SAWCT 130, noted that:-

"9 Grievances about findings of fact are beyond the Full Bench's jurisdiction. The Full Bench, whose jurisdiction is specific and limited by statute, has no mandate to correct errors of fact. An error of fact finding cannot be elevated to an error of law, if based on evidence open to the trial judge, even if an appeal court was of the view that the decision on the facts was illogical, perverse or completely unreasonable: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In Azzopardi Glass JA, with whom Samuels JA agreed, said at 155:-

'To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex part White [1966] HCA 69; (1966) 116 CLR 644 at 654.'"

16 The qualification, alluded to by the Full Bench in Lupul, is that findings of fact by the trial judge need to be founded on evidence open to the trial judge. Such a qualification is necessary because there is authority for the proposition that the question whether there is any evidence of a particular fact is a question of law: see per Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 359; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.

17 The learned Deputy President's allegedly erroneous factual findings identified in par 9 (1) and (2) above, which are perhaps better described as part of his recitation of background facts than as found facts, could at best only be relevant in the determination of the ultimate issue as to whether the appellant had been underpaid. In the event, the learned Deputy President found that the appellant may have had an arguable case on this issue. It was not for the learned Deputy President to go further than this. What he did do, and in our respectful view properly did do, was to determine that the appellant had an arguable case on the merits and to then take that into account in the exercise of his discretion pursuant to s 88H.

18 As to the learned Deputy President's allegedly faulty assumption that the appellant's misunderstanding with Ms Zivkovic went only to the consequences of the consent order, as appears in par 16 of his reasons, we think it is clear enough from pars 15 and 21 that the learned Deputy President had due regard to the possibility that the appellant's misunderstanding with Ms Zivkovic went further and that the appellant might ultimately have been found not to have knowingly given instructions to Ms Zivkovic to agree the rate as appeared in the consent orders. The learned Deputy President said as much in par 21. In par 15 the learned Deputy President expressed scepticism about the appellant's evidence on this point, but specifically refrained from making a positive finding "because even if I was to find as the worker asserts, I would nevertheless dismiss the application".

19 Mr Lieschke's criticism that the learned Deputy President unduly elevated the public's interest in having the dispute come to an end over the interests of the appellant is easily made, but impossible to sustain. The learned Deputy President rightly had regard to the public interest in seeing an end to litigation (it is mentioned in one half of one sentence in par 19 of his reasons), but there is no indication that he regarded it as of special importance or that he gave it undue weight over the other factors that he said he had regard to.

20 The learned Deputy President's reasons do indicate that he regarded the normal rules of agency, whereby a party is bound in his or her dealings with another party by the conduct of his/her agent, as both applicable and a strong, but not conclusive, factor against the exercise of his discretion in favour of the appellant.

21 Mr Lieschke's contention that there was no consideration and no negotiated compromise as regards the fixing of the appellant's rate of notional weekly earnings is hardly to the point. As the learned Deputy President noted, a consent order carries with it the same status as an adjudicated outcome. The claimed misunderstanding here was a

misunderstanding between the appellant and his representative. Both the Tribunal and the respondent was entitled to assume that Ms Zivkovic, an experienced industrial officer, had instructions from the appellant to consent to the consent orders signed by her.

22 It is hard to imagine how the Tribunal's business could be conducted if the parties' authorised representatives could not be relied on to act within instructions. S 92C(5) of the Act expressly recognises that a settlement agreed to by the authorised representative of a party at a conciliation conference is binding on the party. We can see no reason why this principle should not have been a relevant consideration in the learned Deputy President's deliberations.

23 Nothing has been advanced to show that the learned Deputy President's discretion miscarried. No error of law has been identified. It has not been shown that he overlooked material matters or took into account irrelevant matters.

24 The appeal is dismissed.

Introduction

25 I have come to a different conclusion to that of the majority with respect to the outcome of this appeal. I have concluded that the learned Deputy President erred in the exercise of his discretion by failing to take into account material considerations as to whether the interests of justice required that a consent order be set aside pursuant to s 88H(1)(c) of the Workers Rehabilitation and Compensation Act 1986 ("the Act").

26 The detailed factual background to the application is set out in the decision of the majority. I will not repeat the same except to the extent necessary to explain my reasons for decision.

27 The matter before the learned Deputy President was an application by Paul Bunney ("the appellant") to set aside part of a consent order endorsed by an officer of the Tribunal on 24 February 2003.

28 The consent order set aside a decision of the Department of Education and Children's Affairs ("the respondent") dated 29 July 2002 to reject a claim for compensation for reactive depression/anxiety made by the appellant on 19 March 2002. As a result the claim was accepted for weekly payments from 16 March 2002 and medical expenses. The consent order recorded the worker's initial notional weekly earnings figure at a rate of $854.11.

29 On 21 August 2003 an application for directions was filed on behalf of the appellant, and sought an order that the consent orders made 24 February 2003 be set aside "so that the notional weekly earnings rate may be reviewed". At the hearing before the learned Deputy President it was made clear that only that aspect of the consent order relating to the level of notional weekly earnings was sought to be set aside.

30 The learned Deputy President decided that the matters in support of the appellant's application were not collectively sufficient to conclude that it was in the interests of justice to set aside the consent order.

Nature of Appeal

31 The application to set aside the relevant aspect of the consent order had to be decided by the learned Deputy President in light of his powers pursuant to s 88H(1)(c) of the Act, which provide that the Tribunal may amend or set aside a judgment or order "if the interests of justice require that the judgment or order be amended or set aside".

32 The grounds of the appeal, as finally amended at the hearing, complained of an error in the exercise of the discretion of the learned Deputy President on two grounds, namely on the basis of a mistake as to the facts (in which regard three factual errors were asserted), and further that there was an error in the consideration of the interests of justice in that some material considerations were not taken into account.

33 For the reasons given by the majority, I agree that the grounds of appeal are not made out with respect to the appellant's complaints as to a mistake as to the facts. I need say no more about that aspect of the appeal.

Factual Background

34 I set out certain of the facts that are relevant to the complaint that the learned Deputy President failed to take material considerations into account in the exercise of his discretion.

35 The determination of 29 July 2002 that rejected the appellant's claim for compensation was based upon causation grounds related to s 30A of the Act. Understandably, given the rejection of the claim, there was no reference in the determination to the notional weekly earnings rate which otherwise might have been paid had the claim been accepted.

36 A Notice of Dispute was filed on 14 August 2002 asserting that the employment was a substantial cause of the disability and that the disability arose out of the employment. Conciliation proceedings followed.

37 According to the uncontested evidence before the learned Deputy President, the agreement to accept the claim for incapacity as from a period of 16 March 2002 was reached at a conciliation conference between the parties on 3 December 2002. The actual quantum of the weekly income maintenance to be received by the appellant upon acceptance of the claim was not a matter of negotiation or discussion at the time.

38 It was the worker's evidence that some two weeks after the agreement was reached on 3 December 2002, fortnightly payments of income maintenance commenced to be made direct into his bank account. At this stage no consent order formalising the terms of the agreement reached on 3 December 2002 had been made. The income maintenance payments commenced without any advice or explanation being given to the appellant as to the basis upon which such payments were calculated.

39 At the time of the making of the consent order, the appellant was represented by an Industrial Officer of the Public Service Association, Ms Nadia Zivkovic ("Ms Zivkovic"). On 30 January 2003, when consulting Ms Zivkovic, the appellant was shown proposed consent orders which purported to confirm the agreement reached at the conciliation conference of 3 December 2002. As well as confirming acceptance of the claim, the proposed orders made reference to the fixing of notional weekly earnings at $854.11 per week, apparently a rate applicable to an ASO4 classification. Ms Zivkovic asked the appellant whether the weekly payment figure was correct. The appellant advised that he expected that the figure would have been based on a higher salary applicable to an ASO6 position, and said he left the matter with her to investigate and report back.

40 Although the consent order was signed by Ms Zivkovic on 30 January 2003, she did not forward the document to the respondent until after a later discussion with the appellant, as a result of which she understood she had instructions to agree to its terms. The respondent said he had not intended to give Ms Zivkovic such instructions, and did not consider he had done so. In any event, the consent order endorsed by Ms Zivkovic was duly received by the respondent and signed on its behalf on 19 February 2003, and was endorsed by an officer of the Tribunal on 24 February 2003.

41 The appellant apparently did not become aware of the making of the consent order until some time after 24 February 2003 when disputing a s 38A Notice which had been issued by the respondent on 6 February 2003 which notice advised the appellant of a proposed 20 per cent reduction in the level of his notional weekly earnings.

42 In his Notice of Dispute dated 6 March 2003 filed with respect to the s 38A Notice, the appellant formally raised the issue that his notional weekly earnings figure should have been based upon a pre-injury salary classification of ASO6. Had payments initially been set at the higher level, the appellant asserted that he would be entitled to receive a notional weekly earnings figure (at 80 per cent) of almost $200 per week more than the amount proposed to be paid by the respondent. As the issue was not resolved, an application to set aside the consent order with respect to the notional weekly earnings amount was filed on 21 August 2003.

Approach of the Deputy President

43 The learned Deputy President found that Ms Zivkovic genuinely believed that she had instructions from the appellant to agree to the terms of the consent orders including the notional weekly earnings figure now in dispute.

44 The learned Deputy President said that although he had some difficulty in accepting that the appellant did not appreciate that he was instructing Ms Zivkovic to consent to those terms, he did not proceed to make positive findings in this regard. He said that even if he found as the appellant asserted, he would nevertheless dismiss the application to set aside the consent order.

45 The learned Deputy President recorded certain background facts relating to the events in question, and made certain factual assumptions that he considered allowed him to determine the application from an acceptance of the appellant's best position. As noted above, the appellant complained that some of the facts recorded were wrong and that assumptions made were based upon an incorrect appreciation of the facts. As I have indicated, I agree with the majority that these complaints as to factual matters have not been made out.

46 As part of the consideration of the exercise of his discretion against the assumed factual background, at pars 17 - 20 inclusive of his decision, the learned Deputy President made observations with respect to general legal principles in relation to the implied authority of solicitors to compromise a dispute on behalf of their clients. He noted the fact that such clients are bound in their dealings with other parties by the conduct of their solicitors. In this context, he noted that a consent order carries with it the same authority as an adjudicated outcome. The learned Deputy President indicated at par 19 that in such circumstances a court will "... 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". (my emphasis)

47 The learned Deputy President further noted that the fundamental premise that those dealing with agents representing parties are entitled to take such agents at their word, so as to bind the parties represented, was enshrined by s 92C(5) of the Act with respect to representation of workers by authorised representatives.

48 Having referred to these matters, which he later described as "policy considerations", the learned Deputy President then proceeded to weigh up specific matters for and against the appellant's application. These are identified at pars 21 and 22 of his decision, which are set out in the decision of the majority. In so doing he did not make specific reference to the fact that the notional weekly earnings figure had not been a matter specifically agreed as part of the bargain reached on 3 December 2002 whereby the respondent agreed to accept liability for the appellant's claim for incapacity. Having considered the matters detailed in his decision, he concluded that the matters in support of the appellant's application were not collectively sufficient to conclude that it was in the interests of justice to vary the consent order.

Submissions on appeal

49 The appellant submitted that the learned Deputy President wrongly applied the principle as to the interests of justice, or failed to give weight or sufficient weight to material considerations. It was submitted that insufficient regard was had to the specific circumstances in which the aspect of the consent order complained of came into being, and that accordingly consideration of the principle relating to the desirability that there be finality to litigation did not take place in the appropriate context. Further, it was submitted:-

•

The litigation was not "inter partes" litigation where there was one negotiation and compromise leading to a final agreement which ended the litigation.

•

There had been a rejected claim, and a conciliation conceding the claim in terms of liability, but no "bargain" as part of that concession with respect to the level of weekly payments to be made to the appellant following acceptance of the claim.

•

The liability to make weekly payments was accepted without any consideration being given with respect to the setting of a particular rate.

50 The respondent relied on the general proposition that it was desirable that there be an end to litigation, and that the power to reopen a matter for rehearing should be exercised cautiously or sparingly.

Consideration

51 In the matter of Edgecombe v WorkCover/Allianz Australia (Queen Elizabeth Hospital Research Foundation) [2001] SAWCT 88, Acting Deputy President Thompson said the following with respect to the application of s 88H(1)(c) of the Act:-

"The criteria to set aside an order is the 'interests of justice'. That imports a great flexibility which is required by the dictates of the individual case and the participants in each case. It is impossible to lay down any hard and fast rules. There is no definition of what 'justice' is, in the context of the section ...". (par 32)

52 The discretion to set aside a consent order pursuant to s 88H(1)(c) of the Act "in the interests of justice" allows the Court a very wide-ranging discretion, and must be exercised cautiously. It is a discretion that must be exercised in light of all the material circumstances. I refer to the principles enunciated by the Full Supreme Court of South Australia in the matter of Santos Limited v Workers Rehabilitation and Compensation Corporation (1998) 199 LSJS 83. In that case the Court considered the discretion vested in a court pursuant to s 48(1) of the Limitations of Actions Act 1936 to extend the time for the institution of an action "...upon such terms (if any) as the justice of the case may require".

53 Doyle CJ (with Prior J concurring) said:-

"The section confers a discretion in very wide terms ... Despite its width, the discretion is to be exercised according to certain principles of law. And, of course, it must be exercised in light of the subject matter to which it relates and the purpose of the legislative provision. The exercise of the discretion requires a judge to consider all relevant facts and circumstances. What is relevant is to be assessed in light of the terms of the legislation and the purpose of the provision."

54 I consider that the general principles expressed above apply equally to the exercise of the discretion pursuant to s 88H(1)(c) of the Act.

55 It was appropriate for the learned Deputy President to have regard to the policy that clients are bound by the actions of their agents generally in the compromise of their disputes, and that there is a public interest in the finality of litigation. I do not disagree with the general principles set out in pars 17 - 20 of the decision of the learned Deputy President. However, the concept to which he adverts relating to the public interest in the finality of litigation is very broad. The application of such a principle should have regard to the individual circumstances of the case under consideration. I consider that there are material considerations with respect to the particular circumstances of the consent order in question that appear not to have been taken into account in this context.

56 The consent order related to the initial phase of an ongoing compensation claim. At the time of the hearing before the learned Deputy President, the appellant remained incapacitated and in receipt of income maintenance payments. Whilst there may or may not be a current dispute about any matter other than the level of income maintenance, the appellant and the respondent have ongoing entitlements, rights and liabilities under the Act with respect to the injury the subject of the claim. In a general sense, there is ongoing litigation or at least a potential for such.

57 The purpose of s88H of the Act should be understood in this context. The scheme of the Act allows for the fact that many aspects of the same injury claim may be the subject of dispute and separate resolution by determination or agreement between the parties. As a result, s 88H may be invoked by one party or another to seek to set aside a consent order that may not, if left undisturbed, finalise the litigation in the wider sense between the parties to the compensation claim, albeit that the consent order may have otherwise disposed of a particular issue within the litigation. As stated by Acting Deputy President Thompson in Edgecombe (supra), s 88H is a necessary provision in any Act that regulates the personal rights of workers as against employers. As such, it has potential for application throughout many phases of the one claim.

58 The position of the appellant and respondent here is not analogous to the parties in civil litigation who enter into a consent order finalising "once and for all" every aspect of a claim capable of dispute. The principle with respect to the public interest in the finality of litigation has more force in that situation, and where there is an attempt to set aside a considered judgment of a court. In opposing the application in this matter, the respondent referred the Tribunal to Wentworth v Woollahra Municipal Council (1981 - [1982] HCA 41; 1982) 149 CLR 672, a matter which involved an attempt to reopen a judgment which had been pronounced after full argument on all matters in issue. The proposition emanating from that case, namely that the public interest in maintaining the finality of litigation "... necessarily means that the power to reopen to enable a rehearing must be exercised with great caution" (684), was said to apply here. It does in a general sense, but it is not appropriate to apply such a "broad brush" approach without tailoring it to the particular circumstances of the individuals involved, the particular type of litigation in question, and to the particular legislation.

59 Of additional significance is the fact that the concession of the respondent with respect to liability was made in the absence of any negotiations or compromise with respect to the level of notional weekly earnings. Agreement as to the applicable rate was not part of any bargain negotiated between the parties as at 3 December 2002. As the appellant submitted, there was no consideration given in exchange for an agreement on the notional weekly earnings figure. Whilst the respondent may have had a view as to the appropriate level of payments, upon which it acted after 3 December 2002 and before consent orders were finalised, the amount paid was not part of a compromise relating to acceptance of liability. There was no suggestion that had the issue of the correct level of notional weekly payments been raised on behalf of the appellant before the consent orders were finalised, the concession as to liability would have been withdrawn.

60 In this context counsel for the appellant contrasted the circumstances involving the present application to set aside part of a consent order in relation to which there was apparently no consideration given or bargain made with the circumstances of a decision in the matter of Henderson v The State of South Australia 2003 SAIRC 88. This was a decision of the learned Deputy President to which he referred in passing at par 18 of his decision under appeal when commenting generally on the powers the rules of court may provide to set aside a consent order. The case involved an application to set aside part of an order made in final settlement of a claim under the Workers Compensation Act 1971 ("the 1971 Act"). The worker was paid a sum of $22,200.00 in full and final settlement of his claims. Of this amount, $2,200.00 was paid in consideration of the worker expressly agreeing not to proceed with common law litigation against the employer independently of the 1971 Act. The worker later sought to set aside only that part of the consent order relating to the common law discharge.

61 The learned Deputy President declined to set aside any aspect of the consent order. He found that the worker had given instructions to his then solicitor to give the common law discharge. One of the matters he took into account was the fact that the employer had paid valuable consideration for the discharge. In that sense he considered it relevant that the employer had negotiated in good faith with the worker's solicitors, and was entitled to assume that its liability to pay common law damages was at an end. Thus, there was negotiation and compromise, and valuable consideration paid for the particular aspect of the consent order that was sought to be overturned. In the case now under consideration by this Full Tribunal, counsel for the appellant submitted that it was of great significance that such features were absent but that such absence appears not to have been taken into account by the learned Deputy President.

62 I consider that the particular circumstances of the consent order between the appellant and the respondent highlighted by counsel for the appellant in this matter should have been taken into account by the learned Deputy President when applying the general policy considerations to which he referred. All aspects of the material relevant to the individual case and the participants were not assessed in the context of a consideration as to what the interests of justice required. The additional material should have been considered in the whole context, and comprised relevant facts and circumstances peculiar to the aspect of the consent order complained of.

Conclusion

63 I consider that the learned Deputy President did not adopt the correct approach to the application of s 88H(1)(c) of the Act. There was an error in that relevant material was not taken into account, which would accordingly allow this Tribunal to interfere with the decision made in accordance with the principles set out in the decision of House v The King [1936] HCA 40; (1936) 55 CLR 499, to which the majority has referred.

64 The appellant invited the Full Tribunal, in the event that the appeal was allowed, to exercise its own discretion with respect to the matter rather than remit it to the learned Deputy President for further consideration. I consider the Full Tribunal is in a position to do so, as all material relevant to the application is before it.

65 The material considered by the learned Deputy President as pars 21 and 22 of his decision was clearly relevant to the exercise of his discretion. If that were all the material that should have been taken into consideration, it would not have been appropriate to interfere with the learned Deputy President's decision.

66 However, I consider that the circumstances in which the notional weekly earnings rate came to be applied and then later endorsed in the formal consent order after the agreement to accept liability on 3 December 2002, without having been the subject of any compromise or bargain on 3 December 2002, comprise significant additional material. When those circumstances are coupled with the substantial ongoing loss to the appellant should his correct entitlement at law be to payment of income maintenance at the ASO6 rate, and the consequences with respect to the focus of the level of employment towards which rehabilitation plans should be directed, I think there is a compelling case that in the interests of justice the aspect of the consent order relating to the level of notional weekly earnings should be set aside. The appellant should be entitled to have the issue as to his correct level of notional weekly earnings argued and determined.

67 I would so order.