Such a certificate becomes evidence of the matters stated in it. However, it is not conclusive and it is open to the employer to prove that at the relevant time it was not liable to pay compensation to the injured worker under the Act.
47 Returning to the power of the Compensation Court to provide for reimbursement under s 144(5), I have already expressed the opinion (at [42] above) that such a provision can only be made by the Court where the employer is otherwise required to reimburse the Fund under s 145. Although the appellant submits that the power under s 144(5) cannot be exercised by the Compensation Court unless s 145 is engaged by the service of a notice under subsection (1), I do not think that such a construction is correct. It seems to me that the purpose of s 144(5), given the context of the application before the Compensation Court to which it relates, is to engage so much of s 145 as is applicable in the circumstances.
48 Clearly s 144 proceeds upon the basis that there has been no payment by the Authority to the injured worker from the Fund and, in fact, that a claim for such a payment has been refused under s 143(2). No payment has been made to satisfy the injured worker's claim: hence the making of an application under s 144(1). But what is engaged, in my view, is the implicit requirement of s 145(3) and (4) that the employer, either by agreement or by court determination, be liable to pay the injured worker compensation under the Act in an amount not exceeding that payable by the Authority to the worker pursuant to an order made against the Authority under s 144(3).
49 In my opinion it follows from the foregoing that, firstly, in the absence of any agreement by the employer that it is relevantly liable, a provision may only be made pursuant to s 144(5) in an order made under s 144(3) where the Compensation Court determines that the employer is liable to pay the claimant referred to in s 144(1) compensation under the Act. Secondly, where, in an application made under s 144(1), the injured worker and the Authority settle the amount of any such compensation and orders are made in accordance with the terms of that settlement, the Compensation Court has no power under s 144(5) to provide for the reimbursement of the Fund by the employer under s 145 in respect of the amount of compensation ordered to be paid by the Authority unless and until, absent agreement, it has determined that the employer is in fact liable to pay that compensation.
50 Thirdly, it is insufficient for the making of a provision for reimbursement pursuant to s 144(5) that the Compensation Court determines that the settlement reached between the injured worker and the Authority was reasonable. So much is confirmed by the terms of s 145(5). Had the Authority's submission to the contrary of this proposition been correct, then one would have expected that s 145(5) would have provided that the certificate referred to would be either conclusive of the matters stated in it and, in particular, the matters referred to in subparagraph (b) relating to the liability of the employer at the relevant time to pay the injured worker compensation under the Act, or conclusive that the amount paid to the worker should be deemed reasonable. As the certificate is neither, but is merely evidence of the Authority's opinion as to the employer's liability, it follows that whether or not a settlement between the worker and the Authority is reasonable has no bearing upon whether or not the employer is in fact liable to pay the injured worker compensation in an amount not exceeding that which the worker has received from the Fund pursuant to the Scheme.
51 In support of its submissions, the Authority sought, somewhat faintly, to rely upon the decision of the High Court of Australia in James Hardie & Co Pty Limited v Seltsam Pty Limited (1998) 196 CLR 53 which was applied by this Court in Cockatoo Dockyard Pty Limited v Commonwealth of Australia [2001] NSWCA 468. Both those cases involved cross-claims between defendants pursuant to s 5(1)(c) of the Law Reform (Miscellaneous) Provisions Act 1946. It was suggested by the Authority that those decisions could support the proposition that the purpose of the Act, and in particular s 144, was to provide the employer with an opportunity to resist the making of a provision for reimbursement pursuant to s 144(5) by objecting to the making of orders pursuant to terms of settlement to which the employer was not a party. As no such objection had been made in the present case by the appellant, notwithstanding the opportunity to do so, it followed that it was too late for the appellant to complain.
52 It was further submitted that the Compensation Court was empowered to make a provision pursuant to s 144(5) where the employer had had the opportunity to join in the settlement but had failed to do so. I would reject both these submissions.
53 In my opinion, neither of the authorities referred to shed any light upon the issues in the present case. Although in James Hardie Gaudron and Gummow JJ referred (at 63 [19] and [20]) to the right of the appellant in that case to seek deferral of the entry of judgment until determination of the issue of the liability of the appellant to the plaintiff for the purposes of the appellant's contribution claim against the respondent, the context of their Honour's remarks was the effect of s 5(1)(c) of the Law Reform Act and its application to the situation which in fact came to pass in that case. No similar context exists in the present case. At the end of the day, the Authority conceded as much.
54 I have made reference above to the Authority's submission that the nature of the Act is such that it was sufficient for the appellant to be given the opportunity before Judge Walker to raise objection to the Terms and to seek a hearing on the merits. As it is submitted that it failed to do so, it follows according to the Authority that the primary judge was correct in finding that there was no denial of procedural fairness. Accordingly, it was not open to the appellant to submit before the primary judge that a provision for reimbursement could not be made by him pursuant to s 144(5) unless there was a hearing on the merits and a determination as to the appellant's liability to pay compensation to Ms Daley under the Act. This was particularly so where, as the appellant accepted, it was not open to it, not being a party to the Terms, to seek to reopen the settlement: cf King v Victoria Insurance Company Limited [1989] AC 250 at 255; GRE Insurance Limited v QBE Insurance Limited (1985) 3 ANZ Insurance Cases s 60-622 at 78,821-78,822.
55 Although not the subject of an express contention by the Authority, implicit in its submissions was the following. Firstly, on the authority of James Hardie it was always open to the appellant to object to the making of orders pursuant to the Terms unless and until the Compensation Court had determined its liability to pay compensation to Ms Daley under the Act. Secondly, although it could not, on the authority of King, seek to reopen the terms of the settlement entered into as between Ms Daley and the Authority, the appellant could have sought to set aside any orders made by Judge Walker where it had objected to the entry of such orders so as to enable it to obtain a hearing on the merits as to its own liability to Ms Daley. As the primary judge found as a matter of fact that no such objection had been taken and as any appeal to this Court is only on a question of law, it was not open to this Court now to set aside the primary judge's order for reimbursement.
56 In my opinion, there is no merit in those submissions. Firstly, they run counter to the view I have expressed above that there is no power in the Compensation Court to make provision for reimbursement pursuant to s 144(5) in orders made under s 144(3) unless, in accordance with s 145, the employer's liability to pay compensation to the injured worker under the Act has been determined or agreed. Secondly, although listed for hearing, the case only came before Judge Walker as a mention for the purpose of handing up the Terms and for the making of orders pursuant thereto. Although the proceedings were adjourned to enable the Authority to seek reimbursement pursuant to s 144(5), no such application was made before Judge Walker at the time. Therefore the occasion for the making of the objection referred to above had not arisen. There is certainly no doubt that when the issue of making a provision for reimbursement pursuant to s 144(5) came before the primary judge, the relevant objection was made.
57 In my opinion, the legislation in the present case (being quite different to that the subject of James Hardie), does not support the underlying proposition of the Authority to the effect that all the Act requires is for the employer to be given the opportunity to raise objection to the terms of settlement and to seek a hearing on the merits before orders in accordance with those terms are made. In my view the Compensation Court has no power to make a provision in an order made under s 144(3) for reimbursement of the Fund by the employer pursuant to s 144(5) unless and until, where the matter is in issue, it has determined that the employer is in fact liable to pay compensation to the injured worker under the Act in an amount which does not exceed that payable pursuant to the terms of settlement.
58 It also follows that any provision for the reimbursement of the Fund under s 145 made pursuant to s 144(5) is confined to the amount in respect of which an employer is required to reimburse the Fund under s 145, namely, an amount not exceeding the amount of any payment made or ordered to be made by the Authority to the worker under the Scheme. Accordingly, the primary judge was in error in ordering the appellant to reimburse the Fund in respect of the costs of the Authority in defending Ms Daley's claim for compensation being the proceedings which were resolved by Judge Walker pursuant to the Terms.
59 For the sake of completeness I should add this. As I have noted above, the Authority submitted that, contrary to my conclusion on the issue, it was sufficient if the primary judge found that the Terms were reasonable. It further submitted that in fact his Honour had so found. In my opinion there was no such finding. Although his Honour refers to the fact that Ms Daley's claim was compromised at a lesser amount than she sought, and although the medical reports obtained on her behalf were tendered by the Authority, no reference was made to them or their relevance by the primary judge in his judgment and, in argument, his Honour had made it clear that he confined their relevance to establishing no more than that Ms Daley was in fact injured.