Argument on the appeal
75Mr Rodger did not challenge his Honour's finding in respect of delay. Rather, he submitted that the trial judge misunderstood the argument that he advanced in respect of the discretionary issue. Delay was not the primary objection. Mr Rodger said that his complaint before the trial judge was that Mr De Gelder had acquiesced in the validity of the decision, both by participating in the further assessment process and by seeking a review of that assessment pursuant to s 63: see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 108. By acquiescing in those processes, Mr De Gelder had elected not to pursue such rights as he might have by way of judicial review and had thereby waived his right to seek judicial review. Mr Rodger submitted that it was apparent that Mr De Gelder was aware of his rights for the purposes of the doctrine of election as evidenced by the letter of his solicitor of 4 December 2008 attaching the draft summons. Mr Rodger submitted, therefore, that his Honour's exercise of the discretion had miscarried: see House v R [1936] HCA 40; (1936) 55 CLR 499 at 505.
76Before dealing with the decision in Aala , upon which Mr Rodger's submission as to acquiescence relies, it is necessary first to understand the concepts of acquiescence, election and waiver, as well as the principles that govern the exercise of the court's discretion to refuse relief on an application for orders in the nature of prerogative relief. The first matter to note is that the concepts of acquiescence, election and waiver are legal concepts that potentially alter rights. Indeed, election has been described as the " sterilization of a legal right otherwise than by contract ": Commonwealth v Verwayen [1990] HCA 39; 170 CLR 394 at 491 per Brennan J.
77Election involves a choice between inconsistent rights. In Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 Mason J said, at 655:
"A person is said to have a right of election when events occur which enable him to exercise alternative and inconsistent rights, i.e. when he has the right to determine an estate or terminate a contract for breach of covenant or contract and the alternative right to insist on the continuation of the estate or the performance of the contract. It matters not whether the right to terminate the contract is conferred by the contract or arises at common law for fundamental breach - in each instance the alternative right to insist on performance creates a right of election."
78In Immer (No 145) Pty Ltd v Uniting Church In Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26 the Court emphasised, for the purposes of election, the necessity of a party being confronted with mutually exclusive courses of action in which, in fairness to the other party, the first party must make a choice. In that case, the owner of excess air space rights was entitled to transfer them, subject to a requirement to restore an historic building to the local council's satisfaction. The contract of sale of the air space rights was subject to a condition that the purchaser was entitled to rescind if the council's requirements were not satisfied by a specified date. The vendor did not complete the work by the date in question. However, the purchaser, believing the council had approved the transfer, sent to the vendor's solicitors documents for settlement, including a draft deed which recited that the council had granted its approval.
79The plurality (Deane, Toohey, Gaudron and McHugh JJ) at 42, re-emphasised that the central notion of election was " contained in the idea of confrontation [of alternate rights], which in turn produces the necessity of making a choice ". In that case, the choice was not merely one of affirming the agreement, but also involved the abandonment of the right to rescind. Their Honours noted that abandonment was more readily inferred in some circumstances, for instance, where the choice arose once and for all. The Court considered that where the right in question (in that case, a right to rescind) was a continuing one, it was not so readily concluded that the party entitled to rescind had abandoned that right completely as opposed to taking no action to exercise the right at a given time.
80Election, if made out, has a specific legal consequence: it brings to an end a legal right that a party otherwise had. The right is treated at law to have been abandoned: see Immer v The Uniting Church at 39. That is of particular relevance in this case where Mr Rodger seeks to rely upon an election, not as concluding Mr De Gelder's right to relief, but as relevant to the discretionary considerations that a court may take into account in determining whether to grant prerogative relief.
81The next 'concept' upon which Mr Rodger relied was acquiescence. In Meagher, Heydon, Leeming, Meagher, Gummow & Lehane's, Equity: Doctrines and Remedies , 4 th ed, 2002, the authors state, at [36-090], that acquiescence has three meanings. First, it can refer to equitable estoppel in the sense used in Ramsden v Dyson (1866) LR 1 HL 129. That concept is not in issue here.
82Secondly, acquiescence can refer to an element of laches in the sense that a person, over a long period of time, with full knowledge of the person's rights, refrains from exercising those rights in circumstances where it can be inferred that the rights have been abandoned. When used in this sense, it involves waiver, affirmation and release.
83The third sense in which the term acquiescence is used is referable to that type of laches which involves prejudice to third parties. The authors note that mere delay, of itself, is not enough to constitute either laches or acquiescence: Jones v Stones [1999] 1 WLR 1739. See Equity: Doctrines and Remedies at [36-050] and [36-070]. Acquiescence, as described in the second and third senses, may be relied upon as a discretionary defence in an equity suit.
84It is well accepted that the grant of prerogative relief is discretionary: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389 at [33]; Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; ( 2004) 60 NSWLR 558 at 591. Delay is a well accepted discretionary consideration. Before dealing with Mr Rodger's argument that acquiescence is also a discretionary consideration, which was operative in this case and should have been acted upon by the trial judge, I first wish to deal with the discretionary restraint on a court exercising supervisory jurisdiction where there are unexhausted appeal rights or review procedures: see Solution 6 Holdings at 591.
85The reason for this restraint has been expressed in various ways. However, the common thread underlying the case law is that the court exercising supervisory jurisdiction is entitled to the benefit of the findings of the court or tribunal which is subject of the application for review. There is a dual utility in this exercise of restraint. First, it allows the court exercising supervisory jurisdiction to do so after disputed questions of fact have been determined. Secondly, it allows for the appellate or review procedures to correct the decision sought to be impugned, thus potentially rendering judicial review unnecessary: see Solution 6 Holdings at 593-595 and cases cited therein. It is an aspect of this second consideration that the court exercising supervisory jurisdiction is able to approach the matter with the benefit of the reconsideration by the court or tribunal which has the responsibility in law of being the primary forum of appellate review: see R v Ross-Jones; Ex parte Beaumont [1979] HCA 5; 141 CLR 504 at 194-195; Maltais v Industrial Commission (NSW) (1986) 14 IR 367 at 368.
86It necessarily follows from these authorities that once an internal appeal or review process has been exhausted, then subject to any relevant statute, the aggrieved party may move to challenge any excess of jurisdiction by way of an application for prerogative relief. Once that is understood, Mr Rodger's reliance on the principle of election runs into trouble. However, his challenge to the exercise of discretion was based, as a first step, on a comment made in Aala in respect of acquiescence and waiver.
87In Aala , the High Court was concerned with an application by Mr Aala for prerogative relief in circumstances where he alleged that he had been denied procedural fairness by the Refugee Review Tribunal. Gaudron and Gummow JJ accepted, at [53], that an element of discretion attended the exercise of the High Court's jurisdiction under the Constitution, s 75(v) with respect to prohibition. Their Honours considered that delay, waiver or acquiescence in the conduct of the prosecutor in the course of the administrative proceedings or in other relevant circumstances was relevant to the exercise of the discretion.
88Their Honours, at [56], referred to the statement in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 at 400, as to the circumstances that may attract an exercise of discretion:
"For example, the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result court ensue, if that party has been guilty of unwarrantable delay ... the court's discretion is judicial and the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
89Their Honours also referred to the decision of Lord Denning MR in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 320 (affirmed [1975] AC 329), when dealing with certiorari and declarations, where Lord Denning stated:
"[The applicant] may be debarred from relief if he has acquiesced in the invalidity or has waived it."
This is the notion upon which Mr Rodger relies in support of his argument that relief should have been refused in this case on discretionary grounds.
90In my opinion, the sense in which Lord Denning MR used the notions of acquiescence and waiver in F Hoffman-La Roche was akin to the second meaning of acquiescence referred to by the authors of Equity: Doctrines and Remedies . In other words, the reference to acquiescence and waiver in that passage was a reference to circumstances where conduct could properly give rise to an inference that the person had abandoned her or his rights. Whilst such conduct could, and almost inevitably would, lead a court exercising supervisory jurisdiction to refuse relief in the exercise of its discretion, Mr De Gelder's conduct is not of that nature.
91As I have indicated, the MAC Act does not provide for an appeal from or a review of a Proper Officer's determination under s 62. However, there is a process of review of medical assessments. The authorities are clear that a court may and usually does, decline prerogative relief where an applicant has not exhausted such appeal or review rights as may be available. In the present case, where the processes mandated by the MAC Act are intended to provide a low cost and relatively expeditious means of recovering compensation, I am of the opinion that a party, by participating in a further medical assessment or a review thereof, has not by that fact alone waived or abandoned a right to seek prerogative relief, so as to permit the refusal of relief on discretionary grounds.
92For the same reason, I have reached the conclusion that Mr De Gelder was not debarred on discretionary grounds from obtaining prerogative relief because he had elected to engage in the further assessment. As I have indicated, when a party who has a right of appeal in the court or tribunal whose orders are subject to judicial review, that party is not confronted with mutually exclusive choices. Rather, a superior court with supervisory jurisdiction usually requires a party to first exhaust those other remedies. In deciding to participate in the further assessment, I am of the opinion that Mr De Gelder was not exercising a final choice to pursue one remedy rather than the other. As his solicitor's evidence revealed, the reassessment process was relatively inexpensive and quick, and it was reasonable for Mr De Gelder to believe that the earlier medical assessments may not be altered. Accordingly, he chose to engage in that process, but not as a final choice between mutually exclusive rights.
93As will be apparent from what I have said thus far, the question whether or not an election has been made involves factual considerations. This is of particular importance in this case because Mr De Gelder submitted that the question of election was not in issue in the Court below. He likewise submitted that questions of acquiescence and waiver were not raised by Mr Rodger before the primary judge. He submitted that where the determination of such issues is dependent upon factual circumstances not addressed in the proceedings before the primary judge, Mr Rodger should not be permitted to now raise those arguments: see Suttor v Gundowda .
94Senior counsel for Mr Rodger did not appear on the hearing before the primary judge and accordingly was not able to inform the Court of his own knowledge as to whether oral submissions had been made raising the issues of acquiescence and election. His instructions from counsel who appeared at trial were that those issues had been raised. This was disputed by counsel for Mr De Gelder and no evidence was adduced to assist in the resolution of that issue. Unless the written submissions of the parties disclose that a point was clearly raised in the Court below, then, if the parties require the Court to adjudicate such a dispute, it is necessary for one or both to adduce evidence of what occurred at trial.
95In this case, senior counsel for Mr Rodger relied upon the supplementary written submissions provided to his Honour as sufficiently raising the issue he now seeks to argue. Those submissions were, relevantly, in the following terms:
"15. [Mr De Gelder] did not file any summons for relief in respect to the determination of the Proper Officer as threatened, but permitted the assessment to proceed. It was only when the further assessment performed by Assessor Best found [Mr De Gelde r's ] whole person impairment was not greater than 10% that proceedings were commenced seeking to challenge the original determination of the Proper Officer. There has been no challenge to the actual assessment performed by Assessor Best. (emphasis as in original written submission)
16. [Mr Rodger] contends that the Court will take these matters into account when considering whether the discretion should be exercised to grant relief. [Mr De Gelder] in submissions has highlighted the obligation to consider the objects of the Act including providing compensation for compensable injuries and encouraging 'the early resolution of compensation claims' (section 5 of the Act).
17. [Mr Rodger] contends that [Mr De Gelder's] conduct in permitting the further assessment to proceed despite the intention to challenge the Proper Officer's determination by way of judicial review is inconsistent with the objects of the Act including ' the early resolution of claims' . In the event [Mr De Gelder] truly believed the Proper Officer had committed jurisdictional error, proceedings for the relief of the type now sought should have been commenced prior to the assessment taking place as foreshadowed in correspondence with [the Authority]. [Mr Rodger] contends that the failure to do so ought to be taken into account by the Court in considering whether to exercise its discretion in favour of [Mr De Gelder]."
96In my opinion, these submissions do not raise the questions of acquiescence and election in the manner in which they are now sought to be argued. Rather, they are directed to the statutory mandate for the early resolution of claims, which was correctly understood by his Honour to be a submission in relation to delay. In the normal course, I would not have allowed the questions of acquiescence and election as argued by senior counsel for Mr Rodger to be raised on the appeal. However, as I have fully dealt with those questions, I reject Mr Rodger's challenge to his Honour's exercise of discretion on the basis that even had they been raised at trial, they would have been decided adversely to Mr Rodger.