The State of South Australia (Primary Industries and Resources Sa) v Wenham [2006] SAWCT 28

3 The learned Deputy President concluded that in all the circumstances it was in the interests of justice to set aside the consent orders.

4 The State of South Australia (Primary Industry and Resources SA) ("the appellant") complains that the learned Deputy President's decision does not accord with settled principle, and that certain factual findings were made in the absence of any or sufficient evidence and were wrongly relied upon to support the exercise of the discretion.

5 As s 88H vests the Tribunal with a discretion which must be exercised judicially, the Full Bench is required to examine the decision of the learned Deputy President for error. The appeal is limited to a question of law. A mere difference of opinion as to the conclusion reached on the available evidence is not a sufficient basis for interference. There will only be error justifying interference with the exercise of a discretion if the learned Deputy President has acted on wrong principle, if he has allowed extraneous or irrelevant matters to guide or affect him, if he has mistaken the facts, or if he has not taken into account some material consideration (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505).

The relevant background

6 The history of this matter stretches back to 9 December 2000 when the worker suffered a compensable disability for which she claimed compensation. The claim was accepted for a closed period at a specified rate of income maintenance. The worker disputed that rate and filed a Notice of Dispute.

7 Conciliation of the dispute was undertaken, including a conference with the Conciliator on 6 September 2001 attended by the worker, her representative at that time, Mr Brown from the Australian Workers Union, a representative of the appellant, Ms Hayward, and Ms Karpinski from the Crown Solicitor's office. At the conclusion of discussions facilitated by the Conciliator he made consent orders in the following terms:-

"By consent I determine that - the decision of the exempt employer dated 4/1/01 is varied to set a rate of $265.58 gross per week as weekly payments for all periods of incapacity. Back pay is applicable.

1. Pursuant to s 88DA, I determine to enlarge the scope of the proceedings by consent to include the determination of the worker's s 43 entitlement.

2. I determine that, by consent, the worker has sustained 12.5% loss of function of the lwr/back for the year 2000. This results in the sum of $10,680.

NOTE: The application relating to the s 36 notice and the subject of number 5335/01 is adjourned to 19/10/01 at 9 am."

8 Subsequently the respondent's weekly payments of income maintenance were adjusted and she was paid the s 43 assessment referred to in the consent orders.

9 There is no dispute that shortly after the making of the consent orders the respondent expressed her dissatisfaction with the outcome to the Conciliator and the appellant. However she did not make the formal s 88H application until two years and five months later when, on 30 January 2004, she filed an application for directions supported by considerable unsworn material. At that time she was unrepresented.

10 A lengthy period elapsed between that date and the date of the learned Deputy President's decision. The progress is outlined and explained in his reasons for decision at pars 6 - 10. Of particular importance, the hearing of the s 88H application proceeded on 4 November 2004 and was conducted on the papers. Following that date, but before a decision was delivered, the respondent instructed solicitors who applied to reopen the application. This was resisted by the appellant. Leave to reopen was granted to the respondent on 24 February 2005. The matter was relisted on 16 June 2005 and oral evidence was led from the respondent and Ms Hayward. The learned Deputy President's decision was then handed down on 7 September 2005.

The basis of the s 88H application

11 The respondent's case before the learned Deputy President was that the consent orders should be set aside, because at the time that the orders were made there were a number of events associated with her compensation claim, her private life, and her financial situation, which were causing her significant emotional distress such that on the day that the orders were made she was so vulnerable, fragile, and overwhelmed that despite having representation she consented to a settlement to which she should never have agreed, and which in part she misunderstood as to its terms and effect. She argued that it was in the interests of justice to set aside the consent orders so that she could pursue an entitlement to a higher rate of income maintenance, taking into account matters not included in the consent orders and an entitlement to a higher s 43 assessment on the basis of more recent medical assessment of the level of her permanent disability.

The general factual context to which the learned Deputy President had regard

12 The background facts which the learned Deputy President regarded as relevant to the exercise of his discretion were largely based on the evidence of the respondent which he generally found to be reliable. Those facts, outlined in the judgment, related to four topics.

13 The first topic was the respondent's understanding as to scope of the original income maintenance dispute (judgment pars 12 - 18). There were three components of the respondent's assertion that her income maintenance had not been correctly set. She argued that the averaging over one year, of her casual seasonal rate of pay for the period September to March, with its substantial loadings, produced a weekly amount which did not adequately reflect the amount she could reasonably have been expected to have earned for a week's work if she had not been disabled. She also complained that the rate did not take into account income she earned as a shearer's cook for three weeks each year, and the amount she earned as a Family Day Care provider caring for children in her own home.

14 The second factual topic was the events leading to the making of the consent orders (judgment pars 19 - 30) in respect of which the learned Deputy President found that shortly after issuing the notice of dispute, the respondent had terminated the instructions of her solicitors to whom she owed a sum of money for legal fees, and that Mr Brown of the Union represented her for the last three out of four conciliation conferences some of which included her participation by telephone. In addition, during the course of the conferences which ranged over the period from April to September 2001 the possibility of an offer of a s 43 lump sum was raised and medical evidence obtained, and in that regard Dr Lipert gave an opinion that the respondent had a 15 per cent loss of the lower back and lumbar spine and Dr Shepherd expressed a disability as five per cent "on the general labour market".

15 The third topic was the conciliation conference of 6 September 2001 (judgment pars 31 - 38). The learned Deputy President found that the conciliation conference of 6 September 2001 extended over three hours, with the respondent and the appellant's representatives in separate rooms, and the conciliator and Mr Brown moving between them. His Honour accepted that the respondent came to the process of conciliation with her own perceptions that the appellant did not believe that she was injured, that the others participating knew that she was stressed, and that her representative had altered his advice about the prospects of success on her income maintenance dispute.

16 The learned Deputy President found that as a result of the negotiations, the consent orders were made by the Conciliator in the presence of the respondent, and that she was provided with a copy by post some two weeks later.

17 The fourth topic was the events which followed the making of the consent orders (pars 39 - 48). The learned Deputy President found that the respondent wrote to the Conciliator on 16 October 2001 indicating that she believed that she could maintain her dispute as to the quantum of income maintenance and that she had accepted the s 43 assessment on the understanding that she would receive the full amount, but had since ascertained that there was an amount for medical expenses outstanding to the Health Commission. She asserted that she had been railroaded into the settlement. It was found that the Conciliator refuted this allegation in his reply of 18 October 2001.

18 At a further conciliation concerning a subsequent s 36 determination on 19 October 2001, the Conciliator advised the respondent that if she wished to dispute the s 43 assessment she would be obliged to repay the monies paid.

19 Shortly thereafter the respondent terminated Mr Brown's instructions and for a short time sought the assistance of the Employee Advocate Unit.

20 It was found that, not until November 2003, did the respondent fully understand the procedure required to apply to set aside the consent orders when that was explained to her by McCouaig DP, and that due to ongoing stress she did not issue the application until January 2004.

Important findings about the making of the consent orders

21 In addition to the general findings, the learned Deputy President made specific findings of fact about the respondent's involvement in the conciliation, her personal circumstances at that time, and the bona fides of the other participants (judgment pars 49 - 57). The dealings between the parties at the conciliation conference were the subject not only of the evidence of the worker but also Ms Hayward. Mr Brown was not called.

22 Importantly, the relevant findings were made against the background of the respondent's evidence that, at conciliation, she consented to an increase in her average weekly earnings to account for her additional earnings as a shearer's cook, believing that she could maintain the dispute in relation to the remaining components. And that she accepted the s 43 compromise, even though she disagreed with it, because she felt under extreme pressure to resolve her financial difficulties, and that she believed she was not properly advised about that entitlement.

23 The learned Deputy President accepted the evidence of the respondent that the conciliation was conducted whilst she was in an agitated and emotional state, was distressed, preoccupied with a personal relationship breakdown of the preceding night, was feeling overwhelmed and unable to cope, and was under extreme financial pressure.

24 In that context he specifically found that the respondent was not able at the time to fully comprehend and assess the import of the overall settlement proposal put to her, and that she fundamentally misunderstood a significant term of the settlement agreement. It is implicit that this is a reference to the income maintenance issue.

25 The learned Deputy President expressly rejected the respondent's evidence of duress and inappropriate pressure by the other participants namely Mr Brown, the appellant's representatives and the Conciliator. He found no inappropriate conduct on their part.

26 The respondent's assertion that Mr Brown did not act in her best interests was also rejected. Having rejected that evidence, and in the absence of evidence from Mr Brown, the learned Deputy President approached Mr Brown's role on the basis that the respondent was distressed, but that Mr Brown assumed that the respondent was capable of comprehending and assessing the proposals put to her and that he had valid instructions to agree to the orders made on the basis that they finally disposed of the income maintenance issue and the s 43 assessment.

27 As to the appellant's position, it was found that the appellant's representative knew generally that the respondent was distressed and had financial difficulties, but that it had no reason to believe that the respondent might not be able to comprehend and assess any settlement proposals, and that Ms Hayward had no direct dealings with the respondent at the conciliation.

28 It was found that the conciliator acted on the basis that the respondent gave instructions to resolve the income maintenance dispute and to accept the s 43 assessment.

29 Moreover, the learned Deputy President specifically found that the respondent gave instructions to Mr Brown to consent to the increase of her income maintenance, but accepted her evidence that as a result of a misunderstanding, she believed that she had not finalised the wider dispute. He also found that she gave instructions to settle the s 43 assessment for a lower figure than she believed she was entitled to because of financial pressure.

The considerations taken into account by the learned Deputy President in upholding the respondent's application

30 The learned Deputy President approached the exercise of his discretion acknowledging the need to act cautiously when setting aside a consent order. He correctly identified the importance of determining what the interests of justice require in relation to each party, the individual circumstances of the particular case, the place of s 88H within the scheme of the Act, and the public interest in the finality of litigation (judgment par 58).

31 Within that general approach he weighed the facts against five specific criteria namely:-

(1) whether the respondent had an arguable case for a higher rate of income maintenance and a higher s 43 assessment should the orders be set aside;

(2) the respondent's delay in making her formal application and the prejudice to the appellant should the consent orders be set aside;

(4) the scheme of the Act and policy considerations;

(5) the hardship to the respondent should the orders not be set aside.

32 With specific reference to those five criteria he concluded that if the consent orders were set aside, the respondent would have an arguable case for the setting of notional weekly payments at a higher figure to take into account the seasonal nature of her work and her contractual child care arrangements, and that there is now evidence supporting a higher s 43 assessment.

33 He concluded that the respondent's substantial delay in bringing the application was explained by two circumstances - her financial situation, which brought with it a reluctance to engage a lawyer, and her physical, emotional and personal problems. He considered that the effect of the delay on the appellant was to some extent mitigated by Ms Hayward's ongoing knowledge about the respondent's dissatisfaction with the consent orders.

34 He formed the view that the appellant had been prejudiced by the delay, and that if he upheld the application to set aside the consent orders, its continuing dispute with the respondent in relation to the application of s 39, and a s 38 review already conducted, would be compromised. However, he did not regard this prejudice to be substantial.

35 In terms of the appellant's role in the conciliation the learned Deputy President concluded that it did no more than rely upon the ostensible authority of Mr Brown to negotiate on the respondent's behalf. He regarded the consent orders to be the result of a negotiated compromise between the parties and that it was not an appropriate part of his task to assess the relative merits of the bargain struck between the parties.

36 In addressing the role of the consent order as a final order within the scheme of the dispute resolution processes of the Act, the learned Deputy President adopted the considerations outlined by the single Member decision of Bunney v Department of Education and Children's Services [2004] SAWCT 77 with which the majority and the minority decisions of the Full Tribunal on appeal did not disagree (Bunney v Department of Education and Children's Services [2005] SAWCT 35).

37 His Honour then turned to the final topic of hardship to the respondent which he regarded as substantial. He placed a monetary value on that hardship both in relation to the income maintenance dispute and the s 43 assessment.

The learned Deputy President's conclusions

38 It was concluded that the hardship to the respondent outweighed the potential prejudice to the appellant. The learned Deputy President regarded the respondent's inability to fully comprehend the import of the agreement at the time of the consent orders as the most significant consideration. It outweighed the public interest in the finality of litigation, which concept itself he gave less weight than might apply in conventional civil litigation where the consent order might finally dispose of all issues between the parties. In contrast, it was said, this consent order was made in the context of continuing disputation about the application of ss 38 and 39 of the Act.

39 His Honour acknowledged the importance of confidence in the finality of the conciliation process and the role of s 92C(5) which binds a party at conciliation to the agreement of his or her counsel or representative, and he referred to the majority decision in Bunney's case (supra), but regarded the present case as unusual and one which warranted that an otherwise binding agreement be set aside.

40 For those reasons the learned Deputy President set aside the consent orders acknowledging that the respondent cannot repay the s 43 assessment, but noting that the sum could be recovered by the appellant as a debt, and that in any event the medical evidence supports a conclusion that it would be unlikely that she would receive less than the appellant has already paid, when the matter is reopened.

Did the learned Deputy President err in the exercise of his discretion?

41 Mr Ikonomopolous, counsel for the appellant, submitted that in reaching this conclusion the learned Deputy President failed to apply the correct approach to the public policy consideration of the finality of litigation, as espoused in the majority decision of Bunney (supra), that he failed to pay sufficient regard to the role of the representative pursuant to s 92C(5) of the Act, that he made findings of fact about the respondent's level of hardship without any or any sufficient evidence, and that it was unsafe to rely upon the respondent's evidence as to her misunderstanding of the terms of the agreement in the absence of Mr Brown's evidence.

42 The statutory framework in which the respondent brought her s 88H application is important. The Act encourages parties to resolve disputes concerning compensation entitlements by compromise. For this purpose the calling of a conciliation conference is compulsory (s 92B). Full and frank participation is encouraged by limits upon the disclosure of things said and done at conciliation in subsequent proceedings (ss 92C(3) and (4)). A party is entitled to representation by counsel or another representative at a conciliation conference, and if such representative agrees to a settlement at such a conference that settlement is binding on that party (s 92C(5)). The Conciliator is authorised to make a determination or order to give effect to a settlement and that order becomes a determination or order of the Tribunal (ss 92C(6) and (7)).

43 A consent order made in such circumstances provides finality of the particular Notice of Dispute lodged by the claimant. Contrary to the position adopted by the learned Deputy President, by which he sought to distinguish this compensation scheme from the finality required in civil litigation, the finality of a particular Notice of Dispute is no less significant in an Act which envisages a claimant making multiple or successive claims for a variety of entitlements provided by the Act. Each filed Notice of Dispute must be resolved either by agreement which is then embodied in a consent order, or by adjudication by the Tribunal embodied in its order.

44 In the normal course of events a consent order of the Tribunal, following settlement of a Notice of Dispute achieved between the parties at conciliation, complies with the well settled rule referred to by Barwick CJ in Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 at 530:-

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court ...".

45 This rule accords with the public interest requirement that litigation should not proceed interminably. In the context of this Act it also allows a claimant's various entitlements to be determined on a firm and certain footing. By way of example an order of the Tribunal which resolves a dispute about the setting of notional weekly earnings will then underpin the claimant's further entitlements to weekly payments after one year of incapacity (s 35) for economic adjustments (s 39), and on a two year review (s 38). If, as part of the Tribunal's order in relation to a particular entitlement, the relevant disability is identified as compensable pursuant to s 30 of the Act, the claimant will not usually be required to re-establish compensability for other entitlements related to that disability. The finality and certainty of the Tribunal's orders are essential for the integrity of the compensation scheme erected by the Act and the effectiveness of the dispute resolution process.

46 Another important aspect of the conciliation process specified in the Act is the statutory acknowledgement of the binding nature of a settlement agreed by a party's counsel or representative. Although it is well settled that a party's legal representative has ostensible authority as between that representative and the client's opponent to compromise the proceedings (Halsbury's Laws of Australia Vol 16 par 250 - 480), s 92C ensures that a non-legal representative can similarly participate in conciliation and conclude an effective binding settlement. A compromise made by counsel or other representative at conciliation underpins a subsequent consent order.

"A consent judgment or order is meant to be the formal result and expression of an agreement already arrived at between the parties to proceedings embodied in an order of the Court" (Wilding v Sanderson (1897) 2 Ch 534 at 543 per Byrne J).

47 Whilst in the normal course of events the consent order once made cannot be set aside, s 88H provides the Tribunal with a residual discretion to do so if the interests of justice require it. That test might involve a number of considerations of the kind referred to by the learned Deputy President in his judgment, by the decision of the single Member in Bunney (supra), and the Full Bench on appeal in that case (supra). These might include whether there is an arguable case at stake, the timeliness of the application, the prejudice to the respective parties if the order is set aside or is not set aside, and the public interest requirement of finality.

48 However, the first consideration will be the nature and quality of the agreement reached between the parties because irregularity in that agreement might be a predominant indicator warranting the setting aside of the consent order.

49 Albeit in different circumstances (there was no general discretion to set aside a consent order), the High Court in Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235 at 243 - 4 said:-

"The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, nondisclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like."

50 In acknowledgement of this principle, we think the correct position pursuant to s 88H is that if that underlying agreement could itself be rescinded, then the interests of justice may require the setting aside of the consent orders. However, absent a ground for rescission, there would need to be other exceptional circumstances before the Tribunal would exercise its discretion to set aside or amend the consent order. This is consistent with the approach taken by McCusker DPJ in his reasons for judgment in the Full Bench decision of Kowalski v Mitsubishi Motors Australia Ltd [2002] SAWCT 76, in which he relied upon Paino v Hofbauer (1988) 13 NSWLR 193 as authority for the requirement of exceptional circumstances. It is to be noted that the other Members of the Full Bench in Kowalski (supra), in separate judgments, also dismissed the appeal and did not disagree with the approach referred to by McCusker DPJ.

51 Such an approach is also consistent with the Full Bench decision in Bunney (supra) in which the majority (Jennings PJ and McCouaig DP) upheld the decision at first instance that there was no error in the exercise of the discretion in circumstances where the employer did not act improperly in the negotiation of the compromise, there was no misunderstanding between the parties in their compromise, and the only misunderstanding was between the appellant in that case and his representative. The effect of the judgment of the majority was to highlight the regularity of the agreement reached and the absence of exceptional circumstances justifying the setting aside of the consequential order. Hannon DPJ, who was in the minority in that case, decided it on a different issue namely, that there was no agreement between the parties on an important aspect of the consent order.

52 In this instance the findings of the learned Deputy President do not identify any aspect of the agreement which would justify it being set aside on contractual or equitable principles. The appellant did not act inappropriately or in breach of its statutory obligations in the conduct of the negotiations (judgment par 78). It was bargaining in good faith.

53 As between the parties, the highest point at which the application to set aside can be put is that the respondent was unilaterally mistaken as to the effect of the agreement insofar as it related to the setting of notional weekly earnings, and that, having made a financially pragmatic decision about the s 43 assessment, she immediately regretted that decision.

54 As unfortunate as it may be for the respondent, her unilateral mistake about the setting of notional weekly earnings has no legal effect vis a vis the parties to the agreement because that mistake was not contributed to or encouraged by the appellant in circumstances where it would be unconscionable for the respondent to be held to the agreement (Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422). Furthermore, a change of heart by one contracting party is not a proper basis for rescission.

55 The settlement was achieved relying upon the respondent's agreement conveyed to the appellant's representatives by the respondent's representative. The appellant agreed to increase the respondent's notional weekly earnings and agreed to a s 43 assessment at that stage of the proceedings because the respondent's representative conveyed explicit instructions that to do so would resolve the relevant disputes. Therefore it had an expectation that the consent order, based on a properly conducted settlement, would stand.

56 We can envisage that sometimes the conduct of a representative may take an agreement between the parties into the realms of the exceptional such that it would be unconscionable to allow the Tribunal's order to stand. However, that is not the situation on the relevant findings of fact.

57 The respondent's evidence that her representative was not acting in her best interests was rejected. On the basis of that rejection and in Mr Brown's absence it was explicitly found that he acted with her specific instructions to agree to the consent orders on the basis that they would finally dispose of the contentious issues.

58 Therefore his conduct is not in question. It was not found that he was acting in excess of or in contravention of his instructions. Although the conduct of a representative might amount to exceptional circumstances justifying the setting aside of the consent orders, that too might depend on whether the party has some legal redress against the representative.

59 In the final analysis it was the respondent's inability to fully comprehend the import of the agreement in circumstances where neither her representative nor the appellant acted wrongly or unconscionably, which when weighed with the other considerations, tipped the balance before the learned Deputy President.

60 However, in our view, the learned Deputy President reached this conclusion without proper regard for the regularity of the underlying agreement and the need for exceptional circumstances. As indicated earlier, the respondent's failure to understand was found to result from distress and agitation albeit against a background of a depressive condition. But in our view something more than this is required to establish exceptional circumstances, particularly in the circumstances that it will frequently be the case that at the time of settling a dispute pursuant to this Act, many litigants may have significant financial pressures, experience distress and anxiety, suffer depression as a sequelae to physical injury, experience coincidental personal problems, and have an ambivalent relationship with representatives of the employer or the compensating authority.

61 It was not part of the respondent's case that she suffered from any psychological or psychiatric condition which affected her ability to comprehend or to give competent instructions. Such a situation might fit the category of exceptional circumstances justifying the Tribunal's interference with a consent order.

62 However in circumstances where there is no evidence of conduct by the other party of the kind referred to in Harvey v Phillips (supra), or unconscionable conduct by a party's representative, and no evidence of mental disorder affecting a party's capacity to give instructions, distinguishing that party from the sometimes stressful situation occasioned by involvement in settlement negotiations, it will not usually be in the interests of justice to set aside consent orders.

63 The learned Deputy President erred in the exercise of his discretion by not testing the quality of the compromise and the prevailing circumstances in this way. Accordingly, we would exercise the discretion afresh. We take into account all of the factors referred to by the learned Deputy President which, when weighed against the quality of the underlying agreement, the absence of exceptional circumstances affecting the respondent's capacity to give instructions, and the principle of the finality of litigation, require that the consent order stand. The appeal is upheld and the judgment of the learned Deputy President setting aside the consent order is dismissed.

64 Ms Wenham, a casual seasonal worker for PIRSA, injured her back and aggravated a pre-existing shoulder injury when she tripped while working at the Oodlawirra roadblock in December 2000. She consented to a settlement of her entitlement to a payment for permanent disability pursuant to s 43 of the Act and the rate of weekly payments for her periods of incapacity in September 2001 before a Conciliation Officer. She eventually pursued an application to set aside the consent order. She was successful in that application.

65 This is an appeal by PIRSA against the decision of Hannon DPJ. He exercised his discretion pursuant to s 88H of the Act to set aside the consent order.

66 The relevant background, factual context, findings and conclusions of Hannon DPJ are set out in the majority judgment.

67 Section 88H provides that a consent order may be set aside "if the interests of justice require that the judgment or order be amended or set aside". The discretion should be exercised with caution. The interests of justice require a consideration of the individual circumstances of each case, the scheme of the Act and the public interest in the finality of litigation.

68 Section 86(1) of the Act limits appeals to the Full Bench of the Tribunal to questions of law. The exercise of a discretion as set out in s 88H is governed by the principles in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 where it was said:-

1 "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 a 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."

69 Of principal importance to the learned Deputy President's exercise of discretion were the following matters:-

•

Ms Wenham had an arguable case for an entitlement to a substantially higher rate of income maintenance and to a higher s 43 payment. The learned Deputy President estimated that the potential amount of arrears inclusive of interest may range from $42,500 to $65,000.

•

In addition Ms Wenham may have, depending on the outcome of any s 38 review process, an entitlement to a substantial ongoing payment of income maintenance.

•

The delay was long, almost two and a half years. He noted that the delay was mitigated by the fact that soon after the making of the consent order the worker expressed her dissatisfaction with the outcome, and from then on repeatedly indicated that she intended to take action to have the order set aside. The explanation for the delay involved various factors. In part the delay was a consequence of difficulty obtaining information and her difficult personal and financial circumstances.

•

PIRSA was prejudiced by the delay. It has applied annual s 39 increases, conducted a rehabilitation and work-hardening program and carried out a s 38 review which is now under challenge. Alternative rehabilitation options would have been considered.

•

He did not consider that PIRSA has acted inappropriately or in breach of its statutory obligations in the conduct of the negotiations. He expressed his surprise that some guidance was not given by PIRSA to the worker.

•

The negotiation process involved a compromise, and what might be described as a "package deal".

•

He did not accept that any substantial prejudice will be caused to PIRSA.

•

He considered that the potential hardship to the worker if she does not have the opportunity to present her case with respect to a higher level of weekly earnings is substantial.

•

In relation to the scheme of the Act he found that the worker misunderstood the import of that part of the consent order relating to the increase in the level of weekly payments.

•

He concluded that the extent of the hardship to the worker if the consent orders are not set aside outweighs the potential prejudice to PIRSA.

•

The fact that Ms Wenham was unable to fully comprehend the import of the proposition to which she agreed, outweighed the substantial considerations in favour of rejecting her application.

•

He referred to the public interest in the finality of litigation, and to the importance of holding parties to bargains they make which applies particularly where the worker is represented at the time a consent order is made.

•

He noted that the Tribunal has been given a specific power to set aside a consent order notwithstanding that s 92C(5) of the Act provides that a party is bound to a settlement agreed to by his or her representative. The scheme of the Act contemplates that circumstances may warrant the setting aside of an otherwise binding agreement.

•

He had regard to the decision of the majority in Bunney v Department of Education and Children's Services and the possibility that difficulties would be caused for the business of the Tribunal if representatives of parties could not be relied on to act in accordance with instructions, and that the Tribunal would be brought into disrepute if parties were allowed lengthy periods to revisit what they might be advised were "unfair" consent settlements.

•

He regarded the circumstances in this case to be unusual.

•

He considered that allowing the application in the special circumstances of this case will not lead to a plethora of unmeritorious applications in other matters.

70 Mr Ikonomopoulos argued that the learned Deputy President failed to give due consideration to a section of the Act (s 92C(5)) that says a settlement reached on behalf of a party by a representative is binding.

71 The learned Deputy President dealt with the interaction between s 92C(5) and s 88H in par 83 of his judgment where he said, "The scheme of the Act contemplates that circumstances may warrant an otherwise binding agreement made by a representative on behalf of a party being set aside".

72 In my view the way in which the learned Deputy President dealt with the absence of evidence of Mr Brown, who represented Ms Wenham in the conciliation process, was consistent with the relevant authorities.

73 The learned Deputy President considered that two significant factors in favour of Ms Wenham's application outweighed the legislative and public policy arguments against setting aside the consent order. The factors which the learned Deputy President referred to were the extent of the hardship to Ms Wenham and her condition at the time she agreed to the consent orders.

74 In my view he did not act outside the discretion conferred on him and he had due regard to the matters relevant to the exercise of his discretion.

75 Mr Ikonomopoulos argued that the learned Deputy President failed to follow the Full Tribunal decision in Bunney. That case was decided on the basis that the Full Tribunal should not interfere with the discretion exercised where there is no evidence that discretion miscarried, where there was no error of law and where it cannot be shown that the learned Deputy President overlooked material matters or took into account irrelevant matters (par 23 Bunney v Department of Education and Children's Services [2005] SAWCT 35). The judgment of the learned Deputy President in this matter offends none of those principles.

76 Mr Ikonomopoulos' proposition that the public interest in the finality of litigation and the holding of parties to the bargains they make were the only relevant factors in the exercise of the discretion pursuant to s 88H is wrong in my view.

77 Mr Ikonomopoulos argued that there was insufficient or no evidence on which to rely that Ms Wenham would suffer hardship if the consent order was not set aside. He argued that the learned Deputy President's findings relied on submissions rather than evidence in this regard.

78 In my view the learned Deputy President was entitled to take the approach that he did. The potential difference in the outcome for Ms Wenham was a matter that he should properly have regard to in the exercise of his discretion. Counsel for PIRSA had conceded that Ms Wenham had an arguable case.

79 Mr Ikonomopoulos argued that there was insufficient evidence on which to base a finding that Ms Wenham misunderstood or did not fully comprehend the effect of her instructions or the import of the bargain.

80 In my view the learned Deputy President was entitled to accept the evidence given by Ms Wenham and draw the conclusion that he did from that evidence.

81 The majority have stated that there would need to be exceptional circumstances before the Tribunal would exercise its discretion to set aside or amend the consent order. I agree with the approach taken by the majority in so far as they have followed the approach taken by McCusker DPJ in his reasons for judgment in the Full Bench decision of Kowalski v Mitsubishi Motors Australia Ltd. In his decision McCusker DPJ relied on what was said by McHugh JA in Paino v Hofbauer; the case needed to be exceptional before the Court should exercise its discretion and set aside a consent order.

82 I do not agree with the way in which the majority have limited "exceptional circumstances" to the circumstances affecting the quality of the compromise between the parties. In my view that would result in almost no work being done by s 88H which has not been done already by the law of contract and equity. It was not an approach envisaged by either of the parties, nor did the learned Deputy President consider it as an alternative. If a final determination of the rights of the parties depends upon that unheralded approach I would refer the matter back to the learned Deputy President for further argument.

83 In my view the interests of justice require a broad approach to the circumstances of the parties. Particularly pertinent to the interests of justice in this matter is the effect of leaving the consent order in place. Ms Wenham's potential entitlement to a substantial ongoing payment of income maintenance (subject to the outcome of any s 38 review process) will be profoundly affected.

84 The learned Deputy President gave detailed reasons addressing the circumstances of the parties and weighing the various factors to be taken into account. He considered 'the confluence of circumstances in this case to be unusual'. He went on to refer to the 'special circumstances of this case'. In my view his reasons establish that there were circumstances in this case that warranted the exercise of his discretion pursuant to s 88H. Whether those circumstances are described as 'exceptional', 'special' or 'unusual', they are circumstances that warranted the exercise of the discretion conferred by s 88H.

85 Hannon DPJ made no error in the exercise of the discretion. I would not interfere with his exercise of the discretion.

86 I would dismiss the appeal.