Industrial Court of New South Wales CITATION: Police Association of New South Wales v Commissioner of Police [2010] NSWIRComm 82 PARTIES: Police Association of New South Wales (Applicant) Commissioner of Police (Respondent) FILE NUMBER(S): IRC 1518 of 2009 CORAM: Staff J AWARD BENEFIT - APPLICATIONS FOR DECLARATIONS OF RIGHT - former police officer - receipt of partial and permanent disability off duty benefit - claim for payment of on duty partial and permanent disability benefit under Award denied by respondent - proceedings commenced in the Workers Compensation Commission challenging assessment of NSW Police workers compensation insurer - workers compensation proceedings resolved by way of agreement and consent orders - whether respondent estopped from denying injury subject of workers compensation proceedings - whether respondent estopped from denying former police officer entitled to on duty benefit - whether respondent estopped from denying former police officer not entitled to on duty benefit because of failure to comply with mutual obligation requirement in Award - whether privity of interest between a union and its members - discretion - held - Court has jurisdiction to make declarations sought - declaration can be made on the basis of issue estoppel - determination made by Workers Compensation Commission gives rise to an estoppel - applicant heard in proceedings through her union at her request and with her consent - Industrial Relations Act 1996 (NSW), s 154 CATCHWORDS: POLICE - former police officer seeking declaratory orders as to entitlement to on duty partial and permanent disability benefit under Award - Workers Compensation Commission proceedings challenging assessment of NSW Police workers compensation insurer - proceedings resolved by way of agreement and consent orders - whether respondent estopped from denying the injury the subject of Workers Compensation Commission proceedings is also estopped from denying applicant entitled to on duty partial and permanent payment under the Award because same injury PRACTICE AND PROCEDURE - declaratory orders - power of Industrial Court of New South Wales to make declaratory orders - issue estoppel - estoppel by convention - whether application in relation to an industrial matter - principles - discretion - Industrial Relations Act 1996 (NSW), s 154 LEGISLATION CITED: Industrial Relations Act 1996 Workplace Injury Management and Workers Compensation Act 1998 Anderson v Charles Sturt University [2002] NSWCC 63 "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 Blair v Curran (1939) 62 CLR 464 Cacchia v Isaac (1985) 3 NSWLR 366 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited; Elastic Rail Spike Co. (Aust) Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226 Ford v SAS Trustee Corporation and Another (2000) 98 IR 444 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Kuligowski v Metrobus (2004) 220 CLR 363 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Moratic Pty Ltd v Lawrence James Gordon and anor [2007] NSWSC 5 CASES CITED: O'Donel v The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744 Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301 Quin v Attorney General New South Wales (1988) 28 IR 244 Rail Services Australia Pty Ltd v Dimovski and Anor (2004) 1 DDCR 648 Ramsay v Pigram (1967) 118 CLR 271 Rinker Group Limited v Mackell [2008] NSWWCCPD 100 Royal Insurance Company Limited v Mylius (1926) 38 CLR 477 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21 The Administration of the Territory of Papua New Guinea and anor v Daerea Guba (1973) 130 CLR 353 Western Sydney Area Health Service v Gibson (2001) 109 IR 359 Young and Others v Public Service Board [1982] 2 NSWLR 456 HEARING DATES: 29 March 2010, 30 March 2010 DATE OF JUDGMENT: 30 June 2010 Mr A A Hatcher of counsel (Applicant) Police Association of New South Wales LEGAL REPRESENTATIVES: Mr M Seck of counsel (Respondent) Henry Davis York Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Wednesday 30 June 2010 Matter No IRC 1518 of 2009 POLICE ASSOCIATION OF NEW SOUTH WALES v COMMISSIONER OF POLICE Application by Police Association of New South Wales for declaratory relief under section 154 of the Industrial Relations Act 1996 JUDGMENT [2010] NSWIRComm 82 1 The applicant, the Police Association of New South Wales ("the Association"), has asked the Court, in an amended application, to make declarations of right under s 154 of the Industrial Relations Act 1996 ("the Act") in relation to whether a former police officer, Ms Kristy Rechelle Davies suffered on duty injuries which led to the cessation of employment and whether Ms Davies is entitled to an on duty partial and permanent disability payment pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005 ("the Award"). The declarations sought are framed by reference to whether the Commissioner of Police ("the respondent") is estopped from denying that the relevant injury was an "on duty" injury and from denying that Ms Davies is entitled to the on duty partial and permanent disability payment under the Award. Declarations sought 2 The declarations sought were: 1. A declaration that the Respondent is estopped from: (a) denying that the injury/ies that lead to the cessation of the employment of the Association's members (described in Schedule A - "the Members") were on-duty injuries as defined in cl 3 of the Crown Employees (Police Officers Death and Disability) Award 2005 ("the Award"); and (b) denying that the Employees are entitled to the on-duty partial and permanent disability payment under the Award by virtue of such injury/ies not being on-duty injuries as defined in cl 3 of the Award. 2. A declaration that the Respondent is estopped from denying that the Members are entitled to the on-duty partial and permanent disability payment under the Award by virtue of a failure to comply with the mutual obligation requirement in clause 9 of the Award. 3. Leave to apply for orders in the nature of consequential relief in the event the above declarations are made. 3 The application originally sought declarations on behalf of three members of the Association in respect of alleged entitlements under the Award. The parties compromised the claims of two of the former officers, leaving only Ms Davies' claim. 4 At the hearing, the Association was represented by Mr A A Hatcher of counsel. Mr M Seck of counsel appeared for the respondent. 5 The substantive grounds in the application upon which the Association moved for relief were as follows: 1. The Applicant is an organisation of employees registered under the Industrial Relations Act 1996 ("the Act") with constitutional coverage to represent sworn police officers in New South Wales. 2. Ms Kristy Davies is a member of the Applicant. 3. The Applicant and Respondent are party to a consent award made by the Industrial Relations Commission of NSW entitled the Crown Employees (Police Officers - Death and Disability) Award 2005 (the Award). 4. The Award provides, amongst other entitlements, benefits to police officers who are terminated in the circumstances described in cl 9 of the Award due to the police officer suffering a "partial and permanent disability" as defined in cl 3 of the Award. 5. The value of the benefit payable under cl 9 is dependent upon whether the disability that renders the police officer "permanently unable ... to perform the duties that the police officer was required to perform before the officer suffered the disability", and is therefore the substantial cause of the police officer's employment ceasing (see cl 3 definitions of "partial and permanent disability"), is properly characterised as an "on duty injury" on an "off duty injury" as those terms are defined in cl 3 of the Award (which we will refer to as an "on duty benefit" and an "off duty benefit" respectively). 6. Where the cessation of employment was substantially due to injuries characterised as on duty injuries (and the officer is otherwise entitled to benefits under the Award) the entitlement payable is set out in the table described as "Annexure B". 7. Where the cessation of employment was substantially due to injuries characterised as off duty injuries (and the officer is otherwise entitled to benefits under the Award) the entitlement payable is as described in cl 9.4.2. 8. An "on duty injury" is defined in cl 3 of the Award as follows: "on duty injury" in relation to a police officer means, injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act. 9. An "off duty injury" is defined in cl 3 of the Award as follows: "off duty injury" means any personal injury or disease which is not an on duty injury. 10. Clause 9 of the Award establishes a "mutual obligation" requirement which, where applicable, must be satisfied before a police officer can be entitled to a partial and permanent disability benefit (whether an on duty benefit or an off duty benefit). 11. Each of the Members, upon the termination of his/her employment as a police officer by reason of having been medically discharged was: (a) assessed by the Respondent as suffering a partial and permanent disability as defined; (b) assessed by the Respondent as being entitled to an off duty benefit rather than an on duty benefit under the Award; and (c) paid the off duty benefit amount prescribed by the Award. 12. Each of the Members has claimed the on duty partial and permanent disability benefit under the Award, and in each case the NSW Police Force has denied or not accepted the claim. Accordingly there is a dispute between each of the Members and the NSW Police Force as to whether there is an entitlement to an on duty benefit under the Award. 13. Each of the Members commenced proceedings in the Workers Compensation Commission challenging the assessment of the NSW Police Force workers compensation insurer, Allianz Insurance, to the effect that their respective injuries were not compensable under the Workers Compensation Act 1987. 14. Each of the proceedings commenced by the Members in the Workers Compensation Commission were resolved by way of agreement and Consent orders as described in the affidavits of Ms Kristy Davies, filed in support of these proceedings. 15. In relation to Ms Kristy Davies: (a) The application to resolve a dispute filed by Ms Kristy Davies in the Workers Compensation Commission of New South Wales (Dispute No. 3433 of 2008) related to a dispute about whether the psychological injury that was the subject of a claim by her for workers compensation was compensable under the Workers Compensation Act 1987 , liability having been denied; (b) The same psychological injury was the substantial cause of Ms Davies' medical discharge from the NSW Police Force; (c) The NSW Police Force is estopped from denying that the injury was the subject of dispute in Dispute No. 3433 of 2008 is and was at all times compensable under the Workers Compensation Act 1987, by: (i) The agreement reached between the NSW Police Force and Ms Kristy Davies in settlement of Dispute No. 3433 of 2008 filed in the Workers Compensation Commission of New South Wales; and (ii) The Orders, styled as "Certificate of Determination - Consent Orders", made by Arbitrator Duncombe and dated 31 July 2008 in conclusion of Dispute No. 3433 of 2008 filed in the Workers Compensation Commission of New South Wales; (d) The NSW Police Force is for the same reasons estopped from denying that Ms Davies is entitled to the on-duty partial and permanent payment under the Award by virtue of such injury not being an on-duty injury as defined in cl 3 of the Award; and (e) The NSW Police is estopped from denying that Ms Davies is not entitled to the on-duty partial and permanent disability payment under the Award by virtue of a failure to comply with the mutual obligation requirement in clause 9 of the Award because: (i) the NSW Police Force granted Ms Davies the off duty benefit under the Award; and (ii) the grant of the off duty benefit necessarily involved an acceptance by the NSW Police Force that the mutual obligation requirement under clause 9 of the Award had either been satisfied by Ms Davies or was not applicable. ... 18. The estoppel referred to in paragraphs 15(c)(i), is an estoppel by convention. 19. The estoppel referred to in paragraphs 15(c)(ii) is an issue estoppel. 20. The estoppel referred to in paragraphs 15(e) is an estoppel by convention. Factual background 6 The only witness in the proceedings was Ms Davies. Her evidence took the form of an affidavit which was tendered in the proceedings. Ms Davies was not required for cross-examination. Ms Davies' evidence was accepted by the respondent as accurately setting out the factual circumstances relevant to the claim for relief, with the exception of one matter which I will deal with shortly. Exhibits and material tendered by the Association will be referred to where relevant in the subsequent factual consideration. They included the following: a. the Award: New South Wales Industrial Gazette, Vol 357, 10 March 2006, at 959; b. the affidavit of Ms Davies sworn 1 December 2009; c. death and disability submission prepared by the Compensation and Insurance Branch Medical Discharge Unit for the Medical Discharge Review Panel dated 13 September 2007, together with annexures; d. notification of dispute by the Association seeking the assistance of the Commission to adjust the benefit Ms Davies received under the Award from an off duty benefit to an on duty benefit; e. letter from the Association to Henry Davis York Lawyers, solicitors for the respondent dated 3 September 2009 advising of the discontinuance of the dispute and the intention of the Association to seek declaratory relief on behalf of Ms Davies. 7 Ms Davies' evidence was that she is a member of the Association and consented to the Association pursuing the claim for declaratory relief on her behalf. She became a probationary constable on 20 December 2002 and performed work as a Constable of Police until her medical discharge on 10 October 2007. On or about the end of January 2006, as a result of various stresses, Ms Davies was constantly feeling anxious and often vomited as a result. 8 On 23 January 2006, she was diagnosed by Dr N de Bruyn as suffering from work related stress, depression and anxiety, needing rest and time away from work. Dr de Bruyn's medical certificate was attached to Ms Davies' affidavit. On or around the same time, Ms Davies consulted Dr G Mah, her general practitioner, who diagnosed that she had post traumatic stress disorder ("PTSD") and was unfit for work from 23 January 2006 to 28 January 2006. Dr Mah provided a WorkCover certificate and referred Ms Davies to a psychiatrist for treatment. On 1 March 2006, Ms Davies had her first consultation with Dr John Roberts, a forensic psychiatrist who is mentioned later, and who confirmed the PTSD. Neither Dr Dr de Bruyn nor any of the other medical practitioners whose material and certificates were in evidence were required for cross-examination. 9 In January 2006, Ms Davies went on sick leave. She returned to work in early February and was placed on restricted duties before being referred to the Police Medical Officer for assessment. She remained on sick leave from February 2006 until her medical discharge from the NSW Police Force on 10 October 2007. This, no doubt, was the basis that the application to resolve a dispute before the Workers Compensation Commission of New South Wales ("WCC") was amended (as referred to subsequently to delete any claim for weekly compensation from 24 January 2006 to 20 October 2007). In respect of the last date, Mr Seck observed that it would appear that this was a typographical error in the first order of the Certificate of Determination - Consent Orders. The date in Order 1 should read "10 October 2007" as order 2 provided that the respondent pay the Ms Davies compensation from 11 October 2007. 10 Dr Mah issued a series of WorkCover certificates that diagnosed that Ms Davies had suffered from PTSD from 7 February 2006 until 24 October 2007. These certificates were annexed to the affidavit. 11 After reporting her injury to NSW Police and notifying Allianz Insurance ("Allianz"), the workers' compensation insurer for NSW Police, Ms Davies was assessed in early March 2006 by a consultant psychiatrist for a pre-liability stress assessment. 12 By letter dated 1 March 2006, Allianz rejected provisional weekly payments for workers' compensation, on the ground that Ms Davies had not reported her injury within the requisite two months. She contended that the injury was reported as soon as she became aware of it. On this basis, Ms Davies sought, by letter dated 9 March 2006, that the decision be reviewed. 13 On 17 March 2006, Ms Davies was advised that her claim for workers' compensation had been rejected. 14 On 15 March 2006, and again on 22 March 2006, Ms Davies consulted Dr Roberts. Relevantly, Dr Roberts' report dated 22 March 2006 stated: Ms Kristy Davies is permanently unfit to return to work as a police officer. This is based on her current psychiatric status of Post-traumatic stress disorder compounded with an Adjustment disorder with anxiety and depression. I have instructed her to commence an application for retirement on medical grounds. 15 In an extensive report dated 6 November 2006, Dr Roberts' summary and opinion was: At the time of my initial presentation I considered that Ms Kristy Davies had given an account of a series of inappropriate behaviours towards her during the course of her working as a police officer. I refer you to the Ombudsman's letter as a summary. Her current psychiatric diagnoses were at the time of her initial presentation and remain:- i. Post-traumatic stress disorder and ii. A compounding Adjustment disorder with anxiety and depression. Ms Davies is currently receiving appropriate treatment for her condition. I consider that in spite of other stressors being operative her circumstances and conditions of employment are the substantial, though not the only contributing factor to her current presentation. I do consider having regard to her experiences within the Police Force as a police officer that having regard to her current psychiatric condition, she would be ill advised to continue as a police officer. In giving my opinion on her being ill advised to return to work as a police officer, my support of her medical retirement I note that having regard to her experiences within the police force, the manner in which she has been treated, the breaches of confidentiality that have occurred, the fact that her most personal concerns are common knowledge and spoken about in the corridor, render it on health grounds, impossible for her to return to work as a police officer. I note that Ms Davies is concerned in regard to the extent to which her physical safety is compromised by the fact that her assailants have not in any manner been penalised for their actions - this is a matter for consideration. 16 By letter dated 3 April 2006, Allianz advised Ms Davies that liability had been denied for the following reasons: This decision is pursuant to s 9A of the WCA 1987. No Diagnosis of a Psychological Injury. Pre Liability Stress Assessment conducted by Jo Clarke on 10/02/06. "I am of the opinion that Ms Davies' symptoms at the time that she ceased work on 23/01/06 and at the time of this assessment on 02/03/06 did not fulfil the criteria for a clinical diagnosis as defined by the Diagnostic and statistical Manual of Mental Disorders-Fourth Edition, Text revision, 2000, American Psychiatric Association (DSM-IV-TR). 17 After exhausting her sick leave and other leave entitlements, Ms Davies remained on special paid sick leave until her medical discharge. 18 On 25 October 2006, Ms Davies was assessed by Dr Terry Kohler, Clinical Psychologist at HealthQuest. Relevantly, Dr Kohler's conclusions were: Ms Davis was assessed to be suffering from symptoms consistent with a diagnosis of a Major Depressive Disorder. She was also assessed to be suffering from an Adjustment Disorder. At the HealthQuest assessment there was no substantial evidence of symptoms consistent with a Post Traumatic Stress Disorder although is noted that Dr Roberts has diagnosed this condition. It is also evident that due to temperament and a low level of psychological resilience that Ms Davies gradually became withdrawn and isolated over time during her employment in the Police Service. She is receiving ongoing treatment for her condition but it is unlikely that she will recover sufficiently to be able to return operational policing duties. Dr Kohler's recommendations were: 1. Ms Davies was assessed to be permanently unfit for policing duties. 2. Her prognosis was assessed to be poor and it is unlikely that she will be able to return to her substantive duties in the foreseeable future. 3. Any contact with the police services is likely to exacerbate her condition and therefore she was assessed to be unfit for permanently modified or administrative duties. 4. A Fitness to Work Summary is attached. 19 On 10 October 2007, Ms Davies was medically discharged from the NSW Police Force. On 15 October 2007, the respondent advised Ms Davies that she was entitled to an "off duty" partial and permanent disability payment under the Award. 20 The application to resolve the dispute, referred to earlier was then filed. The application sought a determination by the WCC (s 288 of the Workplace Injury Management and Workers Compensation Act 1998 ("the WIM Act")) of weekly benefits, where the period was more than 12 weeks and medical expenses where the amount was more than $7,500. Under Pt 4 Injury Details, the date of injury was stated as 23 January 2006. The date of notice of injury was the same date. The place of injury was described as "various locations during course of employment as a Police Officer in Sydney Metropolitan area." The date of the compensation claim was 1 February 2006. The injury description was "post traumatic stress disorder with anxiety and depression" and the injury was said to have occurred by "multiple work related stresses." 21 Supporting documentation attached to the application included the following: (a) a report from Dr Peter Klug, Forensic Psychiatrist, dated 26 March 2008. Relevantly, Dr Klug's opinion was: Ms. Davies clearly suffered from significant psychiatric symptoms. These began from the time of the assault on her by "D". She described being raped by "D" and the details of this are in the body of my report and also in her statement. ["D" was a police officer and the alleged offence occurred whilst both were off duty]. Her symptoms from that time were in the form of both anxiety-based and depressive ones. From the time of the assault on her - and it is of note that this is in the context of sexual harassment by another police officer prior to the assault - she developed a condition along the spectrum towards a post-traumatic stress disorder. Whether she developed the full syndrome is difficult to state with certainty. However, I note the comments by Dr. John Roberts, her treating psychiatrist, stating clearly that she suffered from a post-traumatic stress disorder. A PTSD commonly gives rise to co-morbid depressive symptoms. I believe that she had secondary depressive symptoms but that after incidental contact with Dalliwell while doing a brief stint in general duties she became overtly depressed and suffered from a major depressive episode. It is clear that there were significant other stresses in her life including the following: · mismanagement and neglect by the police bureaucracy · violation of her basic rights with respect to confidentiality about the assault · the assault by "D", another police officer, on her fourteen year old cousin leading to a court case on the basis of her compalint · subsequent harassment by "D" after the break-down of their relationship necessitating her taking out an AVO · the termination of a pregnancy in 2007 · the potentially malignant condition with respect to the lump on her daughter's jaw for which she had very little support from the bureaucracy while she was required, as a single parent, to take her daughter to various medical appointments · frequent transfers from one station to another · overt ostracism at Hornsby which, she says, was because of the complaint she made against "D" · a gross lack of support by the police service in various ways It is my view that her anxiety-based disorder - a chronic post-traumatic stress disorder (or a post-traumatic stress disorder-like syndrome which would necessitate the diagnosis of an anxiety disorder NOS [not otherwise specified]), and her major depressive disorder have been substantially caused by multiple work-related stresses. The former condition is in partial or substantial remission and the later condition is in remission. She improved with appropriate psychiatric treatment and under the care of Dr. John Roberts, her psychiatrist. Her capacity for work in the future is probably good although she clearly should avoid work that would bring her into any overt confrontation with members of the public or where she is likely to be sexually harassed or exposed to the threat of sexual assault. I understand she plans to study and retrain with the aim of gaining a law degree. It is clear that she now has a predisposition to psychiatric illness that she did not have prior to the various stresses to which she has been exposed. There is no indication that she suffered from any pre-existing psychiatric condition. It is my view that her psychiatric conditions were not caused by reasonable action on behalf of her employer, the New South Wales Police Service. (b) statement of Ms Davies dated 29 October 2007; (c) a notification of injury or illness by Ms Davies where injury details are described as post traumatic stress disorder. The notification appears to be dated 7 February 2006; (d) a workers compensation claim form dated 7 March 2006. Under the injury details, Ms Davies described how the injury occurred as: "numerous stress fall incidents over a three year period" and the injury being "psychological"; (e) letter from Allianz to Ms Davies dated 17 March 2006 stating that Allianz has evidence that her injury was not work related. This decision was based upon information given in the pre-liability psychological assessment report of Jo Clarke, consultant psychologist dated 10 March 2006. It was noted in the report that Ms Davies did not fulfil the criteria for a clinical diagnosis as per s 11A(3) of the Workers Compensation Act 1987. 22 The dispute in relation to Ms Davies' workers' compensation entitlements was resolved by way of consent orders in the WCC on 31 July 2008. The Workers Compensation Certificate of Determination - Consent Orders therefore issued. It was in the following terms: 1. That the Application be amended in Part 5.2 to delete any claim for weekly compensation from 24 January 2006 to 20 October 2007 ( sic should read 10 October 2007; see [9] above ). 2. That the Respondent pay the Applicant weekly compensation at the rate of $357.14 from 11 October 2007 to 7 May 2008 agreed to total $10,000 pursuant to s.40 of the Workers Compensation Act 1987. 3. That the Respondent pay the Applicant's medical and treatment expenses pursuant to s.60 of the Workers Compensation Act 1987 up to $1000 on production of accounts or receipts. Award for the Respondent otherwise in respect of any claim pursuant to s.60 of the Act. 4. That the Respondent pay the Applicant's costs as agreed or assessed. The matter is certified as complex and each party is entitled to a 15% uplift on costs. 23 The determination proceeds on the basis that Ms Davies was entitled to, and was paid compensation under the WIM Act for injuries sustained whilst employed by the NSW Police. 24 It is relevant at this point to refer to a number of matters which occurred after the cessation of Ms Davies' employment and the settlement of her workers compensation proceedings. 25 On 8 September 2007, the Medical Discharge Panel considered an application made by Ms Davies for medical discharge and determined she was entitled to an off duty partial and permanent disability benefit in accordance with cl 9.4.2 of the Award. The grounds for her medical discharge were due to major depression and adjustment disorder. At this time the injuries were not accepted for workers' compensation purposes. 26 It is also relevant, in my view, that whilst Ms Davies was employed in the NSW Police Force, Dr Roberts issued a medical report dated 8 November 2006, where he concluded that "it would be impossible for her to return to work as a police officer" having diagnosed she was suffering from PTSD. 27 Also relevant is the recommendation of Dr Kohler in his report to HealthQuest dated 20 November 2006 that "Ms Davies was assessed to be permanently unfit for operational policing duties" and "any contact with the police services is likely to exacerbate her condition and therefore she was assessed to be unfit for permanently modified or administrative duties." 28 On 2 October 2007, NSW Police Force advised Ms Davies that HealthQuest had recommended to it that she was permanently unfit for the substantive requirements of her position as a sworn police officer and that she be medically discharged from the NSW Police Force. NSW Police acted on that recommendation and approved Ms Davies' medical retirement, with her last day of service being Wednesday 10 October 2007. 29 The respondent, in his letter to Ms Davies dated 15 October 2007, acknowledged that Ms Davies had received injuries which had precluded her from pursuing her chosen career with the NSW Police Force. In considering her application for a benefit under the Death and Disability Scheme, the respondent advised that, "after considering your case history together with a recommendation by the Medical Discharge Review Panel, I have decided to approve the payment of an off-duty partial and permanent disability benefit to the amount of $119,454.66" (emphasis added). Such benefit was calculated in accordance with cl 9.4.2 of the Award. 30 The Association, pursuant to s 130 of the Act, notified the existence of a question, dispute or difficulty in respect of Ms Davies. This dispute squarely raised the effect of the WCC's orders and the claim for the payment of an on duty benefit under the Award. The dispute was the subject of proceedings before Kavanagh J. Ultimately, the Association discontinued the dispute to seek the form of relief that it now presses in this application. 31 Ms Davies stated in her evidence that the psychological injuries that led to her medical discharge from the NSW Police Force were the same psychological injuries that were the subject of dispute in the WCC. Her understanding was that the settlement in the WCC meant that NSW Police accepted liability for her claim and that NSW Police were accepting that her psychological injuries arose out of her employment. This evidence was objected to on the basis of relevance, however, Mr Seck submitted he was content to deal with this matter in submissions. Respondent's evidence 32 The evidence tendered by the respondent included the following documents: (a) Ms Davies' Application for Medical Discharge dated 8 January 2007. The medical condition claimed was described as "Post Traumatic Stress Disorder. Adjustment Disorder and Depression"; (b) Ms Davies' Application for Partial and Permanent Disability Benefit. Injury details were described as "PTSD"; (c) a letter from Henry Davis York Lawyers to the Association dated 10 November 2009, which raised for the Association's consideration the proper parties to the application, the jurisdiction of the Industrial Court, the application generally, evidence to be adduced at the hearing and the utility of the application; and (d) a letter in reply from the Association to Henry Davis York Lawyers dated 25 January 2010. Principles for declaratory relief 33 Section 154 of the Act gives power to the Court to make binding declarations of right. Section 154(1) provides: 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. 34 Hungerford J in Ford v SAS Trustee Corporation and Another (2000) 98 IR 444 at [9] set out the principles for granting declaratory relief under s 154 as follows: [9] Given the general power of the Court to make a binding declaration of right under s 154 of the Industrial Relations Act, subject to it being in relation to a matter in which there is jurisdiction and as to which I will return, the present approach adopted in terms of principle to the grant of a declaration was stated in the following way by Gibbs J, as he then was, in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437-438: It is neither possible nor desirable to fetter the broad discretion by s 10 by laying down rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarized by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at p 448, should in general be satisfied before the discretion is exercised in favour of making a declaration: "The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought." Beyond that, however, little guidance can be given. As Lord Radcliffe said in Ibeneweka v Egbuna [1964] 1 WLR 219 at p 225: "After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." 35 I will approach the determination of this matter in accordance with these principles. Incidentally, I note that there are a number of authorities of this Court which make plain the scope for the availability of relief pursuant to s 154 and generally speaking adopt a similar approach to Hungerford J: Atlantis Relocations (NSW) Pty Ltd v Department of Industrial Relations (Inspector O'Regan) (1997) 99 IR 125 at 126 - 127; State of New South Wales (Department of Public Works and Services and Department of Education and Training) v WorkCover Authority of New South Wales (Inspector Page) (2000) 101 IR 131 at [20]; "A" v Commission for Children and Young People & Anor (2001) 107 IR 211 at 213; Western Sydney Area Health Service v Gibson (2001) 109 IR 359 at 369; T v The Commission for Children and Young People. Application by T for declaratory relief under s 154 of the Industrial Relations Act 1996 [2008] NSWIRComm 21 at [13] - [15]. Findings 36 The evidence enables the following findings to be made: (a) Ms Davies suffered injuries arising out of or in the course of employment with the respondent. She has suffered, amongst other things, PTSD; (b) some time in February 2006, she reported her injury to the respondent. On 7 March 2006, Ms Davies lodged a claim with the respondent's workers' compensation insurer, Allianz. Shortly thereafter, she attended a pre-liability stress assessment with Ms Jo Clarke, a consultant psychiatrist. On 3 April 2006, the respondent's insurer denied Ms Davies' claim on the basis that she did not fulfil the criteria for a clinical diagnosis of PTSD; (c) in or about October 2006, the respondent referred Ms Davies to HealthQuest to undertake a psychological assessment. Dr Kohler conducted the assessment. On 10 January 2007, the respondent advised Ms Davies that she had been submitted for medical discharge. On 10 October 2007, the respondent discharged Ms Davies from the NSW Police Force on medical grounds that she was partially and permanently disabled to continue employment with the respondent. She received an "off duty" partial and permanent disablement payment in accordance with the Award; (d) on or around 8 March 2008, Ms Davies lodged an application to refer a dispute for determination to the WCC claiming an entitlement to weekly benefits and medical expenses under the Workers Compensation Act 1987 ("the WC Act") (s 40 and s 60). In her workers' compensation application form, Ms Davies claimed weekly benefits compensation from 24 January 2006 onwards; (e) on or about 31 July 2008, Ms Davies and the respondent's representatives attended a conciliation conference to seek to resolve the dispute between the parties regarding these issues; (f) arising out of the conciliation conference, the parties reached an agreed resolution to the matters in dispute. By reason of the agreement and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2006 (the Compensation Commission Rules), the Compensation Commission made a determination set out in a document entitled "Certificate of Determination - Consent Orders" which was issued pursuant to s 294 of the WIM Act and provided, amongst other things; (i) the application be amended in Pt 5.2 to delete claims for weekly compensation from 24 January 2006 to 20 October 2007 (sic 10 October 2007); and (ii) the respondent pay Ms Davies weekly compensation at the rate of $357.14 from 11 October 2007 to 7 May 2008 pursuant to s 40 of the WC Act. (g) Ms Davies acknowledged and agreed that she had no economic incapacity from 7 May 2008; Issues 37 Before I make reference to the detailed submissions made by counsel, it may be useful to identify the issues that were raised in these submissions. 38 In opposing the claim, the respondent argued the Court does not have jurisdiction to make the orders sought and went on to submit in the alternative that, assuming jurisdiction, the orders should not, or could not be made, because the award and determination of the WCC cannot give rise to an estoppel for two reasons. Firstly, because the WCC is not the kind of body whose decision can give rise to an estoppel, and secondly, because the determination of the WCC was by consent, no estoppel arises from a consent determination. The respondent also contended that Ms Davies had failed to comply with the mutual obligations requirement in cl 9 of the Award which provides: 9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability 9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a police officer must satisfy the obligations outlined within this Clause. 9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this Award and may result in medical discharge. 9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, provided they have satisfied their mutual obligations, shall be paid a lump sum payment in accordance with Annexure B to this Award. 9.4 A police officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible. No direct medical or rehabilitation costs will be met by NSW Police for off duty injuries 9.4.1 Where a return to pre-injury employment is not possible as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.4.2 If placement in a police position is not possible and redeployment to an administrative officer position within the NSW Police is not agreed to by the officer, the employment of the police officer may be terminated and, in such circumstances, the police officer shall be paid a lump sum payment equivalent to the unexpired portion of the two years full salary or full salary to age 60 (whichever is the lesser). The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment. 9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every police officer who suffers partial and permanent disability to be placed in a suitable police position within NSW Police, wherever reasonably practical. 9.6 An adequate opportunity will be given to the police officer concerned and the Association (unless the police officer expressly declines to agree to the Association being informed) to consider the NSW Police opinion that no suitable position is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to medical discharge. 39 Mr Hatcher took issue with each of these arguments. Counsel contended firstly, that the Court had jurisdiction to make the declaration sought. Secondly, that the determination of the WCC could give rise to an estoppel and the fact that it was a consent determination does not alter that situation. Counsel also relied, as set out in the grounds of relief, upon the principle of "estoppel by convention" or "issue estoppel." 40 It is now appropriate to refer to counsels' submissions, commencing with those of the respondent. Respondent's submissions as to jurisdiction 41 As to lack of jurisdiction in the Court, in summary, Mr Seck contended: (a) the Industrial Court of New South Wales does not have jurisdiction or power to grant declaratory relief sought under s 154 of the Act on the grounds that: (i) the applicant does not seek a "binding declaration of right"; (ii) the application does not concern a "matter" within the meaning of s 154(1) of the Act; (iii) the Court does not have jurisdiction to deal with, let alone grant relief in the nature of, estoppel; (iv) the applicant does not have standing to make the claim and has not joined Ms Davies to the proceeding, whose personal interests are affected by the proceedings, as a necessary party to the claim; (b) even assuming that the Court has jurisdiction to grant the relief sought: (i) Ms Davies' case does not support the granting of relief sought as the circumstances do not give rise to the estoppel claimed; and (ii) the Court should decline in its discretion to do so. Estoppel by convention 42 The respondent's submissions are that conventional estoppel rests on the consensual basis of the parties' relationship, and by both parties adopting the same assumptions as the basis of their relationship: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited; Elastic Rail Spike Co. (Aust) Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (1986) 160 CLR 226 at 244; Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 and that the requirements necessary to establish conventional estoppel were to be found in Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 at 645; Moratic Pty Ltd v Lawrence James Gordon and anor [2007] NSWSC 5; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 (at [573] - [575]). Conversely, it was submitted, no conventional estoppel arises where the parties have no ongoing legal relationship which, it was contended, was the position between the parties following Ms Davies' termination of employment. Counsel further submitted that no evidence was adduced that "the parties 'conducted' themselves by reference to a conventional state of affairs on the basis of the mutual assumption" and that no evidence was adduced that "each party knew that the other party would act on that shared assumption." 43 Mr Seck submitted that, at its highest, the respondent entered into an agreement to make weekly compensation benefit payments to compromise a claim and did not enforce its entitlement to require Ms Davies to complete her mutual obligations in respect of an off duty benefit. The conduct represented by the respondent's agreement continued beyond the employment relationship. The events were single one-off events rather than a customary way of doing things that both parties accepted during the relationship. Counsel contended that on the contrary, the respondent made it clear that it did not share Ms Davies' assumption that she was entitled to claim an on duty benefit. Issue estoppel 44 As to issue estoppel, Mr Seck referred to Blair v Curran (1939) 62 CLR 464 at 531 - 532; Kuligowski v Metrobus (2004) 220 CLR 363 at 373 and Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322 at [79], and submitted that these cases were authority that in order to establish issue estoppel, it was necessary to establish: (a) a prior judicial determination on: (i) an issue of fact or law; (ii) disposing a legal controversy between the parties once and for all; (b) a later proceeding involving: (i) precisely the same issues of fact or law as the prior judicial determination; (ii) the same parties (or their privies) as the prior determination. Association's submissions 45 The Association sought declarations that the respondent was estopped from denying certain matters about Ms Davies' injury, her requirement to comply with "mutual obligations" found in the Award and her alleged entitlement to receive an "on duty" partial and permanent disability payment under the Award. 46 The nature of the estoppel claimed in respect of the alleged conduct is set out in the grounds and reasons as both "estoppel by convention" and "issue estoppel". 47 Mr Hatcher made the following submissions: (a) issue estoppel has arisen by virtue of the orders made by the WCC with respect to liability for workers' compensation benefits. The respondent is estopped from denying, by virtue of those orders, that Ms Davies' injury was not "on duty" for the purpose of the Award; (b) the commonality of issues, necessarily involved a determination that the injury was received in the course of employment and was, therefore, for that reason an "on duty" injury for the purpose of the Award; (c) the commonality test under the WC Act is the same test for the award entitlements. This was explicitly stated by the Court in Police Association of NSW on behalf of Craig Clifton v NSW Police Force [2009] NSWIRComm 197; (d) the learned authors, Spencer Bower and Handley, Res Judicata , 4th ed (2009) point out that an arbitrator under the WC Act 1987 and the WC Act 1906, included as among the Tribunals established by statute that may be taken to be judicial for present purposes, the above Tribunals, when considering if res judicata , being a decision on the merits, was pronounced by a tribunal, could be characterised as judicial. The learned authors referred to what Gibbs J said in The Administration of the Territory of Papua and New Guinea and another and Daera Guba (1973) 130 CLR at 353: The use of the phrase "judicial tribunal" in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: ... The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties; (e) the following cases were relied upon in respect of the principles to be applied in determining whether an issue estoppel arose: Blair v Curran (1939) 62 CLR 464; Kuligowski v Metrobus (2004) 220 CLR 363 at 373 - 377; Lambidis v Commissioner of Police (1995) 37 NSWLR 320. These decisions considered whether an issue estoppel arose in respect of determinations of the WCC; (f) consent judgments were capable of giving rise to estoppel: Rail Services Australia v Dimovski & Anor (2004) 1 DDCR 648. The question of the "on duty" injury and any entitlement under the Award, involves precisely the same issue which was necessarily determined by the arbitrator's determination in the WCC. It is clear that the determinations of the WCC are, subject to the exercise of any right of appeal, final and enforceable. The authorities demonstrate the application of issue estoppel to workers' compensation courts and tribunals. Any amounts ordered to be paid in a determination by the WCC are enforceable in a court exercising common law jurisdiction: s 294, s 364 of the WIM Act; (g) by reference to the medical material upon which the parties jointly proceeded, no question of mutual obligation ever arose and the circumstances of what occurred, gave rise to an estoppel by convention. This proposition was confirmed by the documentation which proceeded the consideration of the Medical Discharge Review Panel: see Police Association of New South Wales (on behalf of Sahra Gulbis v Commissioner of Police [2008] NSWIRComm 187 at [60], [66], [77]; (h) the principles relevant to the application of estoppel by convention were considered in Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Limited (at 244; Ryledar Pty Ltd t/as Volume Plus and Another v Euphoric Pty Ltd at 644 - 645. The common assumption of the parties based upon the medical reports available and are known by both of them was that Ms Davies was completely unfit to perform either operational police duties or any other duties. Such is sufficient to establish conventional estoppel; (i) accordingly, NSW Police could be regarded or assumed as, in fact, having either satisfied the mutual obligations requirements, or, alternatively, such requirements were not applicable to Ms Davies because of the circumstances of her medical condition. Such assumption applied in the following circumstances: (i) the fact of the employment relationship that existed between Ms Davies and the respondent, up and until the time of the termination of her employment due to a medical discharge; (ii) at all stages during her employment, the joint assessment of medical practitioners engaged by the parties, was that her condition precluded her from being able to perform any alternative, or restricted, or administrative duties; (iii) joint assessment continued to operate between the parties post employment with respect to the employment entitlements arising under the Workers Compensation legislation and the Award; (iv) Ms Davies was permanently unfit to return to work as a police officer from as early as March 2006. See report of Dr Roberts, who recommended her retirement on medical grounds; (v) HealthQuest, in its report dated 20 November 2006, assessed Ms Davies as permanently unfit for operational policing duties and permanently unfit for administrative duties; (vi) at all relevant times during the employment relationship between the parties and up until the date of medical discharge, the parties jointly proceeded on the assumption that the medical opinions about her condition were such that there was no basis that she could perform alternative duties, restricted duties, or administrative duties, or any relevant obligation arose; (viii) the principles applicable to the grant of declaratory orders under s 154 of the Act can be found in Ford v SAS Trustee Corporation ; Police Association of New South Wales v Commissioner of Police (2002) 123 IR 301; (ix) there can be no doubt that the subject matter of the application for declarations relates to a matter in which the Industrial Court would have jurisdiction: see definition of "industrial matter" under s 6, s 10B, s 357 and s 358 of the Act; (x) there is a clear controversy between the parties about whether Ms Davies was "hurt on duty". The judicial determination made by the WCC 48 Mr Seck, in extensive written and oral submissions, submitted that the Certificate of Determination by the WCC was not a judicial determination. These submissions were premised on the basis that, in such circumstances, the certificate could not give rise to an issue estoppel. 49 Mr Seck analysed the nature of the WCC, its conciliation function, and the nature of the Certificate of Determination made by the WCC, together with the consent orders and sought to persuade me that the WCC was not capable of making a judicial determination and had not made one which was able to sustain an issue estoppel. 50 To the extent relevant to these proceedings, the matter may in part be resolved by an analysis of the relevant legislation. Section 294 of the WIM Act 1998 provides: 294 Certificate of Commission's determination (1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination. 51 This section makes clear that the issue or grant of a Certificate of Determination occurs after the determination of a dispute. Section 362 provides that any amount ordered to be paid pursuant to a certificate operates as a judgment and is enforceable. A certificate only issues if the dispute has been determined. 52 Section 350 deals with decisions of the WCC and relevantly provides: 350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. 53 This section makes clear that a decision of the WCC is final and is a binding decision on the parties. 54 To the extent that Mr Seck sought to argue that in the statutory context under consideration here the term "determined" referred to the conclusion or termination of the claim, rather than a judicial adjudication, I would disagree. Section 350, in my view, requires this Court to treat the determination as a valid finding and binding on the parties as to the matters in dispute. 55 Mr Seck proceeded to analyse the conciliation function of the WCC and the distinct phases and different powers exercised in conciliation and arbitration. Counsel contended once it was understood that the settlement reached arose out of conciliation, it was apparent that the true nature of the Certificate of Determination was a record of the conciliation agreement, rather than a judicial determination. By issuing the certificate embodying the terms of agreement, the arbitrator did not exercise a judicial function giving rise to a judicial determination, but rather a conciliation function designed to provide an "effective" and "durable" settlement reached between the parties. 56 Mr Seck contended that a Certificate of Determination does not denote a final judgment, but rather it reflects that the parties have agreed to the terms of order making the determination. Counsel submitted that where the dispute has been determined after a proper hearing on the merits, the WCC makes an "award": see s 351(5) and s 351(6) of the WIM Act. Even assuming that the consent orders have the same effect as an arbitrated award, Mr Seck submitted it was not capable of sustaining an issue estoppel. The application was one to resolve a "dispute" which concerned a review of the claim made by an insurer (s 287A(1) and s 291 of the WIM Act) in circumstances where the insurer has disputed the claim (s 287A(2)). It followed, so it was submitted, that the nature of the dispute concerns the insurer's decision to decline the claim, not a claim for an existing legal entitlement. 57 Counsel submitted that the fact that the parties might have entered a consent agreement, does not mean that it has the effect of a judicial adjudication of the dispute. See for example Anderson v Charles Sturt University [2002] NSWCC 63 at [28] - [30]; Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 at [63] - [66] and Rinker Group Limited v Mackell [2008] NSWWCCPD 100. 58 Mr Hatcher emphasised that the WCC had made consent orders and the legal effect of the orders was determined by the provisions of the WIM Act: see s 294, s 350 and s 362. There was no difference in the WIM Act as to the legal effect of consent orders and arbitrated orders. Orders of both kinds are equally final and binding and have the same legal effect. Counsel relied heavily on to the decision of Roche DP in Rinker Group Limited v Mackell. The controversy and conclusion 59 On 31 July 2008, the WCC issued a Certificate of Determination - Consent Orders, pursuant to s 294 of the WIM Act. The Certificate of Determination was issued following the agreement between Ms Davies and the insurer on behalf of NSW Police to pay Ms Davies weekly compensation at the rate of $357.14 from 11 October 2007 to 7 May 2008, agreed to total $10,000, pursuant to s 40 of the WC Act. Medical and treatment expenses pursuant to s 60 of the WC Act up to $1,000 were also agreed to be paid on production of accounts or receipts. 60 Ms Davies' last day of service with the NSW Police Force was 10 October 2007. This was some nine months prior to the issue of the WCC's determination reflecting the parties' agreement. As the insurer had at October 2007 declined her workers' compensation claim, she was only paid the "off duty" benefit of two years' salary. Ms Davies seeks that NSW Police pay the balance of the outstanding entitlement for an "on duty injury," which is defined in cl 3 of the Award as: "On duty injury" in relation to a police officer means, injury to a police officer in such circumstances as would, if the police officer were a worker within the meaning of the Workers Compensation Act 1987, entitle the police officer to compensation under the terms and provisions of that Act. 61 The respondent contended that the Certificate of Determination issued by the WCC on 31 July 2008 was a consent agreement of all the parties. It did not follow an arbitrated hearing and was not a determination. It was further contended by the respondent that in order to receive partial and permanent disability entitlements under the Award, there was a requirement to satisfy the Award definition and that Ms Davies did not meet the definition due to the fact that the determination was based on the cessation of her employment due to an off duty injury. The respondent concluded that based on these findings, Ms Davies' medical discharge payment would remain as an off duty benefit. These matters were the subject of the notification of dispute by the Association as earlier referred to in this judgment. 62 There is no issue that at all relevant times, that being from the time that Ms Davies was injured to the time of her discharge and the approval of her application for a benefit under the Award, that Ms Davies was totally incapable of performing any type of police work. The issue, as I have observed, is whether the relevant injury was connected to Ms Davies' employment in such a way as to bring it within the definition referred to above as "on duty injury." 63 A related question is whether the Association should have a declaration that the respondent is estopped from denying certain matters about Ms Davies' injury, her requirement to comply with mutual obligations and her alleged entitlement to receive an "on duty partial and permanent disablement payment under the Award." In other words, is the respondent estopped from denying the alleged injury in the workers' compensation claim, by virtue of the Certificate of Determination - Consent Orders made by the WCC, was a compensable injury and that Ms Davies is entitled to an on duty benefit under the Award. 64 The making of such a declaration is strongly pressed by the Association and equally as strongly opposed by the respondent. In essence, it is said on behalf of the respondent that the Court does not have jurisdiction to deal with, let alone grant relief in the nature of estoppel. Moreover, Mr Seck submitted that, even assuming that the Court had jurisdiction to grant the relief sought, Ms Davies' case does not support the granting of relief as the circumstances do not give rise to the estoppel claimed. It was further submitted that the Court should in any event decline in the exercise of its discretion to grant such relief. 65 I have come to the conclusion that the Court has jurisdiction to make the declarations sought, that the determination made by the WCC which was made by consent does give rise to estoppel and that Ms Davies has complied with the relevant award obligations. As to the first issue, I would respectfully adopt and apply the observations of Hungerford J in Ford v SAS Trustee Corporation at [76] where his Honour observed: The fundamental nature of the declaratory power in s 154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter about which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. In Atlantis Relocations , the majority of the Full Bench (Glynn and Maidment JJ, Marks J concurring) put it, in a manner I would respectfully adopt, in this way (at 4): "The declaratory jurisdiction arises 'in relation to a matter' in which the Commission has jurisdiction whether or not any consequential relief is or could be claimed (s 154(1)). The declaratory power is therefore not contingent upon the existence of proceedings which are otherwise within jurisdiction as the power arises in relation to a matter as opposed to proceedings." 66 Mr Seck submitted that as Ms Davies had not commenced proceedings alleging a breach of the Award by the failure of the respondent to make a payment of an on duty benefit, therefore, the Court had nothing more than a hypothetical case before it in which legal and factual issues would ultimately have to be determined. Clearly, the Court's power is limited to dealing with matters within its jurisdiction. However, the relevant matters here are within the Court's jurisdiction. They were the subject of dispute proceedings under the Act and relate to the industrial or employment relations between the parties (and in that regard see for example the definition of "conditions of employment" in the Dictionary in the Act and the definition in s 6 of the Act of "industrial matters," including the reference to the privileges, rights, duties or obligations of employers or employees in any industry). 67 I turn to deal with whether an issue estoppel arises. I accept Mr Hatcher's submissions that the determination of a body such as the WCC can give rise to estoppel. A prior judicial determination is not necessarily limited to courts of record, but may extend to competent tribunals giving final judgments and deciding an issue between the parties: The Administration of the Territory of Papua New Guinea and anor v Daerea Guba (1973) 130 CLR 353 at 451; Cacchia v Isaac (1985) 3 NSWLR 366 (the Consumer Tribunal); Lambidis v Commissioner of Police (1995) 37 NSWLR 320 (the Government and Related Employees Appeal Tribunal). I consider that the WCC is a Tribunal of that kind. 68 As to the further question of whether a consent determination can give rise to an estoppel, the most relevant decision is that of Roche DP in Rinker Group Limited v Mackell in which the Deputy President determined that consent orders made by the WCC can give rise to an issue estoppel. In Rinker, Roche DP was hearing an appeal in respect of a Certificate of Determination - Consent Orders made by the WCC. This question had been the subject of several persuasive authorities which suggested that issue estoppel could arise from consent awards/orders, though the nature and extent of such an estoppel will depend upon the facts and circumstances of each case. The Deputy President observed at [118] - [119] that the question of whether an issue estoppel can arise from consent orders is addressed in the text The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3rd ed (1996) where it was stated at 39: "Though consent judgments and orders are decisions and their operative parts binding, it may not be clear what questions were concluded. The court will examine the available evidence to ascertain the matters in dispute. Any issue which the parties recognised was the subject of the litigation and was fundamental to the judgment or order will be conclusively determined. Where, however, there are no such materials neither party is estopped from disputing anything but the actual judgment or order. The proper approach to determining the scope of a consent judgment was stated by Lord Herschell LC: '...a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments and were to allow questions that were really involved in the action to be fought over again in a subsequent action'." 69 The Deputy President then considered other authorities including Rail Services Australia Pty Ltd v Dimovski and Anor (2004) 1 DDCR 648 and O'Donel v The Commissioner for Road Transport and Tramways (NSW) (1938) 59 CLR 744 and concluded that assuming that the estoppel can be properly proved, consent awards do create issue estoppels as to the issues "the parties recognised was the subject of the litigation and was fundamental to the judgment or order." 70 In the present cases, the consent order and determination clearly relate to the connection between Ms Davies' injury and her employment in the relevant statutory definition since there would have been no basis for that order or determination to be made otherwise. To the extent that Mr Seck submitted that there was some distinction between the WCC hearing disputes as compared to claims, this contention seems to be answered by the provisions of s 287 which are found in Pt 4 of the WIM Act. Relevantly, s 287 provides: 287 Disputes to which Part applies (1) This Part applies to a dispute in connection with a claim for compensation between: (a) the person who makes the claim and a person on whom the claim is made, or (b) the employer on whom the claim is made and the insurer on whom the claim is made. (2) This Part extends to a dispute that concerns failure to commence provisional weekly payments of compensation as required by Division 1 of Part 3 (even though no claim has been made for that compensation) and so extends as if: (a) a reference in this Part to weekly payments included a reference to provisional weekly payments, and (b) initial notification of injury (as defined in Part 3) constituted a claim for the compensation. 71 The payments awarded by the WCC are only explicable on the basis that if Ms Davies was not hurt on duty, then she would have been denied any weekly compensation payments. It must follow, as was submitted by Mr Hatcher, that the respondent cannot deny the factual circumstances that may give rise to a right under the Award. 72 It is clear that the material relied upon, resulting in Ms Davies' medical discharge, was the same material that supported Ms Davies' application for workers' compensation payments. Each relied on the same psychological injury which occurred in January 2006 and which continued until Ms Davies was medically discharged. In respect of each application, reliance was placed on the reports of Dr Kohler and Dr Roberts. 73 Ms Davies' evidence, which was not the subject of cross-examination, was that the psychological injuries that led to her medical discharge from NSW Police, were the same psychological injuries that were the subject of a dispute in the WCC. 74 A declaration therefore can be made on the basis of issue estoppel which disposes of the application subject to the issue of discretion, which I will deal with later in this judgment. 75 However, I propose to deal briefly with the question of whether a convention estoppel also arises. The principles relevant to the application of estoppel by convention were considered in Con-Stan Industries Pty Ltd v Norwich. The High Court observed at 244: Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying. The existence of an estoppel based on a convention between the parties has often been recognized: Thompson v. Palmer [78]; Grundt v. Great Boulder Pty. Gold Mines Ltd [79]; Legione v. Hateley [80]; Amalgamated Investment & Property Co. Ltd (In liq.) v. Texas Commerce International Bank Ltd. [81]; Spencer Bower and Turner, Estoppel by Representation 3rd ed. (1977), pp. 157-177. 76 In Ryledar Pty Ltd v Euphoric Pty Ltd, Tobias JA with whom Mason P agreed, Campbell JA agreeing in a separate judgment, in dealing with the principles applicable to estoppel by convention, referred to Con-Stan Industries Pty Ltd v Norwich and a number of other authorities. At [196] his Honour referred with approval to the text Estoppel by Conduct and Election (2006) Sydney, Sweet & Maxwell, at 115 [8-001] where estoppel by convention is described in the following terms: When parties make a statement of fact or of mixed fact and law the conventional basis of their transaction … both are estopped from questioning its truth for the purposes of that transaction. Estoppels by convention can be created ad hoc, expressly, by a course of dealing, or by other acts and declarations. In such a case 'there must be some mutually manifest conduct by the parties' with the intention of affecting their legal relationship. 77 The common assumption of the parties based upon the medical reports of Dr Roberts, and Dr Kohler for HealthQuest, which were known to both of the parties, was that Ms Davies was, as a result of injury, totally incapacitated from performing both operational and other types of duties. That gave rise to the assumption that there was no capacity for her to be given alternative duties, restricted duties, or administrative duties at all relevant times up to the time of her discharge. In respect of the respondent, it was most clearly demonstrated that he relied upon that assumption when he approved the off duty benefits to Ms Davies upon her being discharged. 78 Mr Seck submitted that a conclusion in respect of the assumption could not be reached without the Court drawing an inference. However, there was uncontested evidence that at all relevant times from 2006 when Ms Davies was injured to the time of her discharge and the payment of the off duty benefits, that all parties proceeded upon the bases identified in the medical reports that she was totally incapable of performing any type of police work. No inference needs to be drawn. The assumption continued to operate between the parties post employment with respect to employment entitlements arising under the workers' compensation legislation and the Award. 79 Mr Seck submitted that the doctrine of conventional estoppel could not be applied with respect to an employment relationship and the determining of entitlements in connection with that relationship. I can find no authority for this proposition in the cases or texts to which I have referred that deal with conventional estoppel. I therefore reject the respondent's submission on conventional estoppel and conclude that if it had been necessary, similar relief could have also been granted on this basis. In my view, an estoppel by convention was created ad hoc, expressly, by a course of dealing and conduct with the intention of affecting the legal relationship between Ms Davies and the respondent. 80 Reference may now be made to the mutual obligation issue which arises from cl 9.2 of the Award, which has been set out earlier. In circumstances where Ms Davies was unfit for any form of police work (as was common ground in the proceedings), the mutual obligation requirements under the Award were not applicable to Ms Davies because of the circumstances of her medical condition. There is no evidence of the employer making an offer of any alternative position. The joint assumption of the parties which existed up until the time of termination due to the medical discharge, as the joint assessment by her medical specialist and HealthQuest, was that her condition precluded her from being able to perform any alternate, restrictive or administrative duties. Further, no relevant failure by Ms Davies under cl 9.2 was identified by the respondent. In any event, a proper reading of cl 9.2 does not provide that a failure, where proven, will disqualify an officer from receiving his or her entitlements. (See in particular, reference to "will jeopardize" in cl 9.2). 81 It is to be observed, as Mr Seck submitted, that the grant of declaratory relief is, by its very nature, discretionary. I consider that it would be inappropriate to refuse relief if found that relief was otherwise available. As to the rights of Ms Davies, particularly in light of the foregoing reasons, a case on the merits has been made out to support the making of declarations. As a matter of discretion, I see no reason to withhold relief if the jurisdiction exists to do so. There is a real controversy between the parties here concerning the right of Ms Davies to an on duty benefit under the Award. The essential question, as I have said, relates to an industrial matter as would support the making of a declaration in relation to it. 82 There is a final matter that I need to determine. Mr Seck contended that the applicant did not have standing to make the claim and had not joined Ms Davies to the proceedings, whose personal interests were affected by the proceedings. It followed, so it was submitted, that in the absence of the same parties in the compensation proceedings, being the same parties in the present proceedings, no declaration of issue estoppel could be made: Ramsay v Pigram (1967) 118 CLR 271. 83 Mr Hatcher's reply to this submission was that the respondent's contention simply misconceived the role of industrial organisations in this jurisdiction and the role they play in representing their members. Counsel relied upon the decision of Lee J in Young and Others v Public Service Board [1982] 2 NSWLR 456 where his Honour considered the question of whether there was a privity of interest between a union and its members. His Honour observed at 464: ... The only possible privity of interest between the Association and its members could be privity based on interest. An industrial union or association is, at least for the purpose of suing or being sued civilly, an entity separate from its members: Egan v Barrier Branch of the Amalgamated Miners' Association (1917) 17 SR (NSW) 243; 34 WN 129; Moore v Doyle (1969) 15 FLR 59. However, in conducting proceedings in the Industrial Commission, the association does no more than represent its members - its interest in the proceedings is the interests of its members. In Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387, at pp 403, 404, Latham CJ said: "In industrial arbitration the conception of 'parties' is extended by a doctrine of representation which is in itself associated with the idea of 'industrial disputes'. Industrial disputes are essentially group contests - there is always an industrial group on at least one side. A claim of an individual employee against his employer is not in itself an industrial dispute. If it professes to be based upon an existing right (as, for example, a contract of employment, or an award (see Mallinson v. Scottish Australian Investment Co. Ltd. ((1920) 28 CLR 66)) such a claim may give rise to litigation in the civil Courts - but it is not an industrial dispute. If a claim is made by an individual employee for some improvement in his pay or conditions of employment, the refusal of the claim by his employer may result in a personal dispute, but this in itself would not be an industrial dispute. One necessary element of an industrial dispute, as distinguished from other disputes, is the circum­stance that a demand is made by or upon a group of employers or employees. Thus an industrial organization is engaged in such a dispute when it makes what may be called an industrial demand on behalf of its members, present and future. In a forensic sense the organization is the party to the dispute, though it asks for nothing for itself as an organization. In another sense, the existing members of the organization are the parties to the dispute. The object of the dispute is to obtain rights for them or to cause them to become subject to obligations. The future members of the organization, though not in existence as such, are also regarded as represented in the dispute by the organization ( Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925) 35 CLR 528)." In Ramsay v Pigram (1967) 118 CLR 271, at p 299, Barwick CJ said: "The basic requirement of a privy in interest is that the privy must claim under or through the person of whom he is said to be privy." 84 In my view, this authority demonstrates Mr Seck's argument should be rejected and I do so. Ms Davies has been heard in these proceedings through her Union, and furthermore, she has given evidence in the proceedings in the form of an affidavit which has not been contested. Clearly, the proceedings have been brought by Ms Davies' Union, at her request and with her consent and support. If the respondent still seriously contends that a technical failure has occurred in the Association omitting to join Ms Davies as a party, liberty to apply is granted for such an application to be made. The parties are directed to confer before any such application is made. 85 As Wright J President observed in Police Association of New South Wales v Commissioner of Police the grant of declaratory relief carries with it the grant of liberty to apply to seek further relief should the declaration granted not resolve the issues between the parties: see Royal Insurance Company Limited v Mylius (1926) 38 CLR 477 at 497 per Isaacs J (with whom Knox CJ and Starke J agreed) and Quin v Attorney General New South Wales (1988) 28 IR 244 at 249, 261. 86 The parties may need to consider the appropriate final form of orders in light of these reasons and the observations of Wright J. They should therefore confer with a view to either filing consent orders, or having the matter listed for argument as to the making of final orders. Should the latter situation be necessary, the matter will not be listed until the parties have exchanged their draft orders and filed written submissions in respect of the proposed orders. Costs 87 Costs are reserved. The parties should also confer as to that matter in respect of which liberty to apply is granted. --------------------------------------------- DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.