PALALOI -v- WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT [2026] WASC 329

[2026] WASC 329 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : PALALOI -v- WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT [2026] WASC 329 CORAM : BYDDER J HEARD : 10 AUGUST 2026 DELIVERED : 10 AUGUST 2026 PUBLISHED : 11 AUGUST 2026 FILE NO/S : CIV 1275 of 2026 BETWEEN : IDA MURSYIDAH PALALOI Applicant AND WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT First Respondent THE DIRECTOR GENERAL, DEPARTMENT OF EDUCATION Second Respondent Catchwords: Administrative law - Judicial review - Review of decision of the Western Australian Industrial Appeal Court - Whether the applicant was accorded procedural fairness - Turns on own facts -- 1 of 12 -- [2026] WASC 329 Page 2 Legislation: Industrial Relations Act 1979 (WA) s 27, s 35, s 85, s 87, s 90 Rules of the Supreme Court 1971 (WA) O 56 r 5 Result: Application dismissed Category: B Representation: Counsel: Applicant : In person First Respondent : No appearance Second Respondent : Mr D J Anderson Solicitors: Applicant : In person First Respondent : No appearance Second Respondent : State Solicitor's Office Case(s) referred to in decision(s): Carter v Drake (1992) 9 WAR 82 Palaloi v Director General, Department of Education [2025] WASCA 130 Re Western Australian Industrial Appeal Court; Ex parte Carter (1992) 7 WAR 348 -- 2 of 12 -- [2026] WASC 329 BYDDER J Page 3 BYDDER J: Introduction 1 The applicant seeks judicial review of a unanimous decision made by the Western Australian Industrial Appeal Court (IAC), constituted by Mitchell and Seaward JJ and Smith AUJ, on 1 September 2025 (Decision).1 2 The Decision dismissed both the applicant's appeal from a decision of the Full Bench of the Western Australian Industrial Relations Commission2 (Full Bench) and a notice of motion in which the applicant sought a 'default judgment'.3 The applicant seeks to challenge both aspects of the Decision. 3 After hearing the parties on the judicial review application at the hearing on 10 August 2026, I determined that the application for judicial review should be dismissed and said that I would give my reasons for that decision as soon as possible. These are my reasons. Background 4 The background to the applicant's appeal to the IAC is summarised in the Decision at [2] - [18]. I gratefully adopt their Honours' summary of that background. 5 In dismissing the appeal, the IAC referred to the statutory basis for the appeal. Section 90(1) of the Industrial Relations Act 1979 (WA) (Act) relevantly provides: Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the Full Bench … - (a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or (b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or (c) on the ground that the appellant has been denied the right to be heard, 1 Palaloi v Director General, Department of Education [2025] WASCA 130. 2 Decision [19] - [30]. 3 Decision [31] - [34]. -- 3 of 12 -- [2026] WASC 329 BYDDER J Page 4 but upon no other ground. 6 Their Honours noted that:4 The appellant's grounds of appeal do not in form identify any error of the kind which may be the subject of a ground of appeal under s 90(1) of the Act. Further, the material before this court does not establish any arguable basis on which a ground of the kind provided for by s 90(1) of the Act could reasonably be advanced. 7 Their Honours went on to explain why that was so in respect of the grounds for which s 90(1)(a),5 s 90(1)(b)6 and s 90(1)(c)7 of the Act provide and the notice of motion.8 The grounds of review 8 The applicant relies on the following grounds of review: Ground 1 — Jurisdictional Error On 1 September 2025 the Western Australian Industrial Appeal Court (WA IAC) committed jurisdictional error by failing to exercise its appellate jurisdiction according to law and denying procedural fairness ([2025] WASCA 130). The Court confined the appeal to technical assumptions, failed to treat the matter as an industrial matter ([23]), adopted the Full Bench's misconstruction of ss 27(1)(a)(iv), 35 and 90(1) of the Industrial Relations Act 1979 (WA) without independent scrutiny, failed to resolve contradictory reasoning ([25]–[26]), prioritised form over substance ([35]), and relied on unverified material including student text messages obtained without parental consent. Authorities: Craig v South Australia (1995) 184 CLR 163; Kirk v IRC (NSW) (2010) 239 CLR 531; House v The King (1936) 55 CLR 499. Ground 2 — Procedural Unfairness The WA IAC denied the Applicant procedural fairness by failing to provide a fair appellate hearing, including failing to accommodate self-representation, failing to engage with submissions, permitting unequal treatment of parties, delivering an oral dismissal before proceedings concluded, failing to await translation, and conducting deliberation in a manner giving rise to procedural irregularity. 4 Decision [21] - [22]. 5 Decision [23]. 6 Decision [24] - [26]. 7 Decision [27] - [30]. 8 Decision [31] - [34]. -- 4 of 12 -- [2026] WASC 329 BYDDER J Page 5 Authorities: Kioa v West (1985) 159 CLR 550; Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57; QYFM v Minister for Immigration [2023] HCA 15. Ground 3 — Reliance on Legally Flawed Material The WA IAC erred by adopting findings based on untested and unreliable material, including unverified student communications and allegations unsupported by evidence for critical dates, without addressing whether such reliance denied natural justice or rendered the decision legally unreasonable. Authorities: Kioa v West; Annetts v McCann (1990) 170 CLR 596; Bhardwaj (2002) 209 CLR 597. Ground 4 — Cumulative Miscarriage of Justice The cumulative effect of these errors constitutes jurisdictional error and miscarriage of justice warranting supervisory intervention. Authorities: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; Minister for Immigration v Li (2013) 249 CLR 332; Naidu v Director General, Department of Education [2023] FCAFC 22. Grounds 1, 3 and 4 9 Most of the submissions advanced by the applicant are concerned with the facts and evidence that were before Commissioner Tsang and how those matters were dealt with (or not dealt with) by the learned Commissioner and subsequently by the Full Bench and the IAC. The question on this judicial review application is whether the IAC made a jurisdictional error as alleged by the applicant. 10 Determining whether the IAC made a jurisdictional error requires attention to the jurisdiction of the IAC. As I have noted above at [5] - [7], the IAC identified the limited jurisdiction conferred on it by s 90(1) of the Act and explained why the applicant had failed to engage that limited jurisdiction. 11 Before the IAC, the applicant did not challenge the Full Bench's construction of s 27(1)(a)(iv) or s 35 of the Act. Instead, the applicant's complaints concerned 'the application of those provisions, properly construed, to the facts and evidence in this case'.9 Those were not complaints which the IAC could entertain in the absence of a challenge to the Full Bench's construction of those provisions. 9 Decision [26]. -- 5 of 12 -- [2026] WASC 329 BYDDER J Page 6 12 Here the applicant refers in ground 1 to 'the Full Bench's misconstruction of ss 27(1)(a)(iv), 35 and 90(1)'. However, the applicant made no attempt in her judicial review application or the submissions she made in support of it to identify or explain how the Full Bench had misconstrued any of those provisions. Further, the Full Bench was not concerned with s 90(1) which deals with the jurisdiction of the IAC and not of the learned Commissioner or the Full Bench. 13 Further, the applicant did not explain how the IAC made a jurisdictional error in expressing the view that there was no reason to doubt the correctness of the Full Bench's construction of s 27(1)(a)(iv) or s 35 of the Act.10 I respectfully agree with their Honours that there is no reason to doubt the correctness of the Full Bench's construction of either of those provisions. 14 That is sufficient in my respectful opinion to dispose of grounds 1, 3 and 4 of the judicial review application. Each of those grounds either seeks to re-agitate her complaints about how the Full Bench applied s 27(1)(a)(iv) and s 35 of the Act to the facts and evidence in the case11 (grounds 1 and 3) or depends upon the cumulative effect of jurisdictional errors which the IAC did not make (ground 4). 15 However, for the sake of completeness, it is appropriate to briefly refer to each of the specific allegations made in those grounds to further explain why the three grounds must fail. Ground 1 Confined the appeal to technical assumptions 16 This appears to be a complaint about the IAC observing the limits of its jurisdiction under s 90(1). The IAC could not do otherwise and would have fallen into jurisdictional error if it had failed to stay within those limits. By observing those limits, the IAC did not fall into jurisdictional error. 10 Decision [13], [18], [26]. 11 For an illustration of this, see the applicant's submissions in response filed 5 August 2026, especially at [1] - [4], [8] - [17] and [22], which reflects the focus of the applicant's submissions filed 23 June 2026 (AS) on the evidence and especially on what the applicant describes as the 2023 Standards and Integrity Directorate (SID) records: see for example AS [3] - [18]. See also the applicant's affidavit affirmed 18 June 2026, which attaches various documents on which the applicant wished to rely in her judicial review application. -- 6 of 12 -- [2026] WASC 329 BYDDER J Page 7 Failed to treat the matter as an industrial matter ([23]) 17 This submission reflects a misunderstanding of the Decision at [23]. In that paragraph, the IAC accepted that the matter was an industrial matter and indeed considered that it was plainly an industrial matter. Adopted the Full Bench's misconstruction of s 27(1)(a)(iv), s 35 and s 90(1) without independent scrutiny 18 As I have already said the applicant has neither identified, nor explained why there was, a misconstruction of any of those provisions. Failed to resolve contradictory reasoning ([25] - [26]) 19 The Decision at [25] - [26] is as follows (footnote omitted): Further, the requirement that the relevant error occur 'in the course of making the decision appealed against' necessitates that the error in construction or interpretation must have materially affected the Full Bench's decision. In the present case, there is no reason to doubt the correctness of the Full Bench's construction of the power to dismiss a matter conferred by s 27(1)(a)(iv) of the Act which is set out at [13] above. Nor is there any reason to doubt the correctness of the Full Bench's construction of s 35 of the Act set out at [18] above. Rather than challenging the Full Bench's construction of the provisions, the appellant's complaints concern the application of those provisions, properly construed, to the facts and evidence in this case. 20 There is no contradiction in that reasoning, which forms part of a train of reasoning beginning in the Decision at [24]. Prioritised form over substance ([35]) 21 The Decision at [35] sets out the orders made by the IAC in determining the appeal before it. Those orders necessarily follow from the IAC's consideration of the appeal in its Decision. They were made within jurisdiction and the IAC did not fall into jurisdictional error by making them. Relied on unverified material including student text messages obtained without parental consent 22 This is, with respect, the real focus of the applicant's case, as it was before the IAC. However, for the reasons explained by the IAC at [24] - [26], it was for the Full Bench to weigh the relevant facts in light -- 7 of 12 -- [2026] WASC 329 BYDDER J Page 8 of the applicable law. An appeal cannot be made to the IAC under s 90(1)(b) where the Full Bench has applied the law which it has correctly understood to the facts of an individual case. 23 The applicant did not identify any misconstruction of the Act by the Full Bench, much less that such a misconstruction materially affected the Full Bench's decision. Indeed as I have said, other than referring to the misconstruction of three provisions of the Act in ground 1, the applicant did not identify or attempt to identify any misconstruction of the Act by the Full Bench. Ground 3 - reliance on legally flawed material 24 This ground is another attempt by the applicant to challenge the factual basis for the decision of the Full Bench without identifying any misconstruction of the Act (or any other instrument identified by s 90(1)(b)) by the Full Bench. For the reasons explained by the IAC in the Decision to which I have referred above, an appeal could not be made from the Full Bench to the IAC on this basis and this ground must fail. Ground 4 - cumulative miscarriage of justice 25 This ground is predicated on other errors having been shown. In the absence of those errors, this ground must also fail. Ground 2 26 As the second respondent submitted, the transcript of the hearing before the IAC makes it clear that the IAC accorded procedural fairness to the applicant.12 The IAC had read the relevant materials, provided the applicant with the opportunity to present her oral submissions at the hearing and took the precaution of providing the applicant with an interpreter should she require that assistance.13 27 Mitchell J also explained the process that would be followed in the appeal hearing and the IAC reserved briefly to consider its decision before returning to pronounce orders. The Decision was delivered the next day. 28 That the IAC adjourned briefly after hearing submissions before pronouncing orders and delivered the Reasons the following day is consistent with the applicant being accorded procedural fairness. Those 12 Second respondent's submissions filed 13 July 2026 [20] (RS). 13 RS [21] - [23]. -- 8 of 12 -- [2026] WASC 329 BYDDER J Page 9 steps were taken after the applicant had been given an opportunity to be heard and thereby been accorded procedural fairness. 29 In her responsive submissions at [20], the applicant submits that she: does not dispute that the transcript records procedural steps taken during the hearing, including the presence of an interpreter. However, the issue is whether the practical conduct of the hearing enabled effective participation. The Applicant contends that reliance on the transcript alone does not determine whether procedural fairness was afforded, as it does not fully capture the circumstances concerning the use of the interpreter, the direction to proceed in English to avoid delay, and the conclusion of proceedings without translation of the ruling explanation. The provision of an interpreter alone did not resolve the procedural fairness issue. 30 That submission does not fairly reflect what occurred at the hearing before the IAC. Very early in the hearing, the following was said:14 MITCHELL J: Ms Palaloi, from the written material and transcript that we have from the proceedings before the Commission, your English seems quite good. You have requested an interpreter and one has been made available for today's proceedings. Unfortunately, we weren't able to arrange a qualified certified interpreter to appear in person, so she's appearing by video link. The interpreter can either provide a running translation, as she's doing now, or you can speak to us in English and simply call on the interpreter if you feel that you need her. Obviously, it's a little bit slower if we do it this way, with the running translation, than it is if you simply call on Ms Soetanto as you need her, but it's up to you as to which approach you take. How would you like to proceed today with the interpreter? PALALOI, MS: I will try the first one. If I need it directly speaking English to you, I will. But if I'm not sure, I will ask the translator. MITCHELL J: Yes, very well. We will proceed in that way. And I will just speak now in English directly to you. PALALOI, MS: Yes. Yes. MITCHELL J: And if you feel that you're not understanding something, then please just indicate and it can be translated for you. PALALOI, MS: Okay. Thank you. 14 Affidavit of Michael William McIlwaine sworn 8 May 2026, Attachment MM-13 (212). -- 9 of 12 -- [2026] WASC 329 BYDDER J Page 10 31 The applicant was given an opportunity to be heard by the IAC in writing and orally. She requested an interpreter and one was provided. The applicant was given an option about how the interpreter assisted her and the applicant decided on that assistance. At no time did the IAC direct the applicant to proceed in English. 32 I note that the applicant made no request for an interpreter in the context of her judicial review application. I raised that with the applicant at the hearing of her application on 10 August 2026 and asked whether she wished to proceed without an interpreter or would prefer that the hearing be adjourned so that arrangements could be made for an interpreter to assist her. 33 The applicant chose to proceed without the assistance of an interpreter. Like the IAC, my impression is that the applicant's English is quite good and she was able to present her case and follow the proceedings without the assistance of an interpreter. In those circumstances, I was content to proceed with the hearing without an interpreter. 34 Ground 2 also alleges that the IAC failed to engage with her submissions. For the reasons set out above, that allegation is without substance. 35 Ground 2 is without merit and must fail. Judicial review of an IAC decision by a single judge 36 If, contrary to the above, I had formed the view that any ground on which the applicant sought to rely had a reasonable prospect of success, I would have given reasons for that view and ordered that the judicial review application be heard by the Court of Appeal under O 56 r 5(4) of the Rules of the Supreme Court 1971 (WA). 37 There is an unresolved question about whether judicial review is available in respect of a decision of the IAC.15 The IAC is constituted by three judges of this court, albeit sitting in their capacity as members of the IAC.16 38 I respectfully agree with Malcolm CJ's observation in Carter v Drake17 that if judicial review by way of certiorari is available, '[a]s the 15 See Re Western Australian Industrial Appeal Court; Ex parte Carter (1992) 7 WAR 348, 354 (Anderson J); Carter v Drake (1992) 9 WAR 82, 91 (Malcolm CJ) and 96 (Ipp J with whom Owen J agreed). 16 The Act s 85. 17 Carter v Drake (91). -- 10 of 12 -- [2026] WASC 329 BYDDER J Page 11 Industrial Appeal Court is a court constituted by judges of the Supreme Court that is a curious result.' However, the parties both submitted that judicial review is available in this context. In the absence of argument to the contrary, I will take the same approach as the Full Court did in Carter v Drake and accept, without deciding, that judicial review is available but only in relation to jurisdictional error given the operation of s 87(2) of the Act.18 39 Even accepting that judicial review is available in this way, in my respectful opinion it would be inappropriate for a single judge of this court to determine the application if that judge were to be of the view that any ground of appeal had reasonable prospects of success. Instead, in this context a single judge should act in a manner consistent with the earlier practice of a single judge determining whether to grant an order nisi returnable before the Full Court (and now the Court of Appeal).19 40 For a single judge of this court to determine that a court constituted by three judges had fallen into jurisdictional error, and make orders giving effect to that determination, would be inconsistent with how this court has been and is constituted to hear appeals from judges of this court and the District Court of Western Australia. It would also be inconsistent with how this court is often constituted to hear appeals challenging an earlier decision of the Court of Appeal or the Full Court. While appeals differ from judicial review in a number of important respects, none of those differences justify a single judge determining that a court constituted by three judges had fallen into jurisdictional error and making orders accordingly. 41 However, in my respectful opinion it will ordinarily be appropriate for a single judge to assess whether a judicial review application in respect of a decision of the IAC has reasonable prospects of success. Where a judicial review application is without substance, it is a better use of judicial resources for the application to be dismissed by one judge in the General Division than by more than one judge in the Court of Appeal. Disposition 42 For these reasons, I ordered that the application for judicial review be dismissed. 18 See Carter v Drake (91) (Malcolm CJ) and (96) (Ipp J with whom Owen J agreed); the Act s 87(2). 19 As Anderson J did in Re Western Australian Industrial Appeal Court; Ex parte Carter. -- 11 of 12 -- [2026] WASC 329 BYDDER J Page 12 43 As the second respondent did not seek costs, I also ordered that there be no order as to the costs of the application for judicial review. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 11 AUGUST 2026 -- 12 of 12 --