Berbers v Transport Accident Commission
[2002] VSC 211
•5 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 4113 of 2002
| JANNEKE BERBERS | Appellant |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Respondent |
---
JUDGE: | Osborn J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 May 2002 | |
DATE OF JUDGMENT: | 5 June 2002 | |
CASE MAY BE CITED AS: | Berbers v TAC | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 211 | |
---
PRACTICE AND PROCEDURE – appeal from Victorian Civil and Administrative Tribunal – assessment of whole person psychiatric impairment – discrepancy between the Tribunal’s finding of facts and conclusion – the Tribunal’s amendment of its reasons is not a mere rectification of a slip but a change to a critical element and is therefore beyond power – substitution of Tribunal’s conclusion is not appropriate because the discrepancy is not necessarily the result of arithmetic error only – an order reinstating the original reasons is inappropriate because it would reinstate reasons which would not fulfill the purpose of s.117 of the Victorian Civil and Administrative Tribunal Act 1998 – the fundamental inconsistency discloses an error of law – the conclusion is not reasonably open to the Tribunal – the Tribunal failed to have regard to the facts as found – reinstatement of the Tribunal’s reasons would not be conducive to a fair and expeditious outcome – matter remitted for rehearing with respect to the issue of psychiatric impairment
---
APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J P Brett | Efron & Associates |
| For the Respondent | Mr P H Solomon | TAC Law Pty Ltd |
HIS HONOUR:
This is the hearing of an appeal pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the Act”). Such an appeal is restricted to a question of law. Somewhat unusually there is no dispute between the parties before me that an error of law has occurred, but there is fundamental disagreement as to what order the Court should make as a consequence of that error.
The matter arises in the following way. On 20 May 2001 the appellant, Mrs Berbers, applied for review of the determination by the respondent Transport Accident Commission pursuant to s.47(7B) of the Transport Accident Act 1986 that the appellant’s degree of impairment resulting from a transport accident on 5 May 1995 was less than 30%.
The application for review came on for hearing before a Deputy President of the Victorian Civil and Administrative Tribunal (“the Tribunal”) and was heard over a number of days in November 2001. On 19 December 2001 the Tribunal handed down its decision and affirmed the determination under review.
The decision of the Tribunal is detailed and logical in its structure save in one respect. It sets out the relevant background matters and then coherently analyses the evidence with respect to the appellant’s degree of impairment; identifying the experts who gave evidence, describing relevant aspects of the appellant’s own evidence, then setting out impairment assessments under a series of heads. The heads of assessment are based on chapters in the Second Edition of Guides to the Evaluation of Permanent Impairment. They reflect an analysis in accordance with s.46(2A) of the Transport Accident Act. The first head of assessment is with respect to psychiatric impairment. The Tribunal analyses the evidence of the appellant’s general practitioner Dr Yeo; Dr Rose, a psychiatrist who saw the appellant for medico-legal purposes; Dr Kaplan, a psychiatrist who also saw the appellant for medico-legal purposes; Dr Leitmanis, a psychiatrist to whom the appellant was referred for the treatment of depression; and Dr Serry, a psychiatrist who also saw the appellant for medico-legal purposes.
The Tribunal made the following observations concerning the evidence of Dr Rose:
“25.Dr Rose first saw the Applicant in October 1997 for medico-legal purposes. At that consultation, Dr Rose noted a history since the accident of symptoms consistent with the presence of post traumatic stress disorder; fear of being on the road; sleep disturbance; waking at night in a sweat; reliving the accident when driving; depression due to her nightmares, insomnia and fears; declining social confidence; deterioration in concentration and memory; and panic attacks. He understood his consultation to be the first full discussion by the Applicant of her psychiatric symptoms. He diagnosed post traumatic stress disorder, and assessed a 15% psychiatric whole person impairment resulting from the accident, which he thought might improve with psychological and psychiatric treatment.
26.Approximately one year later, Dr Rose reaffirmed his earlier diagnosis, but noted that the condition had become chronic, and stable. He assessed a whole person psychiatric impairment of 20%, of which he attributed 15% directly to the emotional shock of the transport accident.”
It is to be observed that the ultimate assessment made by Dr Rose equated to a finding that 75% of the appellant’s whole person psychiatric impairment was a primary consequence of the transport accident.
The Tribunal concluded at paragraphs 36 to 39 of its reasons:
“36.I consider on the material before me that the deterioration in the Applicant’s condition since 1997 is attributable to the worsening of her depression, which has only recently commenced to be treated, and in respect of which there is some confidence of an improvement over time with treatment. In light of the fact that whole person impairment assessments are only properly undertaken in accordance with the Guides when the condition has stabilised after all necessary treatment, I consider it appropriate to reduce the psychiatric whole person impairment of the treating Psychiatrist, Dr Leitmanis, from 33% to 25%. I note that such a reduction is consistent with the decision of Strong J in Lovison v TAC [2001] VCAT 1917, where a 20% reduction in the overall impairment assessment was made in contemplation of the improvement in the condition of the Applicant once litigation had been finalised.
37.I make the following observations about the apportionment between primary and secondary aspects of the psychiatric impairment.
38.There is a complete absence of reporting of Post-Traumatic Stress Disorder symptoms to the treating general practitioners Dr Yeo and Dr Addis between 1995 and 1997. In October 1998, Dr Yeo diagnosed a depressive mood disorder and made no mention of Post-Traumatic Stress Disorder symptoms. Although there are two consultations in November 1998 and March 1999 in which the Applicant’s mood disorder is discussed, there is still no note of any Post-Traumatic Stress Disorder symptoms being reported. However, there is a history taken by Dr Rose in 1997 of symptoms of Post-Traumatic Stress Disorder being present since the accident. Having regard to the observations outlined in these reasons in relation to the Applicant’s presentation, and particularly in relation to the implications of her presentation in the various videos tendered by the Respondent, I have some reservations about the credibility of the accounts given by the Applicant in 1997 and beyond to Psychiatrists about the existence of the Post-Traumatic Stress Disorder symptoms from the time of the transport accident. However, on balance, I accept the expert consensus that there is a Post-Traumatic Stress Disorder arising from the transport accident.
39.I as indicated earlier [sic], the evidence warrants a conclusion that the deterioration in the Applicant’s condition since 1997 is largely due to a worsening of her depressive symptoms, which went untreated until 2000. For this reason, I consider that the apportionment adopted by Dr Rose in 1998 properly reflects the balance between primary and secondary factors. Accordingly, I find that 60% of the Applicant’s psychiatric whole person impairment, that is, 15% is primary and directly results from the transport accident in 1995.”
It can be seen that by way of conclusion of its review and assessment of the psychiatric evidence the Tribunal expressly adopted the apportionment made by Dr Rose as properly reflecting the balance between primary and secondary factors. It then purported to “accordingly” calculate the appellant’s psychiatric whole person impairment. In so doing however it purported to apply a 60% factor rather than the 75% factor implicit in the apportionment made by Dr Rose. As a result the appellant’s impairment under the head of psychiatric impairment was calculated at 15% rather than the 18% which would have resulted if Dr Rose’s apportionment was in fact applied to the 25% psychiatric whole person impairment which the Tribunal calculated by reference to (and adjustment of) the evidence of Dr Leitmanis.
When the decision of the Tribunal was handed down Mr Brett who appeared for the appellant drew this apparent discrepancy to the Tribunal’s attention. The matter was of substantial significance to the outcome of proceeding, because the combined effect of the Tribunal’s assessment of the various heads of impairment considered by it was that the whole person impairment of 15% (psychiatric), 12% (orthopaedic) and 5% (gastric) yielded a total whole person impairment of 29% when combined in accordance with the Guides. If however the psychiatric impairment were 18% the appellant would have a combined impairment in excess of 30% and the determination under review would then have required reversal. In turn the appellant would have succeeded in establishing “serious injury” within the meaning of s.93 of the Transport Accident Act 1986.
A transcript of the proceedings upon the handing down of judgment is exhibited to the affidavit in support of the appeal before me. After some discussion the Tribunal member stated:
“Well, you’ve drawn to my attention something that’s an error, and I think it’s appropriate that I make a correction so that it is clear what the finding is, then if the matter goes further, at least it will be clear on what basis it has been made.”
Thereafter the Tribunal issued amended reasons in the following terms:
“Pursuant to Section 119 of the Victorian Civil and Administrative Tribunal 1998, the Tribunal amends paragraph 39 of its reasons for decision as follows:
'As I indicated earlier, the evidence warrants a conclusion that the deterioration in the Applicant’s condition since 1997 is largely due to a worsening of her depressive symptoms, which went untreated until 2000. For this reason, I consider that 60% of the Applicant’s psychiatric whole person impairment, that is, 15%, is primary and directly results from the transport accident in 1995'.”
It can be seen that the amended reasons delete all reference to the apportionment adopted by Dr Rose. The deletion materially changes the logic of the reasons of the Tribunal. Not only is a significant finding of material fact deleted, but a figure for psychiatric impairment is adopted, which is no longer calculated by direct reference either to the evidence of Dr Rose or any other expert witness as to the appropriate adjustment for the balance between primary and secondary factors.
The question of law identified in the Notice of Appeal before me is as follows:
“Did the Deputy President act within her power and according to law on the 19th December, 2001, by deleting from paragraph 39 of her Reasons for Decision (the) sentence
“For this reason, I consider that that apportionment adopted by Dr Rose in 1998 properly reflects the balance between primary and secondary factors.”
after her attention had been drawn to the fact that the order pronounced in consequence (of) such Reason(s) did not accord with “the apportionment adopted by Dr. Rose”?
Mr Solomon who appeared for the respondent conceded that the amendment to the Tribunal’s reasons for decision was beyond power. Nevertheless it is appropriate for me to form a view on this matter, before finding that the Tribunal erred in law. In my view the position agreed between counsel is correct. The amendment went beyond the power contained in s.119 of the Act, which embodies the “slip rule”. Section 119(1) provides as follows:
“(1)The Tribunal may correct an order made by it if the order contains-
(a)a clerical mistake; or
(b)an error arising from an accidental slip or omission; or
(c)a material miscalculation of figures or a material mistake in the description of any person, thing or matter referred to in the order; or
(d)a defect of form.”
Section 117 of the Act not only provides that the Tribunal must give reasons for any order it makes, but further provides that:
“(5)If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.
(6)The reasons for an order, whether oral or written, form part of the order.”
In my view the deletion of a finding of material fact (where such findings are required by the relevant statute) and the consequential alteration of the fundamental logic of the decision with respect to psychiatric impairment, cannot be characterised as an appropriate exercise of the slip rule. Such a change is not the mere rectification of a slip but a change to critical elements of the decision.
The relevant principles were re-stated by the Court of Appeal of this Court in Fletcher Construction Australia Ltd v Lines MacFarlane Marshall Pty Ltd.[1] Chernov JA (with whom Charles and Vincent JJ. A. concurred) stated as follows at paragraphs 49 and 50:
“The extent to which judges of a superior court may properly alter reasons for judgment subsequent to their being given may depend not only on whether the changes are sought to be made before or after judgment has been entered, but also on the nature and extent of the alterations. A litigant is entitled to a decision that is based on reasons that have led the judge to that conclusion. It would obviously impede the proper administration of justice and work unfairness to the parties if the judge could, at a later time, give different reasons for the decision which were crafted after judgment had been pronounced. Thus, the courts limit the rights of a judge to change the reasons, but they do so consistently with the practical requirements of justice. In the case of a superior court of record, judgment is not relevantly finalised until it is entered in the records of the court. Hence, until that occurs, the judge can recall the order and the reasons and make a different order and give different reasons – Smith v. Australia and New Zealand Banking Group Ltd.; Sherpa v. Anderson; Mulvena; Re Harrison’s Shares Under a Settlement. But once judgment is perfected the judge cannot, in substance, re-write the given reasons so as to give different reasons for the decision or, in the words of Willmer, L.J. in Bromley v. Bromley (No.2), 'put a different complexion on the issue in dispute'. In Nakhla v. McCarthy Woodhouse, J said that in general a judge cannot alter the reasons so as to modify or change the effect of the judgment once it has been perfected. Similarly, in Bank of Nova Scotia v. Province of Nova Scotia, the Nova Scotia Court of Appeal held that once judgment is entered, the substance of the reasons cannot be changed; if correction is needed it can only be made by a higher court.
An example of a case where it was held that the judicial officer had impermissibly changed the reasons for the decision is Lam v. Beesley. In that case, the magistrate announced the verdict and convicted the defendant for reasons which he gave orally. He then sentenced him and subsequently published 'Reasons for Decision' in which he made a finding of fact that was inconsistent with his earlier finding as expressed in his ex tempore reasons. On appeal, Owen, J. held that the two findings could not stand together and that, in the circumstances, the magistrate was not entitled later to formulate reasons which were, in substance, different from those which had been pronounced. His Honour held that in the circumstances, the conviction could not stand. More recently, in Todorovic v. Moussa leave to appeal from the decision of the District Court was granted by the New South Wales Court of Appeal seemingly for the reason that after delivery of an oral judgment the District Court judge inserted in his corrected judgment an additional sentence, namely, 'I do not accept [X] as an accurate witness'. It would appear that there was no other reference in the reasons to the acceptability or otherwise of X’s evidence which in fact was corroborated by other evidence. Furthermore, it was at least arguable that the addition of a broad statement that was unconnected with the rest of the reasons, namely, that the judge did not accept the witness, went beyond what could be done when revising an oral judgment.” (footnotes omitted)
[1][2001] VSCA 167 (1 October 2001).
In the present case the decision of the Tribunal was perfected in that it was stamped and formally handed down prior to the purported amendment – see ss. 117 and 119 of the Act.
It follows that the question of law raised by the appellant is made out. I find that the Deputy President acted beyond power and did not act in accordance with law by amending her reasons for decision as she did.
As I indicated initially however the major matter of contention before me was as to the consequences of such a finding.
It is of some significance to observe that the effect of an order properly made under the slip rule is that the error in the original judgment or order is eradicated, so that the original judgment or order is treated as having been always made as corrected: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd[2] and L Shaddock & Associates Pty Ltd v Parramatta City Council (No.2).[3]
[2](1995) 133 ALR 206.
[3](1982) 151 CLR 590.
The effect of this rule is that the original reasons of the Tribunal could not readily be regarded as being before the Court when leave was granted with respect to the present appeal. Nor could that leave have embraced a question of law which might be said to arise under the original reasons, but did not arise with respect to the amended reasons.
When the matter came before me, Mr Brett submitted that upon being satisfied the amendment was not properly made, I should in effect substitute my own conclusion for that of the Tribunal, and give effect to the logical consequence of the findings contained in the original set of reasons. Conversely, Mr Solomon contended I should do no more than declare that the order amending the reasons made under s.119 of the Act was invalid and of no effect.
The effect of the course which Mr Brett urges would be to reverse the outcome of the proceedings. I could not make such an order unless I were completely persuaded that the only error made by the Tribunal was arithmetical. I am not so persuaded. Both the language and logic of paragraph 39 of the Tribunal’s decision are confused. The Tribunal in effect both made relevant findings of material fact and expressed a conclusion of fact as to the degree of psychiatric impairment affecting the appellant. The relevant finding of fact was that the apportionment adopted by Dr Rose properly reflected the balance between primary and secondary factors. The purported conclusion was that 60% of the applicant’s psychiatric whole person impairment, that is a resultant 15% is primary and directly resultant from the transport accident in issue. Despite the linking of the relevant finding and the conclusion with the word “accordingly” they are fundamentally at odds. The degree of inconsistency is such that it cannot be said that it is necessarily the result of a mathematical error only. It may betray a more fundamental inconsistency in the Tribunal’s reasoning. For this reason I decline to make the order sought by Mr Brett.
The effect of the order sought by Mr Solomon is also however in my view unsatisfactory. The obvious purpose of s.117 of the Act is to require the Tribunal to state reasons with findings on material questions of fact so that the parties and in turn this Court can understand the essential basis on which the Tribunal reached its decision. This purpose has been elaborated by Woodward J in the context of the Administrative Decisions (Judicial Review) Act 1977 in terms which I believe are equally apposite to s.117:
“… s.13 (1) of the Judicial Review Act requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect:
'Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law which is worth challenging.'
This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute) and the reasoning processes which led him to those conclusions.”
(Ansett Transport v Wraith[4])
[4](1983) 48 ALR 500 at 507
In my view it would be an inappropriate exercise of this Court’s discretion to reinstate reasons which do not make sense and which do not convey to the affected parties any sensible basis for the Tribunal’s decision.
Indeed in my view the original reasons of the Tribunal contained such a fundamental inconsistency between the relevant findings of material fact and the conclusions purportedly based upon such findings that they disclose an error of law. Mr Solomon submitted to me that I should not examine this issue. I accept that no question of law has been or could have been stated in this appeal which directly raises the validity at law of the original reasons. Nevertheless I formed the preliminary view during argument that the issue is one which might properly affect the exercise of my discretion as to the appropriate order in this case. For this reason I raised it with Mr Solomon.
Although the matter was perhaps not as fully argued before me as it might have been, if it had been directly raised by the question of law stated in the Notice of Appeal, I observe that some notice of the issue was in fact given by the grounds of appeal contained in that Notice. Further, the point is ultimately a relatively simple one. In my view the original reasons of the Tribunal demonstrate a fundamental inconsistency between the Tribunal’s findings of material fact and its ultimate conclusion. Furthermore they disclose no reason for the adoption of an apportionment factor other than that which the Tribunal found as a fact to be appropriate. In these circumstances the Tribunal has in my view reached a conclusion which was not reasonably open to it (see Transport Accident Commission v Hoffman[5]) or alternatively has failed to consider a material issue or fact (see Repatriation Commission v O’Brien[6]).
[5](1989) VR 197 at 200 per Young C J and McGarvie J.
[6](1984) 58 ALR 119 at 136 per Brennan J.
I have reached this conclusion notwithstanding the authorities to the effect that mere illogicality in the reasons of a Tribunal will not necessarily result in an error of law. The principal authorities in this regard were carefully and comprehensively analysed by Batt J in the Roads Corporation v Dacakis.[7] That analysis commences as follows:
[7](1995) 2 VR 508.
“As I have already indicated, the appeals authorised by s.102(3) are confined to appeals on a question (or questions) of law. The existence of a question of law is not only a precondition to the right to appeal but also the subject matter of the appeal itself, so that the appeal does not operate as a rehearing of the whole dispute or matter: Brown .v. Repatriation Commission (1985) 7 F.C.R. 302 at 305; Federal Commissioner of Taxation v. Brixius (1987) 16 F.C.R. 359 at 363-5; T.N.T. Skypak International (Aust) Pty. Ltd. v. Federal Commissioner of Taxation (1988) 19 A.T.R. 1067 at 1070; and Inglese v. Estate Agents Board (unreported, Murphy J., 31 August 1989). Although one can, I think, discern some variation in the approach taken over the last two decades by Australian courts having jurisdiction to hear appeals on questions of law to whether a particular error is one of law or one of fact (possibly for reasons referred to by Gummow J. in T.N.T. Skypak), those courts have on the whole set their face against allowing questions of fact to be dressed up as questions of law, and have thus rejected appeals on such questions as whether a particular decision was against the evidence and the weight of evidence: Blackwood Hodge (Australia) Pty. Ltd. v. Collector of Customs (N.S.W.) (No.2) (1980) 47 F.L.R. 131; Collins v. Minister for Immigration and Ethnic Affairs (1981) 58 F.L.R. 407; Spano v. Estate Agents Board (unreported, Full Court, 4 December 1986); and Transport Accident Commission v. Hoffman (1989) V.R. 197 at 199 per Young C.J. and McGarvie J.
It is, however, authoritatively established that the question whether there is any evidence of a particular fact is a question of law, as is the question whether a particular inference can (as opposed to whether it should) be drawn from the facts found: Australian Gas Light Company v. Valuer-General (1940) 40 S.R. (N.S.W.) 126 at 138 per Jordan C.J.; Transport Accident Commission v. Hoffman at 199; and Bond at 355-6 per Mason C.J., with whom Brennan J. at 365, Deane J. at 369 and Toohey and Gaudron JJ. at 387 agreed. It is true that the agreement of Deane J. was expressed to be subject to the preceding statements in his Honour’s judgment, but those statements, to which I shall come in more detail later, do not contradict what the Chief Justice said but rather were directed to extending the kinds of questions relating to factual conclusions that could be entertained on judicial review. (Savage v. Crimes Compensation Tribunal [1990] V.R. 96 at 99 deals, I consider, with a different aspect of the concept of a question of law, namely, the proposition re-enunciated in Hope v. Bathurst City Council (1980) 144 C.L.R. 1 at 8-9, that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law).
In a passage in Bond at 356 to which I shall also return later, Mason C.J. said:
'So long as there is some basis for an inference – in other words, the particular inference is reasonably open – no … error of law has taken place.'
To my mind, the corollary of that proposition is that where there is no basis for an inference – in other words, the particular inference is not reasonably open - error of law has taken place. The appellant submitted that an appeal which alleges that a decision was not reasonably open on the evidence is an appeal on a question of law. That submission derives support from statements in the decision of the Full Court of this court in City of St. Kilda v. Perplat Investments Pty Ltd. (1990) 4 A.A.T.R. 358 at 360 and 361 per Young C.J., 363 and 365-6 per Crockett J. and 370-1 per Southwell J. It may be that some of those statements merely repeat or embody submissions of counsel for the appellant in that case. But not all the statements are, in my view, of that kind. In particular, the statements at 360 and 371 seem to me to be affirmative statements that if a conclusion was not reasonably open on the evidence it is erroneous in law.”[8]
[8]p.517.
After further analysing the PerplatInvestments case and the decision of Deane J. in Bond Batt J. concluded at page 520:
“For the foregoing reason, I think that I should proceed on the basis that a finding of fact will only be open to challenge as erroneous in law if there is no probative evidence to support it (and not also if it is not reasonably open on the evidence), whilst an inference will be open to challenge as being erroneous in law if it was not reasonably open on the facts. But, as the statement of Mason C.J. at 360 shows, there is virtually no difference between the tests.
Now, it is significant for present purposes that in Bond at 356 Mason C.J. (with whom on this point Brennan, Toohey and Gaudron JJ. agreed) stated:
'But it is said that “[t]here is no error of law simply in making a wrong finding of fact”: Waterford v. Commonwealth (1987) 163 C.L.R. 54, at 77, per Brennan J. Similarly, Menzies J. observed in R. v. District Court; Ex parte White (1966) 116 C.L.R. 644, at 654.
'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'
Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.'
For the reasons I have given, I consider that I should take that passage as stating the law which I must apply. The ascription of value to a parcel of land or a chattel is, or at least will frequently involve, an inference of a fact. Accordingly, a want of logic in drawing that inference will not by itself constitute error of law. But it may, I consider, sound a warning note and put one on enquiry whether there was indeed any basis for the inference.”
The analysis of Batt J was approved by the Full Court of the Federal Court in MIMA v Epeabaka.[9] See also Gamaethige v MIMA[10] and MIMA v Perera.[11]
[9](1998-99) 160 ALR 543 at 552
[10](2001) 183 ALR 59
[11](2001) 183 ALR 204
The essential character of the relationship between this Court and the Tribunal was described by Gaudron, Gummow, Hayne and Callinan JJ in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue[12] as follows:
“Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s.148 uses the word 'appeal', it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review. That is not to say that there are no other avenues for judicial review. The VCAT Act makes no express provision excluding the general supervisory jurisdiction of the Supreme Court. It may, therefore, be doubted that s.148 should be understood as doing no more than providing, in some cases, an important discretionary reason for not permitting resort to that general supervisory jurisdiction on the basis that s.148 provides a suitable alternative remedy. Nevertheless, it is important to recognise that the essential character of s.148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged.”[13]
[12](2001) 75 ALJR 1342
[13](2001) 75 ALJR 1342 at 1345 [15].
In my opinion the original reasons of the Tribunal demonstrate an ultimate conclusion as to the degree of psychiatric impairment which is fundamentally inconsistent with the relevant findings of fact. This conclusion was not reasonably open or open at all to the Tribunal having regard to the facts as it found them. Furthermore the conclusion reached on this issue involved such a fundamental and unexplained inconsistency with the findings of material fact, that it reflects a failure to have regard to the facts as found.
I have reached this opinion even if the relevant test as to conclusions of fact is reformulated in the terms contemplated in S v Crimes Compensation Tribunal[14] by deletion of the word “reasonably” from the phrase “not reasonably open”.
[14][1998] 1 VR 83 per Phillips J.A. at 91.
For each of the above reasons, namely that the original reasons of the Tribunal would not give effect to the purpose of s.117 of the Act, and that they disclose on their face an error or errors of law, I decline to make an order which has the effect of re-instating such reasons. In reaching this conclusion I have had regard to the provisions of s.97 and 98(1) of the Act which provide:
“97The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
98(1)The Tribunal-
(a)is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices, or procedures;
(c)may inform itself on any matter as it sees fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.”
In my view the re-instatement of the Tribunal’s original reasons would not be conducive to a fair or expeditious outcome.
Mr Solomon submitted to me that if the original reasons were re-instated the respondent could make further application pursuant to s.119 for rectification of the reasons. For the reasons I have already set out I do not believe the slip rule is appropriate for resolution of the inconsistency in the original reasons and/or the adoption of a new factual basis for the decision.
Mr Solomon further submitted that if the original reasons were re-instated the appellant could seek further leave to appeal, and the adequacy of the original reasons could be directly ventilated before this Court by way of an appropriately stated question of law. In my view this would be an unduly protracted and complicated procedure, which should be avoided if the Court is able to provide for an expeditious and just outcome of the proceedings on the hearing of this appeal.
In my view this matter is best resolved by remitting it for re-hearing of the critical issues of fact before the Tribunal. I have carefully considered Mr Brett’s submission that it would be undesirable to put the appellant through a full and lengthy
re-hearing of matter. No criticism could be made of the Tribunal’s conclusions with respect to impairment under the heads of orthopaedic, gastric, urinary and equilibrium considerations. In the circumstances I propose to order that the appeal be allowed and that:
(a)the decision of the Victorian Civil and Administrative Tribunal dated 19 December 2001 in this matter be set aside;
(b)the parties abide by the findings of the Tribunal set out in its decision of 19 December 2001 as to whole person impairment with respect orthopaedic, gastric, urinary and equilibrium considerations;
(c)the matter be otherwise remitted for re-hearing and decision in accordance with law with respect to the issue of whole person psychiatric impairment and with respect to the ultimate conclusion as to total whole person impairment, with the hearing of further evidence as the Tribunal deems fit;
(d)the Tribunal be constituted for the purposes of the re-hearing by a different member from the member who made the decision of 19 December 2001.
The provisions of s.46B of the Transport Accident Act 1986 facilitate the separate assessment of primary psychiatric impairment.
I will hear counsel as to the question of costs.
---
9
5
0