Chang v Neill
[2019] VSCA 151
•27 June 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0111
| YING KWAN CHANG | Applicant |
| v | |
| DR DIANE NEILL | First Respondent |
| and | |
| DR STEVEN ADLARD | Second Respondent |
| and | |
| DOWARD INTERNATIONAL PTY LTD | Third Respondent |
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| JUDGES: | MAXWELL ACJ, BEACH and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 April 2019 |
| DATE OF JUDGMENT: | 27 June 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 151 |
| JUDGMENT APPEALED FROM: | [2018] VSC 403 (Daly AsJ) |
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JUDICIAL REVIEW – Jurisdictional error – Error of fact – Medical panel – Workplace psychological injury – Whether panel erred in concluding that applicant had capacity for pre-injury employment – Whether panel erred in concluding that applicant had applied for full-time work shortly after redundancy – Whether any such error jurisdictional – Principles to be applied – Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 followed, Karabinis v Bendrups [2017] VSC 648 explained.
JUDICIAL REVIEW – Procedural fairness – Duty to inquire – Medical panel – Whether panel must make inquiries as to factual matters – Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 considered – Workplace Injury Rehabilitation and Compensation Act 2013 ss 302, 303, 306, 307, 310, 311, 312, 313.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms M Schilling with Ms C Moore | Victorian Bar Duty Barristers’ Scheme |
| For the First and Second Respondents | No appearance | |
| For the Third Respondent | Mr M F Fleming QC with Ms F C Spencer | Wisewould Mahony |
MAXWELL ACJ
BEACH JA
KYROU JA:
Introduction and summary
The applicant, Ying Chang, seeks leave to appeal against an order of an associate judge in the Trial Division dismissing an application to set aside an opinion of a medical panel comprising the first and second respondents, Dr Diane Neill and Dr Steven Adlard (‘Panel’).[1] Both Panel members are psychiatrists.
[1]Chang v Neill [2018] VSC 403 (‘Associate judge’s reasons’).
The Panel’s opinion dealt with two medical questions that were referred to it by a conciliation officer under s 284 of the Workplace Injury Rehabilitation and Compensation Act 2013 (‘Act’). The referral was made in the context of the applicant’s claim for weekly payments under the Act for a psychological injury arising from bullying by two co-workers in the course of her employment with the third respondent, Doward International Pty Ltd (‘Doward’). Doward was the only respondent that took part in the proceedings before the Trial Division and this Court.
The medical questions and the answers of the Panel in its opinion dated 2 May 2017 were as follows:
Question 1 What is the nature of the [applicant’s] medical condition (including any sequelae) relevant to the claimed injury?
Answer:In the Panel’s opinion, the [applicant] is suffering from an adjustment disorder with depression and anxious mood, which is partially resolved.
Question 2Did or does the [applicant] have an incapacity for work? If so, what is the extent to which the [applicant’s] incapacity from work:
(a) resulted from or was materially contributed to by;
(b)results from or is materially contributed to by
any, and if so which, of the claimed injuries?
Answer:In the Panel’s opinion, the [applicant] was incapacitated for work from 2 November 2016 to 9 November 2016 which resulted from the claimed injury, however thereafter the [applicant] did not and does not have an incapacity for work that resulted from or was materially contributed to by the claimed injury.
On 30 June 2017, the applicant applied to the Trial Division for judicial review of the opinion. She was not legally represented. In essence, her grounds of review alleged that: the Panel failed to take into account relevant considerations (including, in particular, that she took sick leave and arrived late for work from mid-2016, and that she had initially attempted to obtain part-time work after her position with Doward was made redundant); the Panel took into account irrelevant considerations; the Panel denied her procedural fairness; and the Panel’s reasons for its opinion were inadequate.
On 1 August 2018, the associate judge rejected the applicant’s grounds of review and dismissed her application for judicial review.
The applicant seeks leave to appeal against the associate judge’s decision. Initially, she relied on 11 grounds of appeal. At the hearing of the application for leave to appeal, she abandoned four grounds in their entirety and incorporated the substance of a fifth ground into the remaining six grounds rather than pressing it as an independent ground.
The six extant grounds allege that the associate judge: erred in her assessment of the scope of the Panel’s investigative functions; erred in concluding that the Panel had not denied the applicant procedural fairness; found that the applicant had continued to work full-time prior to her redundancy when there was no evidence for such a finding; erred in her characterisation of the Panel’s factually incorrect finding that the applicant had applied for full-time work shortly after her redundancy; and erred in concluding that that finding did not constitute a jurisdictional error.
For the reasons that follow, we have concluded that leave to appeal should be granted but the appeal should be dismissed.
Provisions of the Act regarding compensation and medical panels
Section 39(1) of the Act provides that a worker is entitled to compensation if he or she sustains an injury ‘arising out of or in the course of any employment’. ‘Injury’ means any physical or mental injury.[2]
[2]Act s 3 (definition of ‘injury’).
A worker is entitled to compensation in the form of weekly payments where he or she has an incapacity for work which results from, or is materially contributed to by, a compensable injury.[3]
[3]Act s 160.
Weekly payments are set at rates according to the period of incapacity, known as ‘entitlement periods’. There are three entitlement periods.[4] The applicant’s claim fell within the ‘first entitlement period’ which is the aggregate period not exceeding 13 weeks in respect of which a weekly payment is payable.[5] In broad terms, the applicant would be entitled to weekly payments during this period if, as a result of her psychological injury, she had a present inability to return to her pre-injury employment.
[4]Act ss 161–3.
[5]Act s 152 (definition of ‘first entitlement period’).
Medical panels are constituted by medical practitioners who are selected from a list of members appointed by the Governor in Council.[6] Under the Act, the function of a medical panel is to give its opinion on medical questions concerning employment related injuries that are referred to it.[7] Medical questions may be referred to a medical panel by various bodies, including a conciliation officer, the Magistrates’ Court and the County Court.[8]
[6]Act s 573(2).
[7]Act s 302(1).
[8]Act ss 284, 274.
A ‘medical question’ relevantly includes questions as to ‘the nature of a worker’s medical condition relevant to an injury’, the ‘existence, extent or permanency of any incapacity of a worker for work’ and ‘whether a worker’s incapacity for work … resulted from … or was materially contributed to by an injury’.[9]
[9]Act s 3 (definition of ‘medical question’ paras (a)–(b), (m)).
A medical panel is not bound by the rules of evidence and must act informally and expeditiously.[10] It may inform itself of any matter relating to a referral of a medical question in any manner it sees fit.[11]
[10]Act s 303(1), (2).
[11]Act s 303(1).
In performing its functions, a medical panel may request that the worker: meet with the panel and answer questions, supply all documents relating to the medical question to the panel or submit to a medical examination by the panel.[12] Generally, any attendance of a worker before a medical panel must be in private.[13] With the worker’s consent, a medical panel may also request to meet with, and ask questions of, a medical service provider who has examined the worker or request relevant documents from that medical service provider.[14]
[12]Act s 307.
[13]Act s 310(1).
[14]Act s 311.
Where a conciliation officer refers a medical question to a medical panel and it becomes apparent to the panel that the formation of an opinion will depend substantially on the resolution of factual issues which are more appropriately determined by a court, the panel may decline to given an opinion.[15]
[15]Act s 306(1).
Where a medical panel considers that further information is required to enable it to form an opinion, the panel may request further information from the worker or the referring body.[16] Where further information is provided, it must be considered by the medical panel.[17]
[16]Act s 312(1)(a).
[17]Act s 312(1)(b).
In relation to a medical question referred to it, a medical panel has an obligation to give its opinion and a written statement of reasons for that opinion.[18]
[18]Act s 313(2).
For the purposes of determining any question or matter, the opinion of a medical panel on a medical question referred to it is to be adopted and applied, and be accepted as final and conclusive, by any court, body or person.[19]
[19]Act s 313(4).
Facts
The applicant commenced employment as an accountant in the accounts department of Doward on 24 August 2015. She alleged that two co-workers bullied her. On 2 November 2016, she lodged a WorkCover claim in which she described her ‘injury/condition’ as ‘Mental Health’ and specified the injury date as 19 June 2016. The claim was accepted.
The applicant’s position with Doward was made redundant on 25 November 2016 for reasons unconnected with her WorkCover claim. On 9 December 2016, her weekly payments were terminated with effect from 19 December 2016 on the basis that she was no longer incapacitated for work.
A conciliation officer referred the two medical questions to the Panel on 16 February 2017. The referral letter set out a number of agreed facts, including that the applicant ‘commenced work as a full-time accountant with Doward … on 24 August 2015’. A further agreed fact, which forms part of the subject-matter of the appeal, was in the following terms: ‘Leading up to her redundancy, [the applicant] took time off on sick leave and attended work late from approximately mid-2016’ (‘time off agreed fact’).
The documents that were provided to the Panel included the following:
(a)A certificate of capacity dated 2 November 2016 by the applicant’s treating medical practitioner, Dr Tania Poon, which stated that the applicant had no capacity for employment from 2 November 2016 until 9 November 2016.
(b)A report dated 25 November 2016 by a consultant psychiatrist, Associate Professor Saji Damodaran. In that report, Associate Professor Damodaran stated that the applicant ‘was continuing in her pre-injury duties up to her full time hours performing her job until she was made redundant’ and that she ‘has the capacity for full pre-injury duties and hours’.
(c)A certificate of capacity dated 13 December 2016 by Dr Poon, which stated that the applicant had capacity for suitable employment from 9 December 2016 until 30 December 2016, namely work for four days per week with a late start each day.
(d)A report dated 13 January 2017 by the applicant’s treating psychologist, Antoinette Kibel. In that report, Ms Kibel stated that the applicant was ‘not currently able to return to full-time work due to the effects of depression’.
(e)A report dated 20 January 2017 by Dr Poon. After referring to Associate Professor Damodaran’s report, Dr Poon stated that the applicant ‘was taking time [off] work as sick leave and starting work late leading up to her redundancy’ and that the applicant ‘is not fit to return to full pre-injury employment at full hours’.
The Panel members examined the applicant on 4 April 2017. They asked her questions and took contemporaneous notes of the applicant’s responses and their observations. Dr Neill’s notes included the following:
WK: not working at all
going to start a [full-time] job tomorrow
…
started applying for jobs
Dr Adlard’s notes included the following:
– [Full-time accountant] 24/8/15
…
– ‘Leading up to redundancy took time off on [sick leave] + attended late from mid-2016’
…
To start [full-time] job tomorrow. [Similar] pay. [Not] Know if able to cope … [Financial accountant] ([very] Similar to what I did @ Doward …)
…
– Job search progressed last few weeks ––> mood better.
– Applying since 12/16[20]
[20]Emphasis in original.
Reasons for the Panel’s opinion
As we have already stated, the Panel provided its opinion on 2 May 2017. It also published its reasons for the opinion on the same day.
The Panel’s reasons relevantly stated the following about the applicant’s work history and injury:
[I]t is agreed that the [applicant] was … employed as a full-time accountant with Doward … It is further agreed that the [applicant] ceased work when her position was made redundant on 25 November 2016, has not returned to work since; that leading up to the redundancy, [she] took time off on sick leave; and from approximately mid 2016 attended work late. …
…
The [applicant] told the Panel that when she ceased work at the end of November 2016, she started applying for fulltime accounting jobs, but for a couple of months did not have any response.
…
The [applicant] told the Panel she has been successful in obtaining new employment and is commencing fulltime work tomorrow, 5 April 2017. She said that her new appointment in financial accounting is a very similar role in terms of company size and duties as her pre-injury employment. … She said she was struck by how similar her pre-injury job and this were, and how perfectly matched she was. …
The [applicant] told the Panel that she does not know how she will go in this job, but she described being confident about being capable of the role itself and she understands the structure and lines of accountability are much clearer.
…
The Panel concluded that the [applicant] is suffering from an adjustment disorder with depression and anxious mood, which is partially resolved.
Based on the [applicant’s] history of prior self-resolving stress / depression and the Panel assessment [of] premorbid personality, the Panel concluded that the [applicant] has a pre-existing vulnerability to an anxiety / depressive reaction but not a pre-existing psychiatric condition.
Based on the nature of the injury, the temporal onset of depressive and anxiety symptoms, persistence of psychological symptoms since the date of the injury, requirement for psychopharmalogical and psychological interventions, ongoing treatment and the Panel’s findings on examination, the Panel concluded that the [applicant’s] current partially resolved adjustment disorder with depression and anxious mood results from and is still materially contributed to by the claimed / accepted injury.[21]
[21]Emphasis added.
The Panel stated the following about the applicant’s capacity for work:
The Panel noted that the [applicant] was continuing to work on [a] fulltime basis performing her usual duties up until her redundancy package at the end of November 2016, albeit with a week off on sick leave in early November 2016 and that she has sought and obtained fulltime employment with similar duties with another employer. The Panel further notes that after ceasing work with Doward … the [applicant] continued to apply for fulltime accounting positions until obtaining employment which she advises commences on 5 April 2017.
The Panel concluded that notwithstanding some mild and intermittent depressive and anxiety symptoms, the [applicant] was incapacitated for work from 2 November 2016 to 9 November 2016, however thereafter the [applicant] did not and does not have an incapacity for work as a result of her accepted injury.
The Panel is of the opinion, based upon its interview with the [applicant] that it was able to rely on the history provided by the [applicant] in conjunction with the other material available and the examination findings in order to reach its conclusions. The Panel also considered the opinions of the worker’s treating practitioners and doctors.
The Panel noted the concordant opinion of the treating psychologist Ms Kibel (13 January 2017), and the opinion of Dr Poon that the [applicant] was suffering from an exacerbation of depression (2 November 2016).
The Panel noted that Ms Kibel expressed the opinion that the [applicant] was ‘not currently able to return to fulltime work due to the effects of depression’. For the reasons stated above, the Panel reached a different conclusion to that of Ms Kibel.[22]
[22]Emphasis added.
Decision of the associate judge
In support of her application for judicial review of the Panel’s opinion, the applicant affirmed an affidavit on 30 June 2017. Relevantly, she deposed the following:
(a)Since mid-June 2016, she was absent from work on sick leave on many days and often attended work late due to sleeping difficulties. However, she was permitted to work flexible hours and often finished work late or worked on weekends to make up the required hours and complete her work. Between 14 November 2016 and 25 November 2016, she worked reduced hours.
(b)At her examination by the Panel, Dr Neill asked her how is work, to which she replied, ‘I am going to start a full time job tomorrow, I don’t know if I can cope’. Dr Neill asked her when she started looking for another job and she replied ‘December 2016’.
(c)She started her job search in December 2016 by applying for part-time work, but received little response. She did not tell the Panel that she had started looking for part-time work. She commenced applying for full-time accounting positions in addition to part-time roles in mid-January 2017 with the encouragement of her psychologist and her career consultant.
(d)She would have elaborated on her job search activities if she had known that the Panel would form its opinion based on those activities. She would have outlined the details to the Panel if she had known that the Panel was going to conclude that she did not have an incapacity for work after 9 November 2016.
(e)After receiving an offer of full-time work, she consulted with her GP about her concerns about not being able to cope with full-time work. Her GP encouraged her to try and work full-time and take sick leave if necessary.
On 1 August 2018, the associate judge made an order dismissing the application for judicial review and published her reasons on the same day. The associate judge’s reasons will be considered in detail below in the context of the grounds of appeal that relate to particular parts of the reasons.
Grounds of appeal
As we have already stated, there are six extant grounds of appeal. They are grounds 4–7, 9 and 10. We will first discuss grounds 4 and 10 together, then ground 9, then ground 7 and finally grounds 5 and 6 together. The grounds will be set out in full under appropriate headings.
Grounds 4 and 10: Duty to inquire and procedural fairness
Grounds 4 and 10 are in the following terms:
Ground 4: The Associate Justice was wrong in holding at [61], [68]–[70] and [88] that the Medical Panel’s role was only to reach an opinion on the medical questions referred to it based upon the material provided to it, and was not obliged to take into account aspects of the [applicant’s] history and condition that had not been drawn to its attention. Her Honour should have found that the Medical Panel’s statutory task in that regard was not limited by the fact that the applicant had not herself supplied, volunteered or referred to information which was relevant. Nor was it limited to consideration of such material as was supplied to it, and to such matters as were brought to its attention.
Ground 10: The Associate Justice was wrong, at [87], in holding that there was no denial of procedural fairness to the applicant by the Medical Panel, and ought to have held that there was a denial of procedural fairness in that … in the totality of the circumstances [the] Medical Panel did not adopt a procedure which a reasonable and fair repository of its powers ought fairly to have adopted, and did not give the applicant a fair opportunity to supply information by not expressly seeking from the applicant relevant information.
The parts of the associate judge’s reasons which are relevant to grounds 4 and 10 are as follows:[23]
[23]Although ground 4 refers to paras 61, 68–70 and 88 of the associate judge’s reasons, para 68 will be discussed under grounds 5 and 6 and para 70 will be discussed under ground 7.
61What the [applicant] is largely saying is that if she knew certain matters were going to be important, she would have given more details and a further explanation to the Panel regarding those matters to support her contention that she was incapacitated for work in the period leading up to and including the examination. She seeks to shift the responsibility for her failure to adequately present her case to the Panel to the Panel itself. This reflects a misunderstanding of the role of the Panel as an expert, non-judicial body: its role is to reach an opinion [on] the medical questions referred to it based upon the material provided to it. It is not an investigative body.
…
69[A]s noted above, … the Panel is not an investigative body. It appears there was no barrier to the [applicant] giving a detailed and fulsome account of her situation. As noted above, the [applicant’s] submissions in relation to this matter seem to reflect her regret that she did not anticipate what might be of particular interest to the Panel and provide further details regarding the nature of and rationale behind her job search activities.
…
87Applying these principles[[24]] to the current case, there was no denial of any procedural fairness to the [applicant] by the Panel. … [I]t is clear that the Panel provided the [applicant] with an ample opportunity to put forward the material she wanted to put before it, and did not exhibit any signs of bias towards her. It was not required to consider information which was not before it, or undertake an active investigative role. It was not required to warn the [applicant] in advance of the findings it proposed to make with respect to her capacity for work, save where any adverse conclusions have been arrived at which would not obviously be open to it on the known material. The material before the Panel was known to the [applicant]. The Panel’s finding regarding the [applicant’s] capacity for work, based upon the reports before it, and its examination of the [applicant], may have come as a surprise to the [applicant], but could not to the reasonable observer be considered to be unexpected or ‘out of the blue’, in the sense referred to in the authorities. … The Panel’s diagnosis of the [applicant’s] condition was unremarkable, and consistent with the other medical material, and it must have been apparent from the questions of the Panel (as evidenced by the [Panel’s notes]) what issues were of particular interest to the Panel in determining the [applicant’s] capacity for work.
88Finally, the [Panel’s reasons] are perfectly adequate. It is clear that the Panel understood its task before it: to determine whether the [applicant] had suffered an injury, whether that injury had partially or fully resolved, whether it was a work related injury, and if so, the impact upon the [applicant’s] work capacity and the duration of any incapacity. The Panel’s path of reasoning in that regard is exposed, and sufficiently so as to enable the Court to determine whether the Panel properly considered any mandatory relevant considerations. In any event, the issues raised by the [applicant] regarding the [Panel’s reasons] really went to the issue of whether the Panel had taken into account mandatory relevant considerations, and have been considered in that context.[25]
[24]The associate judge referred to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 161–2 [29].
[25]Associate judge’s reasons [61], [69], [87]–[88] (citations omitted).
Legal principles relevant to grounds 4 and 10
The nature and scope of a medical panel’s functions were described by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak as follows:
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[26]
[26](2013) 252 CLR 480, 498–9 [47] (citations omitted) (‘Wingfoot’).
Whether, and the extent to which, a medical panel has a duty to seek out information which has not been provided to it but which is relevant to the formation of its opinion has not been authoritatively considered.
In Prasad v Minister for Immigration and Ethnic Affairs[27] Wilcox J considered whether a decision-maker has a duty to inquire as to factual matters and whether a failure to comply with that duty could result in the decision being legally unreasonable. In the context of a decision of the respondent minister to refuse an application for a permanent entry permit, he expressed the following tentative view: where it is obvious that material is readily available and that material is centrally relevant to the decision to be made, to proceed to make the decision without making any attempt to obtain that information may vitiate the decision on the ground of legal unreasonableness.[28]
[27](1985) 6 FCR 155 (‘Prasad’).
[28]Prasad (1985) 6 FCR 155, 169–70. Legal unreasonableness is discussed at [149] below.
In Minister for Immigration and Citizenship v SZIAI[29] the High Court considered whether a decision of the Refugee Review Tribunal was vitiated by jurisdictional error because the tribunal had failed to make certain inquiries in relation to the information that was before it. French CJ, Gummow, Hayne, Kiefel, Crennan and Bell JJ stated that the fact that, in reviewing decisions, the tribunal had an inquisitorial function did not impose upon it a general duty to undertake its own inquiries in addition to the information provided to it by the applicant and otherwise under the Migration Act 1958 (Cth).[30] They also stated that it was ‘difficult to see any basis upon which a failure to inquire could constitute a breach of the requirements of procedural fairness at common law’.[31] After considering Prasad and other authorities, they made the following observations:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case.[32]
[29](2009) 259 ALR 429 (‘SZIAI’).
[30]SZIAI (2009) 259 ALR 429, 431 [1] (citations omitted).
[31]SZIAI (2009) 259 ALR 429, 436 [24].
[32]SZIAI (2009) 259 ALR 429, 436 [25] (citations omitted) (emphasis added). See also Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 603 [23]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 322, 373–4 [100] (‘Li’).
Wei v Minister for Immigration and Border Protection[33] concerned a decision of a delegate of the respondent minister to cancel the plaintiff’s student visa on the basis that he had failed to comply with a condition that he be enrolled in a course of study provided by an institution registered under the Education Services for Overseas Students Act 2000 (Cth). The plaintiff was in fact enrolled in such a course but the relevant institution (Macquarie University) had failed to include his details on a database that the delegate had used to determine whether the plaintiff was an enrolled student in compliance with the relevant condition of his visa. As a result of a change in the plaintiff’s address, the delegate was unable to contact him prior to deciding to cancel his visa.
[33](2015) 257 CLR 22 (‘Wei’).
The majority (Gageler and Keane JJ) concluded that Macquarie University was in breach of an ‘imperative duty’ to upload the enrolment information to the database, and that the delegate’s decision was tainted by that breach of duty. Nettle J disagreed, holding instead that it was the delegate’s failure to make direct inquiries with Macquarie University to ascertain the plaintiff’s enrolment status which constituted jurisdictional error. He said:
[T]here was nothing in the relevant legislation that provided that [the relevant database] was to be treated as a conclusive record of enrolment. Hence, one obvious way of ensuring, or at least being more certain, that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff’s enrolment, just as the delegate had done on 20 February 2014 to check the plaintiff’s address. Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so — by picking up the telephone and requesting the University to check whether the plaintiff’s enrolment status as shown in [the relevant database] was in fact correct — and the clear link between the delegate’s failure to make that inquiry and the delegate’s determination to cancel the visa, I consider this to be a case in which the delegate’s failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.[34]
[34]Wei (2015) 257 CLR 22, 40–1 [51].
In Lam v Minister for Immigration and Border Protection,[35] Nettle J (sitting alone) cited SZIAI and Wei in support of his observation that, if the respondent minister’s delegate ‘really considered’ certain matters to be significant considerations, they were ‘matters which the delegate could easily have ascertained by making an obvious inquiry of the plaintiff’.[36]
[35](Unreported, High Court of Australia, Nettle J, 12 March 2019) (‘Lam’).
[36]Lam (Unreported, High Court of Australia, Nettle J, 12 March 2019) 8–9.
In relation to the procedural fairness issue raised by ground 10, the applicant relied on the following statement of the Full Court of the Federal Court in SZLPH v Minister for Immigration and Border Protection:
In Minister for Immigration & Border Protection v SZSSJ, the High Court of Australia unanimously explained the scope of the duty to afford procedural fairness as follows:
Ordinarily, affording a reasonable opportunity to be heard in the exercise of a statutory power to conduct an inquiry requires that a person whose interest is apt to be affected be put on notice of: the nature and purpose of the inquiry; the issues to be considered in conducting the inquiry; and the nature and content of information that the repository of power undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.
Procedural fairness does not require the decision maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before reaching a final decision, and generally does not require a decision maker to invite comment on the evaluation of the subject’s case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (‘Alphaone’). However, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity to deal with them, and the subject is entitled to respond to any adverse conclusion drawn on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Alphaone.[37]
[37][2018] FCAFC 145 [37]–[38] (citations omitted) (‘SZLPH’). The applicant also referred to Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, 341–3 [52]–[60].
Reference may also be made to the following observations of French CJ and Kiefel J in Minister for Immigration and Citizenship v SZGUR:
Procedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision-maker must also advise of any adverse conclusion which would not obviously be open on the known material.[38]
[38](2011) 241 CLR 594, 599 [9].
Parties’ submissions on grounds 4 and 10
The applicant submitted that the associate judge’s description of the role of a medical panel portrayed it as a passive reviewer of information provided to it without any obligation to make any inquiries of its own. This portrayal was said to be wrong in the light of the statutory provisions summarised at [12]–[19] above and the High Court’s decision in Wingfoot. According to the applicant, making relevant inquiries and asking relevant questions fell within the functions of a medical panel.
The applicant also submitted that the Panel had a duty to inquire in accordance with the principles set out in SZIAI at [37] above, as applied by Nettle J in the recent cases of Wei and Lam.
The applicant contended that, as her capacity to work full-time in her pre-injury occupation was the key issue for the Panel, the lack of inquiry by the Panel as to whether she had applied for full-time or part-time work following her redundancy constituted a failure to perform its statutory duty. The applicant also contended that the importance of the issue of full-time versus part-time work to the Panel’s opinion that she was not incapacitated for work after 9 November 2016 meant that, as a matter of procedural fairness, it was obliged to ask her whether she had sought full-time or part-time work before erroneously concluding that she had only applied for full-time work. This was said to be particularly so because the applicant did not have legal representation. According to the applicant, she could have easily clarified the issue if she had been asked to do so.
Doward submitted that the associate judge correctly set out the role of a medical panel. It contended that a medical panel is entitled to inform itself to the extent that it sees fit and is under no specific duty to make inquiries of a worker. It argued that, even if a medical panel is obliged to make an obvious inquiry about a critical fact, the question whether the applicant searched for full-time work following her redundancy was not of a critical nature. According to Doward, it is unlikely that had the Panel known that the applicant had applied for part-time work for a month prior to mid-January 2017, it would have regarded this information as critical to its consideration of the medical questions.
Doward contended that the Panel did not fail to accord the applicant procedural fairness. This was said to be because the applicant was aware that the purpose of the Panel’s discussions with her was to assess her capacity for work in order to answer the medical questions, and she had an opportunity to inform the Panel of any factual matters that she considered relevant to that assessment. According to Doward, the applicant’s status as a self-represented litigant did not place her at any disadvantage or have the effect of imposing any special obligation on the Panel, as all workers who are examined by a medical panel attend without their lawyers.
Decision on grounds 4 and 10
In our opinion, grounds 4 and 10 are not made out.
As appears from the provisions of the Act summarised at [12]–[19] above and the observations of the High Court in Wingfoot set out at [34] above, a medical panel is different from many other statutory tribunals. This is because it does not adjudicate on parties’ rights and obligations after engaging in an adversarial hearing. Rather, it answers medical questions referred to it by applying its expert medical knowledge after reviewing the information referred to it and, where it examines a worker, the information gathered in the course of the examination. It is true that the answers provided by a medical panel may be decisive in the determination of the parties’ rights and obligations by the formal decision-maker. However, that does not detract from the distinctive characteristic of a medical panel as an expert statutory body that provides answers to medical questions.[39]
[39]See Sherlock v Lloyd (2010) 27 VR 434, 439 [20]–[21].
Consistent with the provisions of the Act and the observations in Wingfoot, a medical panel is required to provide an informed professional opinion on the medical questions referred to it. Where, in a given case, a medical panel considers that it is not able to provide such an opinion because of material deficiencies in the information available to it, it cannot ignore those deficiencies and proceed to reach an opinion which is not an informed professional opinion. Rather, in that situation, it is empowered by s 312(1)(a) of the Act to seek such further information as it requires to provide an informed professional opinion.
The fact that a medical panel is empowered to examine a worker confirms that it is not merely a passive body which cannot go beyond the material submitted to it. Where a medical panel examines a worker, it does so for the purpose of obtaining information that is relevant to the medical questions referred to it. In the case of an examination of a worker with a physical injury, a medical panel will ordinarily obtain information in the course of discussions with the worker, as well as from the panel’s own observations of the worker’s physical condition. In the case of an examination of a worker with a psychological injury, a medical panel will make its own assessment of the worker’s mental state, based to a significant extent on discussions with the worker.
As a matter of common sense, where a medical panel requires a worker to attend an examination for the purpose of obtaining information to assist it to answer the medical questions referred to it, the panel must direct and guide the discussion with the worker to ensure that the information that the panel considers relevant is elicited from the worker. In such a case, the panel could not simply leave it to the worker to determine what information should be provided to the panel. Rather, the panel must ask such questions as it considers necessary to enable it to provide an informed professional opinion on the medical questions.
It follows that there may be circumstances in which a medical panel may need to seek information from a worker that is not included in the material submitted to the panel. It is not necessary to decide whether, and the extent to which, the principles set out in SZIAI apply to a body such as a medical panel. That is because, for the reasons discussed below, even if those principles apply, they do not have the effect of vitiating the Panel’s opinion.
In our opinion, the Panel complied with its legal obligations in the present case. For the purpose of answering the two medical questions, it considered the documents submitted to it, required the applicant to attend an examination and took a relevant history from her. The Panel’s reasons expressly state that the Panel ‘elicited’ from the applicant ‘the history [she] provided’. The contemporaneous notes of the Panel members and the reasons for their opinion indicate that they made appropriate inquiries of the applicant, including in relation to her personal and family background, her work and medical history, her physical and emotional state, her medication, her hobbies and lifestyle, her financial circumstances and her personal relationships.
In determining whether the applicant had capacity for her pre-injury work, it was relevant for the Panel to know about the nature of her pre-injury work, what steps she had taken to find alternative work following her redundancy and her current work status. It is clear from the Panel members’ notes and reasons for their opinion — and indeed from the applicant’s affidavit of 30 June 2017[40] — that they made inquiries of her about all these matters, including about when she commenced looking for another job following her redundancy.
[40]See [29] above.
The information that the applicant provided to the Panel in relation to the above matters strongly suggested that, as she had worked full-time at Doward since 24 August 2015[41] and was due to commence a similar full-time role with another employer on the day following the examination, she had sought alternative full-time work following her redundancy. There was nothing in the documents submitted to the Panel or any information provided by the applicant that alerted it to the possibility that she may have initially applied for part-time work and thus the need to make further inquiries to clarify the position.
[41]As discussed under ground 7 below, the applicant had not ceased to work full-time at Doward at any time prior to her redundancy.
We accept that the question whether the applicant continued to work full-time prior to her redundancy and applied for full-time work after her redundancy could have been resolved easily by the Panel simply seeking clarification from her during her examination. However, the circumstances of this case did not give rise to an ‘obvious’ need for the Panel to seek such clarification. For the reasons we have already given, all the information before the Panel strongly suggested that the applicant had engaged in full-time work immediately before her redundancy and had sought full-time work shortly after her redundancy.
We also accept that the fact that the applicant had applied for part-time work for an initial period of a month after her redundancy might have been relevant to the Panel’s deliberations because it might have indicated that she did not consider herself able to perform full-time work for that initial period. However, that fact could not be regarded as ‘critical’. Unlike Wei, where the plaintiff’s enrolment status was the sole basis of the delegate’s adverse decision, the precise nature of the applicant’s job applications in the present case was merely one of a myriad of potentially relevant facts.[42] In the light of the Panel’s conclusion that the applicant had ‘some mild and intermittent depressive and anxiety symptoms’, it is very unlikely that its answer to the medical question about her work capacity would have been different if it had inquired as to the precise nature of her job applications following her redundancy.
[42]This issue is discussed further at [138]–[144] below.
Accordingly, the Panel did not fail to properly discharge its statutory function by failing to inquire about the precise nature of the applicant’s work prior to her redundancy or of the work for which she applied following her redundancy.
For similar reasons, the Panel did not fail to accord procedural fairness to the applicant by not making those inquiries.
The information about the nature of the work for which the applicant had applied following her redundancy was entirely within her knowledge. There was ample opportunity for her to inform the Panel that she had initially applied for part-time work and commenced applying for both part-time work and full-time work in mid-January 2017. As the applicant’s claim was that she did not have capacity for her full-time pre-injury work, she would undoubtedly have appreciated that she should inform the Panel of any information in her possession which she believed indicated that she was not capable of performing full-time work. It did not require a specific question from the Panel for her to disclose that she had initially applied for part-time work.
For the following reasons, we are of the opinion that there is nothing in SZLPH, upon which the applicant relied, which is inconsistent with the above analysis. First, a medical panel does not exercise a statutory power to conduct an inquiry. Secondly, the applicant was aware of the purpose of her examination by the Panel and the terms of the two medical questions it was required to answer. Thirdly, the applicant knew that the Panel would be interested to receive from her any information relevant to those questions, including in particular information regarding her capacity to undertake her pre-injury work. Fourthly, the Panel asked the applicant about her pre-injury work and about the work for which she had applied following her redundancy. The applicant had ample opportunity to inform the Panel whether she had applied for part-time or full-time work. The potential relevance of the applicant’s initial search for part-time work should have been readily apparent to her and there was no obligation on the Panel to independently raise it with her.
We agree with Doward’s submission that the fact that the applicant was not legally represented at the time of her examination by the Panel did not impose any special obligation on the Panel in dealing with her. Information about the type of work for which the applicant had applied after her redundancy was not of a technical or complex nature which required legal analysis to determine whether it should be disclosed to the Panel. For the reasons already discussed, the applicant was capable of assessing the relevance of that information and had ample opportunity to disclose it to the Panel.
While the associate judge’s discussion of the functions of a medical panel was not as detailed as the analysis set out above, she did not misapprehend those functions or err in concluding that the Panel had not failed to discharge its functions.
Ground 9: When does a factual error constitute a jurisdictional error?
Ground 9 is in the following terms:
The Associate Justice was wrong in holding that for an error of fact by a Medical Panel to be a jurisdictional error, the error had to be fundamental. Her Honour should have held that the correct enquiry in that regard is that of the importance of the material to the exercise of the relevant function, and the seriousness of any error.
The parts of the associate judge’s reasons that are relevant to ground 9 are as follows:
78I accept that if a Panel had made a factual error, either through a mistranscription of the history provided by the [applicant] to the Panel which might be evident from the [Panel’s notes], or a misinterpretation or mischaracterisation of the facts, which might be evident from the [Panel’s reasons] the Panel may have fallen into jurisdictional error. In Karabinis v Bendrups (‘Karabinis’), J Forrest J accepted that this proposition was consistent with the reasoning of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd and ors. His Honour stated:
… a Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a Panel has fallen into jurisdictional error. It is, therefore, a question of fact or degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in light of the ultimate decision and the basis for it, as articulated by the reasons.
79His Honour rejected the contention that any material discrepancy in the Panel’s history taking amounts to jurisdictional error. He stated that:
The relevant error or fact must be fundamental and go to the issue that the Panel is bound to consider in order for it to give rise to jurisdictional error.
…
81[T]he question remains as to whether any gaps or errors [in the Panel’s notes] are so material that they go to a matter fundamental to the Panel’s determination.
82In my view, they do not. I agree with the submissions made on behalf of Doward to the effect that to the extent there are any discrepancies between the [Panel’s notes] and the [Panel’s reasons], with one exception those discrepancies are minor and trivial. Further, where there may have been an error in recording the [applicant’s] history in the [Panel’s reasons] (concerning the [applicant’s] sleeping habits …), any such error, read in the context of the rest of the [Panel’s reasons], was not fundamental to the Panel’s determination.[43]
[43]Associate judge’s reasons [78]–[79], [81]–[82] (emphasis in original) (citations omitted).
Legal principles relevant to ground 9
Before considering the circumstances in which an error of fact may constitute a jurisdictional error, it is necessary to refer to the distinction between factual matters and relevant considerations.
It is a long standing principle that a failure by a decision-maker to take into account a relevant consideration which he or she was bound to take into account will constitute jurisdictional error if that consideration could have materially affected his or her decision.[44]
[44]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40.
It is also a long standing principle that where a statute expressly makes the existence of a particular fact a precondition to the exercise of a power, a purported exercise of the power in circumstances where the fact does not exist will be beyond jurisdiction.[45] Such a fact is often referred to as a ‘jurisdictional fact’.
[45]See Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 179–80 [57] and the cases there cited.
The proposition that the making of an error about a fact which is not a ‘jurisdictional fact’, in the sense described above, may constitute jurisdictional error is of more recent origin. That is because, traditionally, an error about a non-jurisdictional fact has usually been regarded as an error made in the exercise of jurisdiction and thus did not amount to jurisdictional error.[46]
[46]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–6; Wei (2015) 257 CLR 22, 39 [48].
The jurisprudence concerning errors about non-jurisdictional facts has some parallels with the principles relating to failure to take into account a relevant consideration. However, while there may be overlap between the two concepts, they are quite different. A ‘relevant consideration’ in the Peko-Wallsend sense[47] is usually expressed at a significantly higher level of generality than a factual matter.[48]
[47]See [68] n 44 above.
[48]In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 331 [7] (‘Yusuf’), Gleeson CJ said that failing to make a finding on a material question of fact is narrower than failing to take a relevant consideration into account. See also Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 435 [46].
The following example illustrates the distinction between the two concepts. In the case of a medical panel being asked to assess whether a psychological injury has rendered a worker incapable of engaging in any work, the treatment that the worker is receiving is obviously a relevant consideration. That information may be contained in a report of the worker’s treating psychiatrist and may also be communicated to the medical panel verbally by the worker. If the medical panel in its reasons refers to the worker’s treatment solely by reference to the psychiatrist’s report, it cannot be said that it failed to take into account the relevant consideration. The medical panel’s failure to refer to the worker’s verbal communication constitutes a failure to refer to one source of evidence informing that relevant consideration but does not constitute a failure to take into account the relevant consideration.
As the above example demonstrates, there is an important distinction between evidence or facts that concern a relevant consideration and the relevant consideration itself. That distinction is supported by the following observations of Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:
A decision-maker who is bound to have regard to a particular matter is not bound to bring to mind all the minutiae within his knowledge relating to the matter. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered.[49]
[49](1986) 162 CLR 24, 61.
We will now consider the circumstances in which an error about a non-jurisdictional fact may constitute jurisdictional error by reference to the development of the principle in the High Court, the Federal Court and Supreme Court of Victoria.
In Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) made the following non-exhaustive statement as to what constitutes jurisdictional error:
[I]dentifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of these types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[50]
[50](2001) 206 CLR 323, 351 [82] (emphasis added). See also Yusuf (2001) 206 CLR 323, 351–2 [83]–[84] and Craig v South Australia (1995) 184 CLR 163, 179.
The italicised part of the above statement was approved by French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZJSS.[51]
[51](2010) 243 CLR 164, 175 [27].
The first decision of the Federal Court to be considered in the context of the circumstances in which a factual error can constitute jurisdictional error is that of Robertson J in Minister for Immigration and Citizenship v SZRKT.[52] That case concerned whether the Refugee Review Tribunal had committed jurisdictional error by ignoring corroborative evidence put forward by the respondent in support of his claim for a protection visa. Robertson J made the following observations:
[M]erely to ignore ‘relevant material’ does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact-finding is a matter for the tribunal of fact while the Court is concerned with whether the tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.
[I]gnoring material relevant only to fact-finding does not of itself found jurisdictional error.
…
The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. … Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
… In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims.[53]
[52](2013) 212 FCR 99 (‘SZRKT’).
[53]SZRKT (2013) 212 FCR 99, 127 [97]–[98], 130–1 [111]–[112].
In Minister for Immigration and Border Protection v MZYTS[54] the Full Court of the Federal Court held that it was open to infer that the Refugee Review Tribunal in that case did not consider certain matters relevant to the question whether the applicant had a well-founded fear of persecution in his country of nationality, or if it did, that it did not consider them to be material.[55] The Court determined that this error constituted jurisdictional error as it resulted in the tribunal failing to perform its statutory task.[56] The Court went on to discuss the distinction between a failure to take into account a relevant consideration and jurisdictional error committed by ignoring relevant material and clarified the scope of the latter by reference to SZRKT. The Court stated:
The issue here does not pertain to particular conduct said to be neglected and a relevant consideration. Rather, it pertains to a fundamental feature of the visa applicant’s claim, consideration of which is an essential feature of the Tribunal’s statutory task.
…
In SZJSS … the joint judgment of the [High] Court recognised as a proposition flowing from Yusuf that ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’. In this passage, the Court is not dealing with relevant considerations in the Peko-Wallsend sense. Rather, as we consider Robertson J recognised in SZRKT … it is describing an example of jurisdictional error where, in a given case, ignoring relevant material demonstrated a failure to perform the statutory task cast upon it by the combined provisions in the Migration Act because of the nature of the claims made and the nature of the material ignored.
…
Robertson J in SZRKT … correctly [found] … that the ‘fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error’.[57]
[54](2013) 230 FCR 431 (‘MZYTS’).
[55]MZYTS (2013) 230 FCR 431, 450 [62].
[56]MZYTS (2013) 230 FCR 431, 450 [63], 451 [65]–[66].
[57]MZYTS (2013) 230 FCR 431, 451 [64]–[65], [68], [70] (citations omitted) (emphasis in original).
In Minister for Immigration and Border Protection v SZSRS,[58] the Full Court of the Federal Court considered the Refugee Review Tribunal’s failure to take into account a supporting letter from a reverend in determining whether the applicant was of the Christian faith and, as such, had a well-founded fear of persecution in her country of nationality based on her faith. The Court agreed with the analysis of Robertson J in SZRKT that whether a failure to consider relevant material amounts to a jurisdictional error ‘turns on the importance of the ignored material to the tribunal’s process of decision-making’ and the seriousness of the error.[59] The Court held that the letter was ‘centrally important’ to the tribunal’s decision-making process and that it had committed jurisdictional error by failing to consider it.[60]
[58](2014) 309 ALR 67 (‘SZSRS’).
[59]SZSRS (2014) 309 ALR 67, 77 [47], 78 [48], [52].
[60]SZSRS (2014) 309 ALR 67, 80 [56]–[57].
In MZAMP v Minister for Immigration and Border Protection, Rangiah J held that the Refugee Review Tribunal’s misunderstanding of what the visa applicant had said was an error of fact and that it did not amount to ‘overlooking a critical piece of evidence centrally relevant to the [visa applicant’s] claim such as would result in jurisdictional error.’[61]
[61](2016) 152 ALD 557, 568 [58].
The key decision of the Victorian Supreme Court that deals with the circumstances in which a factual error can constitute a jurisdictional error is Karabinis v Bendrups.[62] As that case relied on the earlier decisions in Milwain v Sim,[63] Ryan v The Grange at Wodonga Pty Ltd[64] and Omerasevic v Kotzman,[65] we will discuss them before examining Karabinis in detail.
[62][2017] VSC 648 (‘Karabinis’).
[63][2009] VSC 75 (‘Milwain’).
[64][2015] VSCA 17 (‘Ryan’).
[65][2016] VSC 383 (‘Omerasevic’).
In Milwain, Kyrou J held that a medical panel was bound under the then applicable Accident Compensation Act 1985 to take into account (among other things) what the worker had told the panel about the nature of her work and that the failure of the panel to do so in that case constituted jurisdictional error which materially affected its opinion.[66]
[66]Milwain [2009] VSC 75 [28], [37].
Ryan concerned an application for judicial review of an opinion of a medical panel on a number of grounds, including a failure to take into account a relevant consideration. Neave JA (with whom Santamaria JA and Ginnane AJA agreed) held that if a worker’s answers to a medical panel’s questions or the documents provided to it raise an issue which its reasons do not address, then there will be a failure on the part of the panel to take into account a relevant consideration.[67] Neave JA concluded that the medical panel had failed to take into account such an issue, namely whether the plaintiff’s return to her pre-injury duties would further aggravate her pre-existing condition.[68] Neave JA held that this failure constituted jurisdictional error.
[67]Ryan [2015] VSCA 17 [60].
[68]Ryan [2015] VSCA 17 [63], [69], [71].
Omerasevic also concerned an application for judicial review of an opinion of a medical panel. Relevantly, the plaintiff in that case alleged that a medical panel had made a jurisdictional error because it had failed to take into account mandatory relevant considerations relating to the plaintiff’s injuries or had ignored relevant material.
In relation to the ground of failure to take into account a mandatory relevant consideration, Riordan J relied on the analysis of Neave JA in Ryan, which he summarised as follows:
In my opinion, a proper reading of the decision of the Court of Appeal in Ryan v The Grange at Wodonga Pty Ltd, discloses Neave JA’s analysis as follows:
(a) A medical panel is bound to have regard to the referral material for the purpose of determining the fundamental issues that will enable it to answer the referred questions.
(b)The fundamental issue arising from the referral material, in the circumstances of that case, was whether the worker, by returning to her work duties, would aggravate her pre-existing shoulder injury.
(c)The reasons of the medical panel did not deal with the fundamental issue of ‘whether the appellant’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition’.
(d)Her Honour inferred that the medical panel ‘did not take account of’ the fundamental issue – presumably on the basis that:
(i) it was not expressly referred to in the reasons; and
(ii)if such a fundamental issue had been considered, one would expect that it would have been referred to.
(e)The medical panel, by failing to deal with the fundamental issue … had failed to fulfil its statutory function of forming its opinion on the medical question referred to it. Speaking colloquially, I infer her Honour as concluding that, given its significance to the referred question, the medical panel had failed to have regard to the elephant in the room. This constituted jurisdictional error.[69]
[69]Omerasevic [2016] VSC 383 [97] (citations omitted).
It is to be noted that the above summary repeatedly refers to the concept of a ‘fundamental issue’ notwithstanding that Neave JA did not use that terminology.
Riordan J rejected the plaintiff’s contention that the medical panel had failed to take into account a mandatory relevant consideration.[70]
[70]Omerasevic [2016] VSC 383 [107].
In relation to the ground that the medical panel had ignored relevant material in a way that affected its exercise of power and therefore constituted jurisdictional error, Riordan J relied on the decision of Robertson J in SZRKT, as endorsed by the Full Court of the Federal Court in MZYTS.[71] He held that the plaintiff had not made out this ground.[72]
[71]Omerasevic [2016] VSC 383 [111].
[72]Omerasevic [2016] VSC 383 [112].
We now turn to Karabinis. That case concerned an application for judicial review of an opinion of a medical panel. One of the grounds upon which the plaintiff relied was that the medical panel had taken into account an irrelevant consideration, namely an incorrect understanding of her work history. She alleged that the medical panel proceeded on the basis that her work duties had become lighter whereas she had told the panel that her work duties had become heavier.
J Forrest J said that the Court of Appeal in Ryan had held that a medical panel ‘will have committed jurisdictional error if it fails to take into account a matter it was bound to consider, in circumstances where that failure materially affected the decision itself’.[73] He adopted the analysis of Ryan by Riordan J in Omerasevic, which is set out at [85] above, and also referred to Milwain in support of the proposition that ‘the relevant error or fact must be fundamental and go to the issue that [a medical panel] is bound to consider in order for it to give rise to jurisdictional error’.[74] He stated that further support for that proposition can be found in SZSRS and SZRKT.[75] He restated the proposition in the following terms:
[A] Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a [medical panel] has fallen into jurisdictional error. It is, therefore, a question of fact and degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in light of the ultimate decision and the basis for it, as articulated by the reasons.[76]
[73]Karabinis [2017] VSC 648 [54].
[74]Karabinis [2017] VSC 648 [56]–[57].
[75]Karabinis [2017] VSC 648 [58]–[59]. J Forrest J also referred to BZAFI v Minister for Immigration and Border Protection [2015] FCA 771 [37] and Rodger v De Gelder [2015] NSWCA 211 [108]–[109].
[76]Karabinis [2017] VSC 648 [62].
J Forrest J held that the plaintiff in Karabinis had failed to establish that the medical panel in that case had proceeded on the erroneous factual basis she had alleged. The plaintiff sought leave to appeal against J Forrest J’s decision. The Court of Appeal granted leave to appeal but dismissed the appeal on grounds that did not require it to consider the correctness of the test adopted by J Forrest J for determining when a factual error can constitute jurisdictional error.[77]
[77]Karabinis v Bendrups [2018] VSCA 124 [36], [44], [47]–[48].
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS,[78] this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.[79]
[78](2013) 230 FCR 431, 451 [68].
[79]The phrase ‘essential feature’ was used by the Full Court of the Federal Court in MZYTS. See [78] above.
The question arises whether, in addition to satisfying the test at [92] above, an error of fact must be material in order for it to constitute jurisdictional error. By ‘material’ we mean that the outcome of the exercise of the relevant power could have been different if the factual error had not been made.
The role of materiality in informing whether an error is jurisdictional was considered by the High Court in the recent cases of Hossain v Minister for Immigration and Border Protection[80] and Minister for Immigration and Border Protection v SZMTA.[81]
[80](2018) 359 ALR 1, 9 [29]–[31], 19 [72] (‘Hossain’).
[81](2019) 363 ALR 599, 611–2 [45]–[48], [84]–[95] 620–3 (‘SZMTA’).
In Hossain, the High Court dealt with a decision of a delegate of the respondent minister to refuse a partner visa.The plurality of Kiefel CJ, Gageler and Keane JJ said that in determining whether a failure to comply with an express or implied statutory condition rises to the level of a jurisdictional error ‘[t]he statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance’.[82] As to the substance of the materiality threshold it was held:
[T]he threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made.
…
Ordinarily, … breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. [83]
[82]Hossain (2018) 359 ALR 1, 9 [29].
[83]Hossain (2018) 359 ALR 1, 9 [30]–[31] (citations omitted).
In a separate judgment, Edelman J (with whom Nettle J substantially agreed) endorsed a similar materiality threshold to that of the plurality but also observed that there may be circumstances where an error is so fundamental that it will be material regardless of whether that threshold is met. He stated:
[A]n error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance … may be an extreme case of denial of procedural fairness. Another may be … where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion.[84]
[84]Hossain (2018) 359 ALR 1, 19 [72] (citations omitted).
In SZMTA, the issue of materiality was considered in relation to an alleged denial of procedural fairness and a breach of an inviolable limitation governing the conduct of a review by the Administrative Appeals Tribunal. Applying Hossain, Bell, Gageler and Keane JJ stated:
Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.[85]
[85]SZMTA (2019) 363 ALR 599, 611 [45].
Their Honours said the following in relation to an error by the tribunal in failing to take into account a document or information in reaching its decision:
[T]he question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. … Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result. [86]
[86]SZMTA (2019) 363 ALR 599, 612 [48].
Nettle and Gordon JJ disagreed with the plurality’s view that materiality is a criterion of jurisdictional error.[87] In their opinion, materiality informs the consequences of a finding of jurisdictional error rather than whether such an error has been made.[88] One such consequence is whether the court should exercise its discretion to refuse relief notwithstanding that jurisdictional error has been made.[89]
[87]SZMTA (2019) 363 ALR 599, 620–3 [84]–[95].
[88]SZMTA (2019) 363 ALR 599, 620–2 [83]–[90].
[89]SZMTA (2019) 363 ALR 599, 621–2 [90].
The observations of the plurality in both Hossain and SZMTA as to the role of materiality in informing whether an error is jurisdictional were not confined to any particular type of jurisdictional error. Accordingly, pending further clarification by the High Court, we will proceed on the basis that those observations apply to a jurisdictional error constituted by a decision-maker failing to have regard to, or misconstruing, a factual matter.[90] However, the additional requirement of materiality is unlikely to make much difference in practice in relation to such an error. That is because an error in relation to a factual matter, consideration of which is an essential feature of a valid exercise of the relevant statutory function, will usually satisfy the materiality requirement.
[90]Cf the analysis of Mortimer J in DPI17 v Minister for Home Affairs [2019] FCAFC 43 [96]–[107].
Parties’ submissions on ground 9
The applicant submitted that the associate judge erred in applying the ‘fundamental error’ test espoused by J Forrest J in Karabinis. She contended that the statement does not represent the law, as it is not supported by Ryan and Omerasevic, upon which J Forrest J relied. According to the applicant, the correct principle is to be found in the passages from SZRKT set out at [77] above. The applicant also relied on SZSRS, Viane v Minister for Immigration and Border Protection[91] and some decisions of the Trial Division which were said to generally support that principle.[92]
[91][2018] FCA 3 [28]. This decision was overturned on appeal by the Full Court of the Federal Court in Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13. The Full Court considered whether a factual error can constitute a jurisdictional error at 18–9 [24]–[30], 28–9 [75]–[76].
[92]The applicant relied on Tralongo v Malios [2007] VSC 239 [75]–[78]; Cladingboel v Newcrest Mining Ltd [2007] VSC 345 [55]–[57], [60]; Ripper v Kotzman [2008] VSC 448 [14]–[17]; Jasky v Cooney [2009] VSC 51 [14]–[15]; Smith v Commonwealth [2009] VSC 419 [17]–[18] and Mikhman v Royal Victorian Aero Club [2012] VSC 42 [47]–[56].
Doward submitted that J Forrest J’s formulation of the applicable principle in Karabinis can be regarded as correct, as the Court of Appeal dismissed the appeal against J Forrest J’s decision without any adverse comment on that formulation. Doward contended that the formulation is supported by SZRKT,[93] Chen v Health Care Complaints Commission,[94] D’Amore v Independent Commission Against Corruption,[95] MZYTS,[96] Pokharel v Minister for Immigration and Border Protection[97] and Milwain. In any event, according to Doward, the ‘fundamental error’ test is not significantly different from the test derived from SZRKT upon which the applicant relied.
[93](2013) 212 FCR 99, 130 [111].
[94](2017) NSWLR 334, 355 [92], 357 [103]–[105], 359–60 [112]–[118].
[95](2013) 303 ALR 242, [144]–[148], [230]–[231].
[96](2013) 230 FCR 431, 451 [67]–[70].
[97][2016] FCAFC 34 [47].
Decision on ground 9
For the reasons set out at [67]–[91] above, the principles for determining whether a factual error constitutes jurisdictional error are those set out at [92] above.
We are not aware of any authority prior to J Forrest J’s decision in Karabinis which adopted the concept of a ‘fundamental error’ as the test for determining whether a factual error constitutes jurisdictional error. Omerasevic introduced the concept of a fundamental issue, and incorrectly attributed support for the concept to Ryan, but that was in the context of the ground of failure to take into account a relevant consideration.
However, the fact that there is no support for J Forrest J’s test of ‘fundamental error’ in any of the authorities which preceded Karabinis does not mean that his decision is necessarily inconsistent with the underlying principles to which we have referred. His analysis of what constitutes a fundamental error is consistent with those principles. Indeed, he referred to Robertson J’s decision in SZRKT which has strongly influenced the development of those principles. Nevertheless, as the label of ‘fundamental error’ which J Forrest J adopted was not derived from any relevant authority, it is best avoided.
It follows that, in applying the ‘fundamental error’ test, the associate judge used an incorrect label. However, it also follows that she, in substance, applied the correct principles.
Accordingly, ground 9 is not made out.
Ground 7: Whether applicant was working full-time prior to redundancy
Ground 7 is in the following terms:
In its Reasons, at page 8, the Medical Panel stated that … it ‘noted that the applicant was continuing to work on a fulltime basis performing her usual duties until her redundancy package’. The Associate Justice ought to have found that there was no evidence before the Medical Panel that this was the case, and that the only evidence was to the contrary. The Associate Justice ought to have found there was in this regard an error of law, and should also have found that in relying on a matter that was not shown the Medical Panel took into account an irrelevant consideration.
The parts of the associate judge’s reasons that are relevant to ground 7 are in the following terms:
70In relation to the Panel’s alleged failure to have regard to the sick leave taken by the [applicant] and the fact that she worked reduced hours up until her redundancy, it does seem that while the Panel was aware that the [applicant’s] work routine had been interrupted and/or altered by her psychological difficulties, it was not expressly drawn to the Panel’s attention that she had been working reduced hours in the period after her return from sick leave and prior to her redundancy. There was no reference to her reduced working hours in the [Panel’s notes] or in the documents provided to the Panel. However, the responsibility for that omission does not [lie] with the Panel. Information which is not before the Panel cannot, in hindsight, rise to being a mandatory relevant consideration.
…
76[The Panel] is merely required to answer the questions asked of it. In any event, the agreed fact was … that ‘leading up to her redundancy, [the applicant] took time off on sick leave and attended work late from approximately mid 2016’. Being absent on sick leave and working hours outside normal business hours is an indicator of incapacity, but it is not determinative of incapacity. Indeed, the [applicant’s] own evidence was that when she started coming into work late, she stayed later in the evening and came in on weekends to ensure she could complete her tasks. While that evidence was not before the Panel, it is difficult to see how information of that nature would have led to a material shift in the Panel’s opinion concerning the [applicant’s] capacity for work. The [applicant’s] own evidence was that, at least prior to going on sick leave, she completed her normal duties, she just did not do so within normal business hours.[98]
[98]Associate judge’s reasons [70], [76].
Parties’ submissions on ground 7
The applicant submitted that there was no evidence for the Panel’s conclusion that she ‘was continuing to work on a full-time basis performing her usual duties until her redundancy package’ and, indeed, that conclusion was contrary to the time off agreed fact referred to at [22] above.
The applicant submitted that the time off agreed fact was an important factual matter for the Panel to take into account and that, by failing to do so, the Panel did not take into account a material consideration that it was bound to consider. The applicant also contended that, as it was not open on the evidence for the Panel to find that she had continued to work on a full-time basis performing her usual duties until her redundancy, the Panel’s reliance on that finding meant that it took into account an irrelevant consideration.
Doward submitted that the applicant’s evidence in her affidavit dated 30 June 2017[99] was that, although she took time off and attended late, she finished work late and worked on weekends to make up the required hours and complete her work. It followed, so it was said, that the Panel had correctly found that the applicant had worked full-time performing her normal duties until her redundancy. Doward contended that, even if the Panel made an incorrect assumption in this regard, this did not constitute a jurisdictional error because it was not material to the Panel’s conclusion about the applicant’s capacity to perform her pre-injury work.[100]
[99]See [29] above.
[100]Doward further contended that even if any such assumption was material it was not fundamental to the issue the Panel was bound to consider. Doward relied on Karabinis [2017] VSC 648 [56]. This submission is discussed under grounds 5 and 6 below.
Decision on ground 7
In our opinion, ground 7 is not made out.
As indicated at [22] above, it was an agreed fact that the applicant worked as a full-time accountant with Doward from 24 August 2015. There was no information before the Panel which indicated that she had ceased being a full-time employee prior to her redundancy. Contrary to the applicant’s submission, the time off agreed fact did not provide such an indication.
There was nothing before the Panel as to how much time the applicant had taken off on sick leave and the extent and regularity of the applicant’s late arrivals at work.[101] There was also no express statement in the material before the Panel about the nature of the sickness which gave rise to the sick leave. Even if the Panel had been aware that the sick leave was related to the applicant’s workplace injury and that her late arrivals were due to sleeping difficulties, it would not have been justified in characterising her work status as anything other than a full-time employee.
[101]It is not clear why the Panel stated that the applicant had taken ‘a week off on sick leave in early November 2016’.
The sick leave and late arrivals did not have the effect of rendering the applicant either a part-time employee or a casual employee. At its highest from the applicant’s point of view, these circumstances may have warranted her being described as working on a full-time basis but with flexible work hours. There was no evidence that the applicant did not perform her usual duties prior to her redundancy. It follows that there is no inconsistency between the time off agreed fact and the Panel’s finding that the applicant ‘was continuing to work on a full-time basis performing her usual duties until her redundancy’.
We reject Doward’s submission that evidence in the applicant’s affidavit that she had worked late and on weekends can be taken into account in determining whether there was an evidentiary basis for the Panel’s finding that the applicant continued to work on a full-time basis performing her usual duties until her redundancy. That is because the affidavit was not before the Panel. However, reliance on the affidavit is not necessary, as the evidence before the Panel more than justified the Panel’s finding.
As the Panel was entitled to conclude on the evidence before it that the applicant continued to work on a full-time basis performing her usual duties until her redundancy, we reject her contention that the Panel took into account an irrelevant consideration in relying on this conclusion as part of its deliberations. This conclusion was relevant to the applicant’s capacity to perform her pre-injury work, which was an issue that formed part of the second medical question before the Panel.
We also reject the applicant’s contention that the Panel failed to take into account the time off agreed fact. The Panel expressly referred to that agreed fact in its reasons. Read as a whole, the reasons indicate that the time off agreed fact was not merely recorded as a matter of formality or that its meaning was misunderstood. Rather, the reasons demonstrate that the time off agreed fact was well understood by the Panel and formed part of the factual matrix which informed the Panel’s opinion.
The time off agreed fact is discussed further under grounds 5 and 6 below.
Grounds 5 and 6: Applicant’s search for part-time rather than full-time work
Grounds 5 and 6 are in the following terms:
Ground 5: In its Reasons at page 4 the Medical Panel stated that, ‘[t]he [applicant] told the Panel that when she ceased work at the end of November 2016, she started applying for fulltime accounting jobs …’. The statement was wrong, and the Associate Justice ought to have found that in relying on the statement the Medical Panel had committed a jurisdictional error.
Ground 6: The Associate Justice was wrong, at [68] of the Judgment, in deciding that the Medical Panel’s statement on page 8 of its Reasons that the applicant continued to apply for fulltime accounting positions was an inference drawn by the Medical Panel from the applicant’s statement that she was due to commence a fulltime job on the day following the examination.
Paragraph 68 of the associate judge’s reasons, which the applicant seeks to impugn under grounds 5 and 6, was in the following terms:
68[I]t is common ground that the [applicant] did not tell the Panel that she had initially applied only for part-time jobs, and then applied for full-time jobs on the encouragement of her GP, her psychologist, and representatives of the WorkCover insurer. As noted by senior counsel for Doward, in the absence of any information to the contrary being provided to the Panel, the Panel was entitled to infer that, as the [applicant] was due to commence a full-time job on the day following the examination, she had been looking for full-time work.
Parties’ submissions on grounds 5 and 6
The applicant submitted that the Panel made a factual error in stating in its reasons that she ‘told’ the Panel that ‘when she ceased work at the end of November 2016, she started applying for fulltime accounting jobs, but for a couple of months did not have any response’. According to the applicant, this finding was factually incorrect because, as she deposed in her affidavit dated 30 June 2017, she initially sought part-time work and only extended her search to include full-time work in mid-January 2017. The applicant also relied on the fact that the statement in Dr Neill’s notes that the applicant ‘started applying for jobs’ made no reference to full-time jobs.
The applicant contended that, as there was no evidence before the Panel to the effect that she had applied for full-time work shortly after her redundancy, the Panel had made an error of law. She also contended that, in relying on a statement that she had not made, the Panel had taken into account an irrelevant consideration.
The applicant argued that the associate judge erred in concluding that the Panel’s finding that the applicant had applied for full-time accounting positions shortly after her redundancy was an inference drawn by the Panel from the applicant’s statement that she was due to commence a full-time job on the day following her examination by the Panel. According to the applicant, the Panel’s statement that she had ‘told’ the Panel that she had applied for full-time work shows that its finding was not based on an inference from other facts but on a mistaken view that she had expressly told the Panel that she had only applied for full-time work. The applicant also submitted that even if the Panel had drawn such an inference, the inference was not open on the evidence before the Panel, including her work history, Dr Poon’s report dated 20 January 2017 and the certificates of capacity signed by Dr Poon.
The applicant submitted that the Panel’s conclusion that she had capacity to perform her pre-injury work after 9 November 2016 was based on three findings. First, the applicant was continuing to work on a full-time basis performing her usual duties up until her redundancy. Secondly, the applicant had sought and obtained full-time employment with similar duties with another employer. Thirdly, shortly after her redundancy, the applicant continued to apply for full-time accounting positions until she obtained employment which she was due to commence on the day after her examination.
According to the applicant, each of these findings was considered by the Panel to be critical to its ultimate conclusion about her capacity. She contended that, as the first and third findings were factually incorrect, they constituted jurisdictional errors in accordance with the test in SZRKT, set out at [77] above.
Doward submitted that the Panel was entitled to infer that the applicant commenced applying for full-time work straight after her redundancy in the light of the following:
(a) the applicant had worked full-time at Doward before her redundancy;
(b)the applicant had eventually sought and obtained full-time work to commence the day after her examination by the Panel; and
(c)the applicant did not specifically tell the Panel that her job applications were originally for part-time work.
Doward contended that as the applicant’s search for part-time jobs was restricted to an initial period of one month only, it is highly unlikely that any incorrect assumption by the Panel as to when she commenced searching for full-time work would have been material to the Panel’s conclusion as to her work capacity.
Doward further contended that, even if any such incorrect assumption was material to that conclusion, the Panel did not commit a jurisdictional error as the error was not fundamental to the issue that the Panel was bound to consider.[102] This was said to be because the type of work for which the applicant had applied immediately after her redundancy was only one of many matters before the Panel relating to the issue of work capacity and was not of any particular significance. The other matters were said to include the applicant’s presentation to the Panel, its mental state examination, her history as to activities and past work, and the fact that she had searched for and obtained full-time employment by the time of the Panel’s examination.
[102]Doward relied on Karabinis [2017] VSC 648 [56].
Doward also made the submission at [130] above in relation to the time off agreed fact that is the subject of ground 7. That is, it argued that even if the Panel erred in relation to the time off agreed fact, the error was not fundamental to the issue the Panel was bound to consider.
Decision on grounds 5 and 6
In our opinion, grounds 5 and 6 are not made out.
Those grounds proceed on the false premise that the Panel made a factual error in concluding that the applicant applied for full-time work shortly after her redundancy. In order to show that the Panel made a factual error, it must be demonstrated that a factual finding was contrary to the evidence before the Panel. There was no evidence before the Panel that the applicant had applied for part-time work at any stage following her redundancy. The applicant does not cavil with the proposition that Dr Neill’s notes correctly record that in response to an inquiry about the applicant’s efforts to find a new job, she had said that she had ‘started applying for jobs’ without specifying the temporal status of those jobs.
In our opinion, on the basis of the evidence before the Panel, it was open to it to conclude that the applicant had commenced applying for full-time work shortly after her redundancy. That evidence included the applicant’s history of full-time work, including immediately before her redundancy,[103] her statement that she had ‘started applying for jobs’ and the fact that she was due to commence full-time work on the day following her examination by the Panel. The Panel did not fail to consider any material before it which suggested that the applicant had applied for part-time work at any relevant time. That is because there was no such material.
[103]See the discussion under ground 7 concerning the effect of the time off agreed fact on the applicant’s full-time employment status.
It is true that the applicant deposed in her affidavit dated 30 June 2017 that she had initially applied for part-time work and did not search for full-time work until mid-January 2017. As Doward has not sought to impugn this statement, it may be accepted as accurate. However, the affidavit was not before the Panel and did not form part of the evidence that informed the question of whether the applicant had applied for full-time or part-time work. Accordingly, the affidavit cannot convert a conclusion of the Panel which was open on the evidence before it into a factually erroneous conclusion.
We reject the applicant’s submission that the Panel’s statement that she had ‘told’ the Panel that she had applied for full-time work means that the associate judge erred in concluding that the Panel’s finding that the applicant had applied for such work was based on an inference. In the context of the present case, the distinction between an express statement and an inference is immaterial. A fair reading of the Panel’s reasons indicates that it interpreted the applicant’s statement that she had started applying for jobs as meaning that she had started applying for full-time jobs. On the basis of that interpretation, the Panel’s statement that the applicant ‘told’ the Panel that she had applied for full-time jobs is not inaccurate. If the Panel had said that it had inferred that the applicant had started applying for full-time jobs, such a statement would also not have been inaccurate.
For the reasons we have already given, it was open to the Panel to interpret the applicant’s statement that she had applied for jobs as meaning that she had applied for full-time jobs, or to infer from all the evidence that she had applied for full-time jobs.
As we have concluded that the Panel did not make a factual error in finding that the applicant had applied for full-time work shortly after her redundancy, the principles discussed under ground 9 for determining when a factual error constitutes jurisdictional error are not engaged. However, even if, contrary to our conclusion, it is assumed that the Panel made a factual error in relation to the finding, that error would not amount to jurisdictional error.
The putative error is that the Panel misconstrued the applicant’s statement that she had applied for work shortly after her redundancy as meaning that she had applied for full-time work when in fact she had applied for part-time work for an initial period of one month before applying for both full-time and part-time work. The putative error meant that the Panel ignored a factual matter, namely the initial applications for part-time work.
In our opinion, that factual matter is not sufficiently important and the putative error in relation to it is not sufficiently serious to constitute jurisdictional error. That is because, having regard to the subject matter, scope and purpose of the Panel’s statutory function, an accurate understanding of the temporal nature of the work for which the applicant applied shortly after her redundancy was not an essential feature of a valid exercise of that function.
We have already discussed the subject matter, scope and purpose of the Panel’s statutory function under grounds 4 and 10. A medical panel is an expert medical body which provides opinions on the medical questions referred to it for the purpose of enabling courts and other bodies to make decisions on the claim for compensation which has given rise to the medical questions. A medical panel forms its opinion on the medical questions referred to it on the basis of the collective medical expertise of its members, informed by their review of all the documentary and other information before them, including any information they obtain during an examination of the worker. The importance of any particular information provided to a medical panel cannot be assessed in the abstract; it must depend on the issues raised by the medical questions referred to it.
In the present case, the key issue that was raised by the second medical question referred to the Panel was whether the applicant was capable of performing her pre-injury full-time work. As we have already discussed, there were many factual matters that informed that question, including: the Panel’s assessment of the applicant’s mental state based on its examination of her and the information she provided to the Panel; the Panel’s assessment of the nature and severity of the injury suffered by the applicant; the vocational and temporal nature of the work the applicant performed prior to her redundancy; the vocational and temporal nature of the work the applicant was due to perform on the day after the examination; the fact that the applicant applied for work shortly after her redundancy; and the fact that the applicant did not state that she had at any time worked part-time or applied for part-time work. The contemporaneous notes taken by the Panel members indicate that the fact that the applicant had applied for work was a small fraction of the matters about which they asked her questions.
The applicant had a history of full-time work and was due to commence full-time work on the day after her examination by the Panel. In these circumstances, and in the light of the Panel’s assessment that the applicant was suffering from ‘some mild and intermittent depressive and anxiety symptoms’, the fact that she had applied for part-time work for a short period after her redundancy was of limited importance to the second medical question. Certainly, it cannot be said that an error by the Panel in relation to that fact was so serious that it resulted in a constructive failure by the Panel to perform its statutory function of answering that question.
Having regard to our assessment of the importance of the fact that the applicant had applied for part-time work for a short period following her redundancy, we are not satisfied that any error by the Panel in relation to that fact was material in the sense that the second medical question may have been answered differently if the Panel had not made the error. We reject the applicant’s contention that the fact that the Panel’s reasons more than once referred to her seeking full-time work is sufficient to establish that the Panel regarded this as a material fact. When the references to full-time work are read in the context of the Panel’s reasons as a whole, it is clear that this matter was referred to as part of the narrative and, while it was relevant, it was not material in the sense discussed in Hossain and SZMTA.
For completeness, we would add that if, contrary to our conclusion under ground 7, we had decided that the Panel had erred in finding that the applicant ‘was continuing to work on a full-time basis performing her usual duties until her redundancy’, we would not have regarded that error as material. That is so largely for the reasons set out at [140]–[144] above. Based on a reading of the Panel’s reasons as a whole, it is likely that it would have regarded any interruption to the performance of the applicant’s duties with Doward prior to her redundancy due to illness and late starts as transient, consistent with the Panel’s description of her injury as involving ‘some mild and intermittent depressive and anxiety symptoms’.
Irrationality and legal unreasonableness
Although the applicant’s grounds of appeal did not contend that the Panel had made a jurisdictional error on the basis that its opinion was irrational or legally unreasonable, some reliance was placed on these principles in her oral submissions.
It is not necessary for us to explore the extent to which irrationality constitutes an independent ground of judicial review or analyse the scope of any such ground.[104] That is because, if the ground is available in the present case, there is nothing irrational about the Panel’s conclusion that the applicant had the capacity to perform her pre-injury work after 9 November 2016 or any of the findings it made in reaching that conclusion. In particular:
(a)for the reasons discussed under ground 7, on the evidence before the Panel, it was rationally open to it to find that the applicant continued to work on a full-time basis performing her usual duties until her redundancy; and
(b)for the reasons discussed under grounds 5 and 6, on the evidence before the Panel, it was reasonably open to it to find that the applicant had applied for full-time work shortly after her redundancy.
[104]This issue is discussed in cases such as Re Minister for Immigration and Multicultural Affairs; Ex parte applicant S20/2002 (2003) 198 ALR 59, 62 [9], 64 [20], 66–7 [34], 67 [37], 71 [52], 87–8 [128]–[129], 89–90 [137]–[138]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 636 [96], 647–50 [129]–[136]; Li (2013) 249 CLR 332, 349–52 [25]–[28], [30], 366 [72]; Ryan [2015] VSCA 17 [82]–[99].
In our opinion, the answers that the Panel gave to the two medical questions that were referred to it were open to the Panel on the evidence before it. Although the applicant relied on the specific errors to which we have already referred, she did not contend that the answers were not open to the Panel.
The ground of legal unreasonableness has been clarified in recent cases such as Minister for Immigration and Citizenship v Li.[105] It is not necessary for us to discuss those cases or the scope of the ground. That is because, for the reasons referred to at [147]–[148] above in relation to irrationality, if the ground is available in the present case, we are not satisfied that the Panel’s conclusion about the applicant’s capacity or any of the findings it made in support of that conclusion are legally unreasonable.
[105](2013) 249 CLR 332, 350–2 [27]–[30], 362 [63], 363 [67]–[68], 365–6 [72], 367 [76], 370–1 [88]–[92], 375–8 [105]–[113].
Conclusion
For the above reasons, we will grant the applicant leave to appeal but dismiss the appeal.
Observations about the Victorian Bar Duty Barristers’ Scheme
At the conclusion of the oral hearing, Maxwell P, on behalf of the Court, acknowledged the fact that the applicant’s counsel had appeared for her pro bono as part of the Bar’s Duty Barristers’ Scheme, in the following terms:
Ms Schilling and Ms Moore, we want particularly to acknowledge the work you’ve done pro bono. You’ve presented submissions of the highest quality, obviously the product of long preparation. And as is often said with respect to pro bono work of this kind, it exemplifies the finest traditions of our profession. And we’re very appreciative of the assistance you’ve given us. And we’d say to your client, she can leave today knowing that her arguments on this application could not have been presented better.[106]
[106]Transcript of proceedings (10 April 2019) 98–9.
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