Colquhoun v Capitol Radiology Pty Ltd
[2013] VSCA 58
•20 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0072
S APCI 2011 0073
S APCI 2011 0074
S APCI 2011 0075
| JANE COLQUHOUN | |
| and | |
| ELLEN ELIZABETH COLQUHOUN | |
| and | |
| DAVID COLQUHOUN | |
| and | |
| MARION GEORGIOU | Appellants |
| v CAPITOL RADIOLOGY PTY LTD | |
| First Respondent | |
| and | |
| DR JOHN MALIOS (As Deputy Convenor of Medical Panels) | Second Respondent |
| and | |
| MEDICAL PANEL (Constituted by DR DIANE NEILL and DR PETER FARNBACH) | Third Respondent |
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| JUDGES | MAXWELL P, WEINBERG JA and FERGUSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 November 2012 |
| DATE OF JUDGMENT | 20 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 58 |
| JUDGMENT APPEALED FROM | Georgiou & Ors v Capitol Radiology Pty Ltd & Ors [2011] VSC 158 (Osborn J) |
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DAMAGES – Non-economic loss – Right of action subject to statutory threshold – ‘Significant injury’ – Referral to medical panel – Adverse determination by panel – Conclusive of medical question – No merits review – Whether panel’s reasons adequate – Whether panel obliged to give reasons – No error – Appeal dismissed – Wrongs Act 1958 (Vic) pt VBA.
ADMINISTRATIVE LAW – Judicial review – Medical question – Whether appellants suffered ‘significant injury’ – Referral of ‘significant injury’ question to medical panel – Panel’s assessment disputed by appellants – Whether panel’s reasons inadequate – Whether error of law – Whether panel made assessment in accordance with Guide to the Evaluation of Psychiatric Impairments for Clinicians – Whether panel obliged to give reasons – Whether panel’s function judicial or administrative – Panel performing medical function – Whether Convenor’s direction to provide reasons beyond power – Direction invalid – No obligation to provide reasons – Appeal dismissed – Wrongs Act 1958 (Vic) pt VBA; Accident Compensation Act 1985 (Vic) s 45(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr A G Uren QC with Mr A D B Ingram | Clark Toop & Taylor |
| For the First Respondent | Ms K P Hanscombe SC with | Lander & Rogers |
| For the Second and Third Respondents | Mr A Pillay | Moray & Agnew |
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MAXWELL P
WEINBERG JA
FERGUSON AJA:
Summary
The function of a statutory medical panel is to provide an opinion on a medical question referred to it.[1] The opinion which a panel gives is conclusive. It cannot be challenged on the merits, though it is amenable to judicial review — for example, for failure to comply with the requirements of procedural fairness.[2]
[1]Accident Compensation Act 1985 (Vic) s 67(1).
[2]See Masters v McCubbery [1996] 1 VR 635 (‘Masters’).
These appeals concern the giving of reasons for such an opinion. That issue has been much litigated under the Accident Compensation Act 1985 (Vic) (the ‘ACA’), which permits a medical question to be referred to a panel either in the course of, and for the purposes of, court proceedings;[3] or in the course of, and for the purposes of, the administrative determination of an entitlement to compensation under the ACA.[4]
[3]ACA s 45(1). See Sherlock v Lloyd (2010) 27 VR 434 (‘Sherlock’).
[4]See Gamble v Emerald Hill Electrical Pty Ltd & Ors [2012] VSCA 322.
The present proceedings are not governed by the ACA, however, but by pt VBA of the Wrongs Act 1958 (Vic) (the ‘Wrongs Act’), which is concerned with actions for damages for non‑economic loss. Such damages are recoverable only by a claimant who ‘has suffered significant injury’.[5] That pre-condition will be satisfied — conclusively — if a medical panel determines that:
the degree of impairment of the whole person resulting from the injury satisfies the threshold level.[6]
[5]Wrongs Act s 28LE.
[6]Ibid s 28LF(1)(b). See also s 28LZH.
In the present case, each of the appellants wished to bring a claim for damages for non‑economic loss against the first respondent. The ‘significant injury’ question was referred to a medical panel (the ‘Panel’) by the first respondent in respect of each of the appellants. In each case, the Panel determined that the claimant’s degree of impairment did not satisfy the threshold level.
In four parallel — and largely identical — judicial review proceedings, the appellants sought to have the Panel’s determinations set aside. The principal complaint in each case was that the reasons given by the Panel for its (adverse) determination were inadequate, and that this inadequacy constituted error of law on the face of the record. Alternatively, it was argued, the Panel had failed to make its assessment ‘in accordance with’ the applicable guidelines.[7] The judge dismissed each proceeding, holding that there was no inadequacy in the Panel’s assessment or in its reasons. The respective appeals from his Honour’s decisions were heard together.
[7]Ibid s 28LH(1).
For reasons which follow, we have concluded that:
(a)the Panel was performing a medical, not a judicial, function and accordingly had no obligation at common law to give reasons for its decisions;
(b)the relevant provisions of the Wrongs Act imposed no statutory obligation on the Panel to give reasons for its decisions;
(c)on their proper construction, the provisions of the Wrongs Act disclose a legislative intention that a medical panel provide a written determination (on the question whether the degree of impairment satisfied the threshold level) but no written reasons for that determination;
(d)accordingly, the direction purportedly given by the Convenor of Medical Panels (the ‘Convenor’) — that panels should give written reasons for their determinations — is beyond the scope of the power conferred on the Convenor under the Wrongs Act to give directions as to the procedures of panels, and is therefore invalid;
(e)although, on this view, the Panel was under no obligation to provide reasons, the reasons which it gave in each case complied with the Convenor’s direction and were adequate; and
(e)each appeal must, therefore, be dismissed.
The nature of the Panel’s function
As his Honour noted, the question of the adequacy of the Panel’s reasons had to be judged in the light of the function which the Panel was performing and the obligations imposed on it by the statutory framework. That issue was the focus of most attention on the appeals, and we deal with it first.
The appellants contend that a panel making an assessment under the Wrongs Act is under a legal obligation to give reasons. This obligation is said to arise in two ways. First, it is said, the panel is performing a judicial function, which has the common law corollary that reasons for decision must be given. The alternative contention is that, on the proper construction of the provisions of the Wrongs Act, the panel is under a statutory obligation to give reasons.
His Honour rejected both contentions. In our view, he was right to do so. We deal first with the character of the Panel’s function.
The focus of the appellants’ argument was s 28LE of the Wrongs Act, which provides:
A person is not entitled to recover damages for non‑economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
Section 28LF(1) then relevantly provides that, for the purposes of pt VBA, injury to a person is ‘significant injury’ if
(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; …
The effect of these provisions, so the appellants contend, is that
the function of the Medical Panel under pt VBA is ‘judicial’, or of a sufficiently ‘judicial’ nature, or has an effect in law, which requires that it provide adequate reasons as a legal incident of its processes.
Further:
The characteristics of the exercise of the power and the circumstances of its exercise do not differ relevantly from the determination of an issue by a court … and for the same reasons are ‘quasi judicial’ … and so attract the obligation to give adequate reasons.
As developed in oral argument, the submission was that the decision of a panel in such a case affected the rights of parties with respect to litigation. In the present case, it was said, the decision of the Panel — that none of the appellants had a degree of impairment which satisfied the threshold level — ‘took away’ their individual rights to sue.
In our view, this submission mischaracterises both the nature of the function performed by a panel under the Wrongs Act and the effect of the panel’s decision. The panel is not deciding any question of legal right, nor is it determining any ‘issue’ as between the person who wishes to sue for non‑economic loss and the person against whom action is proposed. Nor does the panel’s decision ‘extinguish rights’. The entitlement to sue is limited by the legislation. The right to sue for non‑economic loss has been taken away, by statute, from all persons other than those who have suffered significant injury (as defined).
A medical panel has the specific statutory function of deciding a medical question — and no more. ‘Medical question’ is the term which the Wrongs Act itself uses,[8] and it is a defined term, as follows:
medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level;[9]
The determination of that medical question does, of course, have consequences for the would‑be claimant’s entitlement to sue for non‑economic loss. But it is simply not correct to say that an adverse decision by the panel ‘takes away rights’. A person whose degree of impairment does not satisfy the threshold level has no right to sue for non-economic loss. No right is ‘taken away’ from the person when the panel so determines.
[8]Ibid s 28LWE(1).
[9]Ibid s 28LB.
The matter may be approached another way. Section 28LE establishes an eligibility condition which must be satisfied before a person may bring an action to recover damages for non‑economic loss. Unless that condition is satisfied, there is no right to sue. Eligibility is made to depend upon the person’s ‘degree of impairment of the whole person’,[10] which is a medical question, not a legal question. The fact that the answer to the medical question determines whether or not the person satisfies the statutory criterion of eligibility does not alter the character of the decision which the panel makes.
[10]Ibid s 28LF(1).
There is an instructive comparison with the role of a medical panel in court proceedings under the ACA. Under s 45(1) of that Act, the court may only refer a medical question to a panel once it has embarked upon the exercise of its jurisdiction under pt III of the ACA.[11] In Sherlock, for example, the appellant had brought a claim in the County Court for compensation under the ACA. A judge of that Court subsequently referred medical questions to a panel pursuant to s 45(1). In its judgment on the appeal, this Court said:
A panel under the ACA … expresses its ‘opinion’ on specific medical questions referred by the Court. In this sense, the panel operates as a statutory expert, providing an expert opinion for the assistance of the court and the parties on medical (not legal) questions.
The provisions of the ACA foreclose debate on the panel’s opinion, by making the panel’s answers conclusive of the issue(s) the subject of the referred medical questions. But that circumstance could not, in our view, convert into a judicial function what is defined — by the express terms of the Act — as an expert medical function. As the ACA makes clear, the panel performs its medical function in aid of the judicial function being performed by the County Court.[12]
[11]ACA s 45(1).
[12]Sherlock [2010] VSCA 122, [20]–[21] (footnotes omitted) (emphasis in original).
The position is even clearer under pt VBA of the Wrongs Act, as the panel performs its statutory function before any proceedings have been issued. So the panel is not acting ‘in aid of’ the judicial function. Rather, the panel’s assessment will determine whether there will be any proceeding at all (for non‑economic loss). The essential character of the panel’s function is, however, the same as under the ACA. That is, the panel is ‘providing an expert opinion … on medical (not legal) questions’.[13]
[13]Ibid 439 [20].
Nor, in our view, is there any identity of function between a medical panel (when assessing the degree of impairment of a claimant under the Wrongs Act) and a court (when adjudicating a disputed question between parties to litigation). It must be accepted, as the appellants submitted, that the members of a panel:
·must accord the claimant procedural fairness;[14]
·may need to decide whether the claimant is telling the truth;
·may need to consider questions of causation; and
·have power to compel attendance by the claimant’s medical practitioner, subject to the claimant’s consent.
But none of these attributes is in any way distinctive of the judicial function. Administrative tribunals typically have powers and obligations of this kind.[15] So, too, do magistrates when performing administrative functions in committal and extradition proceedings.[16] Conversely, one of the hallmarks of the judicial function — the quelling of a controversy[17] — is wholly absent from a panel’s formation of a medical opinion about a person’s state of health.
[14]Masters [1996] 1 VR 635.
[15]See, eg, Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98(1)(a), 104.
[16]In Victoria, a magistrate’s order committing for trial or refusing to commit has been held to be an administrative function: see, eg, Potter v Tural & Anor (2000) 2 VR 612, 617 [20]; Phelan v Allen [1970] VR 219. See also Grassby v The Queen (1989) 168 CLR 1, 11 (Dawson J) and Lamb v Moss & Anor (1983) 49 ALR 533, where the Federal Court held at 559:
The decision as to whether there is, or is not, a prima facie case and, if there is, the further decision as to whether or not to commit an accused person for trial are the central steps in the administrative process which is involved. To say that a magistrate hearing committal proceedings is bound to act judicially is to do no more than to describe how he must perform his administrative function. It does not turn his decision into a judicial one, nor does it make his decision judicial in character.
Under s 19 of the Extradition Act 1988 (Cth), State or Territory magistrates have the function of determining whether a person is ‘eligible for surrender’. It has been held that when performing functions under s 19, a magistrate is not exercising the judicial power of the Commonwealth: DPP (Cth) & Anor v Kainhofer (1995) 185 CLR 528, 543. See also Vasiljkovic v The Queen (2006) 227 CLR 614, 626–7 (Gleeson CJ).
[17]Huddart Parker and Co Pty Ltd & Anor v Moorehead (1908) 8 CLR 330, 357 (Griffith CJ); In re The Judiciary Act 1903-1920 and In re The Navigation Act 1912-1920 (1921) 29 CLR 257, 265-6; R v The Trade Practices Tribunal & Ors; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361, 374-5 (Kitto J); Fencott & Ors v Muller & Anor (1983) 152 CLR 590, 608–9.
We reject the appellants’ submission that ‘what a panel does could just as well be done by a judge’. Self‑evidently, the assessment of whole‑person impairment requires medical training, expertise and experience of the kind which medical practitioners have and judges do not. Moreover, as Weinberg JA pointed out in the course of argument, the expert clinical function performed by panel members will often involve a physical examination of the claimant. And, in the case of psychiatric injury, the assessment will ordinarily involve a ‘mental state examination’. Plainly, these are not tasks for which judges are qualified nor — given the essential privacy of such examinations — could they be performed in open court. That a judge may be requested to make an urgent determination of significant injury ‘because of the imminent death of the claimant’[18] does not affect this conclusion.
[18]Wrongs Act s 28LZN(2).
The appellants submitted that, if it were necessary to do so, this Court should hold that Sherlock was wrongly decided. That decision was said to have been based, erroneously, on the nature of the decision‑making by a panel under the ACA, rather than on the legal effect of the panel’s decision. It follows from what we have said that we see no reason to doubt the analysis in Sherlock. As is apparent, we have applied a similar analysis in order to characterise the function of a panel’s assessment under the Wrongs Act.
No statutory obligation to give reasons
It is always open to the legislature to impose on an administrative decision‑maker an express obligation to provide reasons. When that occurs, the question to be addressed is whether the legislature intended that the provision of adequate reasons be a condition of the validity of the decision‑maker’s exercise of power.
That compliance with a statutory obligation to give reasons for a decision may bear on the validity of the decision was noted in Sherlock.[19] Referring to the decision of the Full Federal Court in Dornan v Riordan,[20] this Court said:
In that case, the statute establishing the relevant tribunal imposed an express obligation on the tribunal upon the completion of an inquiry to issue ‘a statement, in writing, of its findings and the reasons for them’. Likewise, when it made a determination or a decision, the tribunal was required to issue ‘a statement, in writing, setting out the terms of that determination or decision and the reasons for making it’. The effect of these provisions, the Full Court held, was to render ‘a statement of reasons … a requirement of the exercise under the statute of the decision-making power’. Accordingly, a ‘substantial failure’ to state reasons for a decision constituted an error of law.[21]
[19]Sherlock [2010] VSCA 122, [39].
[20](1990) 24 FCR 564.
[21]Sherlock [2010] VSCA 122, [39] (citations omitted). For a recent restatement of the principle, see Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 179 FCR 554, 563 [49].
Following the decision in Sherlock, the Victorian Parliament amended the ACA to require medical panels to give reasons for the opinions which they give on referred medical questions. In Kocak v Wingfoot Australia Partners & Ors[22] this Court concluded (implicitly) that the effect of those amendments was to make the giving of adequate reasons a condition of the validity of the panel’s decision.[23]
[22][2012] VSCA 259 (‘Kocak’).
[23]Ibid [39]–[43], [72]–[73].
As was the case under the ACA at the time Sherlock was decided,[24] however, the Wrongs Act says nothing about the provision of reasons by a medical panel. Nor (as discussed below)[25] is there any basis for treating such an obligation as a matter of necessary implication to be derived from the provisions of pt VBA. As we shall explain, the necessary implication from the provisions is precisely the opposite.
[24]Ibid [42].
[25]See [40]–[43] below.
The Convenor’s directions
The appellants rely on the fact that the Panel was obliged[26] to comply with directions given by the Convenor.[27] For reasons which follow, that circumstance does not alter our conclusion.
[26]Under s 28LZ(5)(b) of the Wrongs Act.
[27]Under s 28LZ(4) of the Wrongs Act.
Division 5 of pt VBA is headed ‘Procedure of Medical Panel’. That is also the heading of s 28LZ, which provides as follows:
(1)A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.
(2)A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
(3)The Minister, after consultation with the Minister administering Part III of the Accident Compensation Act 1985, may for the purposes of—
(a)ensuring procedural fairness in the procedures of Medical Panels under this Part; and
(b)facilitating the proper administration of the Medical Panels under this Part—
issue guidelines as to the procedures of Medical Panels under this Part.
(4)The Convenor may give directions as to the procedures of Medical Panels under this Part but must not give directions inconsistent with any guidelines issued by the Minister under this Part.
(5)A Medical Panel must comply with—
(a)any relevant guidelines as to the procedures of Medical Panels issued under subsection (3); and
(b)any directions given by the Convenor under subsection (4).
The Directions given by the Convenor pursuant to s 28LZ(4) provide in part:
The purpose of these directions is to define the procedures to ensure medical Panels provide the appropriate Determination or Certificate in response to the medical question as to whether the degree of impairment resulting from the injury to the claimant alleged in the claim for damages for non-economic loss satisfies the threshold level.
To fulfil this purpose, these directions aim to facilitate:-
(a)a referral of a medical question;
(b)a Determination or Certificate of a Medical Panel that is responsive to the medical question; and
(c)a process by which the Determination or Certificate is produced in a manner that is efficient and transparently thorough and fair.[28]
[28]‘Deputy Convenor’s Directions as to the Procedures of Medical Panels under pt VBA of the Wrongs Act 1958’ (2008) (the ‘Directions’), 2–3 [8]–[9] (emphasis added).
The Directions proceed to deal with the following procedural matters:
·receipt of a referral of the medical question;
·information to be provided with the referral;
·consolidation of referrals;
·convening a Medical Panel; and
·Medical Panel procedures.
Under the last of these headings, the Directions draw attention to relevant provisions of the Wrongs Act, [29] specifically that:
·a panel ‘must act informally and may inform itself on any relevant matter in any way it thinks fit’;[30] and
·a panel may request the claimant to meet with the panel in order to answer questions, submit to a medical examination and supply copies of all relevant documents in the claimant’s possession.[31]
[29]Ibid 6 [23].
[30]Wrongs Act ss 28LZ(1)–(2).
[31]Ibid ss 28LZC(1)–(2).
In relation to examination of the claimant, the Directions state:
The presiding member of a nominated Medical Panel will facilitate consultation between the members with a view to establishing:-
·the number of examinations that are necessary, and which members of the Panel should be present;
·whether any further information is needed; and
·when, and by what means, the Panel will confer–
and the presiding member should advise the Deputy Convenor of the outcome of this consultation.
The Deputy Convenor will, at the request of the Medical Panel, arrange such examinations as are considered appropriate by the Panel. The Deputy Convenor will also arrange for professional interpreter services when required.[32]
[32]Directions, 6 [24]–[25].
The final section of the Directions is headed ‘Determination or Certificate’.[33] They provide:
[33]Ibid 8.
Where there is more than one member of the Medical Panel, the members should confer or consult with each other to determine the medical question. The presiding member should coordinate the process of conferring or consulting. If there is a disagreement between the members of the Panel on the impairment assessment, the Panel shall decide how it resolves the deadlock.
In determining the medical question, the Panel may seek any advice as it deems fit from the advisers or legal advisers appointed by the Deputy Convenor for its assistance.
After the Medical Panel has made an impairment assessment and:
· if it is satisfied that the injury alleged in the claim has stabilised, it will issue a Determination in the form set out in SCHEDULE 1; or
· if it is not satisfied that the injury alleged in the claim has stabilised, but it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised, it will issue a Certificate in the form set out in SCHEDULE 2; or
· if it is not satisfied that the injury alleged in the claim has stabilised and it is not satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilized, it will issue a Certificate in the form set out in SCHEDULE 3; or
· if it is satisfied after further assessment that the injury alleged in the claim has stabilised, it will issue a Determination in the form set out in SCHEDULE 4.
The presiding member will also prepare, and circulate to any other Panel members, a draft of the written reasons, in the form set out in SCHEDULE 5 for settling.
The Determination or Certificate and Reasons for Determination or Certificate are to be forwarded to the Deputy Convenor for sending to the respondent and claimant within the appropriate prescribed time limit. …
…
On receiving the final signed Determination or Certificate and Reasons for Determination or Certificate, the Deputy Convenor will forward copies to the claimant and respondent or their respective representatives.[34]
[34]Ibid 8–10 [36]–[40], [45] (emphasis added) (citations omitted).
Schedule 5 sets out the form in which written reasons should be prepared by the presiding member, as follows:[35]
[35]Ibid 15 (emphasis in original).
Schedule 5
REASONS FOR DETERMINATION [CERTIFICATE]
Re: [claimant’s name]
Medical Panel Ref. No: M /
1. The referral to the Medical Panel was received on [date]. The documents considered by the Panel are described in Enclosure A.
2. The claimant was examined by the Panel members [and Consultant/s] on the following dates:
Member: Specialty: Examination:
Dr. One Specialty One date month year
Dr. Two Specialty Two date month year
Dr. Three Specialty Three date month yearConsultant: Specialty: Examination:
Dr Specialty date month year3. The Panel formed its opinion by reference to –
(a) the documents and information referred to in Enclosure A; and
(b) the history provided by the claimant and the examination findings elicited by the Panel at the abovementioned examination(s) of the claimant.
[(c) the guidance provided by the Consultant(s)]
4. The reasons for the Panel’s Determination [Certificate] are as follows:
(NB: Reasons should be written succinctly and in plain language. They should clearly reveal the Panel’s core clinical and other findings and the assessment process, but must not state the specific degree of impairment. In the case of a multi-member Panel, the reasons (including the core clinical and other findings) should be those of the Panel as a whole arising from the consultative process.)
__________________________________ ________________
Dr. One (Presiding Member) Date:
What is the effect of the direction to give reasons?
The first submission for the appellants was that the effect of the Convenor’s direction — that the Panel provide written reasons for its decision — was to impose a statutory obligation on the Panel, equivalent to an express provision in the Wrongs Act itself. This was said to follow from the fact that the statute authorised the Convenor to give the direction. As will appear below, we accept the first respondent’s argument that, on a proper construction of the Wrongs Act, the Convenor had no power to impose on a panel an obligation to give reasons.[36] But the argument would fail even if the direction were valid.
[36]See [38]–[45] below.
There is no basis for the contention that, by conferring on the Convenor a general power to give directions as to procedure, the Parliament expressly intended to give statutory force to every such direction. The statute specifies the functions, duties and powers of medical panels. The conferral of the direction‑giving power is simply a convenient way of enabling matters of machinery to be dealt with by means of rules which can be modified administratively, as and when the need arises.
Is the Convenor’s direction to provide reasons beyond power?
As noted earlier, the first respondent contended that a direction which purported to compel the members of a panel to give reasons for their decision was beyond the scope of the power conferred on the Convenor by s 28LZ(4) to give directions ‘as to the procedures of Medical Panels under this Part’. The argument was put in two ways. First, it was said, since the Wrongs Act itself does not impose an obligation to give reasons, the phrase ‘the procedures of Medical Panels under this Part’ could not encompass the giving of reasons. Alternatively, and in any event, a direction purporting to impose a substantive obligation to give reasons — which, it was said, would create a correlative right in the claimant to seek and obtain reasons — could not be characterised as a direction ‘as to procedures’.
The first argument is akin to the argument of ‘repugnancy’ which can be mounted against subordinate legislation. The first respondent relies by analogy on the decision in Morton v Union Steamship Company in New Zealand,[37] where the High Court was concerned with a power to make regulations ‘not inconsistent with this Act prescribing all matters … as may be necessary or convenient to be prescribed for giving effect to this Act’.[38] The Court said:
A power expressed in such terms to make regulations enables the Governor‑General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.[39]
[37](1951) 83 CLR 402.
[38]Excise Act 1901–1949 (Cth) s 164.
[39]Ibid 410 (emphasis added).
In our view, this submission must be upheld. The direction requiring a panel to provide written reasons does go ‘outside the field of operation which the [Wrongs Act] marks out for itself’. First, there is a fundamental distinction between, on the one hand, statutory powers and obligations and, on the other, the procedures by which such powers are to be exercised and such obligations discharged. Thus, s 28LZC(1)(c) gives a panel power to require a claimant to submit to a medical examination. As we have seen, the procedure for making such a request and carrying out such an examination is laid down in the Directions.[40] But, without the statutory conferral of power, it is clear enough that the Convenor could not purport (in the exercise of a power to give procedural directions) to confer such a power.
[40]See [32] above.
Secondly, div 5 of the Wrongs Act goes into very considerable detail about ‘the powers and procedures’[41] of a panel in performing its statutory task. Where the legislature has chosen to include ‘positive provisions’ dealing with these matters in particular terms, then on ordinary principles there is no scope for an administrative direction to travel beyond the limits of the legislative prescription.
[41]Wrongs Act s 28LY.
Section 28LZG is a lengthy section titled ‘Determination of Panel’. Relevantly, s 28LZG(4) and (9) provide as follows:
(4)If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
…
(9)A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.
In short, the legislature has imposed on a panel a statutory obligation to provide a written ‘determination’, the substantive content of which is prescribed by sub‑s (4). In view of that specific — and limited — prescription, it is significant that the provisions are silent about the need for any written explanation of how the Panel came to its determination.
When pt VBA was inserted into the Wrongs Act in 2003, provisions requiring administrative decision‑makers to give reasons for decisions were a well‑established feature of Victorian legislation. We refer, for example, to s 8 of the Administrative Law Act 1978 (Vic), and to s 46 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). It cannot be doubted that, if Parliament had intended that a medical panel giving a determination of impairment under the Wrongs Act be required to provide reasons for its determination, it could and would have said so.
In this statutory context, the fact that no such requirement was imposed necessarily implies a legislative intention that there be no such obligation. It follows that a purported direction by the Convenor is not only outside the scope of pt VBA itself but contrary to the legislature’s own intention regarding the functioning of a panel.
For these reasons, whilst a panel may choose to provide written reasons for the conclusions it reaches, it is not obliged to do so. In view of this conclusion, it is unnecessary to decide what kinds of directions the Convenor might legitimately give regarding panel determinations, or whether the giving of reasons for decisions is capable of being characterised as a matter of ‘procedure’.
Were the reasons adequate?
On the view we have reached, any inadequacy in the Panel’s reasons could have no legal consequence, the Panel having been under no obligation to provide reasons. In case that conclusion was wrong, however, and because the matter was fully argued, we proceed to deal with the remaining question in the appeal on the assumption that there was a valid direction in force requiring the Panel to provide reasons.
As the trial judge observed, the note to sch 5 to the Directions (specifying the form of a statement of reasons) required the Panel to formulate reasons which ‘clearly reveal the Panel’s core clinical and other findings and the assessment process’.[42] At the same time, reflecting the statutory prohibition imposed by s 28LZG(4), the note directed that the reasons ‘must not state the specific degree of impairment’.[43] His Honour proceeded to test the adequacy of the reasons by reference to the requirements spelled out in the note to sch 5, pointing out that it was for the Panel as an expert tribunal to form its own view as to what constituted its ‘core clinical and other findings’.[44]
[42]Directions, 15.
[43]Ibid. See also Georgiou & Ors v Capitol Radiology Pty Ltd & Ors [2011] VSC 158 (Osborn J) (‘Reasons’), [73], [81].
[44]Ibid [83].
The appellants’ submission was that those requirements were not ‘words of limitation’ and should not be read as defining exhaustively what the reasons of a medical panel should contain. According to the written submission:
The purposes for which reasons are required to be given by a medical panel are the same as the purposes in the case of other decision‑makers … Accordingly the reasons should be adequate to satisfy those purposes[45] and thus in the present context should be ones which disclose a discernible path of relevant reasoning, which show what evidence a panel did and did not accept, and which show the basis on which it reached a conclusion different from that of opinions expressed in the medical reports provided by the parties.
[45]The submission here cited Byrne v Legal Services Commissioner [2010] VSCA 162, [61].
We disagree. On the assumption that (contrary to our view) the direction to give reasons is valid, the scope of the obligation to give reasons is defined by — and only by — that direction. There is no basis for drawing an analogy either with the purposes for which judges give reasons or with the content which is required, by particular statutes, of reasons given by decision‑makers.[46]
[46]See, eg, Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13.
Of course, a panel would not be prevented from going beyond its ‘core clinical and other findings and the assessment process’. But, provided that the reasons include those matters, the panel has complied with the direction and, hence, discharged its duty of compliance under s 28LZ(5)(b).
In the present case, the judge considered in detail the content of the reasons given with respect to the claims of each of the appellants. It is unnecessary for the purposes of these reasons to rehearse the detail of that analysis. It is sufficient to say that we entirely agree with his Honour’s conclusion that, in each case, the reasons were adequate.
One specific complaint, made both at trial and on appeal, was that the Panel had failed to make its determination of the appellants’ respective psychiatric injuries in accordance with the applicable guide, being the Guide to the Evaluation of Psychiatric Impairments for Clinicians (‘GEPIC’). We would reject this contention, for the reasons which his Honour gave.
The Panel specifically stated that it undertook its assessment in accordance with the GEPIC, in finding in each case that there was no psychiatric impairment present as a result of the relevant injury. There was no reason to doubt that it had done so, in arriving at what was — once again — a clinical judgment. His Honour said:
It is plain that the Panel has relied upon the mental state examination undertaken by it, which as Principle 1 contained the GEPIC makes clear is ‘the prime method of evaluating psychiatric impairment’. It is also clear that the Panel has had regard to the other factors referred to in Principles 2, 3, 4 and 5 referred to in the GEPIC. These include ‘level of functioning’ and ‘the whole history of the illness, the treatment, the rehabilitation phase, and the individual’s current mental and physical status and behaviour’.
It is true that the Panel does not expressly evaluate the presence of psychiatric impairment by reference to the aspects of mental function classified in the GEPIC namely intelligence, thinking, perception, judgment, mood, and behaviour. Nevertheless, it is plain that it considered each of these functions in the course of the investigations undertaken by it. I do not accept that it can be inferred that the Panel failed to have regard to the considerations raised by what counsel for the plaintiffs called the ‘structural task’ postulated by the GEPIC.
Likewise, I do not accept that the failure to set out a numerical calculation of whole person psychiatric impairment reflects a failure to have regard to and apply the GEPIC. As I have said, the GEPIC sets out a table providing for evaluation of psychiatric impairment by reference to classes. The mental functions forming the basis of this calculation each identify class 1 as 0–5 per cent ‘normal to slight’. It is apparent that if a person is normal, the relevant numerical description is zero per cent. The Panel has found that the claimant is normal and any further calculation could not sensibly be said to be necessary.[47]
[47]Reasons, [150]–[152].
There was argument, both before his Honour and on appeal, about the consequences of a conclusion that the reasons given by a panel were inadequate. In the circumstances, that question does not arise. It is sufficient, once again, to say that we agree with his Honour, for the reasons he gave, that the consequences of the provision of inadequate reasons would fall to be determined in accordance with the principles laid down by the High Court in Project Blue Sky v Australian Broadcasting Authority.[48] We also agree with his Honour that, applying those principles, there is nothing in the statute which would suggest that non‑compliance by a panel with a procedural direction given by the Convenor was intended to have the result that the panel’s determination was invalid.
[48](1998) 194 CLR 355.
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