Commissioner of Victims Rights v Dobbie

[2019] NSWCA 183

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Commissioner of Victims Rights v Dobbie [2019] NSWCA 183

Hearing dates:

21 May 2019

Date of orders:

25 July 2019

Decision date:

25 July 2019

Before:

Basten JA at [1];
Leeming JA at [57];
McCallum JA at [58]

Decision:

(1)   Grant the Commissioner an extension of time until 7 February 2019 to file her summons seeking leave to appeal from the judgment and orders made in the Common Law Division on 20 December 2018.

 

(2)   Refuse leave to appeal.

 (3)   In accordance with the Commissioner’s undertaking, order that the Commissioner pay the respondent’s costs of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – victim’s compensation claim – primary victim of domestic violence – claim for “severely disabling” psychological disorder – challenge to rejection by delegate – whether the delegate attributed incorrect meaning to “severely disabling”

 

ADMINISTRATIVE LAW – judicial review – expert psychologists designated by Director – assessment of disability by designated expert – whether delegate obliged to follow expert’s assessment absent countervailing evidence – whether delegate’s rejection of assessment manifestly unreasonable

  APPEAL – leave to appeal – precondition of grant – small amount at stake in individual case – relevance to large number of claims – whether matter of principle or public interest – error identified without setting aside judgment below

Legislation Cited:

Supreme Court Act 1970 (NSW), s 101
Victims Compensation Act 1996 (NSW), ss 5, 7, 10, 17, 19A; Sch 1, cll 5, 7A, 10
Victims Rights and Support Act 2013 (NSW), Sch 2, 4
Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (NSW), Sch 1, cll 19, 21

Cases Cited:

Comcare v Martinez (No 2) (2013) 212 FCR 272; [2013] FCA 439
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41; [1986] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Victims Compensation Fund Corporation v Brown [2003] HCA 54; 77 ALJR 1797
Victims Compensation Fund v Brown (2002) 54 NSWLR 668; [2002] NSWCA 155

Category:

Principal judgment

Parties:

Commissioner of Victims Rights (Applicant)
Jason Dobbie (Respondent)

Representation:

Counsel:
Mr S Robertson (Applicant)

    Solicitors:
Acting Crown Solicitor for NSW (Applicant)
Kelso Lawyers (Respondent)

File Number(s):

2019/42130

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2018] NSWSC 1989

Date of Decision:

20 December 2018

Before:

Campbell J

File Number(s):

2018/48114

Judgment

1. BASTEN JA: It is more than 30 years since a modern statutory framework was established in this State for the payment of compensation to victims of acts of violence. The first legislation, the Victims Compensation Act 1987 (NSW) was repealed by the Victims Compensation Act 1996 (NSW) (1996 Act). [1] That Act was in turn replaced by the current legislation, namely the Victims Rights and Support Act 2013 (NSW) (2013 Act). No doubt seeking to establish a degree of consistency in the making of payments, the 1996 Act introduced a schedule resembling the old table of maims (or disabilities) to be found in old workers’ compensation legislation, abandoned in this jurisdiction in 2001. That scheme was abolished by the 2013 Act.

   1. The 1996 Act was renamed in 2000 the Victims Support and Rehabilitation Act 1996 (NSW).

2. The legislative changes in 2013 contained savings and transitional provisions set out in Sch 2 of the 2013 Act, together with the Victims Rights and Support Regulation 2013 (NSW) (2013 Regulation), which commenced life as Sch 4 to the 2013 Act. The broad effect of the scheme was that applications for statutory compensation lodged under the 1996 Act, but not finally determined, were to be dealt with under the 2013 Act. It is not necessary to dwell upon the detail of those savings and transitional provisions, because, relevantly for present purposes, they were replaced by the Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 (NSW) (2015 Regulation). The 2015 Regulation dealt with applications for statutory compensation lodged, but not finally determined, under the 1996 Act before the day on which the bill for the 2013 Act was introduced into Parliament. [2] An application was “not finally determined” if an appeal was pending or if the period for bringing an appeal as of right had not expired. [3] A claimant covered by that description could make a “reassessment application” which was to be determined as if it were an application for compensation under 1996 Act. [4]

   2. 2015 Regulation, Sch 1, cl 19(1).

   3.    2015 Regulation, cl 19(4).

   4.    2015 Regulation, cl 21(1).

3. The respondent in the present proceedings, Mr Jason Dobbie, who had been a victim as a child of domestic violence in the home, made a claim for compensation under the 1996 Act. By the relevant transition date he had received an interim payment; his claim not having been finally determined he fell within the transitional provisions and made a reassessment application.

4. An initial assessment awarded him compensation as a victim of domestic violence in the maximum amount of $10,000. However, he also had a claim for psychological or psychiatric disorder (category 2) being a chronic psychological or psychiatric disorder that is “severely disabling”. If successful with respect to the latter claim, he would have obtained compensation in the range of $30,000-$50,000. His claim in the latter respect was dismissed by an assessor. He exercised a right of internal review; on 5 December 2017 a delegate of the Commissioner rejected his review application.

5. The 1996 Act included provision for an appeal from refusal by a compensation assessor to the Victims Compensation Tribunal constituted under that Act. There was also an appeal on a question of law to the District Court. These procedural rights did not survive under the transitional provisions. Accordingly, the only avenue for challenge to the decision of the delegate was by way of judicial review in the supervisory jurisdiction of the Supreme Court.

6. On 13 February 2018 Mr Dobbie commenced proceedings in the Common Law Division seeking an order setting aside the delegate’s decision of 5 December 2017 and remittal of the matter to the Commissioner for redetermination according to law. On 20 December 2018 Campbell J made orders as sought by Mr Dobbie. [5]

   5. Dobbie v Commissioner of Victims Rights [2018] NSWSC 1989 (“Primary judgment”).

7. The Commissioner sought leave to appeal from the judgment in the Common Law Division.

8. No notice of intention to appeal was given, and the summons seeking leave to appeal was filed outside the 28 day period, namely on 7 February 2019. The Commissioner required an extension of time within which to commence proceedings. She accepted that leave was required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW) in circumstances where the amount in issue is far below the amount of $100,000 required for an appeal as of right. Although the statutory scheme under which the determination was made was transitional and will not have consequences for the operation of the 2013 Act, the Commissioner submitted that the question of law involved in the judgment below involves an issue of principle having consequences beyond the present case. She proffered evidence that the basis on which the judicial review was allowed may call into doubt a significant number (possibly hundreds) of determinations made under the transitional provisions. She also proffered an undertaking to pay the respondent’s costs in any event.

9. Although the solicitor for the respondent, who has extensive experience in relation to claims under the 1996 Act, took issue with the evidence as to the number of affected matters, the Court should accept that there are potentially a large number of affected determinations. The issue is not only the number of applications still outstanding; it is also the number of adverse decisions which may have been made on a false basis which could still be the subject of judicial review proceedings if the judgment below is to stand.

10. In these circumstances, the Commissioner should have the necessary extension of time within which to commence the proceedings. The question of leave to appeal will be addressed below. As counsel for the Commissioner fairly noted in the course of oral submissions, success on particular aspects of the appeal will not necessarily result in the decision in this case being overturned. How that consideration operates in the circumstances of the present case will be addressed after considering the issues raised.

Ground 1 – meaning of “severely disabling”

11. In order to consider the first ground of appeal, it is necessary to provide some background to the basis of a claim for compensation under the 1996 Act. Payments could be made to victims who were identified as either “primary”, “secondary” or “family” victims. A “primary victim” was a person who received a compensable injury as a direct result of an act of violence: s 7(1). The term “act of violence” was defined in s 5(1) in the following terms:

5   Act of violence

(1)   In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a)   that has apparently occurred in the course of the commission of an offence, and

(b)   that has involved violent conduct against one or more persons, and

(c)   that has resulted in injury or death to one or more of those persons.

12. The term “compensable injuries” referred to those injuries set out in sch 1 of the 1996 Act: s 10. The schedule specified an amount, or a range of amounts, payable by way of compensation: s 10(3). Section 17 provided:

17   Compensation for compensable injuries

(1)   Compensation for compensable injuries is payable in accordance with the schedule of compensable injuries.

(2)   Unless the amount of compensation is required or authorised to be reduced by this Act, the amount of compensation payable is the standard amount calculated in accordance with the schedule.

Where the amount payable was less than $20,001, a deduction was made of $750: s 19A(1).

13. Schedule 1 dealt with multiple injuries and defined, or imposed particular conditions on, specific kinds of injury, including psychological or psychiatric disorder, in terms to be noted shortly. Table 1 to the schedule included a “description of injury” (column 1) and specification of the “standard amount of compensation” (column 2). The description of injury was not a coherent category: for example, some injuries (brain damage) were identified by reference to a degree of impairment; some were identified by reference to cause (domestic violence); some were highly specific (there were 29 separate categories for injury to the eye) and some arose under multiple headings (burns). Domestic violence was defined in cl 7A of the schedule as “injury resulting from an act that occurred in the commission of a domestic violence offence” and a standard amount of compensation fell in the range $7,500-$10,000.

14. The amount for domestic violence was relevant to the claim by the respondent; he was initially awarded an interim payment of $8,000 on account of this head of injury, with a final determination of $10,000. That being under $20,000, the prescribed amount of $750 was deducted, leaving a payment (after taking into account the interim payment) of $1,250. That was the figure awarded by the delegate as part of the decision under challenge. There is no challenge to that aspect of the assessment.

15. The respondent’s claim for psychological or psychiatric injury fell within the following item in the table:

Psychological or psychiatric disorder
Category 1, chronic psychological or psychiatric disorder that is moderately disabling	7,500-15,000
Category 2, chronic psychological or psychiatric disorder that is severely disabling	30,000-50,000

16. There are two curiosities about this item. First, as appears from the figures set out above, the two categories do not constitute two positions on a continuum, but rather two ranges with a considerable degree of separation between them. A range for a particular category of injury was an approach adopted only with respect to domestic violence, psychological or psychiatric disorder and sexual assault; in most cases, the table simply provided specified amounts for different degrees of severity. Thus, in relation to the ear, “tinnitus – permanent” fell into two categories, moderate ($18,000) or very serious ($36,000).

17. Secondly, sch 1, cl 5 limited the application of category 1 psychological or psychiatric disorder to an act of violence in the course of (a) armed robbery, (b) abduction, and (c) kidnapping. It followed that the respondent was not eligible for a payment with respect to “moderately disabling” psychological or psychiatric disorder. To succeed, his claim had to qualify as “severely disabling”. The delegate was not satisfied it qualified by that standard.

18. The primary judge held that the delegate had misconstrued the term “severely disabling” in the table to sch 1. The first ground of appeal asserted that the primary judge erred in holding that the delegate had misdirected herself as to the meaning of that phrase. The focus of the challenge was upon the following passage in the judgment below:

“[51]   In my opinion, the delegate misdirected [herself] as to the meaning of ‘severely disabling’. I am prepared to accept, as the delegate stated [at [33]] that the expression severely disabling should be given its ordinary meaning. However, this does not mean that the concept is not to be informed by expert evidence from a psychiatrist or a psychologist. Moreover, one can accept that severe must mean something which is more serious than a mild or moderate disability, as the delegate expressly decided. Indeed one should refine it: severe means something more serious than a moderate disability.

[52]   But the delegate fell into error (at [34]) when [she] defined severe by reference to the Macquarie Dictionary’s definition as ‘extreme’, ‘serious’ and ‘grave’. [She] then married this by reference to the GAF scale. From this document [she] drew examples of ‘severe’ impairments as including: that a person stays in bed all day, has no job, home or friends. Again, the delegate seems to have taken a somewhat unnecessary, and uncalled for, truncated approach to the process of interpretation.

…

[57]   For my part the meaning of the expression ‘severely disabling’ to the extent to which it should be separated from the composite expression is: ‘more than moderately disabling; seriously disabling.’ In my judgment the delegate fell into error when [she] defined severe separately from disabling as meaning ‘extreme, serious or grave’ by reference to The Macquarie Dictionarydefinition. The error falls into the categories identified by Robertson J in Comcare v Martinez and Sommerville LJ in Lee v Showmen’s Guild.

[58]   It was also an error to then consider disabling separately by reference to the GAF, a tool or aid for the use of qualified experts. In particular, with respect, it was an error to cherry-pick from that publication an example of severe impairment as including: a person who stays in bed all day, has no job, home or friends. First, impairment is not necessarily the same thing as disability. Secondly, if, as I believe, in the statutory context the expression severely disabling means more than a moderate or serious disability, Psych Cat 2 obviously will cover a range of different cases. These will extend from merely to somewhat more than moderately disabling to the catastrophically disabling. The example plucked from GAF by the delegate is more consistent with the high end of that range than a condition that has only just crossed its threshold. In my judgment this misdirection; asking [herself] the wrong question was material to the delegate’s decision and constitutes jurisdictional error.”

19. The critical passages in the decision of the delegate were as follows:

“[33]   The term ‘severely disabling’ is not defined in the Act; however, the wording used to describe this compensable injury, given its ordinary meaning, requires that the evidence establishes the presence of a psychological/psychiatric disorder of chronic duration, causing impairment in functioning that is more serious than a ‘mild’ or ‘moderate’ disability.

[34]   The Macquarie Dictionary defines ‘severe’ as ‘extreme’, ‘serious’, and ‘grave’, in respect of an illness. The Global Assessment of Functioning Scale (GAF), used as a point of reference by Authorised Report Writers (ARW), gives examples of ‘severe’ impairments including: that a person stays in bed all day, has no job, home or friends.

[35]   It must be evident that there is a psychological/psychiatric injury that is a chronic disorder and severely disabling in its effects. It must have been sustained or significantly exacerbated as a result of the act of violence that is the subject of the application. Such an assessment is made on a case-by-case basis taking into account the particular circumstances of an individual applicant.”

20. In the following paragraphs 36-44, the delegate explained why, on the material before her, she was not satisfied that “the applicant’s psychological injury is severely disabling on him”: par 44. The reasoning to this conclusion was the subject of a further challenge, upheld by the primary judge, of manifest unreasonableness. This finding was separately challenged (ground 2) by the Commissioner. While there are clearly two separate adverse findings made by the primary judge, there is an air of artificiality in addressing them separately. Nevertheless, the separation was carefully maintained by counsel for the Commissioner, partly, and not inappropriately, to maintain the position that the case involved an issue of principle.

21. The primary judge was rightly critical of the use by the delegate of the Macquarie Dictionary to identify the meaning of the statutory term. As he correctly noted, most words have a range of meanings and dictionaries recognise that fact. [6] The primary judge also helpfully adopted the observations of Robertson J in Comcare v Martinez(No 2) [7] to the following effect:

“[68]   But in statutory interpretation it is one thing to use a dictionary definition to identify a range of possible meanings of a word: it is another to treat those different words in the definition as if they were synonyms for the word in its statutory context. No doubt the other words used in a dictionary definition have meanings which overlap with the word used in its statutory context but it is unlikely that they have the same meaning.”

6. House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [28] (Mason P).

7. (2013) 212 FCR 272; [2013] FCA 439.

22. There were three criticisms to be made of the use to which the delegate put the Macquarie Dictionary. First, to say that the dictionary “defines” the term “severe” was true only to the extent that the words following established some boundaries within which the term “severe” is conventionally used. However, understandably, the boundaries were imprecise: that is because the term tends to be used in a range of circumstances including by reference to a scale of severity. It is often used, as in the present context, by way of comparison. Secondly, the selection of three other words demonstrates precisely the element of variability. Thirdly, to rely upon the colour given by other words of differing shades distracts from the exercise of comparison required by the statutory context, namely between “moderately disabling” and “severely disabling”.

22. In the following sentence in her reasons, the delegate referred to the Global Assessment of Functioning scale (GAF scale) derived from the Diagnostic and Statistical Manual of Mental Disorders, (4th ed) (DSM-IV-TR) with which it seems likely both the delegate and the primary judge were familiar, although it was not in evidence below. By agreement, the relevant pages were tendered in this Court to allow an understanding of the criticism of cherry-picking in the passage at [58] set out above. This material was also necessary to understand the psychological report completed by the “authorised report writer” (ARW), Ms Kelly.

23. Global assessment of functioning operates according to a scale by which psychological, social and occupational functioning are placed on a continuum from 100 (superior functioning) to 1 (persistent disfunction, possibly involving serious suicidal acts). The scale requires an assessment of both “symptom severity” and “level of functioning”, the relevant score being determined by reference to the more serious of the two features. The points between 100 and 61 turn on absent or minimal symptoms, through to some mild symptoms but with meaningful interpersonal relationships. The scale from 60 to 51 involves “moderate” symptoms and/or “moderate” difficulty in social, occupational or school functioning. A score of 50 or below will involve “serious” symptoms or “serious” impairment of functioning. As the delegate noted, the scale gives examples of “severe” impairments, including a person staying in bed all day, having no job, home or friends. Those examples occur on the scale for 30-21, which states in full:

“Behaviour is considerably influenced by delusions or hallucinations OR serious impairment in communication or judgment (eg, sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) OR inability to function in almost all areas (eg, stays in bed all day; no job, home, or friends).” (Emphasis in original.)

25. The scale is thus broken up into deciles, of which that last mentioned above is the third. What are described on the scale as “moderate” symptoms, or moderate difficulty in functioning, is to be found in the sixth decile.

26. The passage in the judgment below at [58] took issue with the analysis by the delegate on two bases. The first was that “impairment” is not the same as “disability”. No doubt there is a distinction between the lack of a physical or mental capacity according to some standard (such as having poor eyesight) and the effect of the disability on daily functioning in a social or work environment. However, there is usually a relationship between the two though, as the scale recognises, symptoms and capacity to function may not involve a close correlation. Nevertheless, I do not think there was legal error in referring to examples given in the GAF scale which invoked both concepts.

27. The second error identified by the primary judge depended upon the particular examples. They involved, as the judge noted, not the next step from a cluster of examples associated with “moderate” disability, but rather a cluster three steps down the ladder. At least by inference, the judge treated a disorder which was “severely disabling” as any cluster of symptoms or difficulties beyond those constituting moderate disability. However, it is by no means clear that the statutory scheme requires such an approach. As noted above, the significant gap between the top of the range for category 1 psychological/psychiatric disorders ($15,000) and the bottom of the range for category 2 ($30,000) suggests that there is no necessary error in treating category 2 disorders as significantly more serious than category 1 in terms of disabling features. This facet of the schedule was discussed by Spigelman CJ in this Court in Victims Compensation Fund v Brown,[8] and on appeal by the High Court in Victims Compensation Fund Corporation v Brown,[9] setting aside the judgment of this Court and upholding the dissenting view of Spigelman CJ.

    8. (2002) 54 NSWLR 668; [2002] NSWCA 155.

    9. [2003] HCA 54; 77 ALJR 1797 at [12].

28. Although the reliance of the delegate on dictionary definitions was unhelpful and apt to mislead, the only material error was ascribing to the phrase “severely disabling” a more stringent standard than that required by the legislation. It is the same point relied upon with respect to the second criticism, namely the reliance on steps on the GAF scale which are not adjacent.

29. However, the nature of the scale, as indicated by the disparate amounts for category 1 and category 2 disorders, suggests that some higher level of severity was required with respect to a category 2 disorder, and not merely anything more serious than would qualify for category 1. As category 1 is not engaged on any view in the present case, because of its special limitation to particular offences, it is not necessary to consider the scope of category 1 disorders. In my view, despite infelicitous reasoning, no error of law was demonstrated in the approach taken by the delegate to the phrase “severely disabling”, with the result that the Commissioner has made good ground 1 of the proposed appeal.

Ground 2 – finding of unreasonable outcome

30. The primary judge addressed, as an issue of “legal unreasonableness”, the question “whether the delegate was bound to accept and act upon the opinions expressed by the ARW”: at [59]. The judge concluded:

“[66]   Taking all of these legal considerations into account, while I am of the view that the Commissioner was not legally bound to accept the ARW’s assessment, in the absence of compelling contradictory evidence, [her] failure to do so was legally unreasonable.”

31. Despite the finding of legal unreasonableness, on one view the approach adopted by the judge was to identify error on the part of the delegate in failing to recognise that Ms Kelly’s report was a “sufficient” basis for deciding whether there was a compensable injury of a psychological or psychiatric disorder. [10] That turned upon the construction of cl 5(1) and (1A), found in sch 1 of the 1996 Act. The relevant parts of cl 5 read as follows:

“5   Psychological or psychiatric disorder

(1)   For the purposes of establishing whether there is a compensable injury of psychological or psychiatric disorder, an application relating to statutory compensation for such an injury must be accompanied by a written assessment of the applicant’s condition prepared by a qualified person chosen from a list of qualified persons designated by the Director.

(1A)   In determining such an application, the Tribunal or compensation assessor concerned is not required to have regard to any report or assessment other than the assessment referred to in subclause (1).

(2)   The Director may suspend or revoke the designation of a person under subclause (1).

10. Primary judgment at [59].

32. The reference to a “qualified person designated by the Director” was to be understood, in the present context, as such a person designated by the Commissioner. [11] Use of the term “ARW” is a colloquialism and refers to a designated qualified person. The “written assessment” prepared by such a person and required to accompany the application for compensation is referred to as an “ARW report”.

    11.    2015 Regulation, cl 21(2)(a).

33. There was no material before this Court as to any particular qualifications required for a person to be included on a list of qualified persons designated by the Commissioner, nor as to persons with delegated authority to determine compensation claims. However, it is known that the assessment was prepared by a qualified psychologist, who had, it may be inferred, been approved (designated) by the Commissioner. Nevertheless, cl 5 did not confer on the ARW a power to determine whether or not the applicant’s condition satisfied the criteria identified in sch 1, although the sole purpose of the assessment was for the decision-maker to have expert evidence with respect to those criteria.

34. In the present case, the ARW provided an assessment of the functioning of the applicant, concluding that he had “a severe impairment of global functioning.” [12] She undertook psychometric tests which indicated “severe depressive symptoms and severe anxiety that correlates with the clinical interview.” [13] In her conclusion, the ARW assessed the respondent as demonstrating symptoms consistent with a diagnosis of post-traumatic stress disorder and a further diagnosis of a major depressive disorder. She applied the GAF scale concluding that, currently, he suffered “severe impairment of global functioning due to major impairment in several areas including occupational functioning, social relationships, judgement, thinking and mood (depression, suicidal thoughts, foreshortened future).” [14] The report was completed 15 September 2016.

    12.    ARW Report, par 10.1 (emphasis in original).

    13.    ARW Report, par 12.1.

    14.    ARW Report, par 14.5.

35. Clause 5(1A), by implication, made the ARW report a mandatory consideration in determining the compensation claim; the delegate was not required to have regard to any other report or assessment, indicating that such regard was permissible, but not mandatory.

36. A requirement to have regard to an assessment report, which must accompany an application, does not of itself specify the weight to be given to the report. That is understandable; weight will commonly be a matter to be assessed having regard to the content of the report, which may contain its own qualifications and indications of levels of confidence at which particular opinions are expressed. The primary judge was correct to state that “the delegate is required to have regard to the ARW’s assessment in relation to not only the existence of a psychological or psychiatric disorder, but also as to its chronicity and the magnitude of its disabling effects.”[15] The judge further stated, correctly, that the delegate was not reduced to “rubber stamping” the ARW’s opinion; the decision-making function remained in the hands of the delegate. However, there was what the judge described as a “statutory expectation” that the delegate would act upon the ARW’s assessment “unless there is compelling contradictory evidence.”

    15. Primary judgment at [62].

37. The last opinion is questionable, as a statement of law. It is best understood in the factual context of this case, which involved an assessment by the ARW in terms which satisfied the requirement for a category 2 psychological or psychiatric disorder, namely that it was chronic and severely disabling.

38. The primary judge then considered the reports of Dr Lennings (a psychologist) and Mr Comino (a social worker), concluding that they did not provide “compelling contradictory evidence”: at [64]. Noting that the requirement in the table to sch 1 was expressed in the present tense, the judge described the countervailing evidence, to the extent that it was such, as remote in point of time. He therefore concluded that the delegate’s failure to accept the assessment by the ARW was “legally unreasonable.”

39. The reference to legal unreasonableness is a shorthand for the proposition that a statute conferring a discretionary power on an administrative officer impliedly imposes a constraint on the exercise of the power, namely that it be exercised fairly, rationally and reasonably. That constraint operates in a context where the statute confers power only on the administrative officer. There being no appeal from the determination made by the officer, the court, exercising its supervisory jurisdiction, is not entitled to intervene unless the officer has exceeded the boundaries of the statutory power. In a case where the decision-maker has provided reasons, those reasons should reveal a rational approach to the exercise of power. As explained in the joint reasons of Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li,[16] “[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

    16. (2013) 249 CLR 332; [2013] HCA 18 at [76].

40. A standard of reasonableness often raises questions as to the weight given to particular material by a decision-maker. That aspect of the principle was explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[17]

“It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power …. I say ‘generally’ because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.”

17. (1986) 162 CLR 24 at 41; [1986] HCA 40.

41. On the basis that the statute did not require that the delegate accept the ARW’s report, absent compelling material supporting a different view, there is nevertheless a concern as to the approach adopted by the delegate. However, before identifying that concern, it is necessary to consider whether such considerations are appropriate in this Court. In the course of oral argument, counsel for the Commissioner noted that there had been no notice of contention filed by the respondent, seeking to uphold the judgment of the primary judge on a different basis, in place of the challenged reasoning. There was also discussion as to whether the proposed analysis of the delegate’s reasons amounted to a search for error of law on the face of the record, rather than jurisdictional error.

42. Neither of these matters need be resolved: first, if the Court were persuaded that the decision of the delegate could not properly be upheld, albeit for a different reason than that relied on by the primary judge, it might well be appropriate for the Court to refuse the Commissioner leave to appeal. With respect to the second matter, a finding of unreasonableness identifies a form of jurisdictional error, albeit one determined by reference to the material before the primary decision-maker, together with a consideration of her reasons.

43. The difficulty with the reasoning of the delegate in the present case derives in part from the manner in which she dealt with both the report of the ARW and with other evidence.

44. After noting the findings of the ARW as to “severe impairment of global functioning”, [18] the delegate then took into account a report of Dr Lennings, clinical psychologist, prepared for the Children’s Court in May 2002. She also took into account three reports of Mr Comino, the social worker, who had counselled the respondent over a number of years between 2003 and 2008, stating that the final report described the respondent as making “significant progress particularly in the areas of past and present relationships.” [19] She then noted that there was “no recent report from a treating health professional.” She set out her conclusions at par 44:

“The findings of the ARW point to a severe impact on the applicant's functioning, while the report of Dr Lennings makes no conclusion about the applicant's psychological status except for very clear recommendations for treatment and more intensive analysis of the applicant's psychological profile. I note that the report of Mr Comino indicated progress by the applicant, based on counselling which ceased in 2008. Unfortunately, there is a lack of recent evidence from treating health professionals that would indicate the extent of any ongoing severe disability, and there is an absence of evidence regarding any psychological treatment in the period of time between the final report of Mr Comino in 2008 and the ARW assessment in 2016. I cannot make a finding on the limited and somewhat disparate evidence that is before me that the applicant's psychological injury is severely disabling on him.”

18.    Delegate’s reasons, par 39.

19.    Delegate’s reasons, par 42.

45. There are three difficulties with this reasoning. First, it treats the 14 year old report by the psychologist, Dr Lennings, prepared shortly after the respondent was removed from the parental home at 12 years of age, as apparently casting doubt upon the assessment by the ARW in 2016. In similar vein, the reasons appeared to treat the report of Mr Comino of progress in 2008 as inconsistent with the conclusions of the ARW. Although it is not entirely clear how the delegate reached the brief finding she made based on Mr Comino’s report (it did not directly reflect Mr Comino’s language), it is also unclear why a report prepared before the respondent had reached 18 years of age was contradictory of a detailed psychologist’s report prepared eight years later.

46. Secondly, the delegate gave no weight to the fact that the report of Dr Lennings and the three reports of Mr Comino had been provided to the ARW, who had undertaken her own assessment of that material. Indeed, it appears that the ARW treated Dr Lennings’ views as consistent with her own. [20] Mr Comino’s reports were also addressed in the ARW’s reasons. [21]

    20.    ARW Report, pars 8.8, 8.14 and 8.15.

    21.    ARW Report, pars 8.16 and 8.17.

47. Thirdly, as appears from the first two considerations, the other reports provided no proper basis for undermining, let alone rejecting the assessment made by the ARW. It may be that in fact the delegate did not place weight on them for that purpose, but rather rejected the ARW’s findings because there was an absence of evidence of psychological treatment between 2008 and 2016 (and a description of that treatment).

48. It is not clear why the lack of a report from a treating practitioner was significant. One inference may be that the delegate thought that a person suffering from a severely disabling disorder should nevertheless receive no compensation if he or she failed to obtain treatment appropriate to address the level of disability. However, the delegate did not expressly adopt such an approach. Rather, she may have discounted the assessment of the ARW on the basis that it was not as persuasive as an assessment made by a treating psychologist who would have had greater opportunity to understand the scope of the disablement. If that were the reasoning, that too was not articulated.

49. In short, the delegate did not suggest that the ARW’s assessment was otherwise than consistent with a finding of category 2 psychological disorder. On the other hand, neither did the delegate provide any rational basis for rejecting the assessment made by the ARW. The ARW report was the most contemporaneous material before the delegate. While she did not have to accept the assessment, she needed to have a rational basis for rejecting it. The reasons did not provide such a basis, nor does such a basis readily appear from the evidence before her.

50. It follows that, although the primary judge may have overstated the extent to which the delegate was constrained to accept the report of the ARW, nevertheless the conclusion that the delegate had acted unreasonably, in the sense of acting without an intelligible reason, in rejecting the opinion of the ARW, rendered the decision invalid.

Causation

51. Before reaching a final conclusion, the delegate also expressed an absence of satisfaction that the respondent’s psychological injury was a “direct result of” the violence inflicted on him. [22] Two paragraphs later, in considering a claim based on “domestic violence” arising from the same conduct, the delegate accepted that such conduct “resulted in” the respondent suffering from a psychological injury. The one test of causation set out in s 14(1) applies to all claims for statutory compensation. Accordingly, as the Commissioner acknowledged, there was direct inconsistency between these two findings; the Commissioner also acknowledged that the finding as to lack of causation in relation to psychological injury category 2 was erroneous and could not provide a basis for rejecting the claim.

    22.    Delegate’s reasons, par 45.

Conclusions

52. The result of the decision by the primary judge was that the Commissioner (or her delegate) was required to reconsider the respondent’s claim. That fact in itself imposed no prejudice on the Commissioner or the administration of the 1996 Act and transitional provisions. The Commissioner’s legitimate concern was, however, with the principles stated by the primary judge as the basis for setting aside the decision.

53. For the reasons set out above, the result reached by the primary judge was not in error, but there were aspects of his reasoning which were erroneous. The nature of the errors has been identified in these reasons in terms which should be sufficient to remove the public interest with respect to the proper administration of the legislation, which gave rise to the application for leave to appeal.

54. No issue of costs turns on the outcome of the proceeding.

55. In these circumstances, as was acknowledged by counsel for the Commissioner in considering how the reasons of the delegate should properly be understood, it would be open to this Court to refuse leave to appeal even if error were found in the reasoning of the primary judge. In my view, that is the proper course.

56. Accordingly, the Court should make the following orders:

1. Grant the Commissioner an extension of time until 7 February 2019 to file her summons seeking leave to appeal from the judgment and orders made in the Common Law Division on 20 December 2018.

2. Refuse leave to appeal.

3. In accordance with the Commissioner’s undertaking, order that the Commissioner pay the respondent’s costs of the proceedings in this Court.

57. LEEMING JA: I agree with Basten JA.

58. McCALLUM JA: I agree with the orders proposed by Basten JA but have reached that conclusion by a different path from that expressed in his Honour’s reasons.

59. Proposed ground 1 contends that the primary judge erred in holding that the delegate misdirected herself as to the meaning of the term “severely disabling” in cl 10 of Sch 1 to the 1996 Act. I respectfully disagree with Basten JA that the Commissioner has made good that ground.

60. Justice Basten has set out at [19] the critical passages in the decision of the delegate. In my view it is clear from [34] in particular, which is where the delegate explained the meaning she placed on the term “severely disabling”, that she went beyond simply referring to the GAF scale as a source of examples and rather adopted those examples as illustrating the terms taken from the Macquarie Dictionary, by which she defined and confined the scope of the term used in the statute.

61. I am fortified in that conclusion by the outcome of the delegate’s determination which, to my mind, indicates that she applied an overly stringent test, in effect requiring an applicant to demonstrate complete impairment of functioning (“stays in bed all day, has no job, home or friends”). In my view, the term “severely disabling” comprehends a broader range of chronic psychological or psychiatric disorder than was indicated by that selective illustration.

62. Justice Basten has remarked that, based on the figures in the table, the two categories of psychological or psychiatric disorder do not constitute two positions on a continuum, but rather two ranges with a considerable degree of separation between them. However, the significance of that curiosity is diluted by the second curiosity noted by his Honour, the limited application of category 1, which is confined to psychological or psychiatric disorder caused by specified kinds of offences. Those offences (armed robbery, abduction, and kidnapping) would undoubtedly be traumatic to their victims but compensation in that event would likely be based on a single offence; victims of domestic violence have often suffered years of abuse. Accordingly, while there is a gap between the two ranges, it is difficult on the strength of those bare numbers alone to draw any precise guidance as to the degree of impairment intended to be compensable under category 2.

63. The ARW report listed Mr Dobbie’s extensive symptoms. Psychometric testing showed severe depressive symptoms and severe anxiety correlating with the clinical interview, in which he had reported a history of constant cruel and violent physical abuse by his father throughout his formative years. The delegate’s conclusion that his psychological or psychiatric disorder was less than severely disabling indicates that she must have applied a test denoted by the terms “extreme” or “grave” drawn from the dictionary, as informed by the extreme example drawn from the GAF scale, rather than applying the term “severely disabling” in its ordinary meaning.

64. For those reasons, in my view the primary judge was right to hold that the delegate asked herself the wrong question and that, in doing so, she exceeded her jurisdiction.

65. Even if that is wrong and the test is as held by Basten and Leeming JJA, in my view the decision was unreasonable in the sense explained by Basten JA in addressing ground 2. Subject to the foregoing and the following comment, I agree with his Honour’s reasons concerning that ground. His Honour has suggested at [48] that the delegate may have thought a person suffering from a severely disabling disorder should nevertheless receive no compensation if he or she failed to obtain treatment appropriate to address the level of disability. If that was the approach taken by the delegate, I would doubt its correctness.

66. I agree with Basten JA as to the issue of causation.

67. Although the reason stated by Basten JA at [53] for refusing leave to appeal does not apply in the case of my judgment, it is nonetheless appropriate (in the circumstance of there being majority support for his Honour’s reasons) to join in the making of that order.

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Endnotes

Amendments

25 July 2019 - Corrected Case Name on coversheet - replaced "Rights" with "Services"

25 July 2019 - Case name incorrectly amended to "Services"

Decision last updated: 25 July 2019