David COLQUHOUN v Capitol Radiology Pty Ltd And Ors
[2013] HCATrans 320
[2013] HCATrans 320
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No M36 of 2013
B e t w e e n -
DAVID COLQUHOUN
Applicant
and
CAPITOL RADIOLOGY PTY LTD
First Respondent
DR JOHN MALIOS (AS DEPUTY CONVENOR OF MEDICAL PANELS)
Second Respondent
MEDICAL PANEL (CONSTITUTED BY DR DIANE NEILL AND DR PETER FARNBACH)
Third Respondent
Office of the Registry
Sydney No M37 of 2013
B e t w e e n -
ELLEN ELIZABETH COLQUHOUN
Applicant
and
CAPITOL RADIOLOGY PTY LTD
First Respondent
DR JOHN MALIOS AS DEPUTY CONVENOR OF MEDICAL PANELS
Second Respondent
MEDICAL PANEL (CONSTITUTED BY DR DIANE NEILL AND DR PETER FARNBACH)
Third Respondent
Office of the Registry
Sydney No M38 of 2013
B e t w e e n -
MARION GEORGIOU
Applicant
and
CAPITOL RADIOLOGY PTY LTD
First Respondent
DR JOHN MALIOS AS DEPUTY CONVENOR OF MEDICAL PANELS
Second Respondent
MEDICAL PANEL (CONSTITUTED BY DR DIANE NEILL AND DR PETER FARNBACH)
Third Respondent
Office of the Registry
Sydney No M39 of 2013
B e t w e e n -
JANE COLQUHOUN
Applicant
and
CAPITOL RADIOLOGY PTY LTD
First Respondent
DR JOHN MALIOS AS DEPUTY CONVENOR OF MEDICAL PANELS
Second Respondent
MEDICAL PANEL (CONSTITUTED BY DR DIANE NEILL AND DR PETER FARNBACH)
Third Respondent
Applications for special leave to appeal
CRENNAN J
KIEFEL J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 13 DECEMBER 2013, AT 10.09 AM
Copyright in the High Court of Australia
____________________
MR A.G. UREN, QC: If the Court pleases, I appear in this matter for the applicants with my learned friend, MR A.D.B. INGRAM. (instructed by Slater & Gordon)
MS K.P. HANSCOMBE, SC: Your Honours, in each of these proceedings I appear with MS F.L. McKENZIE for the first respondent. (instructed by Lander & Rogers)
MR A.S. PILLAY: If the Court pleases, I appear on behalf of the second and third respondents in each of the matters. (instructed by Moray & Agnew)
CRENNAN J: Yes, Mr Uren.
MR UREN: If the Court pleases. If I could deal firstly with the general point of why special leave should be granted, in our submission, in these matters. Very briefly, the points that we make are encapsulated in the application book at page 135 and the points in this regard are similar in each of the cases with which the application is concerned.
KIEFEL J: You have to establish either that there is a duty on the Medical Panel to give reasons arising either under the common law or by reference to the power of the Deputy Convenor to give directions. That is what it comes down to.
MR UREN: Yes, it does, your Honour, but the difficulty with the Court of Appeal’s decision is that they said one or other of the following. The proper interpretation of the provisions of the Wrongs Act meant that it was the legislative intention that no reasons be given. They said that in paragraph 6(c), I think, of the reasons of the court, which I think start at about page 94. Paragraph 6 is on page 95. Two things were said in paragraph 6: one is in (b) and one is in (c):
(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 . . . but no written reasons for that determination –
Now, there are other parts of the reasons of the court where they said that reasons may be given voluntarily and it may be that the court did not mean precisely what it said in paragraph 6(c) but ‑ ‑ ‑
CRENNAN J: Was the court saying ultimately that if reasons were given voluntarily or, indeed, even if they were wrong and they were required to be given, these reasons were sufficient and adequate?
MR UREN: Yes, they did say that but not as a result of any examination by the court itself of the reasons but merely by an acceptance of what the trial judge had said in that respect. If I could go back to the major issue that we would put forward as a matter of public importance, I think one could say without contradiction that in the present day and age reasons are regarded as a good thing and they have been regarded ‑ ‑ ‑
KIEFEL J: That makes an interesting basis for a judicial decision.
MR UREN: Your Honour - and the compulsory provision of reasons has been part of the reforms of administrative law for the past 50 years.
KIEFEL J: But I do not think the decision in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 has ever been overruled and it says that there is no general rule of the common law or principle of natural justice that requires reasons to be given for non‑judicial decisions.
MR UREN: Yes, it does but with the qualifications I might mention shortly. The point that we make is this. As a result of considerations of that sort, however widely they are now interpreted, the point is that it would seem by the legislatures of this country, and also the United Kingdom, that there should be reasons and statutory provisions were enacted to provide that reasons be given, either on request or, alternatively, without request.
KIEFEL J: But that rather assumes, does it not, that what is involved here is a decision which determines a right or interest?
MR UREN: It does.
KIEFEL J: Whereas here the argument put against you and the approach of the Court of Appeal is to say that what is involved is a medical opinion which is then utilised by the court for its processes in a position not dissimilar, I would have thought, to expert evidence. I mean, there would not be much difference between what the Medical Panel does here and a medical expert appointed under provisions of some court, such as Queensland, where the court can itself appoint an expert to provide one opinion.
MR UREN: Yes, your Honours are dealing with what we would call a substance of the arguments. We were primarily, at this stage, dealing with the question of public importance but I will take on board ‑ ‑ ‑
KIEFEL J: It is just that your argument appears to assume that there is something of the nature of a judicial decision involved, that is to say a decision which determines a right or interest and that is not what the Medical Panel does.
MR UREN: The Medical Panel decides a statutory question. The Medical Panel does not decide what one might call a medical issue like whether somebody has a broken leg or has the flu or something of that sort. It is a statutory question. It is not a medical question as is – although the words “medical question” are used in the statute.
KIEFEL J: It is the extent of impairment that is ‑ ‑ ‑
MR UREN: No. Well, it is the question of whether the impairment, worked out in accordance with the guidelines provided, that is the AMA guides or, in this particular case, the GEPIC, whether the impairment, worked out in accordance with those guidelines exceeds a threshold which the statute fixes as the appropriate threshold.
So the question is not the same question as the sort of question that your Honour was referring to in other circumstances. It is not the case where the Panel is asked to say what was the nature of the claimant’s illness or disability, or whether there was one or was not. The question that they are asked to determine is a statutory construct.
It was said by Justice Ormiston in Masters v McCubbery, for that purpose the Panel actually has to interpret the documents which set out the basis upon which they are to make their determination and in doing that they decide matters of law as well as matters of fact. The point that we make in respect of the characterisation of the question is that it is not a medical question that is commonly understood. It is the application of a document required by statute to be applied, using medical expertise it is true, but nonetheless producing the answer to a question which the statute poses which is not a medical question as commonly understood.
KIEFEL J: There are two aspects that still remain, though. Whatever the quality of the question that is put the answer to it is only one step towards the final conclusion.
MR UREN: Once the answer is given, the statute has a disabling effect, or an enabling effect on a particular person. It either enables them to take proceedings or it disentitles them from taking proceedings to ‑ ‑ ‑
KIEFEL J: Another aspect which is relevant to the question of reasons may be whether or not the decision of a Medical Panel is itself appealable or whether it is only the final decision of the court that is appealable.
MR UREN: Once the Medical Panel makes the decision the work of the statute is over. What happens then is the parties take their proceeding or do not take their proceeding, as the case may be, but there is no appellate process to which the ‑ ‑ ‑
KIEFEL J: That might tell us something about whether or not reasons are necessary because there two principal respects in which reasons are often viewed. One is because they are necessary in relation to an appellate process and related to that is whether or not they are part of a judicial function determining rights and interests. The two overlap, obviously, but they are the central areas for consideration.
MR UREN: Yes, they do to some respect, but – I can see that your Honour is concerned about the rights issue.
KIEFEL J: Yes.
MR UREN: The Court of Appeal seemed to accept the proposition, and it did not seem to be disputed by anybody, that the Medical Panel was a body to which the Administrative Law Act applied. If the Medical Panel was a body to which the Administrative Law Act applied, it could only be because the Medical Panel was a tribunal within the terms of the definition of the Act because it made a decision within the terms of the definition in the Act and because the present applicants were persons affected within the definition.
KIEFEL J: Where does the Court of Appeal say that it comes within the Administrative Decisions Act?
MR UREN: I think there is a reference in footnote 14.
KIEFEL J: In the body of the judgment?
MR UREN: It is not so much in the body of the judgment. At footnote 14 the court refers to what it considered the Panel’s function was and did that by reference to Masters v McCubbery. There is also one other portion in which the court ‑ ‑ ‑
KIEFEL J: That is by way of distinguishing it from a judicial function. What the Panel undertakes is non‑judicial.
MR UREN: Yes, but the applicability of Masters v McCubbery, however is not – I am sorry, I will go back a square. The application of ‑ ‑ ‑
CRENNAN J: Is not this just part of the Court of Appeal’s reasoning where they are going through various aspects of the decision making? They do that by reference to Masters v McCubbery and also by reference to the Victorian Civil and Administrative Tribunal Act – certain sections, but the key to the reasoning really is in line 31:
none of these attributes is in any way distinctive of the judicial function.
Then that reasoning continues, does it not in paragraph 20? It picks up on the point that Justice Kiefel has made to you that the statutory function is really an “expert clinical function”. You have sought to emphasise that it not a precise medical task to make a whole body impairment assessment but it is an expert clinical function and quite distinct from what would be apt for judicial tasks, as Justice Weinberg pointed out during the course of the hearing.
MR UREN: Your Honour, I am just wondering whether the court made a specific reference to the Administrative Law Act itself. My impression is that it did but perhaps without referring to ‑ ‑ ‑
KIEFEL J: I think there is a reference at the special leave book 99, the third line:
The essential character of the panel’s function is, however, the same as under the ACA.
Is that what you were thinking of?
MR UREN: Yes, that may have been it. If the Panel is not a tribunal under the provisions of the Administrative Law Act it tends to make the public interest argument that we put stronger because there is no doubt of the particular draconian effect which a determination, not an opinion, a determination the Medical Panel has on a person’s ability to take proceedings for damages for a large class of tort actions.
If there is no basis for giving reasons compulsorily then there is no basis upon which there will be any relatively easy process of reviewing what was done to make sure that the body has complied with its legal obligations. This would take the process which the Wrongs Act provides for back to how things used to be back in the 1950s and before when tribunals gave no reasons and people then had to seek what succour they could from various other legal doctrines in order to challenge decisions which are made.
It is fundamentally unsatisfactory, in our respectful submission, that bodies be left unchecked by the – especially bodies which do affect people’s interests. Whether you call it a right or not is perhaps not to the point. Certainly a decision of the Medical Panel affects the interests of persons who have suffered damages as a result of a tort. Affecting their interests is the sort of thing which caused the legislatures of various places to enact for the compulsory provision of reasons.
If, for instance, it is to be said that the Medical Panel is merely doing what your local GP would do if you went along and asked him for an opinion as to how your broken leg was going, or something of that sort, then they are making a significant change from what the public interest in other areas seems to require.
If the Administrative Law Act applies then, of course, the decision is a decision operating in law to determine the question affecting the rights of a person. The Tribunal is a person required to act in a judicial manner to the extent of observing one or more of the rules of natural justice and the persons affected are those persons whose interests may be affected directly or indirectly.
CRENNAN J: Mr Uren, in paragraph 42, page 108 of the application book, there is a reference there by way of illustrative example to section 8 of the Administrative Law Act. I cannot help wondering whether that might have occasioned you to remember that there was a reference there.
MR UREN: No, I think on balance it must have been the place where they said that the Tribunal was bound by the rules of natural justice.
CRENNAN J: But in that context their Honours are acknowledging the point you are making that by the time this legislation was passed provisions requiring administrative decision‑makers to give reasons were a well‑established feature of Victorian legislation, which I understand is the point you are making on the public interest aspect of your argument.
MR UREN: Yes, that is true, but that leads to another point that we would have made on the question of the viability of the Court of Appeal’s reasoning. The fact that other statutes make provision for reasons is no reason for regarding the power of the convenor to give directions as to procedures as not including the entitlement to give directions as to, firstly, the formulation of reasons, because that assists in the task which the Medical Panel is carrying out and makes sure that they do it in a proper manner and, secondly, the giving of the reasons one has formulated.
The proposition that a power of the convenor which would otherwise, on our submission - and this was not dealt with by the Court of Appeal – cover the formulation and provision of reasons is to be regarded as not doing so simply because in other areas or in other statutes they expressly provide for the giving of reasons.
Now, the primary basis upon which one interprets the regulation‑making power in the statute is to look at the provision which is said to constitute the source of the power and to construe and interpret that provision but the court did not do that. If it had followed the rule that followed the basis upon which we put our argument they would have looked at the provision of the Wrongs Act which allowed the convenor to give directions as to the procedures of panels. It would then have decided whether, in the ordinary sense of the words, the concept of the procedures of panels included the formulation and also the giving of reasons.
If it had come to that conclusion it might have taken – in fact in our submission would – have taken an entirely different view to the extent of the convenor’s powers and also the validity of the directions given because it would have been ‑ ‑ ‑
CRENNAN J: Did not the court take the view that it was unnecessary to decide what kind of directions the convenor could give because, essentially, the Court of Appeal on these facts decided that a panel may choose to provide written reasons for the conclusions it reached although not obliged to do so.
MR UREN: Yes, they did that, but the arguments that we are putting depended upon there being a legal requirement to provide reasons, not simply a matter of choice.
KIEFEL J: But did not the Court of Appeal conclude that assuming there to be such a requirement they had been provided, paragraph 6(e)?
MR UREN: Yes, they did but for the point of view of the argument about adequacy we had to show that the Medical panel did not comply with a requirement that it was required to comply with by law, namely ‑ ‑ ‑
KIEFEL J: Do you mean the Court of Appeal was wrong about that?
MR UREN: Yes, and that is what we sought was wrong. The other drastic effect of the decision is if the Medical Panel is not a body of the sort
that we are referring to or a sort to which our submission applies then, of course, it is not obliged to give natural justice either.
CRENNAN J: I think your time is ‑ ‑ ‑
MR UREN: Yes, my time is up. But the consequences of that, in our submission, are distinctly unsatisfactory from the point of view of the public interest.
CRENNAN J: Thank you, Mr Uren. We will not call on you, Ms Hanscombe or Mr Pillay, thank you.
MS HANSCOMBE: If the Court pleases.
CRENNAN J: The provisions of Part VBA of the Wrongs Act 1958 (Vic) require that if a person suffering non‑economic loss in respect of his or her injury is to recover for that loss, he or she must have suffered significant injury. An injury is significant if a Medical Panel makes a determination that the degree of impairment of the person as a whole, resulting from the injury, exceeds the threshold level of 10 per cent.
The applicants alleged that the Panel was obliged to, and did not, give reasons. The obligation was said to arise under the common law or by the direction given by the Deputy Convenor of the Panel. As to the former, the Court of Appeal held that the task of the Medical Panel was medical, not judicial. As to the latter, it held the reasons given were an adequate response to the direction, assuming there was power to make the direction.
The applicants have insufficient prospects of success to warrant a grant of special leave to appeal. Special leave is refused.
MS HANSCOMBE: The first respondent seeks its costs of the application.
CRENNAN J: Yes.
MR UREN: I do not think I can oppose that, your Honour.
CRENNAN J: Special leave is refused, with costs, with respect to the first respondent. Thank you.
AT 10.33 AM THE MATTER WAS CONCLUDED
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