Kocak v Wingfoot Australia Partners Pty Ltd

[2012] VSCA 259

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0104
EYUP KOCAK	Appellant
v
WINGFOOT AUSTRALIA PARTNERS PTY LTD and GOODYEAR TYRES PTY LTD	1st Respondents
DR PETER LOWTHIAN (as Convenor of Medical Panels Pursuant to the Provisions of the Accident Compensation Act 1985)	2nd Respondent
MEDICAL PANEL (Constituted by Dr Stephen Jensen, Mr Kevin Sui and Mr John Bourke)	3rd Respondent

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JUDGES	NETTLE and OSBORN JJA and DAVIES AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 September 2012
DATE OF JUDGMENT	23 October 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 259
JUDGMENT APPEALED FROM	[2011] VSC 285 (Cavanough J)

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ADMINISTRATIVE LAW — Judicial review — Certiorari — Error of law on face of record — Accident compensation — Medical Panel Opinion — Reasons — Adequacy of reasons — Whether Medical Panel bound to give reasons sufficient to reveal path of reasoning from evidence to facts to conclusion — Whether failure of Medical Panel to give adequate reasons amounting to error of law on face of record — Whether certiorari may go for non-jurisdictional error of law on face of record the result of inadequate reasons — Whether relief limited to order in nature of mandamus — Sherlock v Lloyd (2010) 27 VR 434, distinguished; In re Poyser and Mills’ Arbitration [1964] 2 QB 467;  Masters v McCubbery (1996) 1 VR 635; Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239, applied; Campbelltown City Council v Vegan (2006) 67 NSWLR 372; BCSP No 4166 v Stirling Properties (No2) [1984] VR 903, followed and applied; Dornan v Riordan (1990) 24 FCR 564; Re Minister for Immigration and Multicultrual Affairs;  Ex parte Palme (2003) 216 CLR 212; Kennedy v AFMA (2009) 182 FCR 411, considered; Sasterawan v Morris [2008] NSWCA 70, referred to — Accident Compensation Act 1985, ss 45(1)(b), 45(1A), 68(4), 139AB(9); Administrative Law Act 1978, s 10.

ESTOPPEL — Issue estoppel — Accident compensation — Medical Panel Opinion — Whether Medical Panel Opinion obtained by Magistrates’ Court pursuant to s 45(1)(b) of Accident Compensation Act 1985 (‘ACA’) (for purposes of determining claim for declarations of entitlement to medical or like expenses) or Magistrates’ Court order adopting Medical Panel Opinion, giving rise to issue estoppel in County Court proceedings for leave to proceed pursuant to s 99 of ACA — Maurice Blackburn Cashman v Brown (2011) 242 CLR 647, considered; Ramsayv Pigram (1968) 118 CLR 271; Kuligowski v Metrobus (2004) 220 CLR 363, applied; Pope v WS Walker & Sons Pty Ltd (2006) 14 VR 435, referred to — Accident Compensation Act 1985, ss 45(1)(b), 68(4) and 99.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Clark Toop & Taylor
For the 1st Respondent	Mr M F  Wheelahan SC with Ms M Norton	Thomsons Lawyers
For the 2nd and 3rd Respondents	Mr A S Pillay	Moray & Agnew

NETTLE JA

OSBORN JA
DAVIES AJA:

1. This is an appeal from a judgment given in the Common Law Division. The judge refused an application by the appellant for an order in the nature of certiorari (‘certiorari’)[1] to quash an opinion of a Medical Panel appointed by the Magistrates’ Court pursuant to s 45(1)(b) of the Accident Compensation Act 1985 (‘the Act’).  The basis of the application was that the reasons were inadequate and that the inadequacy of the reasons constituted an error of law on the face of the record.  The judge held that the reasons were adequate and so did not decide whether certiorari was an available remedy for inadequate reasons.

   [1]Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.

1. We have concluded that:

(a)       the reasons were inadequate and the appeal should be allowed;

(b)      the Panel’s failure to give adequate reasons constituted an error of law on the face of the record;

(c)       certiorari is an available remedy in the circumstances; and

(d)      there is utility in granting certiorari because:

(i) perforce of s 68(4) of the Act, the Panel’s opinion must be accepted and adopted by the County Court in the appellant’s serious injury application; and

(ii) an earlier Magistrates’ Court order that adopted and applied the Panel’s opinion (also perforce of s 68(4) of the Act) on the appellant’s application for a declaration of entitlement to medical or like expenses for the same injury, is capable of creating an issue estoppel in the serious injury application.

The facts

1. The appellant was born in 1960 in Turkey.  He emigrated to Australia in 1973 with his family.  He left school after Year 9 and worked in various labouring and unskilled jobs and businesses.  In 1992, he began work with the first respondent, Wingfoot Australian Partners Pty Ltd, trading as South Pacific Tyres (‘the employer’).  He started there as a cureman running rubber through presses and then, for a couple of years, he worked as a serviceman.  Later, he was promoted to the position of tyre builder.  It involved heavy physical work and frequent lifting and manual handling.

1. On 16 October 1996 he suffered a neck injury when pulling a heavy spool of rubber towards himself and he was put onto light duties for about three months, until January 1997.

1. On 8 May 2000, he suffered a major injury to his lower back for which a WorkCover claim for lower back injury was accepted.  He initially returned to work on light duties but ceased work in March 2001, and he has not worked since then.

1. In 2007, he instituted a proceeding in the Common Law Division of the Supreme Court, pursuant to s 134AB(9) of the Act, for damages in respect of the lower back injury which he suffered on 8 May 2000. That proceeding (‘the Supreme Court proceeding’) is still pending.

1. In March 2009, he developed more significant symptoms in his neck than he had previously experienced.  He was admitted to hospital.  His neurosurgeon recommended neck surgery.  The surgeon sought acceptance of liability for treatment expenses (surgery and an orthopaedic bed) by reference to the prior WorkCover claim relating to the lower back injury of 8 May 2000.  Liability was denied on the basis that the appellant’s neck complaint was not related to the incident of 8 May 2000.

1. In May 2009, the appellant submitted a new WorkCover claim to the effect that his current neck condition was related to the neck injury which he suffered on 16 October 1996.  Liability was denied on 20 May 2009.  On 29 June 2009 a Conciliation Officer certified that conciliation had failed to resolve the matter.

1. On 2 November 2009, the appellant instituted a proceeding in the County Court,[2] pursuant to s 135A(4)(b) of the Act, for leave to bring proceedings against the employer for common law damages in respect of the neck injury suffered on 16 October 1996 and for a determination that he had complied with s 135AC of the Act in that he made his application within three years of serious injury incapacity becoming known to him in respect of an injury and cause of action that arose before 12 November 1997 (‘the serious injury application’).

   [2]By Originating Motion.

1. On 11 November 2009, the appellant issued a further County Court proceeding[3] for a declaration of entitlement to medical or like expenses under s 99 of the Act in relation to his neck condition. That proceeding was transferred to the Magistrates’ Court on 2 February 2010.

   [3]By County Court Writ.

1. Section 45(1A) of the Act provides that:

45       Medical questions

(1)     If the court exercises jurisdiction under this Part, the court—

(a)may on the court's own motion, refer a medical question to a Medical Panel for an opinion under this Division; or

(b)subject to subsections (1B), (1C) and (1D), must refer a medical question to a Medical Panel for an opinion under this Division if—

(i)    a party to the proceedings requests that a medical question or medical questions be referred; and

(ii)   that party notified the court of the party's intention to make the request no later than 14 days prior to the date fixed for hearing of the proceedings or another time determined by the court.

1. On 8 June 2010, at the employer’s request, the Magistrates’ Court referred three medical questions for determination by a Medical Panel pursuant to s 45(1)(b) of the Act, as follows:

Question 1 — What is the nature of the Plaintiff’s neck/cervical spine condition relevant to the alleged neck/cervical spine injury?

Question 2 — Was the Plaintiff’s employment with the First Defendant on 16 October 1996 a significant contributing factor to his alleged neck/cervical spine injury?

Question 3 — What is the extent to which any neck/cervical spine condition results from or is materially contributed to by the Plaintiff’s alleged neck/cervical spine injury on 16 October 1996?

1. Section 68 of the Act provides that:

68       Opinions

(1)A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, the Authority or self-insurer.

(2)The Medical Panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion.

(3)Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer or the County Court or the Authority or self-insurer its written opinion and a written statement of reasons for that opinion.

(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.

1. On 15 August 2010, the Medical Panel gave written notice of its opinion, pursuant to s 68 as follows:

Question 1 — What is the nature of the Plaintiff’s neck/cervical spine condition relevant to the alleged neck/cervical spine injury?

Answer — The Panel is of the opinion that the Plaintiff is suffering from chronic mechanical left cervical spine dysfunction with referred pain to the left shoulder girdle and upper limb, in the absence of objective signs of radiculopathy, on a background of radiological changes of multilevel degeneration and a left C5–6 disc prolapse, but this condition is not relevant to any alleged neck/cervical spine injury.

Question 2 — Was the Plaintiff’s employment with the First Defendant on 16 October 1996 a significant contributing factor to his alleged neck/cervical spine injury?

Answer — The Panel is of the opinion that the Plaintiff’s employment with the First Defendant on 16 October 1996 was in fact a significant contributing factor to a now resolved soft tissue injury to the neck, but was not in fact and could not possibly have been a significant contributing factor to any claimed recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing neck or cervical spine condition, in any way.

Question 3 — What is the extent to which any neck/cervical spine condition results from or is materially contributed to by the Plaintiff’s alleged neck/cervical spine injury on 16 October 1996?

Answer — The Panel is of the opinion that the Plaintiff’s current neck/cervical spine condition does not result from, nor is it materially contributed to by the Plaintiff’s alleged neck/cervical spine injury of 16 October 1996.

1. On 25 August 2010, this court handed down its judgment in Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman (‘Brown’)[4] in which it held (contrary to earlier decisions of the court in Pope v W S Walker & Sons[5] and Kozma Engineering Pty Ltd v Pupic[6]) that, perforce of s 68(4) of the Act, a Medical Panel Opinion is binding in common law serious injury proceedings.

   [4](2010) 28 VR 665.

   [5](2006) 14 VR 435, 444 [37].

   [6](2009) 26 VR 574, 577 [15].

1. Apparently unaware of the court’s decision in Brown, on 20 September 2010 the appellant’s solicitors returned to the employer’s solicitors a signed minute of consent orders, as follows:

1.That the Court adopt and apply the opinion of the Medical Panel dated 15 August 2010.

2.  That the Plaintiff pay the Defendants’ costs including reserved costs on Scale F (amount reserved).

3.  That the proceeding be dismissed.

1. The employer’s solicitors were, however, aware of the court’s decision in Brown and sought to take advantage of it.  On 21 September 2010, they sent the signed minute to the Magistrates’ Court with a request that the next mention date of 29 September 2010 be vacated because the proceeding had settled and, on the following day, served a further affidavit of documents in the County Court proceeding, stating that they had:

become aware of the existence of the following additional documents [sic] from which the Defendants intend to adduce evidence at the hearing of this proceeding:

(a)       Certificate of Opinion of Medical Panel dated 15 August 2010.

1. The employer’s solicitors did not at that point disclose that the employer intended to contend that the Medical Panel Opinion was binding on the appellant in the County Court proceeding and the Supreme Court proceeding.  But shortly after expiration of the time in which the appellant was entitled to seek judicial review of the Medical Panel Opinion,[7] counsel for the employer announced, at the outset of the hearing of the serious injury application on 3 November 2010, that the employer would contend that, because of s 68(4) of the Act, the Medical Panel Opinion was binding on the County Court and, further or alternatively, that the consent order made in the Magistrates’ Court gave rise to a common law issue estoppel which precluded the appellant from contending that his present cervical spine disorder is related to the neck injury which he suffered on 16 October 1996.

   [7]ie. more than the 60 days after the Medical Panel Opinion was published and, therefore, outside the time fixed by Rule 56.02(3) for the institution of proceedings for an order in the nature of certiorari to quash the opinion.

1. As a result, the serious injury application proceeding has been held in abeyance pending the determination of this proceeding.

The proceedings below

1. Before the judge below, the appellant sought an extension of time in which to bring the proceeding on the basis of special or exceptional circumstances (namely, that he had not been aware of this court’s decision in Brown when he agreed to the Magistrates’ Court consent orders), and certiorari to quash the Medical Panel Opinion on the basis that the Panel had erred in law by ignoring or failing to take into account relevant material and further or alternatively by failing to give any or adequate reasons for their opinion.  

1. The judge found that there were exceptional circumstances and so granted an extension of time, but his Honour rejected the claim for certiorari because he found no reason to conclude that the Medical Panel failed to take any relevant material into account and because he considered that the Medical Panel’s reasons were adequate to meet the requirements of s 68(2) of the Act.

Grounds of appeal

1. The appellant now appeals on six grounds of appeal although, in substance, they are all to the effect that the judge erred in holding that the Medical Panel’s reasons were adequate.  There is also a preliminary question as to whether there is any longer utility in granting certiorari.  It is convenient to begin with the preliminary question.

The utility of certiorari

1. The grant of certiorari is discretionary[8] and it may be refused where it would be inutile.[9]  Five days before the judge below gave judgment on 27 June 2011, on 22 June 2011 the High Court handed down its judgment in Maurice Blackburn Cashman v Brown[10] and thereby reversed this court’s decision in Brown. The High Court held that s 68(4) of the Act does not apply to a subsequent action for personal injuries against an employer, and that in such an action no issue estoppel arises out of an opinion expressed by a Medical Panel under s 104B(9), because the finality which the Act gives to an opinion of a Medical Panel is only for the purposes of determining any question or matter arising under or for the purposes of the Act.

   [8]Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45, 50; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 415; Hanna v Patricia O’Shane [2003] NSWSC 1055, [14]–[18].

   [9]Mann v Medical Practitioners Board [2004] VSCA 148; 21 VAR 429, [17].

   [10](2011) 242 CLR 647.

1. The judge learned of the High Court’s decision before he handed down judgment but, at the request of the appellant, he eschewed deciding whether it meant that the Medical Panel Opinion would be binding for the purposes of the serious injury application or whether the Magistrates’ Court’s adoption of the Medical Panel Opinion would give rise to an issue estoppel in the serious injury application or in the Supreme Court proceeding.  His Honour also noted that the respondent did not at that stage suggest that the Magistrates’ Court order necessarily rendered moot the question of whether a ‘statutory estoppel’ arises directly from the Medical Panel’s Opinion.[11] 

   [11]Reasons, [54].

1. Since then, the parties’ positions have changed.  Counsel for the appellant submitted that it would be of assistance for this court to determine the issue.  Counsel for the employer informed the court that the employer would no longer contend that the Medical Panel’s Opinion is binding on the County Court judge in the serious injury application or binding on the judge in the Supreme Court proceeding but that, unless the Medical Panel’s Opinion is set aside, which the employer opposed, it would contend that by adoption of the Medical Panel’s Opinion, the Magistrates’ Court orders created an issue estoppel which is binding on the County Court judge in the serious injury application and binding on the judge in the Supreme Court proceeding.

1. Counsel for the employer explained that the reason for the employer’s change in attitude was that, since the matter was last before the County Court, the employer had come to the view that nothing said by the High Court in Brown affected the conclusion reached by this court in Pope v W S Walker & Sons Pty Ltd[12] that s 68(4) of the Act makes a Medical Panel Opinion, if obtained in proceedings for determining an application for statutory benefits, binding only for the purposes of such proceedings. In other words, counsel submitted, although the High Court held in Brown that the words in s 68(4) ‘For the purposes of determining any question or matter’ mean ‘for the purposes of determining any question or matter arising under or for the purposes of the Act’, the High Court did not thereby overturn the conclusion in Pope v Walker that ‘any question or matter’ means ‘any question or matter arising in a proceeding of the same nature as the proceeding in which the question was referred to the Medical Panel’.  The correct view of Brown, counsel submitted, is that ‘for the purpose of determining any question or matter arising under or for the purposes of the Act’ means ‘for the purposes of determining any question or matter arising under or for the purposes of the Act in a proceeding of the same nature in which the question was referred to the Medical Panel’.

   [12](2006) 14 VR 435.

1. Counsel for the appellant supported that view of the legislation. He submitted that it was plain as a matter of historical context. The legislative predecessors to s 68(4) were confined to proceedings for statutory benefits. Later, those provisions were removed from the legislation. When re-introduced as s 68(4), common law proceedings were not permitted and, therefore, there were no serious injury applications.[13] Accordingly, it was said, s 68(4) cannot have been intended to apply to serious injury applications. Further, s 45(1A) provides for a judge determining a serious injury application under s 134AB(16)(b) to refer a medical question to a Medical Panel for opinion. If s 68(4) applied to serious injury application proceedings, a judge could be faced with competing medical opinions. In counsel’s submission, that cannot have been intended.

   [13]The history is traced in the judgment of Eames JA in Pope v Walker (2006) 14 VR 435, 438–9 [12]–[16].

1. Despite the ingenuity of those arguments, we do not accept that Brown should be read as preserving Pope v Walker. If the High Court had intended to convey that s 68(4) applies only to a Medical Panel Opinion in the same kind of proceedings as those in which the opinion was obtained, their Honours would surely have said so. To the contrary, they referred to Pope v Walker as exemplary of the ‘the then [scil past] state of authority in Victoria’,[14] in apparent contradistinction to the state of authority which the High Court created by their re-interpretation of s 68(4). The High Court also stated that, once the step has been taken of obtaining a Medical Panel Opinion for determining any question or matter arising under or for the purposes of the Act, it is clear that s 68(4) does not speak at all to the litigation of questions or matters that are not questions or matters arising under or for the purposes of the Act.[15] With respect, as we read that, the High Court intended to contrast serious injury application proceedings, being proceedings for ‘determining a question or matter arising under the Act’, in which s 68(4) operates to make a Medical Panel Opinion binding, with the common law damages proceedings which may follow, to which s 68(4) has no application.

   [14](2011) 242 CLR 647, 658.

   [15]Ibid, 661 [38].

1. If so, that is a sufficient reason to conclude that, from the point of view of the appellant, there would be utility in the grant of certiorari to quash the Medical Panel Opinion. For the sake of completeness, however, we should say that we also consider that the Magistrates’ Court orders’ adoption of the Medical Panel’s Opinion amounted to a final decision which necessarily and directly decided a precise matter of fact or law which will fall for determination in the serious injury application proceeding,[16] and thereby created an issue estoppel which would be binding in the serious injury application.

   [16]Ramsay v Pigram (1968) 118 CLR 271, 276; Kuligowski v Metrobus (2004) 220 CLR 363, 379 [40].

1. Counsel for the appellant resisted that conclusion.  He argued that the Magistrates’ Court orders did not finally decide any question of fact or law other than that the Magistrates’ Court had adopted the Medical Panel’s Opinion.  That did not determine anything on the merits, he said.  As he would have it, the Magistrates’ Court simply adopted the Medical Panel’s Opinion as it was bound by law to do.  

1. Counsel for the respondent replied that the question which the Magistrates’ Court determined was whether the appellant was entitled to statutory benefits and that the determination of that question necessitated the Magistrates’ Court making findings as to the existence of injury and causation, which were precisely the questions which would arise for determination in the serious injury application proceeding.  It mattered not, he argued, that the Magistrates’ Court had no choice but to accept and adopt the Medical Panel’s Opinion.  It was enough that the Magistrate was compelled by law to do so and had done so and thereby made the findings and conclusions of the Medical Panel part of the Magistrates’ Court final decision.

1. We accept that submission in part.[17] Insofar as the Magistrates’ Court adopted the findings of the Medical Panel, the Magistrates’ Court’s orders are a final decision which is capable of giving rise to an issue estoppel as to the precise findings of fact so adopted for the purposes of determining any question or matter arising under or for the purposes of the Act.[18] We agree it is irrelevant that the Magistrates’ Court was compelled by law to accept those findings. It not infrequently happens that courts are compelled by law to act on the basis of stipulated findings of fact and yet that the judgment which results is a final decision productive of issue estoppel. Section 127 of the Taxation Administration Act 1997 serves as an example.  It makes a notice of a state taxation assessment conclusive evidence of the due making of the assessment and, in recovery proceedings, of the amount and particulars of assessment.  A Magistrates’ Court faced with a notice of assessment would thus be bound to give judgment for the Commissioner in accordance with the notice.  Such a judgment is final binding judgment as to the amount of tax due and payable.

   [17]See and compare Kozma Engineering Pty Ltd v Pupic (2009) 26 VR 574, 578 [21].

   [18]Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1966] AC 853, 935 (Lord Guest) and 969 (Lord Wilberforce); Administration of Papua and New Guinea Daera Gura (1973) 130 CLR 353, 453 (Gibbs J); Kuligowski v Metrobus (2004) 220 CLR 363, 375 [25].

1. Whether the precise findings of fact adopted by the Magistrates’ Court in this case will arise for determination in the serious injury application proceeding is more difficult to say.  Among other things, that may depend on evidence as to whether the injury under consideration at the time of the serious injury application proceeding is the same injury as was the subject of the Medical Panel’s Opinion.  Although it is unlikely not to be so, it is possible.  For example, in this case the Medical Panel found that the appellant suffered a soft-tissue neck injury in 1996 and that it was not causally related to his present cervical spinal injury.  In theory, that does not exclude the possibility that the appellant also suffered some other injury in 1996, which was not the subject of evidence before the Medical Panel but may be the subject of evidence in the serious injury application proceeding, and which on that evidence may be found to be causally related to the appellant’s present cervical spinal injury.  The Panel did not determine that the soft tissue injury which it identified was the only injury suffered in 1996; simply the only one established on the evidence before the Panel.

1. Be that as it may, for the purposes of assessing the possible utility of certiorari, it is enough to conclude that the Magistrates’ Court’s order constitutes a final decision which would be capable of creating an issue estoppel in relation to issues of fact that are likely to arise in the serious injury application proceeding. 

1. We do not accept, however, that the Magistrates’ Court orders give rise to an issue estoppel for the purposes of the Supreme Court proceeding, insofar as the Magistrates’ Court adopted answer one of the Medical Panel (which found the appellant’s then neck condition was not related to ‘any alleged neck/cervical spine injury’).  Although the High Court in Brown did not deal expressly with the question of whether a Magistrates’ Court judgment which adopts a Medical Panel Opinion for the purposes of determining an application for benefits under the Act gives rise to an issue estoppel in subsequent common law proceedings, it appears to be implicit in the reasoning in Brown that such an issue estoppel does not arise.[19]

   [19]Cf Kozma Engineering Pty Ltd v Pupic (2009) 26 VR 574, 578 [21].

1. In rejecting a contention that the Medical Opinion itself gave rise to an issue estoppel in subsequent common law proceedings, the High Court said that:

The conclusions reached with respect to the construction and application of s 68(4) entail the further conclusion that no issue estoppel arises out of the opinions expressed by a medical panel under s 104B(9) in an action later brought by a worker against the worker’s employer.

It is a necessary condition for an issue estoppel to exist between parties that the decision from which the estoppel arises was a final decision.[20] Where, as here, the statute establishing the body in question prescribes that its decisions are final for the purposes of that Act, no greater ambit of finality should be attributed to its decisions than the Act itself marks out. Thus no estoppel arises because the quality of ‘finality which the Act gives to an opinion expressed by a medical panel (in this case under s 104B(9)) is finality for the purposes of determining any question or matter arising under or for the purposes of the Act. No wider finality should then be ascribed to a panel’s opinion.[21]

[20]See, for example, Blair v Curran; Curran and Perpetual Trustee Co Ltd v Blair (1939) 62 CLR 464, 531–2 (Dixon J); Administration of Papua and New Guinea v Daera Guba (1973) 130 CLR 353, 453 (Gibbs J); Kuligowski v Metrobus (2004) 220 CLR 363, 373 [21], 375 [25] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

[21](2011) 242 CLR 647, 662 [39]–[40] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (emphasis added).

1. As that passage makes clear, a Medical Panel Opinion is only final for the purposes of determining a question or matter arising under or for the purposes of the Act, and no wider finality should be ascribed to it. As we see it, the adoption of such an opinion by the Magistrates’ Court cannot change that.[22] Like the opinion itself, the Magistrates’ Court’s adoption of it purports to be and is final only for the purposes of determining the question arising under or for the purposes of the Act. And, as was said by the High Court in Brown, a common law proceeding does not present any question arising under or for the purposes of the Act to which the Magistrates’ Court’s adoption of the Medical Panel Opinion can be said to relate.

   [22]Brunsden v Humphrey (1884) LR 14 QBD 141, 151-153; Linsley v Petrie [1998] 1 VR 427, 436–8 (Hayne JA).

The need for the Medical Panel to give reasons  

1. In Sherlock v Lloyd,[23] this court held that the function of a Medical Panel to which a medical question has been referred under the Act was not such as to impose an obligation to provide reasons for its opinion. That conclusion was based in part on the court’s perception that the function of a Medical Panel under the Act was to provide an expert medical opinion in aid of the judicial function rather than to sit on appeal from a medical assessment made by some other person or body. It was founded upon the proposition stated in Osmond[24] that there is no general rule of common law or principle of natural justice that requires reasons to be given for an administrative decision.

   [23](2010) 27 VR 434, 438 [19] (Maxwell P, Ashley JA, Byrne AJA).

   [24]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 662 (Gibbs CJ, with whom Wilson, Brennan and Dawson JJ agreed); 675–6 (Deane J).

1. Importantly for present purposes, however, the court also expressly distinguished the position which then obtained in relation to the lack of any obligation under the Act for a Medical Panel to give reasons for its opinion from the position of a tribunal like that the subject of consideration by the Full Federal Court in Dornan v Riordan.[25]  The tribunal in Dornan was required by the statute by which it was established to issue a statement in writing setting out the terms of its determination or decision and the reasons for making it.  As this court noted in Sherlock v Lloyd, the effect of those provisions was to make the statement of reasons a requirement of the exercise of the decision making power and consequently had the effect that a substantial failure to state reasons constituted an error of law. 

   [25](1990) 24 FCR 564.

1. After the decision in Sherlock v Lloyd had been handed down, Parliament amended the Act to incorporate the present requirements in ss 68(2) and (3) for a Medical Panel to give a statement of reasons at the same time as it gives a written certificate of its opinion. Those amendments were thus enacted in the light of this court’s observations in Sherlock v Lloyd concerning the effect of legislation of the kind considered in Dornan v Riordan and also against the background of a substantial body of English and Australian case law to the effect that, where Parliament provides that reasons shall be given, it means proper, adequate reasons which are not only intelligible but which deal with the substantial points which have been raised.

1. There are suggestions in some of the extrinsic materials relating to the amendments that the principal objective of ss 68(2) and (3) was to obviate the need for parties to make a separate request for reasons under s 8 of the Administrative Law Act, and that it was thought that the changes would not have any effect other than to enshrine an extant informal practice of Medical Panels giving reasons unsolicited. 

1. We do not regard those suggestions as being of much consequence. Parliament is presumed to know the law and, at the time of enactment of ss 68(2) and (3), the law included not only Sherlock v Lloyd, and the body of case law which defines the quality of reasons required to satisfy a statutorily imposed obligation to give reasons, but also relevantly the statutory imperative of s 10 of the Administrative Law Act[26] (modelled on s 12 of the Tribunals and Inquiries Act 1958 (UK)) that such reasons are to be taken to form part of the decision and accordingly are incorporated in the record.

   [26]Section 10 of the Administrative Law 1978 provides that:

   10Reasons to be part of record

   Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

1. In the result, it appears to us that the obligation imposed on Medical Panels by ss 68(2) and (3) to give reasons is an obligation to give proper and adequate reasons which are intelligible and deal with the substantial points that have been raised.[27]  

   [27]In re Poyser and Mills’ Arbitration [1964] 2 QB 467, 478; South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, 1964 [36] (Lord Brown of Eaton-under-Heywood); Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346, 368 [62].

The standard of reasons expected of a Medical Panel

1. Over the years, a lot has been written by a variety of judges about the required standard of Medical Panel reasons.  A large number of the relevant decisions were cited by the judge below.  More than a few of them are consonant with his Honour’s approach.  Rightly or wrongly, there is a significant history of judicial legislation calculated to spare Medical Panels from the burden of justifying their conclusions to a greater extent than referring to the significant aspects of the evidence and asserting a conclusion.

1. Possibly, that approach derived from the perception that the essential function of the Medical Panel was to provide a medical opinion and judicial respect for the ability of medical specialists to adjudge the causes and effects of disease with a depth of knowledge and understanding that few laymen can replicate. We are inclined to think, however, that it was probably also due in part to the fact that, historically, although Medical Panel Opinions were determinative for the purposes of establishing entitlements to statutory benefits, it was not conceived that they would be made binding on all courts and tribunals in relation to all matters and questions arising under or out of the Act, and thus in effect be binding upon the keeper of the gateway to common law proceedings.

1. So long as the binding effect of Medical Panel Opinions was confined to the realm of statutory benefits applications, there was perhaps some logic in not requiring much by way of reasons.  Even then, however, the low standard demanded of Medical Panel reasons stood out as an anomaly in the realm of reasons jurisprudence.  In the case of private disputes, it was and still is generally accepted that, if parties engage an expert to express his or her expert opinion on a point in dispute, neither party is entitled to require much by way of reasons.[28]  But, if a statutory decision maker exercising public power is enabled by law to make decisions capable of affecting the rights and liabilities of the subject, more by way of reasons was and is ordinarily required.[29]  And the justice of that is obvious.  It is one thing for parties to agree to resolve a private dispute on the basis of a mutually agreeable expert’s opinion.  If they do, then presumably neither of them expects to receive anything more than the opinion.  It is quite another thing to expect a claimant for a statutory benefit meekly to accept the ipse dixit of a state appointed expert as sufficient reason for the rejection of his claim. 

   [28]Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346, 367 [57].

   [29]Sherlock v Lloyd (2010) 27 VR 434, 437 [15]; Re Mimia; Ex parte Palme (2003) 216 CLR 212, 229 [64] (Kirby J).

1. Now that Medical Panel Opinions have been held by the High Court to be binding for the purposes of determining any question or matter arising under or for the purposes of the Act, and consequently, as we see it, binding in serious injury application proceedings, the standard of reasons required of Medical Panels must surely be greater. The law is clear that the standard of reasons expected of a statutory decision-maker must accord to the purpose for which the reasons are required.[30]  In effect, serious injury applications now stand to be determined on the basis of Medical Panel Opinions which judges are bound to accept.  Accordingly, just as judges who decide serious injury applications must give reasons sufficient to explain their path of reasoning – from the evidence to the facts and from the facts to their conclusions – so too we think must Medical Panels, on whose opinions the whole exercise may now rest.[31]  Further, if that is the standard to be required for some opinions, then consistency and convenience require that it be so for all of them.

   [30]Housing commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, 386; Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247, 280G; Byrne v Legal Services Commissioner (2010) 27 VR 674, 695 [59].

   [31]Re Croser; Ex parte Rutherford [2001] WASCA 422, [66]–[68] (Olsson AUJ).

1. Of course, the content of reasons will depend on the nature of the question and the particular circumstances of the case.[32]  Such is the range of questions likely to be directed to Medical Panels that the extent of reasons required is potentially infinitely variable.  Even so, in the way in which the use of Medical Panel’s has developed, these days a Medical Panel will more often than not be assailed with competing bodies of expert medical opinion and submissions as to matters of fact and law on behalf of competing parties.  In such cases, of which this is one, we see no reason to accept that a Medical Panel’s reasons should not meet the standard required of any other statutory decision maker exercising a comparable quasi-adjudicative/investigative function.  In such cases, a Medical Panel’s reasons thus should include a statement of findings on material questions of fact; some sort of identification of the evidence or other material upon which those finding are based; and an intelligible explanation of the process of reasoning that has led the Panel from the evidence to the findings and from the findings to the Panel’s ultimate conclusion.[33]

   [32]Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239, 270 [53]; Sabag v Health Care Complaints Commission [2001] NSWCA 411, [43]–[45].

   [33]Masters v McCubbery (1996) 1 VR 635, 650–651 (Winneke P); Re Croser [2001] WASCA 422, [70].

1. In particular, for present purposes, if a party to a dispute relies on expert medical opinion in support of the conclusion for which that party contends, and the Medical Panel forms an opinion which is inconsistent with that expert opinion, it is not enough for the Medical Panel simply to state that it rejects the expert opinion.  To adopt and adapt the language of Kiefel J in Westport Insurance Corporation v Gordian Runoff Ltd,[34] more is required than a statement of conclusion.  Reasons are not proper reasons unless they provide a comprehensible explanation for a Panel rejecting expert medical opinion or, if it be the case, for preferring one or more expert medical opinions over others.  

   [34](2011) 244 CLR 239, 301 [170] and see 271 [55]–[56] (French CJ, Gummow, Crennan and Bell JJ).

1. Such an explanation need not be lengthy.  A compendious description of the reasoning is usually preferable.  Nor need the reasons necessarily refer to every piece of evidence on which a party has relied or explain in detail why it has or has not been accepted.[35]  Nonetheless, if reasons leave a party to wonder which of a number of possible routes has been taken to a Medical Panel’s conclusion, the reasons are likely to be inadequate.[36]  Reasons need to explain why the conclusion has been reached.[37]

   [35]Re Croser, ibid [85].

   [36]Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212, 224 [40] (Gleeson, Gummow and Heydon JJ) and 245 [113]–[115] (Kirby J).

   [37]Ibid [40].

The Medical Panel’s opinion

1. The Medical Panel’s reasons for its opinion were as follows:

REASONS FOR OPINION

RE: Mr Eyup KOCAK

Medical Panel Ref: No: M110/145

1.  The Referral to the Medical Panel was received on 16 June 2010.  The documents considered by the Panel are described in Enclosure A.

2.  The worker was examined by the Panel Members with the assistance of a professional Turkish language interpreter, on the following date:

Member	Specialty	Examination
Jointly by:
Dr Steven Jensen	Musculoskeletal Physician	2 August 2010
Mr Kevin Siu	Neurosurgeon	2 August 2010
Mr John Bourke	Orthopaedic Surgeon	2 August 2010

3.      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 worker and the examination findings elicited by the Panel at the above mentioned examination of the worker.

4.     The reasons for the Panel’s opinion are as follows:

The Panel notes from the Statement pursuant to Section 65(6A) of the Accident Compensation Act 1985 (‘Agreed Facts’) provided with the referral that it is agreed, inter alia, that “On 16 October 1996 the Plaintiff, while working as a serviceman, attended the First Defendant’s in-house medical centre and reported pain in the left scapula. Specifically, the relevant medical note indicated that the Plaintiff was pulling a full spool (of rubber steel belt) towards himself and felt a sharp pain the left scapula and thoracic area. Later the same day the Plaintiff reported that his pain was referring to the left side of the neck/shoulder’.

The Panel further notes it is accepted that medical records indicate that he was treated conservatively with modalities including physiotherapy.  From 16 October 1996 the Plaintiff also performed some selected duties, and returned to normal duties on 13 January 1997.

The agreed facts state further that ‘On 8 May 2000 the Plaintiff suffered a low back injury when he was then working as a tyre builder.  He made a claim for this injury for which he remains in receipt of weekly payments and medical and like expenses.  The Plaintiff did not return to normal duties after this injury and has not worked since 2001’.

On 7 August 2000 the Plaintiff attended the First Defendant’s in-house medical centre for a rehabilitation review of his back injury.  The relevant entry states that the Plaintiff had a ‘heat pack to the L) neck & shoulder — stiff after waking’.

The Plaintiff also reported such neck pain to his then general practitioner, Dr Scott Tunaley on approximately 10 August 2000 without any obvious reason ascribed to the cause of such pain.

The Panel noted the clinical records of the First Defendant’s in-house medical centre and the clinical records of Dr Tunaley provided in the referral.

The Plaintiff told the Panel that the injury on 8 May 2000 occurred when he was removing some tyre rubber tread from a ‘bear trap’, which was a trolley fitted with leaves upon which rubber materials were transported.  He said that a common difficulty with this process was that the rubber was liable to stick to the ‘bear trap’ or its leaves, which would then require significantly more force than usual to remove the rubber.  On this occasion, as he tried to remove the rubber in the usual manner, by hoisting it onto his left shoulder whilst facing the bear trap, then turning to the opposite direction, and walking away to provide the required force, the tread became stuck and he had to give it a yank.  As he did so, he noted severe pain all through his spine, from his neck to his lower back, concentrating in his lower back and radiating down his left leg to the foot.

The Plaintiff told the Panel that since that time he has suffered significant low back pain, but also constant pain spreading from the base of the neck, radiating across and above the left scapula, and then down into the posterior aspect of the left upper limb with associated tingling in the radial two digits of the left hand.

The Panel asked the Plaintiff about the discrepancy between his clinical history and the lack of any mention of neck pain associated with this 8 May 2000 injury in the First Defendant’s in-house medical centre clinical records or those of Dr Tunaley until 7 and 10 August 2000 respectively.

The Plaintiff stated that he felt that his back condition was the very much worse at the time, and so most attention was directed to that by both himself and his treaters.

The Panel noted the Plaintiff was referred for neurosurgical opinions related to his back and neck conditions, initially to Mr Graeme Brazenor, who he attended until approximately late 2003, and then subsequently to Mr . Paul D’Urso.

The Panel noted the medical reports of Mr Paul D’Urso provided with the referral, which indicate the Plaintiff was first referred in September 2005.  His report to Dr H. Baglar dated 12 September 2005 is concerned primarily with the Plaintiff’s lower back, but Mr D’Urso also states ‘I also have concern with his cervical spine’. In his report dated 18 May 2009, Mr D’Urso opines that the activity of pulling a heavy spool towards himself “may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis’.

The Panel further notes a severe exacerbation of his neck problem in March 2009 without any specific precipitating event that culminated in his admission to the Epworth Hospital for further management.  It was at this point in time that the Panel notes it was recommended he undergo surgery to his cervical spine.

In terms of treatment for his neck and back conditions, the Panel noted from the First Defendant’s in-house medical centre records and letters from Campbellfield Physiotherapy provided in the referral that following the incident of 16 October 1996 he did have physiotherapy treatment directed at his cervical spine that included traction.  He said that following his lower back and neck injury of 8 May 2000 he had treatment from a myotherapist who used to treat him from ‘head to toe’ with treatment sessions lasting about 30 minutes.  He said this used to ease his symptoms somewhat and he was of the opinion that he required this as ongoing treatment in order to help him cope with his current back and neck conditions.  The Panel notes that the Plaintiff underwent lumbar spine fusion surgery in August 2002, which he said did not help his back condition to any significant extent.

In relation to ongoing symptoms pertaining to his neck/cervical spine condition he described to the Panel a persistence of neck pain radiating through the left scapular region, down the posterior aspect of his left upper arm with concentration of pain around the elbow, and an associated tingling sensation now and then through the radial two digits of the left hand.  He describes the neck and scapular pain as ‘throbbing’ and says this is the worst of his neck related symptoms.  He describes the posterior arm pain as a ‘cold and aching sensation’.  He said that his hand often changes colour.  He reported to the Panel that his neck often becomes very stiff.  He says he has to sleep on two pillows to try to get some relief from his neck problem.

The Plaintiff told the Panel that as a result of his ongoing back and neck problems he is very limited in terms of physical activities.  He says he spends his day watching television.  He can only undertake very light chores such as helping with cooking.  He can also run errands to the shops but can only purchase a few items at a time.  He is independent in activities of personal care.  He says his sons currently undertake the majority of the household chores, including outdoor chores.

He told the Panel that he has lost everything as a result of his injuries and his inability to continue working.  This included losing the family home because of financial difficulties.  He says his sons obtained work in the Horsham area so he subsequently moved there and has been living there for about seven months.  He says his wife is expecting another child in November 2010.

For his chronic pain and back condition the Panel notes he takes the narcotic analgesic agents Oxynorm 10mg daily, usually in the morning, and Oxycontin 40mg, usually at night.  He takes between three and six Nurofen Plus, a combination ibuprofen/codeine analgesic agent, per day and says a packet of between 90–100 tablets lasts him one month.  He takes Neurontin 300mg, an anticonvulsant agent often used for neuropathic pain states, three tablets twice daily, and Lioresal, a muscle antispasmodic agent, one daily for persistent leg pain.  He also takes Periactin for a generalised itch.  He takes Nexium for ongoing gastrointestinal upset.  He also takes the psychotropic medications Xanax and Pristiq.

The Panel notes he has been diagnosed with Type 2 diabetes which is currently treated with diet only.  He has documented ischaemic heart disease for which he takes medication including Plavix, and some other agents he could not recall the name of.  He also takes the cholesterol lowering agents of Lipitor and Crestor.  He takes Stilnox CR to help him sleep.

The Panel notes that the Plaintiff continues to smoke 15 cigarettes per day but he said that he does not have any cough or shortness of breath.  He has some constipation secondary to his analgesic medication.  He suffers occasional palpations but reported that it is rare for him to suffer any angina.

The Panel confined its physical examination to his cervical spine and neurological system of the limbs.

The Panel noted that during the course of the clinical interview the Plaintiff was able to nod and shake his head freely without obvious discomfort whilst giving his answers to various questions.  On formal assessment the Panel noted a full range of cervical spine flexion but severely restricted extension to near 0°.  Rotation to the right was limited to about 10° and lateral flexion to the right to about 10° with the movements of right rotation, right lateral flexion and extension all producing pain referred to the left neck and scapular region.  He also had marked restriction of movement on lateral flexion to the left of 10° and rotation to the left of 20° that both caused a stiffness sensation through the left side of his neck.  The Panel considered this discrepancy between range of observed motion during the clinical interview compared to that measured on formal assessment is consistent with an element of abnormal illness behaviour.

Tenderness to palpation was noted through the left side of the neck and along the upper left shoulder girdle.

The Panel noted normal power and reflexes through both upper and lower limbs and down going plantar reflexes.  There was some patchy altered sensation through the left upper limb in a non-dermatomal, non-peripheral nerve distribution.

The Panel viewed serial diagnostic imaging studies of the cervical spine and noted various radiologist reports in the referral material pertaining to the cervical spine.

The Panel noted a report of a cervical spine plain film x-ray dated 19 November 1996 revealing some minimal disc space narrowing and osteophytic changes at C3–4 and C4–5 with minimal encroachment of the left C3-4 and C4-5 neural exit foraminae.  The Panel viewed a plain film x-ray of the cervical spine dated 8 December 2003 revealing similar changes at C3-4 and C4-5, but also mild degenerative changes and marginal osteophytic lipping at C5-6.

The Panel viewed an MRI scan of the cervical spine dated 12 September 2000 that showed C3-4, C4-5 and C5-6 degenerative changes most marked at C4-5 causing some central canal stenosis.  The Panel also viewed an MRI scan of the cervical spine dated 23 March 2009 confirming the previously noted degenerative changes at C3-4, C4-5 and C5-6 with the new addition of a left C5-6 foraminal disc protrusion that was compromising the exiting left C6 nerve root.

The Panel concluded that the Plaintiff is currently suffering from chronic mechanical left cervical spine dysfunction with referred pain to the left shoulder girdle and left upper limb, in the absence of objective signs of radiculopathy, on a background of radiological changes of multilevel degeneration and a left C5-6 disc prolapse.

The Panel considered the Plaintiff’s description of his employment duties, the history of workplace injuries, medical reports of doctors who have treated and examined the Plaintiff, radiological results and the Panel’s findings on clinical examination.

The Panel noted the various medical reports prepared by Dr Hakan Baglar, who indicates in his report dated 20 March 2001 that the worker ‘contacted our clinic … on 9 May 2000’.  In the report dated 25 May 2009, Dr Baglar states ‘Despite my close professional relationship with him, I was shocked when I learned that he was urgently admitted to Epworth Hospital for a dramatic presentation of a neck condition … I was not aware of a neck condition, severe enough to warrant an admission to hospital.  The best I can remember about his neck condition is that on a couple of occasions (the Plaintiff) mentioned about his neck pain, in passing when other health conditions were discussed.  I do not remember one single consultation when his neck pain was discussed’.  The Panel noted Dr Baglar’s opinion as to the connection between the Plaintiff’s current neck condition and his employment.

The Panel also noted the submissions of the Parties.  The Defendant submits, in summary, that medical evidence supports the conclusions that ‘any symptoms, effects or consequences of the 16 October 1996 incident resolved or ceased in or about 13 January 1997; and, the Plaintiff’s neck/cervical spine condition does not result from nor is materially contributed to by the alleged neck/cervical spine injury on 16 October 1996’.

It is submitted on behalf of the Plaintiff that ‘the present condition of his neck/cervical spine being such as to warrant surgery recommended by Mr D’Urso neurosurgeon, clearly results from or is materially contributed to by the incident referred to and has been sustained in employment with the Defendants’.

The Panel considered that the Plaintiff suffered a soft tissue injury to the neck/cervical spine during the course of his normal work duties on 16 October 1996.

The Panel further noted that the underlying degeneration in the cervical spine is a radiological diagnosis only, is often constitutional, and notes from the published medical literature that such degenerative changes may or may not cause symptoms, and that such degenerative changes on imaging studies, including MRI scanning, can commonly be seen in asymptomatic people.

The Panel considered that the soft tissue injury has now resolved, that it has not had any effect upon the progression on [sic] the degenerative changes noted on various imaging studies, and that the Plaintiff’s current symptoms are not related to the soft tissue injury of 16 October 1996 in any way.

The Panel therefore concluded that the Plaintiff’s employment with the First Defendant on 16 October 1996 could possibly have been, and was in fact, a significant contributing factor to a, now resolved, soft tissue injury to the neck, but could not possibly have been, and was not in fact, a significant contributing factor to any claimed recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing neck/cervical spine condition, in any way.

Whilst the Panel acknowledges that the Plaintiff does currently suffer from a significant medical condition of the neck/cervical spine as noted above, the Panel, based on it’s clinical assessment, and the documents in the enclosures, concluded that the worker’s current medical condition of the neck/cervical spine is not related to the now resolved soft tissue injury of the neck/cervical spine of 16 October 1996 in any way.

The Panel therefore concluded that the Plaintiff’s current neck/cervical spine condition does not result from and is not materially contributed to by the Plaintiff’s alleged neck/cervical spine injury of 16 October 1996.

1. The Panel’s reasons were accompanied by ‘Enclosure A’, consisting of a schedule listing 80 documents (running to hundreds of pages) received by the Panel for the purposes of the referral.  The schedule was endorsed by the Presiding Member to the effect that the Panel had taken the documents into account in forming their opinion.

The judge’s approach to the reasons

1. The judge found no fault with the Medical Panel’s reasons.  His Honour reasoned as follows:

…the kernel of the plaintiff’s principal submission was that, in the face of his affidavit sworn 18 June 2009, the specified medical opinions and the imaging results, the panel had not sufficiently explained its conclusion that there was no causal link.

However, in my view, the matters relied on by the plaintiff did not, having regard to the standards applicable to medical panels and the particular circumstances of this case, call for a better statement of reasons than the panel provided.

The panel’s statement discloses ‘a discernible path of reasoning’ and ‘the route by which it arrived at its conclusion’.  As is evident from the last six paragraphs of the statement, the panel determined, first, that the plaintiff suffered a soft tissue injury during the course of his normal work duties on 16 October 1996; second, that the soft tissue injury has now resolved; third, that it has not had any effect upon the progression of the degenerative changes noted on the various imaging studies; fourth, that the plaintiff’s current symptoms are not related to the soft tissue injury of 16 October 1996 in any way; and fifth, that (therefore) the plaintiff’s employment on 16 October 1996 did not contribute to the plaintiff’s current neck condition, in any way.

The plaintiff submits that the panel should have explained, or explained further, why it considered that the injury suffered on 16 October 1996 was merely a soft tissue injury, not a bony injury; what sort of soft tissue injury the panel considered it was; why the panel considered that the soft tissue injury had not had any effect on the progression of the degenerative changes; and why the panel considered that the plaintiff’s current symptoms are not related to the soft tissue injury in any way.

In my view, it was not incumbent on the panel to address or deal with any of those (mainly negative) propositions to any greater extent than it did in this case.  Nor, in my view, did the panel fail to address sufficiently the material which is now said by the plaintiff to point to a different conclusion.  I will come back to the facts shortly.

1. We take a different view.  The material before the Panel included substantial expert medical opinion that the injury suffered in 1996 was profoundly more serious than a ‘soft tissue injury’.  There was also substantial expert opinion that the injury suffered in 1996 aggravated or exacerbated degenerative changes in the appellant’s cervical spine.  There was, too, substantial expert medical opinion that the injury of 1996 was ultimately causally related to what the Panel found to be chronic mechanical left cervical spine dysfunction with referred pain to the left shoulder girdle and left upper limb on a background of radiological changes of multilevel degeneration and a left C5-6 disc prolapse.  There was, however, no explanation in the Medical Panel’s reasons as to why the Panel rejected any of that expert medical opinion in favour of the Panel’s expressed opinion. 

1. In our view it was not enough for the Panel simply to assert that it was of opinion that the injury suffered on 16 October 1996 was merely a soft tissue injury, not a bony injury as the appellant contended.  It was not enough for the Panel simply to assert that it did not consider that the injury had had any effect on the progression of degenerative changes.  And it was not enough for the Panel simply to assert that the appellant’ employment with the employer on 16 October 1996 could not possibly have been a significant contributing factor to any claimed recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing neck/cervical spine condition in any way.  Given that the appellant’s case turned on substantial expert opinions which were adduced on his behalf, it was incumbent on the Panel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them. 

The judge’s defence of the Panel’s reasons

1. A significant part of the judge’s reasons was devoted to a defence of the quality of the Panel’s reasons.  It included reference to the relative brevity and inferior quality of the submissions which the appellant’s solicitor advanced before the Tribunal compared to what the judge evidently regarded as the superior detail and quality of the submissions advanced by counsel for the employer before the Tribunal.  Thus his Honour observed:

The plaintiff had not put before the panel, either in submissions or in other material, a clear case, much less a strong case, on the issue of causation.  Nor had his case otherwise called for an adjudication of the detailed kind now suggested.  A causal connection was only asserted sporadically and in general and vague terms.  The written submission of his solicitors was extremely brief.  It did not refer to any of the medical reports.  Nothing was said in express or direct contradiction of the proposition that the injury suffered on 16 October 1996 was merely a ‘soft tissue strain type injury’ which had resolved, being a proposition that was expressly put forward in the detailed material submitted to the panel on behalf of the employer.  Before me, the plaintiff’s counsel did not dispute the contention of the employer’s counsel that the plaintiff’s solicitors could have put in a reply to the employer’s solicitors’ detailed submission to the panel.  They did not do so.[38]

[38]Reasons, [138] (citations omitted).

1. With respect, we think that criticism to be misdirected.  Proceedings before a Medical Panel are not to be judged as if they were curial proceedings.  Although the Panel’s function is in one sense quasi-adjudicative, it is ultimately to inquire into the evidence and reach an informed conclusion.  If in that task the Panel is assisted by the quality of submissions, so much the better.  But it does not excuse a failure by a Panel to explain how and why it has come to a conclusion that the Panel may not have been provided in submissions with a proposed path of reasoning leading to the opposite conclusion.  For that reason, it is irrelevant that the appellant’s solicitor may not have directly contradicted the submission of the employer that the injury was no more than a soft-tissue injury, still more that the solicitor did not put in a reply.  Plainly, the whole of the appellant’s case was that his was a serious injury of the kind described in the expert opinions of the specialists on whom he relied.

1. The judge rejected the appellant’s complaint that the Panel ignored or failed to explain why it had rejected the expert medical opinions on which the appellant relied.  Principal amongst those were the opinions of the appellant’s GP, Dr Baglar, the appellant’s initial treating neurosurgeon, Mr Brazenor, and the appellant’s current treating neurosurgeon, Mr D’Urso.  Beginning with Dr Baglar, His Honour reasoned as follows:

As to the plaintiff’s other GP, Dr Baglar, the panel expressly referred to his reports.  It included substantial extracts from his most relevant report of 25 May 2009.  It also ‘noted Dr Baglar’s opinion as to the connection between the Plaintiff’s current neck condition and his employment’.  That was obviously a reference to Dr Baglar’s comment that the entry in the medical records concerning the event of 16 October 1996 ‘is more than enough to prove the connection between his current condition and his employment’.  The omission to actually quote those words is not a proper basis for criticising the panel, especially since Dr Baglar himself set out no reasoning in support of his bald assertion.[39]

[39]Reasons, [142] (citations omitted).

1. Certainly, the Panel did refer to Dr Baglar’s opinions in the manner identified by his Honour.  Perhaps, it is also fair to say that the Panel ought not to be criticised for omitting to quote critical passages of Dr Baglar’s opinions.  But the point remains that making reference to Dr Baglar’s opinions is one thing and explaining why the Panel rejected them is quite another.  Nowhere in the Panel’s reasons is there to be found any explanation of why those opinions were rejected in favour of the competing opinions which the Panel presumably accepted.

1. Turning to Mr Brazenor’s opinion, the judge quoted the following passage from a report dated 28 May 2001:

This man has significant wear-and-tear in [his] cervical and lumbar spines, and I believe, judging from the work history, that he has sustained injuries in 1995, 1995–96 and the year 2000.  It is my view that as a result of these work-related injuries Mr Kocak will never again do a job involving repeated bending at the waist, the repeated picking up of objects from ground level, or the lifting of weights (even where such lifting does not involve bending at the waist) in excess of 15 kgs.  These restrictions are permanent, due to his work injuries, to neck and low back, and they apply in perpetuity, irrespective of how well Mr Kocak fairs symptomatically in the future.

The judge also recorded that similar views were expressed in a further report of 26 June 2011.  The judge went on to say that:

The panel was plainly aware that the plaintiff had been treated by Dr [sic] Brazenor.  It mentioned this expressly.  On several occasions the panel asserted that it had had regard to all of the material before it: see para 3 of its statement of reasons; the reference in the second last paragraph thereof to its conclusion being ‘based on’, among other things, the documents in the enclosures; and the endorsement at the foot of Enclosure A to the effect that the panel took the listed information into account in forming its opinion.  I see no reason, in this case, to doubt the accuracy of those assertions.  Further, I agree with the employer that the omission to refer expressly to the passage upon which the plaintiff now relies or to the similar observation in the subsequent report of Dr [sic] Brazenor is of little or no significance given that:

(a)  The reports were written in May and June 2001, without the benefit of knowing of the continued progression of the plaintiff’s neck condition after he ceased employment and after the onset of disability symptoms in early 2009;

(b)  The reports link the plaintiff’s then condition (in 2001) to the totality of the ‘work history’ and refer to injuries in 1995, 1995–96 and the year 2000.  They do not in terms link his condition with the incident of 16 October 1996.  Dr [sic] Brazenor had not had the benefit of a description of that incident, because the plaintiff had been unable to recall those circumstances when providing a history to Dr [sic] Brazenor in 2001;

(c)  The plaintiff made no specific reference to Dr [sic] Brazenor’s reports in his submission to the medical panel.[40]

[40]Reasons, [144] (citations omitted).

1. There are several things to be said about that too.  First, it repeats what we regard as the error of treating reference to expert medical opinion as if it were an explanation for rejecting such opinion.  Nowhere in the reasons did the Panel condescend to an explanation of why it rejected the expert opinion of a treating neurosurgeon in favour of its own opinion.

1. Secondly, whether or not Mr Brazenor’s opinion was ‘of little or no significance’ was not a question for the judge.  Nor was it an issue to be determined on the basis of preference for the employer’s submissions.  It was a question for the expert assessment of the Medical Panel about which it said nothing. 

1. Thirdly, the issue for the judge was whether the Panel’s reasons were adequate, not whether an adequate set of reasons could be fashioned to sustain the opinion at which the Panel said it had arrived.  As Ashley J (as his Honour then was) said in Kamener v Griffin:[41]

it is no doubt of critical importance that the panel’s reasons sufficiently explain why it reached the conclusions that it did.  It is not for me [the judge] to validate those reasons by an exercise of my own.

[41](2005) 12 VR 192, 204[61].

1. Fourthly, although the path of reasoning sketched out by the judge could perhaps have been the path of reasoning which the Panel followed, it is by no means the only path of reasoning which the Panel could have followed, if indeed it followed any path of reasoning as such.  Thus, in the absence of an explanation from the Panel, there is no way of knowing what it did. 

1. Fifthly, whether or not Mr Brazenor’s opinions were referred to in the plaintiff’s submissions before the Panel, it is clear beyond sensible objection that Mr Brazenor’s opinions were put forward on behalf of the appellant as those of the treating specialist with the closest and most real professional connection with the diagnosis and treatment of the injury of 1996 and, therefore, the greatest contemporaneous opportunity for insight into it and its immediate sequelae.

1. That leaves Mr D’Urso’s opinion, of which the judge said the following:

Next the plaintiff relies upon the report dated 18 May 2009 of his current treating neurosurgeon, Mr D’Urso, in which Mr D’Urso said:

You have requested an opinion regarding whether or not [the Plaintiff’s] neck condition is related to his employment.  Included in your brief has been a chronology of Eyup’s neck symptoms between October 1996 and May 2000.  Particularly in 1996, it would appear that Eyup did indeed present complaining of neck pain and radicular arm pain.  He apparently relates this towards workplace activity where he pulled a heavy spool towards himself.  The symptoms would appear to be consistent with an injury to the cervical spine.  This may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis … I did indeed write to GIO Insurance on 24 March 2009 seeking liability to perform cervical spine surgery.

The plaintiff concedes that this opinion is referred to in part in the reasons of the medical panel.  However the plaintiff submits that the panel ‘ignored’ Mr D’Urso’s ‘belief’ that the employer was liable to pay for the cervical spine surgery which was proposed.  He submits that the panel did not refer to the opinion of Mr D’Urso that the plaintiff had presented with both neck pain and radicular arm pain and that those symptoms were consistent with an injury simpliciter to the cervical spine.  Noting that Mr D’Urso had said that that injury may have been an intervertebral disc prolapse or an aggravation of underlying spondylosis, the plaintiff submits that, nevertheless, it is clear that Mr D’Urso expressed the view that what occurred in 1996 was an injury relevant to his request in 2009 for liability to be approved.  The plaintiff submits that the panel expressed no view upon the reason or reasons for which it disagreed with Mr D’Urso.

I do not agree with the plaintiff’s criticisms in this regard.  As the employer submits, the panel expressly refers in its reasons to Mr D’Urso’s reports, including the report of 18 May 2009.  The panel actually quotes Mr D’Urso’s opinion that the activity of pulling a heavy spool towards himself “may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis’.  Moreover, as the employer submits, the language used by Mr D’Urso is that the symptoms ‘would appear to be consistent with an injury to the cervical spine’ that ‘may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis’ (emphasis added).  The language used by Mr D’Urso is far from compelling.  The Panel clearly came to a conclusion that there was no such injury, but rather a soft tissue injury that resolved.  As in George v Nisselle,[42] the Panel sufficiently addressed the issue raised.  Mr D’Urso did not in terms express a belief that the employer was liable to pay for the proposed surgery.  The plaintiff’s further submissions recast Mr D’Urso’s request for funding as a belief that the employer was liable to pay for the proposed surgery.  In his report Mr D’Urso referred to his letter to GIO ‘seeking liability’ and GIO’s response ‘that independent medical opinion has suggested that the cervical condition was not a work-related injury or illness’, but he did not go on to put forward a contention that the independent medical opinion was wrong.  I agree with the employer that the Panel’s failure to expressly refer to these matters is of no special significance, particularly as the plaintiff had made no particular submission to the Panel in relation to them.[43]

[42][2005] VSC 177, [55]–[62].

[43]Reasons, [145]–[148] (citations omitted).

1. With respect, there is not a great deal in that passage with which we disagree.  Still, there remains a problem.  Given that the Panel concluded that the appellant’s employment with the employer on 16 October 1996 could not possibly have been a contributing factor to the appellants’ current ‘significant medical condition of the neck/cervical spine’, but Mr D’Urso said that it could be, it was necessary for the Panel to offer at least some explanation, no matter how cryptic, of why in effect it discounted the considered expert opinion of a consulting treating neurosurgeon effectively to nil. 

1. Arguably, and it is implicit in the judge’s reasoning that, the explanation lies in the degree of certitude with which the Panel concluded that the injury suffered in 1996 was mere soft-tissue injury which resolved in time without sequelae.  If that be so, however – and, at the risk of repetition, we note that in the absence of sufficient reasons even that is an exercise in conjecture – it makes still more important the need for the Panel to have explained why it rejected the expert medical opinions of Dr Baglar and Mr Brazenor, backed by radiographic imagery as they were, and employment clinical records which bespoke a significant injury in 1996 followed by sustained symptomology, that the injury suffered in 1996 was fundamentally more profound that a mere soft tissue set-back.

The panel’s reasons were inadequate

1. The foregoing are not the only defects in the Panel’s reasons.  They are, however, the most significant and they are sufficient to conclude that the reasons are defective.  As was earlier observed, if reasons leave a party to wonder which of a number of possible routes has been taken to a Medical Panel’s conclusion, the reasons are inadequate.  Here, without an explanation as to why the Panel concluded that the injury suffered on 16 October 1996 was merely a soft tissue injury, not a bony injury as the appellant contended; why the Panel did not consider that the injury had had any effect on the progression of degenerative changes and, therefore, why the appellant’s employment with the employer on 16 October 1996 could not possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of the appellant’s pre-existing neck/cervical spine condition; and why the Panel rejected the expert opinions of Dr Bagalar, Mr Brazenor and Mr D’Urso to the contrary, it is not possible to say, as opposed to guess, why the panel rejected the appellant’s claim. 

The discretionary nature of certiorari

1. The judge considered but ultimately did not need to decide whether certiorari could go to quash a Medical Panel’s opinion on the basis of the inadequacy of reasons.  It appears from his Honour’s reasons, however, that he was taken to a number of cases on which the employer relied in support of its contention that, if the only complaint is lack of adequate reasons, the only remedy is an order in the nature of mandamus to compel the provision of further reasons.  It also appears that there may be some confusion as to the differences between the pre-requisites of certiorari for error of law on the face of the record and certiorari for jurisdictional error of law whether or not appearing on the face of the record.  It is appropriate to say something about them.

1. The decision of the Full Federal Court in Dornan v Riordan[44] serves as a useful starting point.  In that case, a determination by the Pharmaceutical Benefits Remuneration Tribunal was challenged by pharmacists on the basis of a substantial failure by the Tribunal to give reasons for its decision.  The pharmacists sought orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to set aside the determination. Based on observations of Moffitt and Manning JJA in Pettitt v Dunkley,[45] and their adoption by Kirby P, Priestly and McHugh JJA in Apps v Pilet,[46] as well as Soulemezis v Dudley (Holdings) Pty Ltd,[47] the court held that there was an error of law constituted of such inadequacy in the reasons that it was not possible to say what process of reasoning the Tribunal had followed and, on that basis, that the determination should be set aside.  As the court said:

Counsel for both sides submitted that, by reference to the tribunal's final report, to its interim report, to Deloittes’ study and to other material, it could be ascertained that the tribunal took such and such into account or relied on this and that.  The grounds were argued accordingly, reference being made to relevant legal authorities and to factors to which the tribunal may or may not have given weight.  In our opinion, as the tribunal did not explain its course of reasoning, the basis for the grounds tended to fail, for the argument could find no foothold on any firm ground.  For example, not having been informed why the $3.50 was adopted, it is difficult to hold that there was not a basis upon which a reasonable decision-maker could have come to that result.  But this is simply to say that the reasons for the decision are so elusive that it was impossible for the pharmacists to establish those grounds of challenge — unreasonableness, material and immaterial considerations etc — upon which they relied.  The major flaw in the tribunal's decision was that the tribunal did not state reasons adequate to enable the court to determine whether or not any other error had occurred in the reasoning process.

In these circumstances, the proper order was in our view that the tribunal's determination be set aside ab initio.[48]

[44](1990) 24 FCR 564 (Sweeney, Davies and Burchett JJ).

[45][1971] 1 NSWLR 376, 380 and 385.

[46][1987] 11 NSWLR 350.

[47][1987] 10 NSWLR 247.

[48](1990) 24 FCR 564, 574–5.

1. Next, it is to be observed that, although in that case the court was dealing with a statutory power to set aside a determination for error of law, a similar power exists at common law to set aside a determination for non-jurisdictional error of law on the face of the record.[49]  At common law, it was well established that reasons did not form part of the record unless the tribunal chose to incorporate them.[50] In order to overcome that limitation, s 12(3) of the Tribunals and Inquiries Act 1958 (UK) was enacted in England to provide that reasons should be taken to form part of the decision and accordingly be incorporated in the record. In Victoria, the same provision was adopted as s 10 of the Administrative Law Act 1978.[51]  Thus, certiorari will go for non-jurisdictional error of law on the face of the record constituted of the failure of a tribunal under an obligation to supply reasons to provide adequate reasons.  As the New South Wales Court of Appeal observed in Campbelltown City Council v Vegan,[52] because the record includes the reasons, the inadequacy of the reasons will inevitably be an error of law on the face of the record.[53]

   [49]R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338, 348; Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372, 470 [276]–[277] (Hayne J); Plaintff S147/2002 v Commonwealth (2003) 211 CLR 476, 520–521 [120]–[121] (Callinan J).

   [50]Public Service Board (NSW) v Osmond (1986) 159 CLR 656, 667 (Gibbs CJ).

   [51]See Aronson, Dyer, Groves, Judicial Review of Administrative Action 4^th Ed, 223 [4.175].

   [52](2006) 67 NSWLR 372, 399 [130].

   [53]See too Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, [56]-[61] (Basten JA, McColl and Macfarlan JJA agreeing); Owen v Motor Accidents Authority of NSW [2012] NSWSC 650, 59] (Campbell J).

1. Next, it should be noted that, in Sherlock v Lloyd,[54] this court distinguished Dornanv Riordan and Campbelltown City Council v Vegan on the basis that, at that time Sherlock v Lloyd was decided, there was no statutory obligation on Medical Panels to give reasons and nothing to indicate that the giving of adequate reasons was intended to be a condition of validity.  Now, there is a statutory obligation to give reasons, and because the reasons are deemed to form part of the record, inadequacy of reasons is an error of law on the face of the record.  It follows that the basis for distinguishing Dornanv Riordan and Campbelltown City Council v Vegan identified in Sherlock v Lloyd no longer applies.

   [54](2010) 27 VR 434, 438 [19] (Maxwell, Ashley JA, Byrne AJA).

1. Next, the judge below appears to have thought that Dornan v Riordan should be doubted in view of the High Court’s subsequent decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Palme.[55]  If anything, however, we should have thought the contrary.  In Palme, the Minister was under a statutory obligation imposed by s 501G(1) of the Migration Act 1958 (Cth) to give reasons for his decision to cancel a visa. In deciding to cancel the prosecutor’s visa, the Minister had before him a Departmental briefing paper which set out the relevant facts and considerations in support of four options, of which one was deportation. The Minister ticked the deportation box but did nothing more. The High Court held that the Minister had not discharged his statutory obligation to give reasons because it was impossible to discern why the Minister had chosen the deportation option over any of the other options. The High Court nevertheless refused certiorari on the basis that s 501G(4) provided that failure to give reasons did not invalidate the decision, and, therefore, that there was an absence of jurisdictional error. The prosecutor’s remedies were thus limited to mandamus to compel the production of adequate reasons and, since the prosecutor did not seek mandamus, all relief was denied.

   [55](2003) 216 CLR 212.

1. Putting aside questions of certiorari for jurisdictional error, which do not arise in this case, it seems to us that the importance of Palme for present purposes is that it establishes at the highest level of authority that reasons are inadequate, and so amount to an error of law, if they leave the reader to wonder what process of reasoning has been followed.[56]  Although it was open to speculate that the Minister chose the deportation option on the basis of the arguments included in the briefing paper in support of that option, it was impossible to say with any certainty whether he had adopted that process of reasoning or some other of his own, or none.  In the same way here, although one may speculate that the Medical Panel adopted its opinion for the reasons advocated by the employer, since there is no way of knowing whether the Panel followed that process of reasoning or some other or none, the reasons are inadequate.

   [56]See too South Bucks DC v Porter (No 2) [2004] 1 WLR 1953, 1964 (Lord Brown of Eaton-under-Heywood).

1. The judge below based his views on the effect of Palme on Dornan on observations of Tracey J sitting as a judge at first instance in Kennedy v AFMA,[57] who in turn expressed doubts about Dornan based on observations of Finkelstein J sitting as a judge of first instance in Comcare Australia v Lees[58] and Perram J also sitting as a judge of first instance in Civil Aviation Safety Authority v Central Aviation Pty Ltd.[59]  Those judges in turn appear to have based their concerns on an observation of Brennan J, in dissent, in Repatriation Commission v O’Brien[60] that a tribunal’s failure to provide adequate reasons in accordance with the Administrative Appeals Tribunal Act 1977 (Cth) did not without more invalidate the tribunals’ decision or warrant it being set aside by a court of competent jurisdiction.  Brennan J said that, unless the inadequacy of reasons warranted an inference that the tribunal had failed to exercise its powers in accordance with law, as for example by taking into account an irrelevant consideration or failing to take into account a relevant consideration, the proper remedy was a mandatory order to provide adequate reasons.  We shall deal with each point separately.

   [57](2009) 182 FCR 411.

   [58](1997) 151 ALR 647, 656–9.

   [59](2009) 253 ALR 263, 270–271.

   [60](1985) 155 CLR 422, 445–446.

1. In Kennedy, Tracey J was concerned with an appeal under s 161 of the Fisheries Management Act 1991 (Cth), as opposed to judicial review by way of certiorari or pursuant to the Administrative Decisions (Judicial Review) Act 1977.  Nonetheless, his Honour devoted considerable attention to Palme.  Although, as he observed, Palme was concerned with a question of jurisdictional error for the purposes of founding an exercise of the High Court’s constitutional power to grant certiorari, whereas he was concerned with an appeal under s 161 of the Fisheries Management Act on a question of law from the decision of the tribunal, his Honour said that he considered there were four aspects of the reasoning in Palme which were relevant to the matter before him. First, it was necessary to distinguish between a decision and the reasons for a decision. Secondly, the right of appeal under s 161 was a right of appeal against the decision as opposed to the reasons. As his Honour put it: ‘Section 161 fixes on the decision as the subject matter of the appeal, not on the reasons’. Thirdly, the question of whether the failure to comply with the statutory right to provide reasons affected the exercise of the power was a question of statutory construction. Fourthly, according to Palme, the appropriate remedy in the event that a tribunal fails to provide adequate reasons is an order in the nature of mandamus to compel the provision of adequate reasons.[61] 

   [61](2009) 182 FCR 411, 434 [65]–[68].

1. Ultimately, Tracey J concluded the inadequacy of the tribunal’s reasons could not consistently with Palme be relied on to impeach the tribunal’s decision.  By that we take his Honour to have decided that, where the right of appeal in question is a right of appeal against a decision as opposed to a failure to give adequate reasons for the decision, the decision cannot be set aside as invalid unless the failure to give adequate reasons invalidates the decision (and whether it invalidates the decision is a question of statutory construction of whether Parliament intended the failure to give adequate reasons to invalidate a decision).  So, if the failure to give adequate reasons does not invalidate the decision, the only remedy is mandamus to compel the production of proper reasons.

1. With respect, that must be correct, and it accords with Brennan J’s observation in O’Brien.  But with all respect to the judge below, none of that appears to have a great deal to do with relief under the Administrative Decisions (Judicial Review) Act 1977 for failure to provide adequate reasons, still less to do with certiorari for non-jurisdictional error of law on the face of the record constituted of failure to provide adequate reasons, which does fix on reasons as opposed to decisions and is not dependent upon showing that the inadequacy of reasons has necessarily been productive of decisional invalidity.  

1. As at present advised, we are not persuaded that anything said in Palme detracts from the authority of Dornan.  Nor do we see how anything said by judges at first instance in Comcare Australia v Lees or Civil Aviation Safety Authority v Central Aviation Pty Ltd or Kennedy v AFMA can properly be taken to do so.[62]  More importantly, we cannot see that anything said in Palme or those other cases detracts from the ability of the Supreme Court of Victoria to make an order in the nature of certiorari for non-jurisdictional error of law on the face of the record constituted of a failure to comply with a statutory obligation to provide reasons.[63]  In Sasterawan v Morris,[64] Tobias JA (with whom Beazley JA and McClellan CJ at CL agreed) endorsed the view expressed by Basten JA in Campbelltown City Council v Vegan & Ors[65] that inadequacy of reasons may constitute an error of law on the face of the record (whether or not it also establishes jurisdictional error) and that such error will, subject to the exercise of the Court’s discretion, justify a grant of relief in the nature of certiorari.[66]

   [62]Cf Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, 479.

   [63]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 687 (Aickin J).

   [64][2008] NSWCA 70.

   [65][2006] NSWCA 284.

   [66][2008] NSWCA 70, [47].

Certiorari should go

1. Recognising that the grant of certiorari is discretionary, we turn to the circumstances in which it is appropriate to order certiorari to quash a decision for error of law on the face of the record constituted of failure to comply with a statutory obligation to provide adequate reasons.

1. In BCSP No 4166 v Stirling Properties (No2),[67] Ormiston J (as his Honour then was) dealt with two appeals on questions of law by way of order to review pursuant to s 66 of the Planning Appeals Board Act 1960.  Section 61 of the Planning Appeals Board Act 1960 provided:

Where the Board makes a determination it shall, unless all parties to the appeal otherwise agree, furnish each party to the appeal within a reasonable time after the making of the determination with a statement in writing of its reasons for the determination.

[67][1984] VR 903, 912.

1. Ormiston J concluded that:

Where no reasons at all are given by a tribunal required to state reasons or where its determination consists only of conclusions or of ‘a statement of ultimate facts on matters required by the legislature to be found’ (per Aickin J in Kentucky Fried Chicken Pty Ltd v Gantidis,[68] there can be no doubt that the tribunal has erred and its failure can be remedied.  Whether the appropriate remedy is to set aside the determination, as was suggested by Salmon J in Edwick v Sunbury-on-Thames Urban District Council (No. 2)[69] and Megaw J in Re Poyser and Mills' Arbitration,[70] or whether an order by way of mandamus compelling the delivery of reasons is more appropriate, as was held by Winn J on behalf of the Divisional Court in Brayhead (Ascot) Ltd v Berkshire County Council,[71] and by Lord Denning MR in Iveagh v Minister of Housing and Local Government,[72] need not be presently decided.  Except in the case of statutory arbitrations, such as the Poyser and Mills' Case, there is much to be said for limiting the remedy to mandamus or an order in the nature of mandamus.  Such a conclusion was also reached (obiter) by Gowans J in Wattle Glen Estates Pty Ltd v M.M.B.W.[73]  In the case of total absence of reasons, the object of such provisions is better served by compelling the delivery of reasons rather than by the outright quashing of the decision: but cf. De Smith, Judicial Review of Administrative Action,[74] and Clarke v Wellington Rent Appeal Board.[75]

However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it.  Such an order would merely give a tribunal an opportunity to patch up what has been shown to be

defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether.

In the present case the form of the determination points clearly enough to the Board providing some reasons for its decision, whatever may otherwise be the deficiencies of that reasoning.  To ask the Board to give further reasons now is not only impractical, in that I am told that the chairman of the division has retired, but it is also undesirable that it should appear that the Board might have the opportunity to reconstruct its reasoning to meet the defects pointed out in detail at the hearing of these appeals.

[68](1979) 140 CLR 675, 687; 24 ALR 161, 170.

[69][1962] 1 QB 229, 236; [1961] 3 All ER 10, 14.

[70]At [1964] 2 QB, p. 478; ([1963] 1 All ER 789.

[71][1964] 2 QB 303, 313–14; [1964] 1 All ER 149, 153–4.

[72][1964] 1 QB 395, 410; [1963] 3 All ER 817, 820–1.

[73](1974) 40 LGRA 104, 108.

[74]4th Ed, 151.

[75][1975] 2 NZLR 24, 27.

1. With respect, it appears to us that similar considerations should inform the exercise of discretion to grant or withhold certiorari for error of law on the face of the record constituted of failure to provide adequate reasons in accordance with a statutory obligation to do so.  The English cases on the subject are informed by the view taken in the United Kingdom that failure to provide adequate reasons in accordance with a statutory obligation to do so is of itself sufficient to invalidate the decision.[76]  They also reflect, perhaps, the declining importance in the United Kingdom of the distinction between jurisdictional and non-jurisdictional error.[77]  Neither of those considerations applies in this country.[78]  Nevertheless, as Ormiston J observed, where reasons are partly defective, as they are here, in the sense that not all issues have been dealt with, an order compelling delivery of further or better reasons would have an air of unreality about it in that it would give the Medical Panel an opportunity to ‘patch up’ what has been shown to be defective. 

   [76]See, for example, South Bucks DC v Porter No 2 [2004] 1 WLR 1953, 1964 (Lord Brown of Eton-under-Heywood); and, in Scotland, Lothian and Borders Police v Gemmell [2005] Scots CS CSOH 31 (1 March 2005).

   [77]Aronson, 226 [4.195]-[4.200].

   [78]Re Minister for Immigration and Multicultural Affairs; Ex parte Palme (2003) 216 CLR 212; Craig v South Australia (1995) 184 CLR 163, 175–6.

1. Most importantly, given that the Medical Panel’s Opinion is now to be taken as binding for the purposes of determining any question or matter arising under or for the purposes of the Act, it is to say the least most undesirable that it should appear that the Panel might have the opportunity to reconstruct its reasoning to meet the defects pointed out in detail at the hearing of this appeal (regardless of whether that would occur).

1. As has often been observed, in effect the outcome of a serious injury application is frequently determinative of a claim for common law damages.  That is to say that, if the application for leave to bring proceedings is successful, more often than not the proceedings will settle and, if the application is unsuccessful, the applicant will have nowhere to go.  It seems to us, therefore, that, if an application is to be decided adversely to an applicant on the basis of a Medical Panel’s Opinion – behind which a judge cannot now go, the least that can be expected of a Medical Panel is that they provide the applicant with reasons sufficient to enable him or her to understand why the application has failed and, where reasons are found to be defective, that there should be no room for perception of a possibility of the Medical Panel reconstructing its reasoning in order to maintain a conclusion to which it may have come on the basis of different reasoning or a lack of reasoning.     

1. It is true, as the employer submitted, that, under s 68(4), a Medical Panel’s reasons are not required to be provided until within seven days after the Panel reaches its opinion. In that sense, it may be said, the reasons do not form part of the opinion and so inadequate reasons do not necessarily bespeak an invalid opinion.[79]  But critically, the section requires that the reasons be provided at the same time as the Medical Panel provides its written opinion, and no doubt with the intention that the two should be read together.[80] Coupling that with the Parliamentary intention expressed in s 12 of the Administrative Law Act that both should be read as part of the record, and thus be amenable to certiorari for error of law on the face of the record, it appears to us that there is every reason consistently with Parliamentary intention why certiorari should go in the exercise of discretion in a case of this kind.

   [79]Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, [61] (Basten JA).

   [80]Cf Minister for Immigration v Yusuf (2001) 206 CLR 323, 337 [31] (Gaudron J).

Conclusion

1. In the result, we shall allow the appeal and set aside the judgment below.  In lieu thereof, we shall make an order in the nature of certiorari quashing the Medical Panel’s opinion and we shall direct that the questions the subject of opinion be referred to a differently constituted Medical Panel for re-determination.

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