Marthenis v Return to Work Corporation of South Australia
[2024] SASCA 104
•27 August 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
MARTHENIS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2024] SASCA 104
Judgment of the Court of Appeal
(The Honourable Justice S Doyle and the Honourable Justice Bleby)
27 August 2024
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
Application for permission to appeal against a decision of the Full Bench of the South Australian Employment Tribunal on the following questions of law:
1.Whether there was any admissible evidence before the courts below which was properly capable of sustaining the court’s finding that an assessor, Dr Begg, had understood, and complied with, the statutory requirements of section 22 of the Return to Work Act 2014 (SA) (RTWA) and clause 1.13 of the Impairment Assessment Guidelines in conducting his assessment of the injured worker; and, in particular, whether the true and only reasonable conclusion on the evidence was that Dr Begg had misapplied the statutory test by failing to address the continuing deterioration of the worker’s condition.
2.Whether the said section and Guidelines permitted Dr Begg to adopt as his own assessment of the worker’s then current condition conclusions about his condition made by another practitioner more than three months earlier.
3.Whether the said section and Guidelines permitted the court to make findings about worker’s condition based on evidence extrinsic to the assessment itself and Dr Begg’s own explanation of the assessment.
The applicant lodged a claim for compensation for work-caused psychiatric injury. The respondent accepted that the applicant had suffered psychiatric harm and that his employment was a significant cause. It ultimately accepted the applicant’s claim for a closed period. The applicant applied for a review. The primary issue at trial was whether the applicant met the criteria under the RTWA to be taken as a seriously injured worker. The trial judge accepted the opinion of an independent assessor, Dr Begg, that as at the date of the assessment, the applicant’s mental health was stable and that the applicant was at maximum medical improvement (MMI).
On an appeal to the Full Bench on two asserted questions of law, the Full Bench held that the questions of law did not arise and dismissed the appeal. The applicant applied for leave to appeal this Court on the questions of law set out above.
Held (by the Court), refusing leave to appeal:
1.Question 1 is incompetent on the basis that the applicant did not raise before the Full Bench a question of law to the effect that the conclusion of stability was not open on the evidence. Had the question been open, then having regard to the evaluative nature of the exercise required and the applicant’s poor prospects of establishing that the only conclusion available was that Dr Begg had misapplied the test, the Court would have refused leave in any event.
2.Question 2 requires an evaluative assessment and finding of fact as to whether Dr Begg adopted, as his own, Dr Asokan’s earlier assessment. The trial judge rejected the applicant’s submission that Dr Begg had done this. The Court has no power to make the necessary contrary finding of fact that would permit progression to Question 2.
3. Question 3 is not supported by the applicant’s grounds of appeal.
Return to Work Act 2014 (SA) ss 7(4), 22, 27(7)(a); South Australian Employment Tribunal Act 2014 (SA) ss 26I, 68, referred to.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Brown v Repatriation Commission (1985) 7 FCR 302; Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133; Return to Work Corporation of South Australia v Wastell [2024] SASCA 98; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Wheeler v South Australia (2012) 114 SASR 111, considered.
MARTHENIS v RETURN TO WORK CORPORATION OF SOUTH AUSTRALIA
[2024] SASCA 104Court of Appeal – Civil: Doyle and Bleby JJA
THE COURT: This is an application for permission to appeal on questions of law from a decision of the Full Bench of the South Australian Employment Tribunal. Section 68 of the South Australian Employment Tribunal Act 2014 (SA) (SAET Act) provides:
68—Final appeal to Court of Appeal
(1)Subject to subsection (2), an appeal lies on a question of law against a decision of the Full Bench of the Tribunal (including a Full Bench of the South Australian Employment Court) to the Court of Appeal.
(2)An appeal cannot be commenced under this section except with the permission of the Court of Appeal.
(3)On an appeal to the Court of Appeal under this section, the Court of Appeal may—
(a) decide the question of law;
(b) refer the matter back to the Tribunal (or the South Australian Employment Court) with directions the Court of Appeal considers appropriate;
(c) make consequential or related orders (including orders for costs).
The right of appeal on a question of law, by permission, lies against a decision of the Full Bench. The question of law said to arise must be premised on a complaint of error on the part of the Full Bench. Much of the jurisprudence relating to whether a question of law is raised on a notice of appeal has focused on whether a complaint of error is one of law or one of fact. In Azzopardi v Tasman UEB Industries Ltd,[1] Glass JA considered that there were three stages at which an error of law could be made:[2]
Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found.
[1] (1985) 4 NSWLR 139.
[2] (1985) 4 NSWLR 139 at 156.
The discipline of determining whether a complaint of error raises a question of law and articulating that question with precision has required the attention of this Court over time.[3] However, it is equally essential to disclose the complaint of error that is said to raise the question of law the subject of the proposed appeal. More specifically, the complaint of error must be directed at the decision of the tribunal against which the appeal on a question of law is sought to be brought.
[3] See, e.g., Wheeler v South Australia (2012) 114 SASR 111 at [42] (White J); Kimber v Chief Executive, Department of Treasury and Finance [2021] SASCA 133 at [18]; Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 at [7].
Background
The applicant was employed as a senior manager at MSS Security Pty Ltd in 2010. In August 2019, he was subjected to disciplinary action, resulting in him being suspended from duty. His mental health began to deteriorate, and he later received medical certificates declaring him unfit to work. On 15 November 2019 his employer terminated his employment.
The applicant lodged a claim for compensation for psychiatric injury on 2 December 2019. Following an independent medical examination, the Corporation accepted that the applicant had suffered psychiatric harm, and that his employment had been a significant cause. However, it determined that the harm had been caused by the applicant’s disqualifying actions for the purposes of s 7(4) of the Return to Work Act 2014 (SA) (RTWA) and rejected the claim on that basis.
The applicant lodged an application for review. The parties reached a compromise at a conciliation conference and the Corporation accepted the claim for a closed period from September 2019 to August 2020.
The applicant continued to have psychological and psychiatric assessments and treatment, first with Dr Joseph Magliaro, psychologist and then with Dr Bagvati Asokan, psychiatrist. Both these practitioners diagnosed the applicant with Adjustment Disorder with Mixed and Anxious Mood. Dr Asokan prescribed Escitalopram and reviewed him in December 2020, noting some improvement at that time.
At about this time, the applicant began to explore the possibility of being assessed as having seriously injured status under the RTWA. Dr Asokan was asked to advise whether the applicant had reached maximum medical improvement (MMI) for this purpose. The trial judge explained the significance of this assessment:
Section 22(7) of the RTW Act provides:
(7) An assessment of the degree of impairment resulting from an injury—
(a)must not be made until there is evidence that the injury has stabilised; and
(b)must, subject to subsection (8), be based on the worker’s current impairment as at the date of assessment, including any changes in the signs and symptoms following any medical or surgical treatment undergone by the worker in respect of the injury; and
(c)must be made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines. (Emphasis added mine)
Under section 22(16) of the Act, the Minister for Industrial Relations (the Minister) must establish an accreditation scheme for the purposes of WPI assessments. To be considered for accreditation an applicant seeking accreditation must have completed a recognised course in the five years prior to an application and is required to undertake a compulsory introductory module and pass the relevant body system competency assessment(s). The assessor must also complete required training and successfully pass the competency assessment required for each relevant body system module.
Clause 1.13 of the Impairment Assessment Guidelines provides that MMI needs to be attained in order to properly ascertain the degree of a worker’s WPI and describes what is required to be satisfied that MMI has been attained. It is in the following terms:
Assessments are only to be conducted when the injury has stabilised and the assessor considers that the degree of whole person impairment of the worker is fully ascertainable. Whole person impairment is fully ascertainable where the assessor believes the worker has attained maximum medical improvement (MMI). MMI is when the worker’s condition has been medically stable for the previous three months and is unlikely to change in the foreseeable future, with or without further medical treatment. With MMI, further recovery or deterioration is not anticipated, but can include temporary fluctuations. The exception is neurological damage (e.g. peripheral nerve injury), which should not be assessed until symptoms have persisted for 12 months.
Clause 1.14 then goes on to provide that if the assessor does not consider that MMI has been achieved the assessment must be deferred and an explanation provided as to why.
Clause 1.41 makes provision for the adjustment of a WPI assessment where long-term treatment has led to a reduction or elimination of the impairment, but the impairment is likely to revert to the original level of impairment if the treatment is withdrawn. The assessor can increase the percentage WPI between a range of 1% to 3%.
Chapter 17 of the Impairment Assessment Guidelines prescribes the protocol through which an assessment of permanent impairment is made. It provides:
17.1 The Act requires assessments to be “made by an accredited medical practitioner selected in accordance with the Impairment Assessment Guidelines” (subsection 22(7)(c)).
17.2 For the purposes of the Guidelines:
·an assessor is a medical practitioner who is accredited to perform permanent impairment assessments under the accreditation scheme provided for in subsection 22(17) of the Act.
·the ‘selection process’ referred to in subsection 22(7)(c) of the Act refers to the selection of an assessor to perform the whole person impairment assessment and is outlined in this chapter.
17.3 Once there is medical evidence (e.g. from the treating doctor(s) or specialist(s)) that the work injury has stabilised/reached MMI and a permanent impairment assessment is required, the worker must be given the opportunity to choose the assessor who will assess their whole person impairment caused by their work injury. The worker must undertake that selection process in consultation with the requestor (claims agent, self-insured employer or Return To Work SA, as relevant), considering the following factors:
·the body system to which the injury/assessment relates – the assessor selected must be accredited for the relevant body system(s)
·nature and complexity of the injury
·possible conflicts of interest
·availability of assessors, and
·whether multiple assessors are required.
The requestor must ensure the worker is aware of all the assessors that satisfy the above factors.
The worker must inform the requestor of their choice of assessor as soon as practicable after they have finalised their choice.
17.4 If the worker does not wish to select the assessor, then the claims agent, self-insured employer or Return To Work SA should select the assessor, in consultation with the worker, taking into consideration the factors outlined in 17.3 – informing the worker of the chosen assessor(s) as soon as is practicable after the selection is made.
(Emphasis added)
Dr Asokan expressed the opinion that the applicant’s depression had stabilised. She stated that the applicant had reached MMI.
The applicant was entitled to nominate an assessor. He nominated Dr Jules Begg. Dr Begg is accredited by the Minister to make Whole Person Impairment (WPI) assessments under the Act for psychiatric impairments. Dr Begg considered that the applicant was suffering from a Chronic Adjustment Disorder with Depressed Mood and Anxious Distress. He assessed the applicant’s WPI at 27 per cent. He expressed the opinion that the applicant had reached MMI.
The Corporation referred Dr Begg’s report to Associate Professor Abdul Khalid, who assessed the applicant’s WPI at between 14 and 20 per cent. Despite this, the Corporation acted upon Dr Begg’s report and, by a determination dated 9 September 2021, advised the applicant that he did not meet the criteria to be taken as a seriously injured worker.
The applicant lodged an application for review. His solicitors wrote to Dr Begg relaying instructions that he had omitted various matters in the history that he had provided. These concerned hallucinations, sleep disturbance, loss of sexual function and memory loss.
Dr Begg reassessed the applicant’s WPI at 29 per cent. The Corporation therefore maintained its position that the applicant was not a seriously injured worker for the purposes of the Act.
At the hearing of the application for review, the trial judge heard oral evidence from the applicant and his wife, as well as from the various medical professionals. These included Dr Blakemore, who saw the applicant on 8 August 2022 at the request of the applicant’s solicitors. Dr Blakemore’s view was that the applicant appeared to have deteriorated markedly since the earlier psychiatric evaluations and that he did not appear to have reached MMI. He assessed the applicant’s WPI as at the date of his assessment as 35 per cent WPI.
Counsel for the applicant at the review hearing cross-examined Dr Begg on the topic of whether the applicant had reached MMI. Dr Begg gave evidence that he was not surprised that the applicant had deteriorated since his assessment, and that this did not, in his view, militate against the notion that the applicant had reached MMI. He said that being at MMI does not mean that a person is well. It just means that the treatment has gone as far as it can in getting them well. He maintained his view that the applicant was at MMI when he assessed him.
On the topic of Dr Begg’s opinion that the applicant had reached MMI, the trial judge found:
·there was no basis to contend that Dr Begg had simply adopted the certification by Dr Asokan;[4]
·there was no reason to think that Dr Begg did not know what MMI meant, and it was never suggested to him that he did not know;[5]
·Dr Begg was satisfied that the applicant’s condition had been medically stable for the three months prior to his assessment and that it was unlikely to change in the foreseeable future with or without further medical treatment;[6]
·the deterioration suggested by Dr Blakemore did not necessarily reflect changes in the applicant’s mental state that would reflect a lack of stability. Assuming the applicant’s presentation to Dr Blakemore was genuine, it was consistent with the applicant having a really bad day. His reported presentation to Dr Blakemore was considerably different from his aspect in Court;[7]
·he accepted Dr Begg’s opinion that as at the date of his assessment, the applicant’s mental state was stable.[8]
[4] [2023] SAET 35 at [120].
[5] [2023] SAET 35 at [121].
[6] [2023] SAET 35 at [121].
[7] [2023] SAET 35 at [124].
[8] [2023] SAET 35 at [127].
The appeal to the Full Bench
An appeal lay to the Full Bench of the Tribunal. This was limited to a question of law pursuant to s 26I of the SAET Act. The applicant’s Notice of Appeal articulated two questions of law arising from the trial judge’s decision:
1.Does the statutory test for establishing MMI pursuant to clause 1.13 of the Impairment Assessment Guidelines require only that the worker should have reached maximum wellness (disregarding continuing deterioration) or does it require that the worker should have reached a stage where his condition is neither improving nor deteriorating?
2.Must the impairment assessor’s satisfaction as to MMI under paragraph 22(7)(a) of the Return to Work Act 2014 be based on the current assessment stipulated in paragraph 22(7)(b) or can it be based on an earlier assessment conducted by a different practitioner?
Both these questions of law are pure questions of construction. The first is a question of construction of a statutory instrument, the Impairment Assessment Guidelines (IAG). The second is a question of construction of the RTWA. As such, they were properly articulated as questions of law. Whether they were capable of arising on the appeal depended on the grounds of appeal. These were specified in the Notice of Appeal as follows:
1.The learned Deputy President erred in law in holding that Dr Begg had properly conducted the Applicant Worker’s impairment assessment in accordance with section 22 of the Act and clause 1.13 of the Guidelines.
2.The test for MMI under the Guidelines requires that the worker’s condition should have stabilised so that it is neither improving nor deteriorating, whereas Dr Begg misconstrued the test as requiring only that the worker’s improvement should have peaked, disregarding further deterioration after that point.
3.Dr Begg therefore misdirected himself in applying the test, being satisfied that MMI had been reached because the worker’s condition was ‘as good as he is going to get’ notwithstanding that he found a continuing deterioration in the worker’s condition.
4.The assessment was therefore invalidly performed.
5.The learned Deputy President erred in law holding that it was sufficient to establish MMI for Dr Begg to rely, either wholly or in part, on an earlier finding of MMI made by another practitioner. In requiring the assessment under paragraph 22(7)(b) to be made having regard to the worker’s current condition, the Act implicitly requires satisfaction of MMI under paragraph 22(7)(a) to be made by reference to a current assessment.
6.In relying on Dr Asokan’s earlier finding of MMI, in making his own finding, Dr Begg therefore misdirected himself.
7.Dr Begg’s assessment of MMI was therefore not validly made.
The first question of law relied on Grounds 1 to 4 inclusive and the second on Grounds 5 to 7 inclusive.
The Full Bench considered that the first question of law only arose if the trial judge had made a ruling that MMI (under the IAG) does not require a worker to have reached a stage where their condition is neither improving nor deteriorating. It considered that the judge made no such ruling and had, rather, found that the applicant’s presentation to Dr Blakemore was consistent with him simply having a bad day. That was nothing more than a temporary fluctuation, as contemplated by paragraph 1.13 of the IAG.[9]
[9] [2024] SAET 15 at [25].
The Full Bench considered that the trial judge had ‘carefully rejected’ each of the applicant’s arguments that he was not at MMI when assessed by Dr Begg.[10] It found that the trial judge’s findings of fact that Dr Begg had appropriately satisfied himself that MMI had been reached were open on the evidence and not open to question on the appeal. It therefore held that the first question did not arise.
[10] [2024] SAET 15 at [26].
On the second question of law, the Full Bench referred to its own decision in Kaye v Return to Work SA,[11] where it said of the distinction between the requirement in s 22(7)(a) of the RTWA and paragraph 1.13 of the IAG:[12]
The assessment of Mr Kaye’s WPI proceeded after his general practitioner stated at a case conference that Mr Kaye’s condition had stabilised for the purposes of assessing permanent impairment. That statement satisfied s 22(7)(a) of the RTW Act. The references to injury and medical stability in s 22(7)(a) in contrast to impairment and to MMI suggest that s 22(7)(a) has a different function to paragraph 1.13 of the IAG. In my view, s 22(7)(a) of the RTW Act is designed to ensure that it is appropriate to conduct a PIA. If s 22(7)(a) is not satisfied, a PIA should not be arranged.
Paragraph 1.13 of the IAG has further requirements that must be satisfied when the PIA is undertaken. In addition to the worker’s condition being medically stable, the worker’s condition must be unlikely to change in the foreseeable future, with or without medical treatment. In addition, paragraph 1.13 also requires that for a PIA to proceed, ‘further recovery or deterioration is not anticipated’.
[11] [2018] SAET 143.
[12] Kaye v Return to Work SA [2018] SAET 143 at [50]-[51].
The Full Bench considered that the second question of law conflated the requirement of stability in s 22(7)(a) with MMI as required by paragraph 1.13 of the IAG. The threshold required by s 27(7)(a) was established by Dr Asokan’s certification. The Full Bench then held that the trial judge found, as a matter of fact, that Dr Begg had satisfied himself that the applicant was at MMI. It considered that on this basis, the second question did not arise.
The application to this Court for permission to appeal on questions of law
The Amended Notice of Appeal to this Court articulates three questions of law said to arise on the appeal:
1.Whether there was any admissible evidence before the courts below which was properly capable of sustaining the court’s finding that Dr Begg had understood, and complied with, the statutory requirements of section 22 of the Return to Work Act 2014 and clause 1.13 of the Impairment Assessment Guidelines in conducting his assessment of the injured worker; and, in particular, whether the true and only reasonable conclusion on the evidence was that Dr Begg had misapplied the statutory test by failing to address the continuing deterioration of the worker’s condition.
2.Whether the said section and Guidelines permitted Dr Begg to adopt as his own assessment of the worker’s then current condition conclusions about his condition made by another practitioner more than three months earlier.
3.Whether the said section and Guidelines permitted the court to make findings about worker’s condition based on evidence extrinsic to the assessment itself and Dr Begg’s own explanation of the assessment.
As discussed above, whether and the extent to which these questions of law arise depend on the Grounds of Appeal. The Amended Notice of Appeal sets out the following grounds:
1.The learned Deputy President erred in law by holding that Dr Begg had properly conducted the applicant worker’s impairment assessment in accordance with s22 of the Return to Work Act, and clause 1.13 of the Impairment Assessment Guidelines.
2.The test for MMI under the Guidelines requires that the worker’s condition should have stabilised so that it is neither improving nor deteriorating, whereas Dr Begg misconstrued the test as requiring only that the worker’s improvement should have peaked, disregarding further deterioration after that point.
3.Dr Begg therefore misdirected himself in applying the test, being satisfied that MMI had been reached because the worker’s condition was ‘as good as he is going to get’ notwithstanding that he found a continuing deterioration in the worker’s condition.
4.The impairment assessment was therefore invalidly performed.
5.If Dr Begg did misconstrue the test, but the learned Deputy President nonetheless satisfied himself that Dr Begg applied the correct test, this is a question of law, not fact.
There is a disconnection between the Notice of Appeal to this Court and the Notice of Appeal to the Full Bench. Specifically, as already noted, the questions of law identified for the Full Bench were questions of pure construction. The questions articulated in the Notice of Appeal to this Court are of quite a different character. For reasons discussed below, this observation has important ramifications for whether leave to appeal should be granted.
Question 1
Question 1 is something of a hybrid. First, it asks whether there was ‘any admissible evidence’ at trial capable of sustaining the trial judge’s finding that Dr Begg had understood and complied with the identified statutory requirements. Secondly, it asks, seemingly as a particularisation of the first part of the question, whether the only reasonable conclusion was that Dr Begg had misapplied the test by failing to address the continuing deterioration of the applicant’s condition.
It is necessary to break down this composite question. The first part raises a question of law seemingly based on a ‘no evidence’ ground, that is, that there was no evidence capable of sustaining the finding that Dr Begg had understood and complied with the statutory requirements of s 22 and IAG 1.13. That is the only inference we can draw from the phrasing, ‘whether there was any admissible evidence…’. A ‘no evidence’ ground is capable of raising a question of law.[13]
[13] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 (Deane J).
The second part of the question, however, is cast as an ‘only reasonable conclusion’ question. This too is capable of being a question of law. However, a ‘no evidence’ question of law is directed at challenging a conclusion that a tribunal of fact did make, on the basis that there was no evidence supporting that fact, and that therefore the conclusion was not open. By contrast, an ‘only reasonable conclusion on the evidence’ question will challenge a conclusion of fact on the basis not only that the conclusion that the judge reached was not open on the evidence, but also that the evidence required a different conclusion as a matter of law.
The second part of Question 1 asks what is the ‘true and only reasonable conclusion on the evidence’. The question posits that the answer to this is that, on the evidence that does exist, Dr Begg misapplied the statutory test. Question 1 therefore seems to ask a combination of questions, going to:
·whether there was any (admissible) evidence that Dr Begg complied with the statutory requirements (impliedly positing the proposition, in order to support this as a question of law, that there was none); and
·whether the evidence that did exist required the conclusion that Dr Begg misapplied the statutory requirements.
These are different questions. At this point, it is necessary to return to the basis on which Question 1 can be said to arise. For the reasons discussed above, the appeal to this Court lies from the decision of the Full Bench. However, the two questions asserted before the Full Bench were questions of construction only, not questions of what the evidence, or lack of it, required. The questions now said to arise were not asserted before the Full Bench.
As is the case with this Court, the Full Bench’s appellate jurisdiction was limited to an appeal on questions of law. Questions of law not raised before the Full Bench can arise for the first time on appeal before this Court. Questions that go to the processes of the Full Bench itself provide examples of this. However, if the question of law is said to arise from an error occurring at trial, it is difficult to see how it could arise before this Court if it was not raised in some form before the Full Bench. The appeal is from the decision of the Full Bench, not the trial judge, and must be grounded in a complaint of error on the part of the Full Bench.
The grounds of appeal said to raise the questions of law on this appeal are set out above. It is apparent that the first four grounds essentially replicate the first four grounds of appeal to the Full Bench. This fact provides a pathway, at least, to consider whether the same question of law was raised before the Full Bench as is articulated here. However, there remain potential obstacles. If the Full Bench was not asked to determine a question of law that could properly be said to arise on the grounds, a complaint of error on its part will be difficult to maintain. Nevertheless, it may depend on the circumstances in which a newly articulated question of law is said to arise.
As to the first part of Question 1 before this Court, the grounds of appeal assert a positive case that Dr Begg misconstrued the MMI test required by cl 1.13 of the IAG. They do not, and did not before the Full Bench, complain that there was no evidence that Dr Begg had understood and complied with the statutory requirements.
The applicant contended in his written submissions that there was no admissible evidence that Dr Begg had applied the test correctly. This was on the basis that Dr Begg’s evidence was speculative and irrational. The applicant submitted that this was therefore no evidence at all.
Accepting that this is the applicant’s contention, it remains the case that the Grounds of Appeal do not complain that there was no evidence to support Dr Begg’s conclusion. In any event, the caveat in the applicant’s submissions that there was no ‘admissible’ evidence highlights the difficulty. Dr Begg’s evidence was admitted. Complaints of irrationality or speculation in the evidence that was admitted might support a question whether, on that evidence, a particular conclusion was open. However, the applicant has not established that the first part of Question 1 arises, or could arise, on the Notice of Appeal.
This leaves the second part of Question 1, being ‘whether the true and only reasonable conclusion on the evidence was that Dr Begg had misapplied the statutory test by failing to address the continuing deterioration of the worker’s condition’. We accept that this part of Question 1 is supported by the grounds, specifically Ground 3. However, whether it raises a pure question of law requires further interrogation, as does the question whether any such question arises properly on an appeal from the Full Bench.
Ground 3, and the question of law said to arise from it, must rest on a contention of error by the Full Bench. Again, any express or implicit complaint of error will depend on the issues agitated before the Full Bench. As already noted, the first difficulty is that the question of law articulated before the Full Bench was one of construction only. The Full Bench held that this question of construction did not arise. That was on the basis that the trial judge did not find that there had been a change in the applicant’s mental state, that is, that he did not find that his mental state had been deteriorating. Rather, the Full Bench found that:[14]
even if his presentation to Dr Blakemore was accepted as genuine it was consistent with him simply “having a bad day”. That would amount to a temporary fluctuation as contemplated by paragraph 1.13 of the IAG.
[14] [2024] SAET 15 at [25].
The Full Bench focused on the finding of the trial judge, not on the opinion of Dr Begg. That is notwithstanding that the grounds complained of Dr Begg misapplying the test. However, the Full Bench’s approach is a product of the question of law asserted by the applicant and contended by him to have been supported by the grounds. Understandably, the Full Bench focused on the construction of the IAG employed by the trial judge, not that employed by Dr Begg.
The first difficulty standing in the way of the applicant on this ground, therefore, is that the applicant chose to raise only questions of construction before the Full Bench. He did not assert a question in the terms of Question 1, that is, whether Dr Begg misapplied the test. Consistently with this observation, the Grounds of Appeal before this Court do not assert error on the part of the Full Bench. They assert error on the part of the statutory assessor, Dr Begg, and the trial judge.
The primary difficulty is therefore that the Notice of Appeal seeks to raise a question of law said to arise from the trial that the applicant did not raise before the Full Bench. On the assumption that this question of law could have been raised properly before the Full Bench, the fact that it was not creates an obstacle to raising it now. It is well understood that the subject matter of an appeal is confined to the question of law raised.[15] That confinement governs the scope of any further appeal.
[15] Brown v Repatriation Commission (1985) 7 FCR 302 at 304.
The grounds of appeal do maintain the applicant’s consistent complaint that Dr Begg misapplied the test. This was the focus of the cross-examination of Dr Begg at trial and it formed a ground of appeal before the Full Bench, even if the asserted question of law was not expressed.
Dr Begg maintained that the applicant was at MMI notwithstanding his acceptance that the applicant had ‘deteriorated’ since he was discharged by Dr Asokan.[16] The trial judge characterised the submission of counsel for the applicant to be:[17]
that the deterioration in Mr Marthenis’ mental state between him last seeing Dr Asokan and his assessment with Dr Begg established that Mr Marthenis’ mental state was not stable.
[16] [2023] SAET 35 at [86]-[88].
[17] [2023] SAET 35 at [92].
He accepted that if there was ‘an issue with MMI’, the s 22 process would have miscarried, leaving the assessment null and void.[18]
[18] [2023] SAET 35 at [104].
The trial judge found that Dr Asokan’s certification of 31 March 2021 was evidence that the applicant’s psychiatric injury had stabilised for the purposes of s 22(7)(a).[19] He also accepted, however, that Dr Begg did not expressly state in his report that the applicant’s condition had been medically stable for the previous three months and that it was unlikely to change in the foreseeable future.[20]
[19] [2023] SAET 35 at [119].
[20] [2023] SAET 35 at [120].
The trial judge then considered that it could be taken that Dr Begg was aware of the requirements in the Act and the IAG. He went on to find that Dr Begg was satisfied that the applicant’s condition had been medically stable for the previous three months prior to his assessment and that it was unlikely to change in the foreseeable future.[21]
[21] [2023] SAET 35 at [121].
The trial judge evaluated Dr Begg’s opinion as to the applicant’s stability as follows:[22]
The fact that there was a deterioration in Mr Marthenis’ condition in the period after he last saw Dr Asokan does not mean that his mental health was not stable when he saw Dr Begg. Dr Begg provided a cogent explanation for the deterioration. First, he observed that it might not have been as dramatic as it appeared because he thought that Dr Asokan might have been overly optimistic. Secondly, he alluded to the passage of time, the stresses that Mr Marthenis was under, the fact that he had not overcome his depression, his constant thinking about his life and who he is as a person, and his identity as a person.
[22] [2023] SAET 35 at [125].
The judge concluded by accepting Dr Begg’s opinion that as at the date of his assessment, the applicant’s mental state was in fact stable.[23]
[23] [2023] SAET 35 at [127].
The second part of Question 1 in the Notice of Appeal, supported most clearly by Ground 3, asks whether the evidence that did exist required the conclusion that Dr Begg misapplied the statutory requirements. This refers to Dr Begg’s observations about the applicant having deteriorated. It asks this Court to conclude that on no view of the evidence was it open to the trial judge to conclude that Dr Begg had applied the test correctly in concluding that the applicant was stable within the meaning of the IAG. In support of this complaint, the applicant contends that Dr Begg’s conclusion was purely speculative.
It is well understood that whether facts as found answer a statutory description will often be exclusively a question of law.[24] However, where a statute (or a statutory instrument) uses words according to their common understanding, and the question is whether the facts as found fall within those words the question will be one of fact.[25] However, if the facts admit of only one answer, a question of law will arise. The second part of Question 1 is drafted in acknowledgment of this limitation.
[24] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24] (Gleeson CJ, Gummow and Callinan JJ).
[25] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [25] (Gleeson CJ, Gummow and Callinan JJ).
The difficulty for the applicant (in addition to the failure to raise this question before the Full Bench) is that the asserted misapplication of the test, dependent as it is on Dr Begg’s evidence about the ‘deterioration’ of the applicant, requires, as a necessary step in the reasoning, an evaluative assessment of what in fact Dr Begg meant by ‘deterioration’. That is to say, whether Dr Begg misapplied the test in the IAG is necessarily preceded by an inquiry of fact into Dr Begg’s opinion as to the applicant’s psychiatric stability. It cannot be reduced to the observation that Dr Begg used the worded ‘deteriorated’. The trial judge interrogated Dr Begg’s opinion and found, as a matter of fact, that Dr Begg considered that the applicant’s mental state was ‘in fact’ stable.[26]
[26] [2023] SAET 35 at [127].
The trial judge also found, as a matter of fact, that the applicant’s mental state was stable. The applicant’s challenge would require this Court to examine the whole of the evidence and to conclude that on no view of the entirety of the evidence, could it be said that it was open to conclude that the applicant’s mental state was stable.
There was evidence that, on its face, was capable of supporting that finding. The appeal would require an assessment of whether that evidence was forensically incapable of doing so. Given that what is required is a full evaluative assessment of the evidence (for example, of whether the evidence was of a true deterioration or merely a temporary fluctuation), the applicant’s prospects of success in establishing that the conclusion of stability was not open cannot be said to be good.
The trial judge’s findings were sufficiently clear in characterising the matters on which Dr Begg relied in this regard, reaching the conclusion that these matters did not, in Dr Begg’s opinion, amount to deterioration within the meaning of the IAG, and did not detract from the requirement of stability.
In circumstances where the applicant did not raise before the Full Bench a question of law to the effect that the conclusion of stability was not open on the evidence, we refuse leave to appeal on Question 1 on the basis that it is incompetent. Had we found that the question was competent, then having regard to the evaluative nature of the exercise required, and the applicant’s poor prospects of establishing that the only conclusion available was that Dr Begg had misapplied the test, we would have refused leave to appeal on Question 1 in any event.
Questions 2 and 3
Questions 2 and 3 draw on the complaint that the applicant made to the Full Bench to the effect that Dr Begg had relied on Dr Asokan’s findings in concluding that the applicant had reached MMI. The Full Bench held that the second question of law articulated on the basis of this complaint did not arise.
The first difficulty with these questions of law is that they do not appear to be supported by the grounds of appeal. The only possible ground that could be called in aid of these questions is Ground 1. However, that ground is vague to say the least. It may well only be directed to the first question articulated.
As the respondent accepted, a question that concerns purely the interpretation of the Act and the IAG can, when properly stated, be a question of law. Question 2 purports to be of this nature. However, the further difficulty with this question is that it requires an evaluative assessment and finding of fact as to whether Dr Begg adopted, as his own, Dr Asokan’s earlier assessment. The trial judge rejected the applicant’s submission that Dr Begg had done this.[27] This Court has no power to make the necessary contrary finding of fact that would permit progression to Question 2.
[27] [2023] SAET 35 at [91]; [128].
Question 3 is not, on any view, supported by the grounds of appeal. The question is posed in terms of the power of the Court to make findings about the applicant’s condition based on evidence extrinsic to the assessment and Dr Begg’s own explanation of the assessment. No ground of appeal complains that the Court erred in making findings on such bases.
We are not satisfied that either Question 2 or Question 3 is properly raised on the Notice of Appeal.
Conclusion
We refuse leave to appeal.
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