Moggill Cove Pty Ltd v Burton
[2018] VSC 24
•7 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01418
| MOGGILL COVE PTY LTD | Plaintiff |
| v | |
| STEVEN RICHARD BURTON and OTHERS (according to the attached Schedule) | Defendants |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 November 2017 |
DATE OF JUDGMENT: | 7 February 2018 |
CASE MAY BE CITED AS: | Moggill Cove Pty Ltd v Burton & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 24 |
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JUDICIAL REVIEW AND APPEALS – Application by employer for judicial review of a medical panel (‘Panel’)’s opinion in respect of worker’s work capacity – Panel finding that worker had no current work capacity resulted in worker’s ongoing entitlement to compensation– Worker disclosed new information concerning his engaging in light manual labour during psychiatric assessment conducted separately to assessment by physical doctors – Whether failure of Panel to inform employer of new information amounted to failure to afford procedural fairness – Whether Panel’s failure to inform employer of new information was or may have been material to its determination – Application of the ‘hearing rule’ in the context of proceedings involving judicial review of medical panel opinions – Failure to afford procedural fairness – Failure to take into account a relevant consideration – Panel’s opinion to be quashed – Barrett Burston Malting Co v Kotzman [2013] VSC 248, applied – Sargent v Disler & Ors [2016] VSC 292, applied – YG-1 Australia Pty Ltd v Dr Brann & ors [2016] VSC 713, applied – Bahonko v Moorfields Community [2008] VSCA 6, applied – Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17 applied - Failure to provide adequate reasons on basis of failure to reconcile factual inconsistencies - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, applied.
EVIDENCE – Discrepancy between worker’s evidence as to what was said during psychiatric assessment and records of the presiding decision maker – Records of decision‑maker generally prevail in event of conflict between party and decision-maker as to accuracy of what occurred - Karabinis v Bendrops & Ors [2017] VSC 648, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fleming QC with Mr D Churilov | Thomson Geer |
| For the First Defendant | Mr T Tobin SC with Ms C Moore | Arnold Thomas + Becker |
| No appearance for the Second to Fifth Defendants |
HER HONOUR:
Introduction
This is an application by the plaintiff, Moggill Cove Pty Ltd (‘employer’), for judicial review of a medical panel’s (‘Panel’s) opinion, whereby the Panel found that the first defendant, Mr Steven Burton (‘worker’), had ‘no current work capacity’, and that his ‘no current work capacity was likely to continue indefinitely’. The consequence of the Panel’s determination is that the worker has, and has had since November 2015, an ongoing entitlement to weekly payments of compensation.
The employer in its originating motion filed 20 April 2017 identified a number of grounds of review. However, in essence, each of these grounds represents a different angle of attack on one particular aspect of the Panel’s decision making and reasoning process, arising out of references in the Panel’s reasons dated 28 February 2017 (‘reasons’) to allegedly inconsistent histories provided by the worker to different Panel members during the course of their examination on 14 February 2017. As a result, the employer submits:
(a) the Panel failed to accord the employer procedural fairness;
(b) the Panel made a finding of fact which was not open to it;
(c) the Panel fell into jurisdictional error by failing to take into account a relevant consideration to which it was bound to have regard;
(d) the Panel fell into jurisdictional error by making a finding of fact which was grossly illogical or irrational;
(e) the Panel failed to provide adequate reasons for its opinion.
The inconsistency asserted by the employer concerns whether the worker has engaged in any ‘work’ since November 2015, when he ceased work as a part-time traffic controller. In the reasons, the Panel referred to the worker telling the Panel that he has not returned to work in any capacity since that time, and as a result, the lower back pain he had been suffering had settled down.[1] This statement was consistent with the notes of what might be described as the ‘physical’ doctors on the Panel concerning their examination of the worker, along with the reports of the treating doctors and medico‑legal experts provided to the Panel, and the submissions made to the Panel on behalf of the worker.
[1]Reasons, page 5.
However, later in the reasons, the Panel makes reference to the following history provided by the worker as part of the psychiatric assessment conducted by Dr Diane Neill (a psychiatrist), which was conducted separately from the assessment carried out by the physical doctors, albeit on the same day, as follows:[2]
He said he wants to go and find a job which suits his physical capabilities and to that end he has been working for the past 3-4 months for up to half a day, a couple of days a week with a mate at his business. He said he has been using the forklift and doing light manual work. He said it has been good experience but it does make his pain worse.
[2]Reasons, page 8.
The employer submits, in a nutshell, that:
(a) the history referred to above (‘new information’) is inconsistent with the history provided to the physical doctors on the Panel and the parties’ medico‑legal experts, and referred to matters which could not have reasonably been anticipated to have been known to the employer prior to making its submissions to the Panel;
(b) the employer was entitled to be informed of the fact that the worker had engaged, or at least had attempted to engage, in light manual labour prior to the Panel making its determination as to the worker’s current and future work capacity; and
(c) by reason of the failure of the Panel to inform the employer of the new information, the employer lost the opportunity to assess the new information, seek further information and expert reports, and make further submissions to the Panel, both in respect of the worker’s current and future work capacity, and possible alternative occupations in which the worker might engage.
Accordingly, while the employer relies upon each of the grounds of review referred to in the originating motion, the employer’s primary complaint is that the Panel has breached its obligation to afford it procedural fairness.
The legislative framework governing the functions, obligations, and procedures of medical panels has been frequently and exhaustively detailed and commented upon in a number of decisions of this Court,[3] and it is not necessary to repeat that exercise here. For the purpose of this application, the key feature of note is that given that the worker has issued a proceeding in the Magistrates’ Court seeking reinstatement of his weekly payments of compensation, s 313(4) of the Workplace Rehabilitation & Compensation Act 2013 (Vic) (‘WIRCA’) provides that the Panel’s determinations concerning the worker’s current and future capacity for work are binding upon the Magistrates’ Court.
[3]See, for example, YG-1 Australia Pty Ltd v Dr Brann & ors [2016] VSC 173 (in relation to the Accident Compensation Act 1985 (Vic) and Karabinis v Bendrups & ors [2017] VSC 648 in relation to the WIRCA.
Prior to turning to the issues and the submissions of the parties in further detail, a summary of the factual background to this proceeding, and the findings of the Panel follows.
Background
At the time of the Panel’s examination of the worker, the worker was 43 years old. He completed year 10 at school, and worked for approximately 20 years as a forklift driver and in warehousing. He commenced his employment with the employer as a labourer in January 2012, which involved carrying out various tasks to prepare sites for drainage work for residential development. This involved regular lifting of heavy objects and equipment. In May 2012 he suffered an injury after he
accidentally slipped off ladder and fell approx.. 1 metre down to lower rung and jarred my back on impact. Dismantling a steel shield.[4]
[4]‘Worker’s Injury Claim Form’ completed by the worker and submitted to the employer on or about 27 July 2012 (‘claim form’).
The worker said he experienced immediate back pain, which progressively worsened. In the claim form, he described the injury as follows: ‘severely jarred back and back muscle spasm. Protrusion of disc.’ In February 2014, he underwent an L4 to S1 posterior instrumented fusion, decompression and interbody fusion, which relieved some, but not all of his symptoms of pain, and he gradually improved over the following twelve months. In January 2015 he returned to part-time work through a friend, supervising carpentry work carried out by junior construction workers. He could take time off when he wished, and was not required to lift objects greater than five kilograms. He worked about 30 to 35 hours per week until September 2015, requiring regular time off because of exacerbation to his back pain.
In the reasons, the Panel stated as follows:
The Plaintiff told the Panel that in or about November 2015 the Plaintiff commenced work as a part-time traffic controller. He told the Panel that this work required standing for 8-10 hour shifts as well as walking short distances. He said that gradually over this 3-week period his back, buttock and left leg pain increased and that he was unable to continue the work because of this exacerbation of his pain. The Plaintiff told the Panel that he has not returned to work in any capacity since. He said that after ceasing this work, his pain has settled down to its usual level and has been at this level ever since.
…
The Plaintiff told the Panel that he had a forklift licence which he received in about 2007 which he said is not current. He told the Panel that he does not have a current car licence. He told the Panel that he had a heavy rigid truck licence which he received in 1998. He said that this licence was subsequently suspended because he said that he failed an alcohol breath test, and that he failed to have someone accompany him following the failed breath test.
The Plaintiff told the Panel that he had completed a bar course in hospitality. He told the Panel that he had completed certificates in electrical spotting, and dogman duties. He told the Panel that he commenced training towards a certificate in rigging, however after a few days into the training, he told the Panel that he slipped on a bolt and exacerbated his back pain, and because of this he did not complete the training.
The Plaintiff told the Panel about his current symptoms. He said that he has pain in the middle and left side of his lower back which radiates to his left buttock and down behind his left leg to the knee. He told the Panel that the tendons behind his knee feel like they are going to snap. He told the Panel that walking up or down steps, or up inclines, or prolonged bending increases his pain. He told the Panel that he is able to stand for up to 45 minutes, and walk at a leisurely pace for up to 60 minutes, and sit in the one position for up to 60 minutes.
From 27 July 2012 to 21 November 2015 the worker received weekly payments of compensation and payments for medical and like expenses pursuant to the Accident Compensation Act 1985 (Vic). On 21 August 2015, the employer’s claims agent notified the worker that his entitlement to weekly payments had been terminated, on the basis that:
(a) he had current work capacity; or
(b) alternatively, he had no current work capacity but it was not likely to continue indefinitely.
This notice referred to the findings of an occupational physician and a psychiatrist engaged by the claims agent to the effect that the worker had a current work capacity.
On 20 May 2016, the worker issued a proceeding in the Magistrates’ Court seeking to set aside the decision to halt weekly payments of compensation. The proceeding was defended, and on 22 December 2016 Magistrate Wright referred certain medical questions to a medical panel for its opinion pursuant to s 313 of the WIRCA.
A substantial number of medical and other expert reports, including surveillance material, were provided to the Panel, largely focussing upon the worker’s capacity for work. It is not necessary to go into any further detail here concerning the medical evidence and other material before the Panel, save for the fact that none of this material referred to the attempted return to work in 2016/2017 referred to in paragraph 4 above. In its opinion, the Panel stated that:
The [worker] is suffering from lumbar spine dysfunction following an aggravation of previously asymptomatic lumbar spondylosis (surgically treated).
This proceeding
The employer does not appear to dispute that the worker suffered a compensable injury, or that the worker has been impaired by that injury. The real issue between the parties, and where the employer takes issue with the determination of the Panel, is whether the worker has any current work capacity.
Following the issue of this proceeding, the worker affirmed two affidavits concerning what he told the Panel during the course of the examination on 14 February 2017. While submissions were made as to the accuracy of their contents, no objection was taken to them being admitted into evidence. In his affidavit affirmed on 8 June 2017, the worker deposed as follows:
I did provide this information to the Panel. I recall saying that it was a mate’s transport yard. I recall telling the Panel that I had exhausted my experience and vocational knowledge and that a mate had offered the opportunity to come down to his yard two days a week for two or three hours to see if I could cope with doing any work. It was not paid employment and therefore not ‘work’ in that sense. I drove a forklift perhaps 4-6 times and on occasions there was no load on the forklift. I did some sweeping in the warehouse and cleaning up of plastic strapping and paper located in bins. As I told the Panel even this very light work caused me to suffer increased spinal pain and I had ceased attending the premises a month or two prior to my interview with the Panel. The Panel had used the word ‘working’ but I do not believe I used that word as I was not ‘working’. I was attending a friend’s business to trial if I could undertake limited tasks and I found that I could not.
The Medical Panel has correctly concluded that I had ‘not been engaged in the workforce since November 2015’. I told the Panel that the last time I had engaged in paid employment was November 2015 and that was [as] a part-time traffic controller working standing 8-10 hour shifts but with increasing pain over a three week period and ceasing work at that point. The job referred to at p8) which appears to be in the present tense was, as I explained to the Medical Panel, and also appears in paragraph 18 of my submission to the Medical Panel work undertaken from January 2015 to September 2015. The factual circumstance which I explained to the Medical Panel is that job which was for a friend. It was protected employment. I could stop and rest as required. But it was work which was not subsisting beyond November 2015 and in particular was not work which had been undertaken in the period of 3-4 months prior to my examination by the Medical Panel on 14 February 2017.
In his affidavit affirmed on 3 July 2017, the worker deposed as follows:
I refer to paragraph 6 of my affidavit. I confirm that paragraph is true and correct insofar as I state that the Medical Panel correctly concluded that I had not been engaged in the workforce since November 2015. I told the Medical Panel that the last time I had engaged in paid employment was November 2015 and that was as a part-time traffic controller working standing 8-10 hour shifts but with increasing pain over a three week period and ceasing work at that point.
I made an unintentional error in the remaining part of paragraph 6 of my affidavit.
The job referred to at page 8 of the Medical Panel opinion, where it is said that I had ‘been working for the past 3-4 months for up to half a day, a couple of days a week with a mate at his business’ is the job referred to in paragraph 5 of my affidavit. It was not paid employment and not ‘work’ in that sense. I drove a forklift perhaps 4-6 times and on occasions there was no load on the forklift. I did some sweeping in the warehouse and cleaning up of plastic strapping and paper located in bins. These were very light tasks and caused me to suffer increased spinal pain and I had ceased attending the premises a month or two prior to my interview with the Panel. The Panel used the word ‘working’ on page 8 of the opinion when referring to this, but I do not believe I used that word as I was not ‘working’. I was attending a friend’s business to trial if I could undertake limited tasks and I found that I could not.
It appears that the error that the second affidavit was attempting to correct was the reference in two paragraphs in the first affidavit to employment in a friend’s business being during one period only: that is, between January and September of 2015. The second affidavit confirmed that the worker had in fact told the Panel that he had attempted to return to work after October 2015.
Further, the solicitor for the worker, Ms Claire Pirie, affirmed an affidavit on 6 October 2017, which exhibited the handwritten and (very well) transcribed notes of each of the members of the Panel.
Did the Panel breach its obligations to afford procedural fairness?
The legal principles underpinning the obligation of the Panel to afford procedural fairness to the parties before it are well-known and well settled, and were not in dispute between the parties. The issue in this proceeding is their application.
A number of decisions of this Court have adopted the observations of Cavanough J concerning the application of the ‘hearing rule’ in the context of judicial reviews of medical panel opinions in Barrett Burston Malting Co v Kotzman;[5] which are reproduced in abridged form below:
[5][2013] VSC 248, [31]-[37].
(a) referring to Kioa v West,[6] his Honour stated:
[6](1985) 159 CLR 550.
Failure to sufficiently afford an affected party procedural fairness or natural justice contaminates the medical panel opinion with illegality such that it is liable to be quashed upon judicial review;
(b) referring to Weerappah v Nisselle;[7]
[7][1999] VSC 249, [50].
a medical panel is obliged to accord the protection of the ‘hearing rule’ … to the employer/insurer party, not merely to the worker party;
(c) referring to Calleja v Franet Pty Ltd:[8]
[8][1999] VSC 202.
a medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion – say, as to an aspect of disability previously unnoticed by other medical examiners – such that it could be said that a party did not have a fair opportunity to have that proposed adverse inference explored with its own experts;
(d) his Honour referred to the decision of Kyrou J in Vegco Pty Ltd v Gibbons,[9] and the statement that (citations omitted):
[9][2008] VSC 363, [23].
The Medical Panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the Medical Panel. … and does not prior to reaching the final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it;
and
(e) his Honour referred to the statement of the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone that:[10]
Where the exercise of a statutory power attracts the requirements for procedural fairness, the person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests.
[10](1994) 49 FCR 576, referred to with approval by the High Court in Szbel v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152, [29].
Other observations from the authorities relevant to the determination of the issues in the current proceeding include the following:
(a) ‘in every case it will be a matter of fact and degree as to whether a medical panel has failed to afford a party procedural fairness by reason of a finding which is unexpected, could not have been reasonably anticipated or would not obviously be open on the known material’;[11]
[11]Sargent v Disler & Ors [2016] VSC 292, following Ashley J in North v Homolka [2014] VSC 478.
(b) ‘if a decision-maker has information adverse to the interests of one of the parties, then the decision-maker is to ask itself, is this information credible, relevant, and significant to the decision I am about to make? Unless the decision-maker can demonstrate that the information is clearly not credible, not relevant and not significant to its decision, the decision-maker is to notify the parties of the existence of the information in order to give the parties a chance to respond’;[12]
[12]YG-1 Australia Pty Ltd v Dr Brann & ors [2016] VSC 713, [153].
(c) ‘the denial of procedural fairness is not necessarily fatal to a decision, but it normally will be’;[13] and
[13]Ibid [190].
(d) while the onus lies upon the party asserting a breach of procedural fairness that such a breach has taken place, once a breach has been established, the onus shifts to the other party to establish that the breach would not have affected the outcome. In Bahonko v Moorfields Community (‘Bahonko’):[14]
The authorities are clear that, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have a bearing on the outcome. In effect, the onus is on the respondents, therefore, to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would ‘inevitably result in the making of the same order as that made by the primary judge at the first trial’.
[14][2008] VSCA 6, [30].
Applying the above principles to the current case, the question is: once the Panel, or a member of the Panel, became aware that the worker had, contrary to the other material before the Panel, engaged in some manual labour on a regular basis over a period of months in 2016 and 2017, was the Panel obliged to inform the parties of this information and seek submissions on the matter?
The employer submitted that, notwithstanding the reference in the reasons to the worker engaging in some part-time work since about October or November 2016, the reasons also show that when considering whether the worker had any current work capacity, the Panel assumed that there had been an absence from the workforce since November 2015.
The employer submitted that the evidence in the affidavits filed by the worker that he had ceased ‘work’ one or two months before the examination was inconsistent with the history provided to the Panel, and that the worker had downplayed the extent of any activities performed.
The employer submitted that it did not, and could not have known that the worker had attempted a return to work in late 2016/early 2017. The new information, despite being relevant to the assessment of whether the worker had any current work capacity, was not referred to in any of the material accompanying the referral to the Panel. To the contrary, the material provided to the Panel, and the history provided by the worker to the physical doctors, was to the effect that the worker had not worked since late 2015. In its written outline, the employer submitted as follows (omitting citations):
Thus, the history that the worker had attempted a return to work or at least a trial of work activities in a friend’s business was unexpected and came ‘out of the blue’. In the circumstances, the plaintiff was denied a fair opportunity to address the Panel as to these events. Had the plaintiff been advised of the worker’s most recent work efforts, it could have addressed the issue by:
(a)Obtaining further information as to the worker’s return to work, including from the worker (e.g. through his solicitors) and/or by subpoena to the friend’s business;
(b)Obtaining further expert medical opinions as to the worker’s capacity for work;
(c)Advanced further written submissions on the issue.
In relation to the question of whether the failure of the Panel to inform the employer of the new information was material to the Panel’s determination of the questions referred to it (such that any failure to do so amounted to a breach of its obligation to afford the employer procedural fairness), the employer relied upon the statement of the Court of Appeal in Bahonko[15] to submit that ‘the bar is very low’. This is particularly the case given that the employer is in a uniquely vulnerable position, as it cannot, by reason of the terms of s 310(1) of the WIRCA, be present at the examination. The employer submitted that in this case, the Panel should have followed the procedure developed by it in response to decisions of this Court, and informed the parties of the new information, and sought additional submissions and/or evidence from the parties on the question of the worker’s current and future work capacity.
[15][2008] VSCA 6.
In response, the worker submitted, in summary, as follows:
(a) the worker has deposed that he was assisting in a friend’s yard, was not in paid employment, and that he did not believe he used the word ‘working’ during the course of the examination;
(b) the worker deposed (in relation to his attendance at the friend’s business) that he was undertaking a trial, to see if he could undertake limited tasks, and found that he could not cope with these tasks. Dr Neill’s notes refer to the worker receiving no income;
(c) the notes of the physical doctors, the accuracy of which is accepted by the worker, demonstrate that:
the basis upon which [the Panel] proceeded to [sic] in its reasoning process, and the opinion which it delivered, was factually soundly based;
(d) to the extent that there is any difference between the notes of Dr Neill, the notes of the physical doctors, and the evidence of the worker, it appears that Dr Neill has failed to accurately record the information provided to her. In any event, this information is only relevant for the purposes of the psychiatric assessment undertaken by Dr Neill;
(e) the worker referred to the decisions of Nicholls v Corlett & ors,[16] Gamble v Emerald Hill Electrical Pty Ltd & ors,[17] and Minister for Immigration and Ethnic Affairs v Wu Shun Liang[18] in support of the proposition that the reasons of a medical panel should not be subject to overzealous scrutiny, with the objective of or tendency to identify error;
(f) in any event, the Panel drew upon the correct history of the worker having not been in employment after November 2015, and it was open for the Panel to make that finding; and
(g) finally, if there has been any breach of procedural fairness, would it have made any difference to the result? This is not a situation where the worker has given a history suggesting that he is unable to do anything at all. There is no suggestion that the worker has engaged in fraud. Rather, the issue is the worker’s capacity to undertake work on a regular and sustainable basis, and the new information would not have affected the Panel’s findings on that issue.
[16](2010) 32 VAR 274 at [24].
[17](2012) 38 VR 45, [8]-[9].
[18](1996) 185 CLR 259.
In reply, the employer submitted, in summary, as follows:
(a) the reference in the reasons to the worker ‘working’, was unambiguous, and therefore, there was no ‘looseness of language’. The difference between the histories recorded by the physical doctors compared with the history taken by Dr Neill simply reflects the manner in which the examination was undertaken (where Dr Neill examined the worker separately);
(b) where there is a discrepancy between the evidence of a party as to what was said before a court or tribunal, and the reasons and/or notes of the presiding judicial officer or tribunal member (or like body), the authorities suggest that the latter ought to be preferred; and
(c) the onus is upon the worker to demonstrate that if the employer was aware of the new information, the Panel would have inevitably come to the same conclusion, and it has not done so.
In my view, in failing to inform the parties of the new information, the Panel breached its obligations to afford procedural fairness, and, it not having been shown that the Panel would have inevitably reached the same conclusion had it informed the parties of the new information, the opinion should be quashed, and the questions be remitted with appropriate directions. At this stage, as discussed further later in these reasons, I am open to submissions as to whether the matter ought to be remitted to the Panel, or a differently constituted medical panel.
I accept the submissions made on behalf of the employer that, where there is a conflict between a party and a decision-maker as to the accuracy of what occurred during a hearing or like event such as an examination of this kind, there is a strong predisposition in favour of preferring the notes and other records of the decision‑maker. This principle has recently been approved by J Forrest J in Karabinis v Bendrups & Ors (‘Karabinis’),[19] where his Honour stated, referring also to the decision of this Court in Thomson v Cross:[20]
… the evidence that the Panel ‘got it wrong’ must be cogent. The reviewing court is entitled to assume that the contents of the reasons (or, in this case, the contents of the reasons supplemented by the contemporaneous notes) are correct unless persuaded otherwise.
[19][2017] VSC 648, [69].
[20](1954) VLR 635.
Here, I am not persuaded otherwise. In any event, not much turns upon whether the worker used the word “work” during the course of the examination to describe what he was doing and how he was spending his time. I accept that the worker did not tell Dr Neill that he was engaged in paid employment, and that Dr Neill used the term ‘work’ in a colloquial sense. After all, while paid employment inevitably involves ‘work’, not all ‘work’ is carried out in the context of a formal employment relationship. One may engage in voluntary work, domestic or outdoor work, or work on an unpaid trial basis, as may have been the case here. The fact that any ‘work’ may have not been carried out in the context of a formal employment relationship is relevant to, but not determinative of, a finding that the worker has ‘no current work capacity’.
The dictionary definitions of ‘work’ are, of course, quite extensive: however, three of the primary definitions are as follows:[21]
1. ‘exertion directed to produce or accomplish something; labour, toil’;
3. ‘productive or operative activity’;
6. ‘employment; a job, especially that by which one earns a living’.
[21]Macquarie Dictionary, 6th Edition, p 1699.
Here, the use by Dr Neill of the term ‘work’ is more likely to be synonymous with ‘labour’, ‘toil’, or ‘productive activity’, rather than ‘employment’ or ‘a job’. However, the ability of the worker to undertake productive activity, even if not paid to do so, is clearly of relevance to the determination of whether he has a current work capacity. After all, it is notorious that much of the surveillance activity carried out on behalf of employers and others upon workers and other complainants is directed at investigating whether they can undertake ‘work like’ activities, regardless of whether they are employed. It could not be said that the fact that the worker had engaged in some light manual labour in the period leading up to the examination was irrelevant, or only peripheral to the question of whether the worker had any current or future work capacity.
It is certainly possible that, even with the parties having had an opportunity to investigate and make further submissions on the new information, the Panel may well have, as contended for by the worker, reached the same decision. However, given the relatively low threshold established by the authorities, I agree that the employer should have the opportunity to undertake the tasks referred to in the evidence and submissions prior to there being a final determination on the question of capacity. For example, given that the employer seems to accept that the worker, by reason of his injuries, is unable to return to his pre‑injury duties, further information regarding what the worker was and was not able to do in the late 2016 to early 2017 period may have assisted the employer to identify some additional suitable alternative occupations for assessment by the Panel.
The question of whether the Panel’s failure to inform the parties of the new information was, or may have been material to its determination can be tested by considering what the worker’s position would have been had the Panel taken the new information into account, and determined the question of capacity adversely to the worker. While there is no evidence on the point, it is quite possible, given the medical reports and submissions advanced on behalf of the worker to the Panel, that the worker’s legal advisors were unaware of the new information, and no doubt would have sought the opportunity to adduce further submissions and/or evidence as to the relevance of the new information to the question of capacity had the question been decided adversely to the worker.
Accordingly, this ground of review is made out.
Other grounds of review
Given my findings on the primary ground of review, strictly speaking, it is not necessary for me to canvass the other grounds of review, particularly given that, as noted above, these grounds merely amount to different avenues of attack concerning the same issue. However, for completeness, I shall address each of the grounds identified by the employer in its originating motion.
The employer’s written submissions conflate the following grounds of review, being:
(a) the Panel made a finding of fact not open to it;
(b) the Panel fell into jurisdictional error by failing to take into account a relevant consideration to which it was bound to have regard; and
(c) the Panel fell into jurisdictional error by making a finding of fact which was grossly illogical or irrational.
Once again, the employer criticises the Panel for failing to reconcile the inconsistency in the histories provided by the worker to different members of the Panel.
The employer’s written outline of submissions did not expressly address the question of whether the Panel made a finding of fact not open to it. However, during the course of his oral submissions during the course of the hearing, senior counsel referred to the recent decision of Karabinis,[22] where J Forrest J held that:[23]
… a Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue as determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a Panel has fallen into jurisdictional error. It is, therefore, a question of fact or degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in the light of the ultimate decision and the basis for it, as articulated by the reasons.
[22][2017] VSC 648.
[23]Ibid, [62].
The employer submitted that the Panel had fallen into jurisdictional error by failing to reconcile the inconsistent histories provided to it, which was analogous to making a mistake of fact.
In relation to the question of whether the Panel failed to take into account irrelevant considerations, the employer referred to the well-known principles established by the authorities such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[24] and summarised in Moyston Court Fisheries Ltd v Dr John Malios & Ors.[25] Senior counsel for the employer also referred to the following statement of the Full Court of the Federal Court in Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts[26] as providing a useful explanation of the underlying principles, as follows (omitting citations):
The obligation of a decision-maker to consider mandatory relevant matters requires a decision-maker to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration. However, in the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for the decision maker to determine the appropriate weight to be given to them. The failure to give any weight to a factor to which a decision-maker is bound to have regard, in circumstances where that factor is of great importance in the particular case, may support an inference that the decision-maker did not have regard to that factor at all. Similarly, if a decision-maker simply dismisses, as irrelevant, a consideration that must be taken into account, that is not to take the matter into account. On the other hand, it does not follow that a decision-maker who genuinely considers a factor but then dismisses it as having no application or significance in the circumstances of the particular case, will have committed an error. The Court should not necessarily infer from the failure of a decision-maker to refer expressly to such a matter, in the reasons for decision, that the matter has been overlooked. But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision. Whether that inference should be drawn will depend on the circumstances of the particular case.
[24](1986) 162 CLR 24, 39-41.
[25][2007] VSC 518; also see Stojilkovic v Romas [2017] VSC 49 [29].
[26][2011] FCAFC 59 [44].
The employer submitted that the Panel’s failure to consider or discuss the new information in the reasons leads one to draw the conclusion that the Panel in reaching its determination overlooked the new information, and thus failed to have regard to a mandatory relevant consideration. Alternatively, if the Panel was found to have had regard to the new information, its findings that the worker had not been in the workforce since November 2015, and/or had no current work capacity were ‘grossly illogical’.
The employer noted that there was no discussion in the reasons concerning the different histories provided by the worker, and went on to submit, as follows:
Otherwise, if the Court were not satisfied that there had been failure by the Panel to have regard to that history in making findings about the worker’s capacity for work, such findings, in the circumstances, were not open to it or were grossly illogical. Although the worker now deposes to not receiving any payment in respect of the activities he performed, the history recorded was specifically in respect of ‘work’, in which he was ‘using the forklift and doing light manual work’. In those circumstances, it was not open to the Panel to find or rely on any absence from the workforce this period.
In response, the worker submitted as follows:
With respect to the complaint of error on the face of the record, it was open for the Medical Panel to find and rely upon the fact that the First Defendant had been absent from the workforce since November 2015 because that, as has been correctly recorded by Panel Members Associate Professor Roberts, Associate Professor Gibbons and Mr Pullar, was the true position.
The worker also repeated his submissions to the effect that further consideration of the new information would not have altered the Panel’s opinion. It was said that the new information merely discloses that the worker is a man with motivation, who is trying to do some things, and when he does so, his symptoms worsen. The opinion of the Panel is otherwise entirely consistent with the medical evidence and the history provided to the Panel. The Panel’s finding that the worker is unable to work on a regular and sustainable basis is entirely logical and consistent with what the parties understand the position to be.
In my view, in summary:
(a) the Panel has not made a finding of fact which was not open to it to make;
(b) the Panel fell into jurisdictional error by failing to take into account a relevant consideration to which it was bound to have regard; and
(c) the Panel did not make a finding of fact which was grossly illogical or irrational.
It is not entirely clear whether in relation to (a) and (c) above, the factual finding sought to be impugned by the employer is the Panel’s finding that ‘the [worker] had been absent from the workforce since November 2015’, or the Panel’s ultimate finding that the worker had no current work capacity, which was likely to continue indefinitely. Not much turns upon this for current purposes given my findings concerning the failure of the Panel to afford the employer procedural fairness. Further, in any event, I would not find that the Panel erred in either respect.
It is well established that a court, tribunal, or other decision‑maker may err in reaching a finding that was not open for it to make.[27] However, in the current case there was evidence before the Panel, even having regard to the new information, to support a finding that the worker had not been in the workforce since November 2015, and had no current work capacity. It may be that more emerges from further investigation of the new information, but as it currently stands, the new information does not inevitably lead to a finding that the worker had been in the workforce after November 2015, or that he had a current work capacity. It may well have been open to the Panel to find that the worker’s “trial” in late 2016/early 2017 did not amount to him being in the workforce.
[27]S v Crimes Compensation Tribunal [1998] 1 VR 83.
The availability of the ‘illogicality/irrational’ ground of review is less settled, but is consistent with recent High Court authority,[28] and is certainly gaining acceptance within this jurisdiction.[29] In O’Brien v Brand & Ors,[30] I formed the view that ‘the preponderance of authority supports such a ground’. However, relevantly for the current proceeding, I noted, referring to the decision of the Court of Appeal in Ryan v Grant at Wodonga Pty Ltd (“Ryan”):[31]
Neave JA expressed some doubt as to whether the decision itself must be tainted by irrationality, illogicality or unreasonableness, or whether it was sufficient to show whether the reasoning by which it was reached demonstrated those flaws.
[28]See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
[29]See Rees v County Court [2011] VSC 7, [19]; Moore v Barton [2014] VSC 76; Stojilkovic v Romas & ors [2017] VSC 49.
[30][2017] VSC 596, [27].
[31][2015] VSCA 17.
In the current case, I take the employer to be challenging both the decision‑making process and the result. In relation to the result, for substantially the same reasons as I expressed in refusing to find that the Panel had made a finding that was not open to it, I do not find that the Panel had made an ‘illogical or irrational’ finding of fact.
The position in respect of the Panel’s decision-making process is a little more nuanced, assuming, for present purposes, that a decision-making process, rather than its outcome, is open to review upon this ground. While it is not necessary to resolve the issue raised by Neave JA in Ryan[32] here, the language used in the authorities suggests both may be subject to review: the term ‘illogical’ being more likely to be referrable to a process than an outcome, while the outcome of the reasoning process might be more readily described as ‘irrational’.
[32]Ibid
The reasons do not disclose whether the Panel took into account the new information when making its determination, and my tentative view, as elaborated upon further later in these reasons, is that it probably did not do so. However, I have some hesitation in finding that a mere oversight (which I suspect it was), can go so far as to be said to amount to “grossly illogical” reasoning on the part of the Panel, particularly in circumstances where the availability of this aspect of the ground of review is not entirely settled.
In any event, this finding does not alter the ultimate result in this proceeding, given that, not only have I found that the Panel has also failed to afford the employer procedural fairness, I also consider that the Panel has, based upon the contents of the reasons, failed to take into account a matter it was bound to consider, in circumstances where that failure materially affected the decision itself.[33] One cannot find any reference in the reasons to any consideration or analysis of the new information, which leads me to infer that it was not the subject of actice intellectual consideration, and the materiality of the new information has already been considered in the section of these reasons dealing with the procedural fairness ground.
[33]Ryan, as paraphrased in Karabinis [2017] VSC 648, [54].
Inadequate Reasons
Finally, the employer submitted that, in the event that it was unsuccessful in establishing error on any other ground of review, the Panel’s reasons were inadequate. The employer submitted as follows:
Given the history recorded by the Panel of a return to work in the three or four months leading up to the Panel’s examination, and the lack of any subsequent consideration or discussion of that history, the Reasons are inadequate in that they do not disclose the path of reasoning by which:
(a)the Panel concluded that the worker had been absent from the workforce since November 2015;
(b)the Panel reconciled the inconsistent histories as to the worker’s attempts to return to work;
(c)the Panel concluded there was no work for which the worker was suited;
(d)the Panel concluded that the worker had ‘no current work capacity’ from 28 November 2015 and continuing as at the date of its examination.
In the circumstances, it was necessary for the Panel to provide in its Reasons explanations in respect of the above matters, in the absence of which this Court cannot ascertain whether or not the Panel fell into error as alleged in paragraphs 9 to 11 of the originating motion.
In response, the worker submitted that:
With respect to the Plaintiff’s complaints as to adequacy of reasons, the First Defendant submits that the Medical Panel acted upon the correct history, and upon the fact that the First Defendant had not been engaged in the workforce since November 2015, and further that the reasons to demonstrate the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it:
There is no dispute between the parties that the test for whether a medical panel has provided adequate reasons was authoritatively determined by the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’).[34] In Karabinis,[35] J Forrest J adopted the following summation by Cavanough J of the relevant principles, including the statements of the High Court in Wingfoot,[36] in Pearce v Dr John Lloyd & ors,[37] as follows (omitting citations):
A Medical Panel’s statement of reasons must set out ‘the actual path of reasoning by which the Medical Panel arrived at the opinion the Medical Panel actually formed for itself’. It must be ‘adequate to enable a court to see whether the opinion does or does not involve any error of law’. The statement is to contain ‘medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience’.
[34](2013) 252 CLR 480, [54]–[56].
[35][2017] VSC 648, [40].
[36](2013) 252 CLR 480.
[37][2016] VSC 806 [60].
I accept the submissions of the employer that the Panel’s reasons are inadequate, in that they merely disclose the new information, but do not analyse or comment upon the new information in the course of making its finding that the worker had not been in the workforce since November 2015. While a medical panel is not required to, say, refer to why it preferred one medical opinion over another, it seems to me that it is incumbent upon the Panel to resolve any factual inconsistencies in the material before it, if relevant, prior to making its determination. Further, the reasons do not disclose any proper consideration, or any consideration of the new information, which I have earlier found was a material matter. That said, the reasons disclose no other deficiencies.
Conclusion
Accordingly, I have found that the Panel erred in law in:
(a) failing to afford the employer procedural fairness;
(b) failing to take into account a relevant consideration; and
(c) failing to provide adequate reasons.
Of course, certiorari is a discretionary remedy, such that it is not a foregone conclusion that a party aggrieved by an error of law will obtain the relief they seek. However, while some of the worker’s submissions could be perceived to be in support of a submission that relief should be denied upon discretionary grounds, such as the contention that the new information discloses that the worker is clearly motivated to return to the workforce, and the submission to the effect that all of the medical evidence supports the Panel’s findings, this submission was not expressly pressed before me. In any event, the materiality of the new information, and the grounds upon which the employer is successful, militates against denying the employer relief on discretionary grounds.
Finally, the employer has submitted that, should I find in its favour, the medical questions should be remitted to a differently constituted medical panel. I have some doubt as to whether this is a clear cut case for this course of action. In particular, I note that in Omerasevic v Kotzman,[38] Riordan J noted that:
An order for remittal to another medical panel requires that good reason for doing so be established. Good reason can arise from strongly expressed views, adverse findings as to credit or apprehended bias.
[38][2016] VSC 383 [113].
In the current case, there were no relevant adverse findings made concerning the worker’s credit, and no suggestion of actual or apprehended bias. The question may arise as to whether the making of a determination in favour of the worker amounts to a ‘strongly expressed view’, as does the question of whether that view might change with a more fulsome exploration of the new information. I shall seek further submissions from counsel on this issue.
SCHEDULE OF PARTIES
S CI 2017 01418
MOGGILL COVE PTY LTD Plaintiff - and - STEVEN RICHARD BURTON First Defendant A/PROF LYNDEN ROBERTS Second Defendant A/PROF PETER GIBBONS Third Defendant DR DIANE NEILL Fourth Defendant MICHAEL PULLAR Fifth Defendant
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