Nobul Vic Pty Ltd v Slaven & Ors
[2024] VSC 174
•12 April 2024
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
S ECI 2023 00092
NOBUL VIC PTY LTD Plaintiff v RICKY SLAVEN & ORS (according to the attached Schedule of Parties) Defendants
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JUDGE:
Harris J
WHERE HELD:
Melbourne
DATE OF HEARING:
9 February 2024
DATE OF JUDGMENT:
12 April 2024
CASE MAY BE CITED AS:
Nobul Vic Pty Ltd v Slaven & Ors
MEDIUM NEUTRAL CITATION:
[2024] VSC 174
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JUDICIAL REVIEW – Opinion of Medical Panel – Whether Medical Panel made a jurisdictional error – Procedural fairness – Whether Panel failed to put new information obtained during the examination of the worker to employer party for comment – Whether failure to afford procedural fairness was material to the Panel’s decision – Whether Medical Panel failed to take into account a relevant consideration – Whether Medical Panel failed to make an obvious inquiry about a critical fact – Whether Medical Panel’s factual findings open – Whether Medical Panel’s reasons were inadequate – Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES:
Counsel Solicitors For the Plaintiff Mr M F Fleming KC with
Mr D ChurilovRussell Kennedy For the First Defendant Ms M Pilipasidis SC with
Ms G AngelowitschShine Lawyers For the Second to Sixth Defendants No appearance DLA Piper HER HONOUR:
Introduction
1 The first defendant, Ricky Slaven, was employed by the plaintiff, Nobul Vic Pty Ltd (Nobul), a labour hire company.[1] On 20 November 2018, while placed by Nobul to work as a casual wood machinist with a third party, Mr Slaven suffered a lumbar spine injury while carrying and stacking table tops.[2]
[1]Affidavit of Ricky Slaven sworn 14 July 2020 (Slaven Affidavit), [15].
[2]Affidavit of Tanya Corrine Bloom sworn 13 January 2023 (Bloom Affidavit), [2]; Slaven Affidavit, [17]; Joint Statement filed in the County Court pursuant to s 304(a) of the WIRC Act (s 304(a) Statement), [6]-[7].
2 On 15 July 2020, Mr Slaven lodged a serious injury application pursuant to Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCAct) with respect to that injury and a secondary/consequential mental or behaviour disturbance or disorder. The Victorian WorkCover Authority was not satisfied that Mr Slaven’s injuries were ‘serious injuries’ within the meaning of the WIRC Act. Mr Slaven issued an Originating Motion in the County Court of Victoria seeking leave to commence a damages proceeding against the plaintiff in respect of the injuries identified in the serious injury application.[3]
[3]Slaven Affidavit, [4].
3 On 14 July 2022, Judge Purcell referred certain medical questions to a Medical Panel pursuant to s 274 of the WIRC Act.[4] The Panel gave a Certificate of Opinion dated 17 November 2022 recording its opinions and reasons, including opinions as to Mr Slaven’s medical conditions and his work capacity. The Panel concluded, in summary, that Mr Slaven had a persisting lumbar dysfunction with referred left leg symptoms, arising from an unresolved soft tissue injury contributed to by the lumbar spine injury suffered in the course of his employment in November 2018. It also concluded that he had a work capacity as product assembler for limited hours per week and with other work restrictions, and had no capacity to work in other occupations identified in the medical questions.[5]
[4]Slaven Affidavit, [4].
[5]Medical Panel Certificate of Opinion dated 17 November 2022 (Opinion), 1-17.
4 Nobul now seeks judicial review of the Opinion insofar as they relate to his incapacity for certain occupations, and whether Mr Slaven’s limited work capacity for other occupations is permanent. Nobul takes issue in particular with the Panel’s conclusion that Mr Slaven had inadequate computer skills and specifically that he had not completed computer training.
5 Nobul’s grounds of review contend that the Opinion is affected by jurisdictional error, involving:
(a) a failure to accord procedural fairness, a failure to take into account a relevant consideration, a failure to make necessary inquiries and a constructive failure to perform the panel’s statutory function, relating to the Panel’s conclusion that Mr Slaven had not completed certain computer training and had inadequate proficiency in use of computers for certain of roles identified in the medical questions;[6]
[6]Originating Motion for Judicial Review dated 13 January 2023, Grounds 7-10.
(b) a finding of fact which was not open, with respect to the conclusion that Mr Slaven’s capacity for work for limited hours was permanent;[7] and
(c) a failure to give an adequate statement of reasons sufficient to comply with s 313(2) of the WIRC Act.[8]
[7]Originating Motion for Judicial Review dated 13 January 2023, Ground 9.
[8]Originating Motion for Judicial Review dated 13 January 2023, Ground 12.
6 The members of the Panel, the second to sixth defendants, advised the Court that they would submit to such orders as may be made by the Court in this proceeding, consistent with the principles referred to by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[9]
[9](1980) 144 CLR 13, 35-36; Letter to Prothonotary dated 20 September 2023.
Issues for determination
7 The first issue raised by the grounds of review is, in summary, whether the Panel failed to afford Nobul procedural fairness in accepting Mr Slaven’s history that he had not completed a vocational retraining course in Microsoft Essentials, and in determining that Mr Slaven’s computer skills would not enable him to undertake the administrative tasks associated with the identified potential suitable employment options without successfully completing appropriate vocational training. This question arises because Nobul and Mr Slaven had provided the Panel with an agreed fact that ‘In about August 2021 [Mr Slaven] completed a computer course in Microsoft Essentials’ (the Agreed Fact).[10]
[10]S 304(a) Statement, [12].
8 The second question is broadly whether the Panel erred in not taking into account and applying the Agreed Fact in determining the Opinion.
9 The third question is whether the Panel erred in failing to make an obviously needed inquiry about the status of Mr Slaven’s competency in computers, given the inconsistency between the history given by Mr Slaven and the Agreed Fact.
10 Fourth, there is a question as to whether it was open to the Panel to conclude that Mr Slaven’s capacity for work as a product assembler being limited to the maximum of three hours per day three days per week was permanent (meaning likely to persist for the foreseeable future), in circumstances where the Panel considered it possible that Mr Slaven could increase working hours in this role if his lumbar spine condition improved, but being uncertain whether this improvement would occur.
11 Finally, there is a question as to whether the Panel has given a statement of reasons sufficient to comply with s 313(2) of the WIRC Act in circumstances where, essentially, it did not explain why:
(a) it rejected the Agreed Fact and consistent information provided in some of the medical reports, and
(b) it found that Mr Slaven’s capacity for work as a product assembler being limited to the maximum of three hours per day three days per week was permanent (meaning likely to persist for the foreseeable future).
Statutory framework for medical panel opinions
12 Section 274 of the WIRC Act provides for the referral of medical questions to a medical panel for an opinion. It states, relevantly:
274 Medical questions
(1) In exercising jurisdiction under this Part, a court—
(a)may, on the court's own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b) if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party's intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2)This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985—
(a)so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b)so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of medical question in section 3)—
to a Medical Panel for an opinion.
…
(4)A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
…
13 Section 302 sets out the functions of a medical panel:
302 Function of Medical Panel
(1)The function of a Medical Panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment referred by ACCS, the court, VCAT, the Authority or a self-insurer.
(2)A Medical Panel must give its opinion on a medical question in accordance with this Division.
14 Section 304 provides for the materials that are required to be provided to the convenor of a medical panel:
304 Reference of medical question
A person or body referring a medical question to a Medical Panel must give the Convenor—
(a) a document specifying—
(i)the injury or alleged injury to, or in respect of, which the medical question relates; and
(ii)the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and
(b)copies of all documents relating to the medical question in the possession of that person or body.
15 The Panel is, pursuant to s 307, empowered to medically examine and question the worker, and to ask for all documents in the worker’s possession which relate to the medical questions put to the Panel.
16 Section 312 provides that a Panel may request further information:
312 Medical Panel may request further information
(1)If a medical question has been referred to a Medical Panel and the Medical Panel considers that further information is required to enable it to form a medical opinion on the question—
(a)the Medical Panel may request the worker, or the person or body referring the medical question, to provide the information within the period specified in the request, not being a period less than 14 days after the date on which the worker last attended for examination by the Medical Panel; and
(b)the Medical Panel must consider the information provided; and
(c)the time limit specified in section 313(1) is suspended from the date on which the request under paragraph (a) is made until the end of the period specified in the request.
(2)The Medical Panel may accept any further information requested under subsection (1)(a) which is provided after the period specified in the request under subsection (1).
The referred medical questions and the material before the Panel
17 With the medical questions referred to the Panel, the Panel was also provided with a statement prepared pursuant to s 304(a) of the WIRC Act dated 14 July 2022 (s 304(a) Statement), and other documents including submissions from the parties and a range of medical reports, rehabilitation reports and vocational assessments.
18 The s 304(a) Statement included agreed facts as to Mr Slaven’s work history, the circumstances of his injury, and the background to the Serious Injury application. It also identified facts in dispute relevant to the medical questions. Relevantly to the grounds of review identified by Nobul, the s 304(a) Statement included the following agreed facts:
3.The Plaintiff was born on 12 March 1976 and is aged 46 years. He completed Year 11 and then worked as a machinist. The Plaintiff has performed a variety of jobs in machinist type roles.
4.In 2011 he moved to Victoria from South Australia. Thereafter, he has performed work for various employers as a machine operator, production worker, process worker and CNC machine operator.
5.On 1 October 2018 the Plaintiff commenced employment with the Defendant (a labour hire agency). He was placed to work in the host employer’s factory as a wood machinist on a casual basis.
…
12.In about August 2021 the Plaintiff completed a computer course in Microsoft Essentials.
19 The s 304(a) Statement also referred to certain matters that were in dispute, including:
3.The Plaintiff’s capacity for pre-injury employment or ‘suitable employment’ (including the number of hours per week he can perform this employment for) having regard to the physical lumbar spine injury and whilst disregarding any psychological/psychiatric consequences (including non-organic/functional factors).
4.Whether any, and if so what, presently found medical condition of the Plaintiff’s mind is secondary/consequential to the physical lumbar spine injury.
5.If ‘yes’ to 4, whether any such medical condition of the Plaintiff’s mind is permanent (meaning likely to persist for the foreseeable future).
6.The Plaintiff’s capacity for pre-injury or ‘suitable employment’ (including the number of hours per week he can perform this employment for) having regard to the psychiatric/psychological injury which is secondary/consequential to the physical lumbar spine injury.
7.The permanence of the presently found physical and/or psychiatric/psychological capacity or incapacity for work.
8.The Plaintiff’s capacity to increase his work hours per week in the foreseeable future, if his presently found physical and/or psychiatric/psychological capacity for work is not permanent (meaning likely to persist for the foreseeable future).
20 The material before the Panel included reports assessing Mr Slaven’s capacity for work, and contained observations relevant to Mr Slaven’s degree of competency in using a computer, as well as references to his enrolment in the Microsoft Essentials computer course. The relevant materials were as follows:
(a) A transferable skills analysis by AMS Consulting Group dated 21 February 2019, which in respect of ‘Training/Courses completed’ noted that Mr Slaven had the following qualification: ‘Bachelor in Computer Technology (started first semester)’. This report stated that ‘Mr Slaven reports to have knowledge of Microsoft Office programs, however reports his skills would not be adequate for a sedentary, office based role’ and that ‘Mr Slaven expressed an interest in data entry and administrative roles. However believes his knowledge of Microsoft Outlook, Word and Excel may not be at the required level.’ The report also stated that while Mr Slaven identified that he would prefer to remain in a role similar to his pre-injury job, he ‘acknowledged that in relation to his capacity moving forward, he would prefer a sedentary role.’ In relation to the future employment options of Customer Service Assistant, Warehouse Administrator and Administration Officer, the report noted that ‘re-training to increase computer literacy would be beneficial.’ The report provided an example of a course titled ‘Basic – Intermediate Microsoft Package’, which ‘would be beneficial for Mr Slaven to secure employment in a sedentary role such as customer service officer, administration officer and warehouse administrator.’ The report’s recommendation included that ‘Mr Slaven presents as motivated to return to work in a sedentary role, however it would be beneficial for Mr Slaven to complete retraining to improve his computer literacy in regards to Microsoft Word, Excel and Outlook for roles such as Customer Service Assistant, Administration Officer and Warehouse Administrator.’
(b) Reports from Procare Injury Management including a capacity assessment dated 27 July 2020, which noted that ‘Mr Slaven reported he is confident in his ability to use a computer and can use Microsoft Office (specifically Word, Excel, PowerPoint and Outlook), emails, the internet and smartphones’. In relation to job interests, the assessment stated that Mr Slaven had reported that:
…
· He has an interest in computers an [sic] information technology and would ideally like to work in a field that involves this.
· He felt that a sedentary role was most suitable.
· He is interested in an administrative role but is conscious that he has never worked in an office environment.
The report stated that ‘Mr Slaven was still very keen to consider an IT helpdesk role, however, Procare advised significant retraining would be necessary to be able to be successful in obtaining this employment’. In relation to the employment options of ‘Filing and Registry Clerk’, ‘Data Entry Clerk’ and General Clerk’, the report noted that ‘a basic administrative course would be beneficial to bring Mr Slaven’s skills up to date.’ The report identified a need for retraining, and recommended courses titled ‘Certificate in Word and Data Entry’ and ‘Certificate in Microsoft Essentials’. Under ‘Worker Comments’, the Report noted that ‘Mr Slaven reported he would like to undertake some basic computer training to update his skills. Mr Slaven reported he would like to work in an administrative based role.’
(c) A Return to Work Job Seeking Plan from Procare dated 6 October 2020, which noted under the heading ‘If retraining is recommended’ that ‘Mr Slaven is currently completing a Certificate in Microsoft Essentials through The Career Academy.’
(d) A 130 Week Vocational Assessment Report from Procare identified as having been submitted to the agent on 7 October 2020, identifying vocational assessment outcomes. This report identified five employment options ‘which may require further training to ensure that Mr Slaven’s skills are up to date’ and noted that ‘Mr Slaven does not feel that he is ready to commence the job seeking process, and would like to focus on himself, including commencing study at university, rather than job seeking.’ In relation to computer use, the report stated that ‘Mr Slaven reported he is confident in his ability to use a computer and is able to use Microsoft Office (specifically Word, Excel, PowerPoint and Outlook), emails, the internet and smartphones.’ In relation to Mr Slaven’s job interests, the report stated that:
Mr Slaven is currently completing a Certificate in Microsoft Essentials which Allianz are funding to build his confidence in using Microsoft Office again and this will provide him with the necessary skills to work in an entry level administrative role.
Mr Slaven was still very keen to consider an IT helpdesk role, however, Procare advised significant retraining would be necessary to be able to be successful in obtaining this employment. Procare advised that this is a role Mr Slaven will need to consider independently given the long-term retraining required to upskill into this field.
In relation to the employment options of ‘Filing and Registry Clerk’, ‘Data Entry Clerk’, and ‘General Clerk’, the Report noted that ‘no formal retraining is required, however Mr Slaven is completing a Certificate in Microsoft Essentials.’
(e) An independent medical examination by Dr Geoffrey Graham of Occmed, dated 6 October 2020, which noted that Mr Slaven ‘had applied for work in the information technology arena although he had no recognised experience. He had also investigated re-training options.’
(f) A Final Exercise Report from ‘Guardian exercise rehabilitation’ dated 17 February 2021 stating ‘He has completed an online course in computer programming and technology.’
(g) A Job Seeking Review from Procare dated 23 February 2021, which recorded that one of the ‘actions’ for Mr Slaven’s ‘job seeking activities’ had been to ‘complete the recommended and pre-approved Certificate in Microsoft Essentials’ and that he had ‘only recently re-engaged in this course in mid-February 2021’. Procare recorded that one of the ‘actions’ for the next review period was ‘to complete Microsoft Essentials Computer Training.’ Procare recommended that ‘Mr Slaven complete the approved Microsoft Essentials retraining course ASAP.’
(h) A Report from Professor Bittar, neurosurgeon, diagnosing Mr Slaven with aggravation of lumbar spondylosis and opining that he does not have any realistic capacity for suitable employment and that his total incapacity for work is permanent.
(i) A Vocational Assessment Report from Recovre dated 26 May 2021, which stated that:
Mr Slaven reported having good computer skills and confirmed he is able to navigate the internet, send/receive emails, use Microsoft Word, Microsoft Excel, Microsoft PowerPoint, Fruity Loops (a digital audio workstation), Adobe and OBS studio (a cross-platform streaming and recording program). He is able to install and set up various programs including anti-virus software, and used a programming system called Mazatrol in some of his machining roles.
Mr Slaven started an online Certificate in Microsoft Essentials course in September 2020 however put the course on hold as he advised he was having some personal difficulties at the time. He has not yet resumed the course and advised he has approximately two thirds of the course left to complete.
The report further noted, under the heading ‘Vocational Options’:
Recovre notes that Mr Slaven is looking to retrain and would ideally like to work within a computer programming or IT helpdesk support type role. In the experience of the assessors, IT helpdesk workers or service desk analysts typically require a Diploma in IT as a minimum qualification, however most workers in these occupations hold a Bachelor of IT and this is the qualification desired by employers for such roles. According to Jobmarkets.com.au, a degree is also typically required to work as a developer programmer or software programmer. Therefore, it is likely that Mr Slaven would need to complete tertiary studies in order to target work in his desired field.
(j) A telehealth assessment by Dr Joseph Slesenger, Specialist Occupational Physician, dated 26 May 2021 and obtained by Mr Slaven’s legal representatives, which observed that Mr Slaven ‘advised that he is currently retraining in computers (he is studying Microsoft Essentials).’ A subsequent report of Dr Slesenger dated 7 July 2022 made the same observation in the history.
21 The parties also provided written submissions to the Panel. Nobul referred in the submissions to Mr Slaven being ‘proficient in utilising MS Word, MS Excel. MS PowerPoint, as well as Adobe’. The submissions stated:
The Plaintiff has reported having good computer skills and is able to navigate the internet and use Outlook to send/receive emails. The Defendant also notes that in about August 2021 the Plaintiff completed a computer course in Microsoft Essentials.[11]
[11]Defendant’s Submissions to Medical Panel dated 13 July 2022, [18], referring in footnote 15 to the Procare report dated 27 July 2020 and Recovre Vocational Assessment report.
22 Mr Slaven’s submissions to the Panel did not refer to the Agreed Fact or any of the material relating to his competency with computers or to the Microsoft Essentials course. The submissions stated in more general terms that:
…the plaintiff objectively does not have a realistic capacity for “suitable employment” within the meaning of the Act when one assesses:
(a) the nature of the plaintiff’s incapacity;
(b) the nature of the plaintiff’s pre-injury employment;
(c) the plaintiff’s education, skills and work experience.
(d) his symptoms / restrictions…[12]
[12]Plaintiff’s Submissions to the Medical Panel dated 8 July 2022, [26].
The Panel’s Opinion and Reasons
23 The Panel’s Opinion set out the referred questions and the Panel’s opinion on each of them. As relevant to the grounds of review, the questions and opinions were as follows (underlining for emphasis added):
Question 1.What is the nature of the medical condition/s of the Plaintiff’s:
(a) Lumbar spine;
(b) Mind?
Answer: The Panel is of the opinion that the Plaintiff:
(a)is suffering from persisting lumbar dysfunction with referred left leg symptoms following an unresolved soft tissue injury on a background of lumbar spondylosis; and
(b)is not suffering from any psychiatric or abnormal psychological condition.
Question 2.Does any, and if so what, physical medical condition of the Plaintiff’s lumbar spine as found in answer to Question 1(a) result from, or is it materially contributed to by, the physical lumbar spine injury suffered on 20 November 2018 in the course of the Plaintiff’s employment with the Defendant? (“the physical lumbar spine injury”)
Answer:The Panel is of the opinion that the Plaintiff’s persisting lumbar dysfunction with referred left leg symptoms results from and is materially contributed to by the physical lumbar spine injury.
Question 3.If ‘yes’ to Question 2, is any, and if so what, physical medical condition of the Plaintiff’s lumbar spine as found in answer to Question 2 permanent (meaning likely to persist for the foreseeable future?)
Answer:The Panel is of the opinion that the Plaintiff’s persisting lumbar dysfunction with referred left leg symptoms is permanent.
Question 4.Having regard to the physical lumbar spine injury and whilst disregarding any psychological/psychiatric consequences, does the Plaintiff have:
(i) a ‘current work capacity’;
(ii) a [sic] ‘no current work capacity’?
Answer:(i) Yes.
(ii)No.
Question 5.(a) if ‘yes’ to Question 4(i), having regard to the physical lumbar spine injury and whilst disregarding any psychological/psychiatric consequences, does employment as:
(i) Machine Operator (light items);
(ii) ICT Sales Assistant;
(iii) Filing and Registry Clerk;
(iv) Data Entry Clerk;
(v) General Clerk;
(vi) Product Assembler (light items);
(vii) Forklift Driver;
constitute ‘suitable employment’ for the Plaintiff and, if so, for how many hours per week?
(b)if ‘no’ to Question 5(a) in respect of any of the listed employment, is this incapacity for work permanent (meaning likely to persist for the foreseeable future);
(c)if ‘yes’ to Question 5(a) in respect of any of the listed employment, is the found work capacity (including hours per week) permanent (meaning likely to persist for the foreseeable future)?
Answer: The Panel is of the opinion that:
(a)the Plaintiff has the capacity to work as a product assembler (light items) within the work restrictions of a 5kg manual handling limit; avoidance of repetitive lifting, bending and twisting; avoidance of prolonged walking or any climbing duties; and the ability to change posture at will for 3 hours per day on 3 days per week (9 hours per week).
The Panel is also of the opinion that the Plaintiff does not have the capacity to work as a machine operator or forklift driver; and does not have the capacity to work as an ICT sale assistant, filing and registry clerk, data entry clerk or general clerk without successfully completing the relevant vocational retraining requirements.
(b)the Plaintiff’s incapacity for work as a machine operator, forklift driver, ICT sale Assistant, filing and registry clerk, data entry clerk and general clerk is permanent.
(c)the Plaintiff’s capacity to work as a product assembler (light items) within the work restrictions of a 5kg manual handling limit; avoidance of repetitive lifting, bending and twisting; avoidance of prolonged walking or any climbing duties; and the ability to change posture at will for 3 hours per day on 3 days per week (9 hours per week) is permanent.
…
Date of Opinion: 17 November 2022
24 The Panel’s Reasons for opinion set out its reasons for its conclusions that Mr Slaven had a persisting lumbar dysfunction with referred left leg symptoms which was materially contributed to by the physical lumbar spine injury suffered in the course of his employment.[13] The Reasons also explained the Panel’s conclusion that Mr Slaven, although frustrated and stressed by his circumstances, was not suffering from any psychiatric or abnormal psychological condition.[14] The Reasons then addressed Mr Slaven’s work capacity, commencing with a discussion of how Mr Slaven had described his employment history and educational background, apparently obtained at the Panel’s examination of Mr Slaven on 7 October 2022. The Reasons stated:
He described a basic level of computer proficiency, involved in computer gaming, internet surfing and internet banking. He said that he does not have experience using computer programs or programming (despite an interest) and did not complete the vocational retraining course in Microsoft Essentials in 2021. He did not describe any spreadsheet or database experience and does not use Microsoft Word for any of his computer based activities. He said he was unfamiliar with Adobe programs.
The Plaintiff said he has not undertaken any other vocational retraining and that there is no return to work plan.[15]
[13]Reasons, 6-8.
[14]Reasons, 11.
[15]Reasons, 12.
25 The Panel then discussed the nature of Mr Slaven’s pre-injury duties and the clinical features of his persisting lumbar dysfunction, concluding that his ‘incapacity for his pre-injury employment is likely to remain present into the foreseeable future and is therefore permanent.’[16] The Panel referred to the vocational assessments and reports, including the Recovre vocational assessment of 26 May 2021 which had reported that Mr Slaven had good computer skills with ability to use Microsoft office, Adobe and a range of other programs. The Panel noted the physical and psychological demands of the potential suitable employment options before concluding that:
The Panel considers that the assessment of the Plaintiff’s computer skills as outlined in the Recovre vocational assessment is not supported by any documented proficiency in these programs, any actual employment related tasks using these programs, or by the account provided by the Plaintiff himself.[17]
[16]Reasons, 12.
[17]Reasons, 13.
26 The Panel did not refer to the Agreed Fact in this context.
27 The Reasons then noted that in response to the Panel’s question to Mr Slaven as to whether he considered he would be able to undertake any of the potentially suitable employment options identified, he said that he ‘lacked the experience and necessary computer skills to work in any clerical role’ and would struggle with the physical aspect of the machine operator or product assembler roles.[18]
[18]Reasons, 13.
28 The Panel then addressed the aspects of the definition of ‘suitable employment’ in the WIRC Act. It noted with respect to Mr Slaven’s computer skills that the Panel considered they would not enable him to ‘undertake the administrative tasks associated with the potential suitable employment options…without completing the appropriate vocational retraining’.[19] On the issue of vocational retraining the Panel later stated:
The Panel considers that the Plaintiff does not have the requisite skills without successfully completing the necessary vocational retraining to work in the roles of ICT sales assistant, filing and registry clerk, data entry clerk or general clerk. The Panel is uncertain if or when any vocational retraining for [Mr Slaven] may be successfully completed to facilitate potential employment in these more sedentary roles given his failure to complete his earlier Microsoft Essentials vocational retraining.[20]
[19]Reasons, 13.
[20]Reasons, 14.
29 This conclusion was then relevant to its ultimate conclusion on work capacity that Mr Slaven ‘does not have the capacity to work as an ICT sale assistant, filing and registry clerk, data entry clerk or general clerk without successfully completing the relevant vocational retraining requirements’.[21]
Ground 1:Did the Panel fail to observe the requirements of procedural fairness in its findings as to Mr Slaven’s computer proficiency?
[21]Reasons, 15.
30 Nobul’s submissions as to its procedural fairness ground were essentially:
(a) the effect of the documentary material before the Panel, including the histories given to Procare and Recovre which were referred to in their reports, was that Mr Slaven was competent in using computers and had some proficiency in Microsoft computer software, and in particular that he had completed a retraining course in Microsoft Essentials in about August 2021;
(b) the Panel accepted the history given by Mr Slaven that he had a basic level computer skills only and had not completed the Microsoft Essentials course;
(c) the history given by Mr Slaven regarding his computer skills was materially inconsistent with the documentary material, in particular the Agreed Fact and, as such, was ‘new information’; and
(d) in these circumstances the Panel was obliged to put the substance of that ‘new information’ to Nobul and to give it a reasonable opportunity to address that information.
31 It was submitted for Mr Slaven that the premise that the history taken from him differed significantly from the documentary materials could not be accepted. In particular, it was contended that when considered closely, the histories taken by Procare and Recovre and recorded in their reports were not materially inconsistent with the history Mr Slaven provided to the Panel. The Microsoft Essentials course the subject of the Agreed Fact was not determinative of the issue. Even if, contrary to Mr Slaven’s position, there was any failure to afford procedural fairness, there was no basis for the Court to infer that the Panel’s opinion would have been any different, had that procedural fairness been afforded.
Legal principles as to procedural fairness
32 The legal principles applicable to the grounds of review were for the most part not the subject of any controversy between the parties.
33 The Panel is required, in performing the function of forming an opinion on questions referred to it, to observe procedural fairness. Doing so gives the parties the opportunity to supply the Panel with material which may be relevant to the formation of the opinion, and to make submissions on the basis of that material.[22] In WagstaffCranbourne Pty Ltd v Hashimi, the Court of Appeal observed:
A medical panel does not afford a party a reasonable opportunity to be heard where it reaches an adverse opinion on a matter which the party did not address because it could not reasonably have been anticipated that the medical panel might reach that opinion…[D]epending on the facts, those circumstances may include a situation where, without prior notice, a medical panel treats as determinative a fact or evidence that is known to be before the medical panel but upon which the parties placed no reliance.[23]
[22]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498-499, [47] (French CJ, Crennan, Bell, Gageler and Keane JJ); Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [39] (Beach, Kyrou and Kaye JJA).
[23]Wagstaff Cranbourne Pty Ltd v Hashimi [2020] VSCA 33, [40] (Beach, Kyrou and Kaye JJA).
34 In the specific context of information provided to a medical panel during the taking of a medical history, Kyrou J observed in Vegco Pty Ltd v Gibbons[24] that one means by which a medical panel may fail to afford procedural fairness is where it ‘relies on new information provided to it by the worker during an examination by the medical panel…and does not, prior to reaching a final opinion, provide the substance of this new information...to the parties affected by its opinion and give them a reasonable opportunity to address it.’[25] In that case, the relevant matter that had been disclosed during the examination was a further injury of which the plaintiffs were unaware when the questions had been referred to the medical panel.[26] The panel did not raise that new information with the plaintiffs to enable them to make submissions.
[24][2008] VSC 363.
[25][2008] VSC 363, [23].
[26][2008] VSC 363, [24]-[25].
35 Justice Kyrou referred in Vegco to the decision of Smith J in Weerappah v Niselle[27] where his Honour gave, as an example of a situation in which procedural fairness required a medical panel to provide a further opportunity for submissions, ‘where the worker provided the Panel with new material and thus, in fairness to the insurer, it was necessary to contact the insurer to give it an opportunity to respond’.[28]
[27][1999] VSC 249.
[28]Weerappah v Niselle [1999] VSC 249, [41].
36 In Venture Campbellfield Pty Ltd v Isitman[29] T Forrest J addressed the specific situation of a departure by a medical panel from an agreed fact. In that case, which related to a worker who had suffered shoulder injuries, the parties had agreed a joint statement pursuant to s 304(a) of the WIRC Act which set out as agreed facts the work duties of the plaintiff. During an examination by the Panel, the worker provided information to the Panel that his duties included stacking boxes above head height.[30] That was not a duty identified in the agreed facts as to work duties in the joint statement. Justice T Forrest held that the Panel denied the employer procedural fairness because the Panel ‘attached real significance to this new information’ but did not put it to the employer.[31]
[29][2016] VSC 665.
[30][2016] VSC 665, [10].
[31][2016] VSC 665, [25]-[26].
37 A failure to afford procedural fairness will constitute jurisdictional error if it was material to the decision,[32] in the sense that there is a realistic possibility that the outcome could have been different if procedural fairness had been afforded.[33] There will generally be a realistic possibility that a decision making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration.[34]
Was there a significant divergence between the documentary information before the Panel and the history taken by the Panel in examining Mr Slaven?
[32]MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 543-44 [101]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Ethnic Affairs[2024] HCA 12, [7] (Gageler CJ. Gordon, Edelman. Steward. Gleeson and Jagot JJ, with whom Beech-Jones J agreed, [38]).
[33]Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 103 [32]-[33] (Kiefel CJ, Keane and Gleeson JJ), 107-108 [46] (Gageler J); LPDT [2024] HCA 12, [7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, with whom Beech-Jones J agreed, [38]).
[34]Nathanson (2022) 276 CLR 80, 103 [33] (Kiefel CJ, Keane and Gleeson JJ).
38 There are two aspects of the information before the Panel relating to Mr Slaven’s proficiency in using computers which are to be considered in determining whether the history identified by the Panel was significantly different from the documentary material provided to it.
39 First, there is the specific issue of whether Mr Slaven completed the Microsoft Essentials course which was the subject of the Agreed Fact. Secondly, there was the more general information about what skills or experience Mr Slaven had in using computers and his proficiency in computer programmes.
The Microsoft Essentials course
40 The Agreed Fact unequivocally stated that Mr Slaven had ‘completed a computer course in Microsoft Essentials’ in about August 2021.[35] That was referred to and relied on in Nobul’s submissions to the Panel,[36] and not contradicted or qualified in Mr Slaven’s submissions.
[35]S 304(a) Statement, [12].
[36]Plaintiff’s Submissions to the Medical Panel dated 8 July 2022, [19] at footnote 16.
41 It was submitted for Mr Slaven that the Procare and Recovre reports had not recorded Mr Slaven having told them that he had completed the Microsoft Essentials course, so there was no material difference to the history noted by the Panel.[37]
[37]First Defendant’s Submissions, 14 September 2023, [11]-[12].
42 Although the reports and histories before the Tribunal extending up to July 2021 had not referred to Mr Slaven having completed the course, the Agreed Fact in the subsequently agreed s 304(a) Statement, that he had completed it by August 2021, was entirely consistent with all of that material.
43 The transferable skills analysis by AMS Consulting Group dated 21 February 2019 recorded that Mr Slaven had reported ‘knowledge of Microsoft Office programs, however reports his skills would not be adequate for a sedentary, office based role’ and that ‘his knowledge of Microsoft Outlook, Word and Excel may not be at the required level’ for data entry and administrative roles. The report proposed retraining and identified a course titled ‘Basic – Intermediate Microsoft Package’. A Procare report of 6 October 2020 refers to Mr Slaven having ‘only started the Certificate in Microsoft Essentials 2 weeks ago and has not progressed far as he advised he is struggling with concentration and short term memory’.[38] A subsequent Procare report of 23 February 2021 referred to Mr Slaven re-engaging in the Microsoft Essentials course on approximately 15 February 2021.[39] The Guardian report of 17 February 2021 stated that Mr Slaven had ‘completed an online course in computer programming and technology’ but did not identify what that course was or when it had been completed.[40]
[38]Joint RTW Job Seeking Plan 6 October 2020.
[39]Job Seeking Review (8 Weekly) 23 February 2021, 3.
[40]Guardian Exercise Rehabilitation, Final Exercise Report 17 February 2021, 1.
44 By May 2021, the Recovre Vocational Assessment Report referred to Mr Slaven having put the Microsoft Essentials course on hold, and having two thirds of the course to complete.[41] The reports of Dr Slesenger in May and July 2021 refer to Mr Slaven ‘currently retraining in computers’ and ‘studying Microsoft Essentials’.
[41]Recovre Vocational Assessment Report, 26 May 2021, 4.
45 The s 304(a) Statement containing the Agreed Fact that Mr Slaven had completed the Microsoft Essentials course was made a year later, in July 2022.[42]
[42]S 304(a) Statement, [12].
46 The history that the Panel recorded having taken from Mr Slaven was that he ‘did not complete the vocational retraining course in Microsoft Essentials in 2021’.[43] There is no question that this aspect of the recorded history was directly inconsistent with the Agreed Fact. The Panel’s observations that there was an ‘absence of any completed vocational retraining’[44] and of Mr Slaven’s ‘failure to complete his earlier Microsoft Essentials vocational retraining’[45] were also inconsistent with the Agreed Fact.
[43]Reasons, 12.
[44]Reasons, 13.
[45]Reasons, 14.
47 Counsel for Mr Slaven submitted that proceeding on the basis of the history did not involve error by the Panel because the Agreed Fact was ‘an error by the parties’. It was contended that what had occurred was that ‘the solicitor has made the error and the panel corrected it, after considering all the evidence and taking into account what the worker told it’.[46]
[46]Transcript 9/02/2024, T55.8-.15.
48 However there was no evidence that the Agreed Fact was in error. The only evidence on the issue was to the contrary. Nobul tendered without objection[47] an email exchange between the legal representatives of the parties in August 2021 in which the solicitors for Mr Slaven, in response to a query from Nobul’s solicitors, advised ‘We understand that our client will complete the Microsoft Essentials course this week’.[48] Mr Slaven did not seek to adduce any evidence that he not had completed the course nor that his legal representatives had made any error in agreeing to the s 304(a) Statement and the Agreed Fact.
[47]Transcript 9/02/2024, T2.12-.27, T3.11-.16.
[48]Email dated 18 August 2021 from Tamara Wright to Tanya Bloom.
49 There was, therefore, a clear and unexplained inconsistency between the Agreed Fact, and Mr Slaven’s statement during examination by the Panel that he had not completed the Microsoft Essentials course.
The information before the Panel relating to Mr Slaven’s proficiency with computers
50 The Panel’s Opinion recorded that Mr Slaven had described to it a ‘basic level of computer proficiency, involved in computer gaming, internet surfing and internet banking’ and that he had said that he ‘does not have experience using computer programs or programming (despite an interest)’. The Panel also stated:
He did not describe any spreadsheet or database experience and does not use Microsoft Word for any of his computer based activities. He said he was unfamiliar with Adobe programs.[49]
[49]Reasons, 12.
51 The documentary material before the Panel was not entirely consistent as to what proficiency Mr Slaven had in using a computer and specific programs.
52 The initial transferable skills analysis by AMS Consulting Group dated 21 February 2019, referred to Mr Slaven having started the first semester of a ‘Bachelor in Computer Technology’. That report also stated that ‘Mr Slaven reports to have knowledge of Microsoft Office programs, however reports his skills would not be adequate for a sedentary, office based role’ and that ‘his knowledge of Microsoft Outlook, Word and Excel may not be at the required level.’ A capacity assessment by Procare in July 2020 stated that:
Mr Slaven reported he is confident in his ability to use a computer and can use Microsoft Office (specifically Word, Excel, PowerPoint and Outlook) emails, the internet and smart phones.
53 This was repeated in the Procare Vocational Assessment Report.[50] Both reports acknowledged that Mr Slaven wanted to update his computer skills. The Recovre Vocational Assessment Report recounted quite specific information as having been provided by Mr Slaven in relation to computer proficiency:
Mr Slaven reported having good computer skills and confirmed he is able to navigate the internet, send/receive emails, use Microsoft Word, Microsoft Excel, Microsoft PowerPoint, Fruity Loops (a digital audio workstation), Adobe and OBS studio (a cross-platform streaming and recording program). He is able to install and set up various programs including anti-virus software, and used a programming system called Mazatrol in some of his machining roles.
[50]Recovre 130 Week Vocational Assessment Report 26 May 2021.
54 Taken overall, the documentary material before the Panel indicated that Mr Slaven had expressed a familiarity with Microsoft computer programs such as Word, Excel, PowerPoint as well as email and internet use, but an acknowledgement that some updating of his skills would be needed for an administrative role. This was quite different to the history given to the Panel of having only basic computer proficiency in the fields of gaming, internet surfing and internet banking, and not having used Microsoft Word.
55 There was a material divergence between the more general information about Mr Slaven’s computer proficiency in the documentary material before the Panel, and the information given by Mr Slaven to the Panel during the examination.
What was the significance of the inconsistent information?
56 The Panel clearly relied on Mr Slaven’s account of not having completed the Microsoft Essentials Course, and his limited computer proficiency, in coming to its conclusion that Mr Slaven does not have the requisite skills to work in the roles of ICT sale assistant, filing and registry clerk, data entry clerk or general clerk. In particular:
(a) The Panel referred to Mr Slaven’s statements that he had limited computer proficiency and had not completed the Microsoft Essentials course.[51]
[51]Reasons, 18.
(b) The Panel stated that it had ‘considered all aspects of the definition of “suitable employment” contained in the legislation…[and] noted…his computer skills (which the Panel considers would not enable the Plaintiff to undertake administrative tasks associated with the potential suitable employment options noted above without successfully completing the appropriate vocational retraining)…[and]…the absence of any completed vocational retraining (which the Panel considers significantly limits his employment opportunities in the potential clerical suitable employment options)…’.[52]
(c) The Panel stated that it ‘considers that the Plaintiff does not have the requisite skills without successfully completing the necessary vocational retraining to work in the roles of ICT sales assistant, filing and registry clerk, data entry clerk or general clerk. The Panel is uncertain if or when any vocational retraining for the Plaintiff may be successfully completed to facilitate potential employment in these more sedentary roles given his failure to complete his earlier Microsoft Essentials vocational retraining’.[53]
[52]Reasons, 13.
[53]Reasons, 14.
57 The new information provided by Mr Slaven during the examination that he only had a basic level of computer proficiency, did not have experience using computer programs or programming, and did not complete the vocational retraining course in Microsoft Essentials in 2021 was evidently considered by the Panel to be of significance to its ultimate conclusion as to whether he had the requisite skills for identified roles.
There was a failure on the part of the Panel to afford procedural fairness
58 The new information provided during the examination differed materially from the Agreed Fact and other documentary material before the Panel, and could not have been anticipated by Nobul. It was significant to the Panel’s conclusion. In these circumstances, the principles of procedural fairness required that the Panel put the parties on notice of the new information, and provide them with an opportunity to provide it with any further material identified by the parties as relevant to the issue and to permit them to make further submissions. The Panel did not do so, and so did not afford Nobul procedural fairness.
The failure to afford procedural fairness was material
59 Mr Slaven submitted that any failure to afford procedural fairness was not material.
60 First, Mr Slaven submitted that the failure to raise the new information from the examination was not material to the outcome because the Panel’s acceptance of Mr Slaven’s history was only one of three alternative bases on which it determined not to accept Recovre’s assessment that he had ‘good computer skills’.[54] The other two bases were that Recovre had not supported its assessment with any ‘documented proficiency in the programs referred to in the Recovre report’, nor any history of employment using those programs.[55] Senior counsel for Mr Slaven noted that the Recovre report’s assessment that Mr Slaven had ‘good computer skills’ was in 26 May 2021, which was before the date on which the Agreed Fact identified him as having completed the Microsoft Essentials course, so it could not have been relevant to Recovre’s assessment of suitable roles.[56]
[54]First Defendant’s Submissions dated 14 September 2023, [18].
[55]Reasons, 13.
[56]Transcript 09/02/24, T79.21-.29.
61 The Panel concluded that the Recovre report’s assessment that Mr Slaven had ‘good computer skills’ was not supported by reference to a documented proficiency or any employment related tasks using computer programs. Those two matters were not independent bases for its ultimate conclusion. They were observations which reinforced its rejection of the Recovre assessment that Mr Slaven had good computer skills. The Panel’s approach to the Recovre report instead demonstrates the materiality of the Panel’s failure to put the new information from the medical examination to Nobul. In particular, the Panel should have permitted Nobul to make submissions as to the resolution of the inconsistency between the new information, the Agreed Fact, and the information in the Recovre Report and other documentary material.
62 Secondly, Mr Slaven submitted that Nobul had not sought to adduce any evidence that he had in fact completed the Microsoft Essentials course, nor as to its content.[57] Mr Slaven submitted that the course could be assumed to be at a ‘basic, non-vocational level’ by reason of its name, so that completion or otherwise would not have made a difference to the Panel’s conclusion.[58]
[57]First Defendant’s Submissions dated 14 September 2023, [20].
[58]First Defendant’s Submissions dated 14 September 2023, [21].
63 The Panel gave Mr Slaven’s ‘failure to complete his earlier Microsoft Essentials vocational retraining’ as a reason for its conclusion that it was uncertain whether he could complete any vocational retraining.[59] Regardless of the content of the course, or its level, it was plainly material to that element of the Panel’s reasoning. As to the absence of evidence that he had in fact completed it, the test of materiality – that the decision could have been different had there been an opportunity to address the new information - does not require Nobul to establish exactly what the true situation was, in circumstances where it had been deprived of any opportunity to make submissions on the topic. The unexplained inconsistency of the new information with other information before the Panel, on an issue significant to the Board’s conclusion, meant that there was a realistic possibility that its decision making could have resulted in a different outcome if procedural fairness was afforded.[60]
[59]Reasons, 14.
[60]Nathanson (2022) 276 CLR 80, [33] (Kiefel CJ, Keane and Gleeson JJ; Gageler J).
64 I accept that the Panel’s failure to afford procedural fairness was material, and that Ground 1 is established.
65 Senior counsel for Nobul acknowledged that Ground 1 was the principal ground relied on[61] and in effect that the other grounds were secondary. I will consider them briefly in the event that I am wrong in my conclusion that there was a failure to afford procedural fairness and that Ground 1 should succeed.
[61]Transcript 09/02/24, T38.28-.31.
Ground 2: Failure to take into account a relevant consideration
66 Nobul submitted that the Panel did not genuinely consider the Agreed Fact, to which it was bound to have regard. The Agreed Fact was a mandatory consideration in circumstances where:
(a) the Panel was bound to consider the agreed facts in the s 304(a) Statement, which the WIRC Act mandated must be provided to the Panel; and
(b) the issue of Mr Slaven’s capacity for suitable employment in light of his proficiency in computing was central to the Panel’s task in answering the medical questions.[62]
[62]Plaintiff’s Submissions dated 15 May 2023, [36]-[39]; Transcript 09/02/2024, T39.13-42.2.
67 Nobul accepted that the Panel was not bound to accept or act in accordance with the agreed facts in the s 304(a) Statement.[63] However, it is a document to which the Panel is required to give genuine consideration.[64] The relevance of the Agreed Fact and the need to give it genuine consideration was reinforced by the fact that Nobul referred to it prominently in its submissions to the Panel.[65]
[63]Transcript 09/02/24, T9.28-10.14.
[64]Plaintiff’s Submissions dated 15 May 2023, [33]-[34], referring to Victorian WorkCover Authority v Putrus [2023] VSCA 28, [37] (Beach, Kennedy JJA and J Forrest AJA).
[65]Transcript 09/02/24, T20.21-21.8, referring to Nobul’s submissions to the Medical Panel dated 13 July 2022 at [18] and [19].
68 Mr Slaven submits that the Panel genuinely considered the Agreed Fact but did not accept it, an approach it was entitled to take.[66] In particular, Mr Slaven points to the fact that the Panel expressly stated that it had regard to the s 304(a) Statement, ‘noted the agreed facts and questions in dispute’, a statement that should be taken at face value.[67] The Panel also stated that it considered the submissions made by Nobul and Mr Slaven, specifically questioned Mr Slaven about the Microsoft Essentials course, and referred in its Opinion to its conclusions on that specific course several times.[68] The Panel then did not accept the Agreed Fact and came to its own conclusion based on the information before the Panel that Mr Slaven did not complete the Microsoft Essentials course.[69]
[66]First Defendant’s Submissions dated 14 September 2023, [26]-[27]; Transcript 09/02/2024, T71.4-.9, T80.24-.30.
[67]First Defendant’s Submissions dated 14 September 2023, [26], citing Maribyrnong City Council v Malios [2014] VSC 452, [48] (Macaulay J); Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [83] (Cavanough J).
[68]First Defendant’s Submissions dated 14 September 2023, [26]-[27].
[69]Transcript 09/02/24, T80.15-.30.
69 Nobul submitted that the Panel could not have taken the Agreed Fact as to completion of the Microsoft Essentials course into account, and nevertheless have reached the conclusion that he had not completed that course.[70]
[70]Plaintiff’s Submissions in Reply dated 26 September 2023, [9]-[12].
The legal principles relevant to failure to take into account a relevant consideration
70 The Panel must take into account and give genuine consideration to the matters expressly or impliedly prescribed by the WIRC Act.[71] The s 304(a) Statement is a document which is, pursuant to s 304 of the WIRC Act, required to be given to the Panel, and plainly intended to inform its consideration of the medical questions. The Panel must, therefore, give genuine consideration to it,[72] although the Panel is not bound to act in accordance with it.
[71]Sidiqi v Kotsios [2021] VSCA 187, [61] (Beach, Kaye, and Osborn JJA), applying Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 39-40 (Mason J).
[72]Victorian WorkCover Authority v Putrus [2023] VSCA 28, [37], [41] (Beach, Kennedy JJA and J Forrest AJA).
71 In determining whether a decision maker has taken into account a mandatory consideration, a failure to refer specifically to the matter does not necessarily mean that it was not taken into account.[73]
[73]See Victorian WorkCover Authority v Jamali [2023] VSCA 240 [62](c) and the authorities there cited (Beach JA, Forrest and Tsalamandris AJJA).
There was no failure to take into account a relevant consideration
72 The Panel did not refer specifically to the Agreed Fact as to the completion of the Microsoft Essentials course in August 2021. However, that course featured relatively prominently in the Reasons in such a way as to raise the likelihood that the Panel had considered the Agreed Fact and this was why the Panel had raised it specifically with Mr Slaven in taking his history during the examination.
73 The Panel said it had considered the s 304(a) Statement, both implicitly, in stating that it had ‘formed its Opinion with regard to ... the documents and information referred to in Enclosure A’, which included the Statement; and expressly, in saying that it had ‘noted the agreed facts and the questions in dispute’.[74] Those statements should be accepted, in the absence of clear indications to the contrary.[75]While the Panel did not refer specifically to the Agreed Fact, and came to a conclusion contrary to that Agreed Fact, I do not accept that the Panel did not give consideration to it, because:
[74]Reasons, 5.
[75]Maribyrnong City Council v Malios [2014] VSC 452, [47]-[48] (Macaulay J).
(a) The Panel identified a basis for its conclusion that Mr Slaven had not completed the course, being his own statement when the Panel took his history during the examination.
(b) The fact that the Panel had taken a history which elicited information from Mr Slaven specifically about the Microsoft Essentials course, and that he did not complete it in 2021[76] permits the inference that the Panel asked him about it specifically. This indicates that it was a matter which the Panel understood to be relevant and to require its consideration.
[76]Reasons, 12.
74 I do not accept, in these circumstances, that the Panel’s statement that it had considered the agreed facts should be rejected. Considering the Reasons taken as a whole I infer that the Panel did give consideration to the Agreed Fact, but decided to accept Mr Slaven’s account instead. The inconsistency of those two sources gave rise to a need to permit the parties to address the issue further, for the reasons set out above; but does not in my view compel the conclusion that the Panel had failed to have regard to the Agreed Fact as required.
75 Ground 2 is not, therefore, made out.
Ground 3: Constructive failure to perform the Panel’s statutory function
76 Nobul put forward this ground of review on the basis that the Panel had made a factual error in respect of Mr Slaven’s computer skills or proficiency, and specifically as to non-completion of the Microsoft Essentials course; and/or by misconstruing the nature or effect of the Agreed Fact. It relied on the particulars to Ground 2, the failure to take into account the relevant consideration or give it genuine consideration, and did not materially elaborate on this as a separate ground. Nobul relied on the observations of the Court of Appeal in Chang v Neill that factual errors that may constitute jurisdictional error include ‘a failure … to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect…’. Such an error may amount to jurisdictional error if, having regard to the subject matter, scope and purpose of the statutory function, taking the relevant material into account and properly construing it is an essential feature of the function.[77]
[77]Plaintiff’s Outline of Submissions dated 15 May 2023, [41] citing Chang v Neill (2019) 62 VR 174, [92] (Maxwell ACJ, Beach and Kyrou JJA).
77 Mr Slaven contended that the ground should be rejected on the same basis as Ground 2, as the Panel had regard to the information as to Mr Slaven’s computer skills and the Agreed Fact. The fact that the Panel did not make the same assessment as the Recovre and Procare reports as to Mr Slaven’s computer proficiency, or made a factual error ‘on some minor aspect of [his] computer skills’ did not mean that it had made a jurisdictional error.[78]
[78]First Defendant’s Submissions dated 14 September 2023, [28].
There was no constructive failure by the Panel to perform its statutory function
78 For the reasons identified in the context of ground 2 (alleged failure to take into account relevant considerations), I do not accept that the Panel failed to take into account the Agreed Fact. There is nothing in the Reasons which permits a conclusion that the Panel misconstrued the nature or effect of the Agreed Fact, rather than simply preferring Mr Slaven’s account. The Panel’s approach to the issue does not demonstrate a jurisdictional error of failing to perform the Panel’s statutory functions.
79 Ground 3 is not made out.
Ground 4: Failure to inquire
The legal principles relevant to a failure to inquire
80 A decision maker may fall into jurisdictional error if it fails to obtain information where there is an obvious need to do so, the information is critically relevant, and the information is easily ascertainable.[79] Such an error may be characterised as a constructive failure to exercise jurisdiction or a legally unreasonable exercise of power.[80] The requirements that the information be readily ascertainable and critically relevant reflect the high threshold that must be met to conclude that a power has been unreasonably exercised as a matter of law.[81]
[79]Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123, [25]; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-170.
[80]Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [25] (Gageler CJ, Gordon, Edelman, Gleeson, and Jagot JJ).
[81]Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [25] (Gageler CJ, Gordon, Edelman, Gleeson, and Jagot JJ).
81 The Court of Appeal in Chang v Neill, noting the statutory role of the Panel as an expert body which applies its own knowledge and expertise, did not finally determine whether a Panel is under a duty of the kind identified in Minister for Immigration and Citizenship v SZIAI[82] to inquire into matters of fact in certain circumstances.[83] It has been accepted at first instance that such a duty may arise.[84]
[82](2009) 259 ALR 429.
[83]Chang v Neil (2019) 62 VR 174, [49], [53] (Maxwell ACJ, Beach and Kyrou JJA).
[84]Schmael v Leach [2020] VSC 562, [36]-[37] (Richards J); Edwards v The State of Victoria [2021] VSC 423, [71], [75] (Richards J).
82 A minimum requirement is that the inquiry must have a real likelihood of shedding light on a critical or centrally relevant fact or issue, or be capable of changing the outcome, rather than simply being directed at one of ‘a myriad of potentially relevant facts’.[85]
[85]Chang v Neill (2019) 62 VR 174, 192 [58] (Maxwell ACJ, Beach and Kyrou JJA).
Submissions of the parties on failure to inquire
83 Nobul submitted that the Panel, being confronted with the worker’s history as to computer skills and proficiency which was significantly divergent from the Agreed Fact and the histories recorded by Procare and Recovre, was obliged to make an inquiry or to seek information ‘in respect of the worker’s participation in the Microsoft Essentials course in 2021 and his documented proficiency’ in the computer programs detailed by Recovre’.[86] The Panel had the power pursuant to s 312(1) of the WIRC Act to make the inquiry. Nobul submitted, relying on the observations of the High Court in SZIAI,[87] that this was an obvious inquiry about a critical fact, the existence of which was easily ascertainable.[88]
[86]Plaintiff’s Submissions dated 15 May 2023, [47].
[87](2009) 259 ALR 429, [25]. The Plaintiff also referred to Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, 40-41, [51] (Nettle J).
[88]Plaintiff’s Submissions dated 15 May 2023, [44], [47].
84 It was also contended that having obtained the worker’s history and his account that he had not completed the Microsoft Essentials course, the Panel failed to inquire as to the reasons for his non-completion and the extent of his participation in the course. This was not consistent with the Convenor’s Direction as to the Arrangement of Business of Medical Panels issued pursuant to s 303(6) of the WIRC Act which states that if during an examination a member of a Panel becomes aware of any information that is contrary to anything the worker says to the member, the member should inform the worker of the matter and invite the worker to make any comment on it.[89]
[89]Plaintiff’s Submissions dated 15 May 2023, [48]-[50]; See also the Originating Motion pars (ii) and (iii) of the Particulars to [10].
85 It was submitted for Mr Slaven that assuming that a ground of review based on failure by a Panel to inquire is available, noting that this has not been finally determined by the Court of Appeal, it is necessary to remember that it is for the Panel itself to determine what information is sufficient to found an opinion with respect to a medical question.[90] The fact that it may have been reasonable for a decision maker to make an inquiry does not mean that the lack of any such inquiry constitutes jurisdictional error.[91] It was contended that Nobul in its Originating Motion and in submissions had not identified with any specificity the nature of the inquiry or inquiries that the Panel was obliged to make,[92] noting that there was reference to the extent of Mr Slaven’s participation in the Microsoft Essentials course, his ‘documented proficiency’ in the computer programs identified by Recovre, and the reasons for his non completion of the course.[93] In response to Nobul’s contention that the Agreed Fact should have been put to Mr Slaven to seek the necessary clarification it was submitted that it was evident that the Panel did in fact make inquiries about the course of Mr Slaven, the results of which were set out in the Reasons.[94] Mr Slaven submitted that the Panel was best placed to form a judgment as to which matters were critical to its opinion and it is unclear what results those inquiries would have yielded.[95]
[90]First Defendant’s Submissions dated 14 September 2023, [29], citing Sidiqi v Kotsios [2021] VSCA 187, [41] and CD v Central Gippsland Health Service [2022] VSC 462, [331].
[91]First Defendant’s Submissions dated 14 September 2023, [29], citing Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235, [33] (Dowsett, Pagone, Burley JJ).
[92]First Defendant’s Submissions dated 14 September 2023, [30].
[93]These were all identified in the Particulars to the ground in the Originating Motion as the subject of the necessary inquiry.
[94]First Defendant’s Submissions, [32].
[95] First Defendant’s Submissions dated 14 September 2023, [31]-[32].
There was no failure to make a necessary and obvious inquiry on a critical matter
86 It is apparent from the consideration above of the extent to which the history obtained by the Panel from Mr Slaven diverged from the Agreed Fact and other documentary material before it, that the issue of Mr Slaven’s computer proficiency, and whether he had completed the Microsoft Essentials vocational retraining, was a significant matter for it to consider in forming its Opinion. However, that divergence did not give rise to any obvious inquiry as to a critical fact of the kind recognised by the authorities that a decision maker may have a duty to make.
87 The divergent information did give rise to an inconsistency which could not have been anticipated by Nobul, and called for an opportunity to permit it and the other parties to make any submissions on the issue, in accordance with duties of procedural fairness. It did not however give rise to an obvious query on a discrete critical issue, rather than opening up more generally a further line of inquiry. As contended for Mr Slaven, Nobul did not identify with any clarity the obvious inquiry that the Panel was required to, but did not make, and rather raised a number of matters including inquiries as to what extent he had completed the course and why he had not completed it. The contention that the Panel was obliged to inquire into Mr Slaven’s ‘documented proficiency’ in the programs identified by Recovre[96] is misconceived in circumstances where the Panel had observed that the Recovre vocational assessment was ‘not supported by any documented proficiency in those programs’ (emphasis added).[97] This was not a situation where there was a specific documentary report on a critical issue that the Panel failed to request.[98] It was unclear whether there were such documentary records at all.
[96]Originating Motion, [10], at par (i) of the Particulars.
[97]Reasons, 13.
[98]Cf Schmael v Leech [2020] VSC 562, [39]-[40] (Richards J) where the information provided by Ms Schmael to the Medical Panel indicated that there must be results of MRI examinations of her shoulders that the Panel did not have, and where it ‘must have been obvious to the Panel that the MRI results would be centrally relevant to the medical questions on which it was to provide its opinion’.
88 Nobul’s contention that the Panel failed to put the inconsistent information to Mr Slaven and invite him to make further comment on why he did not complete the course and as to the extent of his participation, contrary to the expectation identified in the Convenor’s Directions, does not advance this ground any further. It is not apparent that the Panel failed to raise the matter with Mr Slaven and (as required by the Convenor’s Directions) invite him to make any comment. It is clear from the Panel’s Reasons that it raised with Mr Slaven the question of whether he had completed the Microsoft Essentials course. The Reasons record that he informed the Panel that he had not completed it. The Convenor’s Directions do not require that the Panel must obtain clarifying information; they are focussed simply on giving the worker the opportunity to ‘make any desired comment’ on the inconsistency.[99] The extent to which the Panel wishes to ask further specific questions is not regulated by the Convenor’s Directions. This will largely be a matter for the Panel to determine in forming its informed professional opinion, guided by the issues raised by the medical questions it is required to consider.[100]
[99]Convenor’s Directions as to the Arrangement of Business of Medical Panels at [32].
[100]Chang v Neill (2019) 62 VR 174, [50]-[52] (Maxwell ACJ, Beach and Kyrou JJA).
89 Ground 4 is therefore not made out.
Ground 5: Finding of fact which was not open
90 The Panel determined that Mr Slaven had capacity to work as a ‘Product Assembler (light items)’, subject to certain work restrictions, for three hours per day on three days per week, with a limit of nine hours per week. The Panel also expressed the opinion that this limited capacity was permanent.[101] Nobul submits that the Panel, in forming its opinion about the permanency of Mr Slaven’s incapacity, made a finding of fact in the absence of the requisite level of satisfaction.[102] In particular, Nobul contends that this finding was not open in circumstances where the Panel considered it was possible that Mr Slaven may have been able to increase his work hours, predicated on an improvement in his lumbar spine condition, but was uncertain if or when that improvement would occur.[103]
[101]Certificate of Opinion, answers to Question 5(c).
[102]Originating Motion for Judicial Review, [11](i); Plaintiff’s Submissions dated 15 May 2023, [55]-[56].
[103]Plaintiff’s Submissions dated 15 May 2023, [55]-[56]; Transcript 09/02/24, T50.7-.29.
91 Mr Slaven submits that the Panel’s opinion on the permanency of his incapacity was materially informed by its expertise and, accordingly, the Court should be slow to disturb that finding.[104]
[104]First Defendant’s Submissions dated 14 September 2023, [33].
Legal principles
92 In Sidiqi v Kotsios & Ors, the Court of Appeal accepted that ‘the Panel’s decision will be subject to judicial review if it reached a conclusion of fact that was not open to it’,[105] but that ‘[i]t will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of that medical panel’.[106]
[105][2021] VSCA 187, [42].
[106][2021] VSCA 187, [37].
93 The caution that a Court must exercise in reviewing factual conclusions of a medical panel was reiterated by the Court of Appeal in Victorian WorkCover Authority v Jamali where the Court observed that the court must ensure that it does not fall into the trap of engaging in a merits review.[107] In St Vincent's Hospital v Freidin, Gray J observed that ‘the expert nature of the medical panel’s functions means that the Court cannot approach a judicial review in the same way as it would with respect to a body exercising an adjudicative function, and it would be difficult to conclude that an opinion materially informed by the expertise of the panel was not open to it’.[108]
[107][2023] VSCA 240, [62] (Beach JA, J Forrest and Tsalamandris AJJA).
[108][2023] VSC 602, [38].
The Panel’s finding of fact in relation to the permanency of the work capacity was open to it
94 Nobul’s contentions on this ground ultimately relied on the proposition that it was unintelligible reasoning for the Panel to move from the first proposition in its reasons that Mr Slaven had a capacity to work as a product assembler (light items) which was limited by work restrictions and time limits, to the proposition that this limited work capacity was permanent.[109] It was put that this second proposition was a factual finding which was not open to it.
[109]Transcript 09/02/24, T50.7-.29.
95 I am not persuaded that this is a factual finding which was not open to the Panel, rather than an element of the Panel’s expert opinion, formed on the basis of all of the material before it. It was a conclusion expressed to be on the basis that the Panel was ‘taking into account the Plaintiff’s lumbar spine condition’.[110] The Panel had expressed its views that:
[110]Reasons, 15.
(a) ‘[w]hile it is possible that the Plaintiff may be able to increase his work hours’ in the role of product assembler (light items) ‘the Panel is uncertain if or when any improvement in the Plaintiff’s lumbar spine condition will occur to allow an increase in employment hours’;[111] and
(b) it ‘considers it unlikely that the Plaintiff’s lumbar spine condition will improve in the foreseeable future’ to perform other roles of machine operator or forklift driver.[112]
[111]Reasons, 14.
[112]Reasons, 14.
96 The Panel, although acknowledging the possibility of an improvement in Mr Slaven’s lumbar spine condition, evidently had a strong degree of uncertainty as to whether that improvement would occur and if so how significant it would be. In these circumstances, I consider that its response to the question as to whether the work capacity was ‘permanent (meaning likely to persist for the foreseeable future)’[113] was open to it. The conclusion fell comfortably within the scope of its function of giving its own opinion on the medical question referred to it, applying the medical experience and medical expertise of the Panel members.[114]
[113]As to the explanation of ‘permanent’ meaning ‘likely to persist for the foreseeable future’ see McDonald v Director-General of Social Security (1984) FCR 345, 361 (Woodward J); AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29, [35]-[37] (McDonald J).
[114]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, [47].
97 Ground 5 is not made out.
Ground 6: Inadequate Reasons
98 Nobul contended that the Panel’s reasons were inadequate in two material respects:
(a) a failure to provide adequate reasons for its rejection of the Agreed Fact and rejection of the history recorded by Recovre and Procare with respect to Mr Slaven’s proficiency with computers’;[115] and
(b) a failure to provide adequate reasons for its finding that Mr Slaven’s capacity for work as a Product Assembler (light items) for a total of nine hours over three days a week was permanent.[116]
[115]Plaintiff’s Submissions dated 15 May 2023, [59.1]-[59.3].
[116]Plaintiff’s Submissions dated 15 May 2023, [59.4].
99 Mr Slaven submits that the Panel’s reasons were adequate:
(a) with respect to the rejection of the Agreed Fact and information as to Mr Slaven’s proficiency, because it was not required to give reasons for opinions it did not form, and
(b) as to the issue of work capacity, having identified its views as to the uncertainty of any improvement in Mr Slaven’s lumbar spine condition.[117]
[117]First Defendant’s Submissions dated 14 September 2023, [34]-[37].
Legal principles as to adequate reasons
100 Section 313(2) of the WIRC Act requires the Panel to give a certificate as to its opinion on the medical questions referred to it, and a written statement of reasons for that opinion. In Wingfoot Australia Partners Pty Ltd v Kocak, the High Court stated that:
The statement of reasons must explain 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. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.[118]
[118](2013) 252 CLR 480, [55].
101 The Reasons of a Panel, being a body whose members are medical experts rather than lawyers, are to be beneficially construed, ‘in the sense that they should “not … be scrutinised … over-zealous[ly] … by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”’.[119]
[119]Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29] (Neave, Santamaria and Kyrou JJA) citing Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271-2.
The Panel’s reasons were adequate
102 As to the first set of issues identified by Nobul, the Panel concluded that Mr Slaven had not completed the Microsoft Essentials course,[120] that the level of his computer skills would not enable him to undertake the administrative tasks associated with potential suitable employment options without successfully completing vocational retraining,[121] and that it was uncertain if or when vocational retraining would be successfully completed.[122] The Panel identified the reasons for these conclusions, being:
[120]Reasons, 14.
[121]Reasons, 13.
[122]Reasons, 14.
(a) The history that it had taken from Mr Slaven, in which he described a basic level of computer proficiency, no experience using computer programs, and that he had not completed the Microsoft Essentials course in 2021.[123]
(b) The absence of any support for the history recorded in the Recovre report that Mr Slaven had good computer skills in any supporting documentation, or from past employment related tasks using the programs.[124]
[123]Reasons, 12.
[124]Reasons, 13.
103 This provides an explanation as to the basis for the Panel’s conclusions, and also some basis for why it preferred the history it had taken from Mr Slaven, rather than the history in the Recovre report (and by inference, why it also did not accept the Procare history as to Mr Slaven’s confidence in using computers). The reasons given in my view adequately identify the path of reasoning of the Panel for its conclusions as to Mr Slaven’s basic computer proficiency.
104 It remains the case that the Panel did not refer to the Agreed Fact, nor to why it rejected the Agreed Fact in favour of the history taken from Mr Slaven that he did not complete the Microsoft Essentials course. There is no express statement of the reasons for its conclusion in this respect. This is a more difficult question. However, considering the Reasons as a whole it can be inferred that the Panel rejected the Agreed Fact on broadly the same basis that it had rejected the histories in the Recovre and Procare reports. That is, it can be inferred from the Reasons that the Panel preferred Mr Slaven’s history taken from him by the Panel itself to the Agreed Fact, in circumstances where there was no documentation supporting the Agreed Fact that Mr Slaven had completed the Microsoft Essentials course. Reading the Reasons fairly, they adequately disclose the Panel’s reasoning for the opinion it reached with respect to Mr Slaven’s work capacity.
105 I also consider that the reasons identified by the Panel for its conclusion as to the permanency of Mr Slaven’s limited work capacity are adequate. As noted above, the Reasons referred to the Panel’s uncertainty as to ‘if or when any improvement in the Plaintiff’s lumbar spine condition will occur to allow an increase in employment hours’[125] and its firmer view that it was unlikely that Mr Slaven’s lumbar spine condition would improve in the foreseeable future to perform other more active roles.[126] The Panel was apparently of the view that the possibility of improvement in Mr Slaven’s lumbar spine condition was insufficiently certain to enable it to conclude other than that the present limited capacity was permanent, in the sense of likely to persist for the foreseeable future.
[125]Reasons, 14.
[126]Reasons, 14.
106 Ground 6 is not established.
Conclusion
107 Ground 1 having succeeded, I will make an order in the nature of certiorari quashing the opinion of the Panel.
108 Nobul sought an order in the nature of mandamus that the referred medical questions should be remitted to a differently constituted medical panel. There were no submissions addressed to why the remittal should be to a differently constituted panel. I will hear the parties on that issue and on the question of costs.
SCHEDULE OF PARTIES
NOBUL VIC PTY LTD Plaintiff -and- RICKY SLAVEN First Defendant DR ANDREA BENDRUPS Second Defendant DR JOSEPH ROBIN Third Defendant DR SUDEEP SARAF Fourth Defendant DR DENNIS HANDRINOS Fifth Defendant ASSOCIATE PROFESSOR DAVID ERNEST Sixth Defendant
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