Rahme v Bevan

[2009] NSWSC 528

CITATION:	Rahme v Bevan & Anor [2009] NSWSC 528
HEARING DATE(S):	23/04/09
JUDGMENT DATE :	12 May 2009
JUDGMENT OF:	Patten AJ at 1
DECISION:	See paragraph 35
LEGISLATION CITED:	Motor Accidents Compensation Act 1999; Administrative Appeals Tribunal; Administrative Appeals Tribunal Act;
CASES CITED:	Campbelltown City Council v Vegan (2006) 67 NSWLR 372; Secretary Department of Employment and Workplace Relations v Homewood [2006] FCA 778; Australia Postal Corporation v Wallace (1996) 41 ALD 455 at 457; McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163
PARTIES:	Fawzi Rahme - Plaintiff Danny Bevan - First Defendant Motor Accidents Authority of NSW - Second Defendant
FILE NUMBER(S):	SC 030011 of 2009
COUNSEL:	Mr D Baran - Plaintiff Mr K Rewell SC - First Defendant Ms A Mitchelmore - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

PATTEN AJ

12 MAY 2009

030011 of 2009

Fawzi Rahme – Plaintiff
v
Danny Bevan – First Defendant
&
Motor Accidents Authority of NSW – Second Defendant

JUDGMENT

1 The Further Amended Summons in this matter seeks the following relief:

“1. A declaration that the plaintiff was denied procedural fairness by the Review Panel of the Medical Assessment Service in its decision dated 19 December, 2008 by the Review Panel failing to provide adequate reasoning for its decision.
2. An order that the Certificate and Determination of the review panel dated 19 December, 2008 in respect of the plaintiff be quashed.
3. An order that the defendant pay the plaintiff’s costs.”

2 The Review Panel of the Medical Assessment Service (the Review Panel) referred to in the Summons is a review panel of medical assessors established pursuant to s63 of the Motor Accidents Compensation Act. The Summons seeks to enliven the jurisdiction of the Supreme Court conferred by s69 of the Supreme Court Act on the basis that there was an error of law appearing on the face of the record of the proceedings before the Motor Accidents Authority of NSW (the Authority). It was not submitted that the remedy does not lie against the Authority as a tribunal within the meaning of s69 (3).

3 The relevant facts for the purposes of the proceedings before me are not in dispute. The Plaintiff (Mr Rahme) on 30 January 2002 witnessed from close proximity a collision on Sammit Street Condell Park between a vehicle being driven on the incorrect side of the road at high speed by the First Defendant and a pedestrian. The First Defendant was being pursued by a police vehicle. The pedestrian was thrown almost at Mr Rahme’s feet and died soon after at the scene.

4 Mr Rahme asserts that the experience has left him with a continuing psychiatric or psychological disability in respect of which he made claim under the Motor Accidents Compensation Act (the Act).

5 On 6 April 2006, he was issued with a certificate of exemption under s92 of the Act, entitling him to commence proceedings in a court. He filed a Statement of Claim in the District Court on 2 June 2006 and to that a defence was filed, inter alia denying that he suffered any psychiatric or psychological injury as a result of the accident.

6 The defence gave rise to a disagreement between Mr Rahme and an insurer within s58 (1) of the Act, which at the time relevantly provided :

“58. (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this part as “medical assessment matters”):

“(a)…………………………
(b)……………………………
(c) whether an injury has stabilised;
(d) the degree of impairment of the injured person as a result of the injury caused by the motor accident.”

7 On 28 March 2008, the Authority referred the disagreement to an assessor Dr A P McClure, psychiatrist, who interviewed Mr Rahme on 30 July 2008. Section 61 of the Act deals with the status of medical assessments made by an assessor . Relevant provisions applicable at the time include:

“61
(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to:

(a) whether the degree of permanent impairment of the injured person is greater than 10%; or
(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances; or
(b1) whether any treatment to be provided to the injured person is reasonable and necessary in the circumstances; or

(c) whether an injury has stabilised,

is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
(3) ……………………………….
(4) ……………………………….
(5) ……………………………….
(6) ……………………………….
(7) ……………………………….
(8) ……………………………….
(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.
(10)……………………………..
(11) …………………………….”

8 On 30 July 2008 Dr McClure determined:

“the following injury caused by the motor accident gives rise to a whole person impairment which in total is greater than 10%. Chronic Post Traumatic Stress Disorder”.

9 He also determined that the injury had stabilised.

10 Lengthy reasons (some 22 pages) were provided in support of Dr McClure’s determination which included the following passages:

“List of Injuries to be Assessed

The following injuries as listed in the referral letter were assessed in relation to the above medical dispute (s):
Psychiatric Injury – Major Depression, Melancholia, Post Traumatic Stress Disorder, Anxiety, Adjustment Disorder”.
History as given by the Claimant
Unfortunately, no history was able to be elicited from the Claimant, Fawzi Rahme. He was entirely uncooperative with the interview process. That which follows has been provided by his wife, Samira Rahme.
Evidently, the Claimant was born on 12 December 1949 and is therefore now 58 years old. He has three sons aged 22, 30 and 35. The “middle” son is single and lives with Mr Rahme and his wife in their rented housing department premises in East Hills (South Western Sydney) to “help out”. He is also working.

Mr Rahme, according to his wife, has not worked since the subject accident. She has also given up work to “care” for him. They both receive benefits from Centrelink. Mr Rahme apparently receives a Disability Support Pension.
………………………………………….

Psychosocial History
According to the Claimant’s wife there is no known past psychiatric history.

According to the Claimant’s wife, the Claimant has had a largely uneventful life in Australia. He was a hard working sober man who usually “worked two jobs”. He worked in take-away food businesses and also as a “builder”. He had achieved a builders’ licence. At the time of the accident he allegedly had two businesses. One was a take-away food business/restaurant which operated in the street in which the subject accident occurred. The Claimant was also allegedly working as a building contractor. At the time of the subject accident he had around 10 employees. He was in the process of building a large new (5-bedroom) family home described by Mrs Rahme as a “mansion” in the Western suburb of Guildford. However, this house was subsequently “lost”.
……………………………………
History of Symptoms and Treatment Following the Motor Accident
According to the GP’s note Mr Rahme consulted Dr Wong on the day of the subject accident. He was anxious and “shaking”.
Approximately six days later the Claimant was admitted to Liverpool hospital following a probable TIA (Transient Ischaemic Neurological Attack), however Mrs Rahme thought the Claimant had had “a stroke …the same day” as the accident. He made some limited recovery, but subsequently his condition deteriorated.
There was an almost-immediate change in the Claimant’s mental state following the subject accident according to Mrs Rahme. She reports that the Claimant avoided contact with other people and refused to socialise. He was pre-occupied with the fate of his late customer. He talked of how “his face was shattered all over the place.” He had “wanted to go up into heaven to join this guy”. He later broke the plaster of the ceiling in the bedroom as he believed that his former acquaintance ) killed in the subject accident) was now living there. He also “wanted to give him .. (his) teeth” and actually took a spanner (according to his wife) and removed or broke about seven teeth before she could stop him. This occurred some 6-7 months after the subject accident. He also spoke of “giving his blood” to the victim and Mrs Rahme feared that her husband accordingly planned to cut himself and perhaps bleed to death.
………………………………
Current symptoms
Again, the details which follow were provided by the Claimant’s wife as the Claimant himself was not cooperative in providing a history.
According to Mrs Rahme, her husband wakes often during the night. He often wets the bed, though not every night. He is “too lazy” to get up and go to the toilet. Alternatively, if he does get up, he may start urinating before he has reached his destination. She says that she has to keep a mop and bucket handy at all times.
………………………………..

When he communicated at all, Mr Rahme did so entirely in Arabic via the interpreter. However, he took virtually no part in the interview. He sat briefly on a chair in my office, then sat on the floor leaning on one of the chairs and said that he wanted to go to sleep. However, he appeared to remain attentive throughout my interview of his wife. He intermittently played with a deck of cards, picking cards at random, looking at them and shaking his head. Mr Rahme would not cooperate with answering questions. He would not provide even such “basic” information as his age, his date of birth or his address. He would say that he only knew that he had been ‘born in Lebanon”. He declined to show me his driver licence or any other form of identification.
When he entered the office Mr Rahme appeared somewhat agitated and disoriented. He looked rapidly to the left and right in an alternating fashion. He also displayed what appeared to be “forced utilisation” behaviour. He rifled through a number of folders in a bookshelf in a corner and grabbed at items on my desk, which he did not specifically need. His facial expression suggested disinterest except on one occasion on which I read out to him the Claim form he had signed (and confirmed that it was indeed his signature on the Claim form, of which he appeared to be uncertain). He raised his arms, shook his head and stated in a firm voice (in Arabic) that he did not want to hear anything further about the subject accident and that he wanted to leave because he had “a headache” as a result of listening to these details. His wife was able to persuade him to remain.

It follows that it was not possible to assess Mr Rahme’s mood. His affect suggested disinterest. There was no clear evidence of psychosis and, due to the Claimant’s lack of cooperation, cognitive function could not be assessed.
…………………………….

Review of Documentation
A very large file of documents was forwarded. It stood 10cm in height and weighed several kilograms. As a result, the Assessor’s task was rendered even more difficult than it already was.
………………………..

There are a number of reports from consultant psychiatrist Dr Peter Morse to the Claimant’s solicitors, Keddies, (25 November 2004 to 6 February 2008). Dr Morse’s diagnoses were post Traumatic Stress Disorder, Major Depression and Agoraphobia. He also considered that the Claimant’s subsequent reversible neurological deficits(s) was/were directly causally related to the accident via the intervening mechanism of heightened anxiety associated with what one might describe as cardiovascular “overdrive”.
………………………………
According to the report of Dr John Albert Roberts, psychiatrist, 1 May 2007 to Moray & Agnew “Mr Fawzi Rahme presented as a grossly disturbed, apparently confused, disorientated, psychotic, demented individual about whom it was asserted that constant care and supervision was necessary …..” Assuming the description of the accident is true and accurate, the accident would be a sufficient stressor to have the potential to give rise to Post Traumatic Stress disorder”. However, Dr Roberts considered that “there is no possibility that Post Traumatic Stress Disorder or the incident under consideration could have given rise to a psychosis”.
………………………………….
The Claimant’s wife told Dr Thomas Nash, consultant vascular and general surgeon (report to Moray & Agnew 7 December 2007) that when the Claimant “came home (after his admission to hospital) he stopped work and would not go back”. She said he just sat and did nothing. Under pressure he returned to work but again would not do anything. She closed the shop in about October i.e. approximately 8.9 months after the subject accident.
At that time the Claimant’s medication consisted of Fluoxetin, Diazepam and Diamicron and possibly other medication. Dr Nash concluded that “Mr Rahme appeared … to be severely cognitively impaired. He did not wish to take part in the consultation and examination and it was only under pressure from his wife that he stayed. He is grossly overweight at 120 kg and apparently 187 cm tall. His blood pressure today was 150/80 and his pulse rate 105 and regular. The grip in both hands was weak. Reflexes were present and normal. It was impossible to examine him any further.” Dr Nash’s conclusion was that “Mr Rahme obviously suffers from severe mental illness. …However, his mental state appears to have worsened now to the state where he is severely cognitively impaired.
…………………………..

Dr Spira (consultant neurologist) describes Mr Rahme behaving in a “quite bizarre” fashion. “he remained largely mute, unless addressed, and from time to time would stand up for no apparent reason and attempt to leave. His wife would restrain him without too much difficulty. At various times he placed himself on the floor and either sat or would lie down. He refused to undress for the examination”.
……………………………………

Conclusions
Consistency of Presentation
The unusual, uncooperative behaviour observed at today’s interview was consistent with that described by other assessing specialists e.g. Dr Spira, Dr Roberts and professor Mattick.
The history obtained was provided by the claimant’s spouse. There were a number of contradictions, e.g. Mr Rahme’s significant past medical history (including a previous? TIA) was not mentioned by Mrs Rahme. Furthermore, she incorrectly told me that Mr Rahme’s business had been closed immediately after the subject accident.
………………………………
This is a very difficult and complex case. I have considered the Claimant’s history and the nature of his presentation today at length. I have spent several hours, in fact, considering the various issues raised and the contradictions inherent in this case.
Various psychiatric conditions have been claimed (“Major Depression, Melancholia, Post Traumatic Stress disorder, Anxiety, Adjustment Disorder”). Overall this list of diagnoses reflects the Claimant’s contention (or that of his wife and their representative) that he has sustained an ongoing psychiatric reaction to the subject accident.
……………………………………
The Claimant may well have continuing features of Post Traumatic Stress Disorder. When lucid and cooperative, he has complained of such symptoms, e.g. to Dr Lim in (?) Bankstown hospital. Drs Morse (at the initial interview at least) and Akkerman, Mr Mattar and Ms Hatton, all appear to have elicited a consistent history (in Arabic at least) from Mr Rahme. In my experience, the trauma to which Mr Rahme was exposed (assuming that his previous descriptions and his wife’s current description have been accurate, and this is perhaps problematic) is exactly the kind of experience which can give rise to Post Traumatic Stress disorder even in a person of normal fortitude. However, his mental state is now very much over-shadowed by his bizarre, apparently-voluntarily adopted, behaviour and his uncooperative attitude. He is, in fact, in my opinion, feigning many of his symptoms. I note that this has been the conclusion of a number of experienced clinicians who have assessed him including Professor Mattick, Dr John Roberts and the neurologist Dr Spira.
However, underlying this considerable “overlay” of voluntarily-produced behaviour, on the balance of probabilities, Mr Rahme could well have continuing symptoms of Post Traumatic Stress Disorder.
……………………………..
After reviewing the list of injuries as submitted by the parties, examining the claimant, and reviewing the accompanying documentation, it is determined that the following injury was caused by the motor accident:
Chronic Post Traumatic Stress Disorder
……………………………………….
The problem I face is that Mr Rahme appears intentionally to be “manufacturing” symptoms and signs. To claim, for example, that he cannot provide his date of birth or address is simply untenable.
Such deficit is indicative of advanced dementia. Mr Rahme seems to seek to behave in a way that will suggest to the examiner that he is severely psychiatrically disabled. He is behaving according to his understanding of a “severe mental illness”.

Unfortunately it is not possible accurately to “separate out” the influence of any genuine psychiatric disorder (particularly Post Traumatic Stress Disorder) from the effects of voluntary wilful malingering on Mr Rahme’s assessed impairment. Unfortunately no objective observation (e.g. by a surveillance agent) was available to me for guidance.
……………………………………………………………………

Apportionment
There is no evidence of any pre-existing psychiatric disorder associated with impairment. Therefore no apportionment is necessary….
A review of the assessed whole person impairment should be considered if further relevant evidence comes to light, particularly an objective report regarding the Claimant’s behaviour over time removed from the artificial environment of a medical assessment.
Determination Regarding the Degree of Whole Person Impairment of the Injured Person as a Result of the Injuries Caused by the Motor Accident .
The total percentage whole person permanent impairment for assessed injuries caused by the motor accident is 22%.
Summary
The following determinations are made in relation to this matter.
Stabilisation
The following injury caused by the motor accident has STABILISED:
Chronic Post traumatic Stress Disorder
Permanent Impairment
The following injury caused by the motor accident gives rise to a whole person impairment which, in total, is greater than 10%:
Chronic Post Traumatic Stress Disorder”

11 Mr Bevan’s insurer applied to the proper officer of the Authority to refer Dr McClure’s assessment to a review panel of medical assessors for review pursuant to s63(1) of the Act. The only ground for such referral provided by s63(2) was that the assessment was incorrect in a material respect.

12 The error identified in Dr McClure’s assessment was expressed thus:

“Assessor McClure failed to diagnose a psychiatric injury, rather, he expressed the view that “The Claimant may well have continuing features of Post Traumatic Stress Disorder” and Mr Rahme could well have continuing symptoms of Post Traumatic Stress Disorder”.
This was a very difficult case for Assessor McClure which is seen by his comment, “He is, in my opinion feigning many of his symptoms”. Such a finding would have prevented the Assessor from making a diagnosis of Post Traumatic Stress Disorder.
A finding that the claimant did not sustain a psychiatric injury would alter the assessment of whole person impairment to less than 10%.

13 The proper officer of the Authority concluded that there was reasonable cause to suspect that Dr McClure’s assessment was incorrect in a material respect and on 8 October 2008 referred the matter to a panel of 3 assessors, namely Dr Brian Parsonage, Dr Anthony Samuels and Dr Robert Lewin.

14 The only statutory guidance to a review panel at the relevant time was contained in subsections (4) and (5) of s63:

“(4) The review panel may confirm the certificate of assessment of the single medical assessor , or revoke that certificate and issue a new certificate as to the matters concerned.
(5) Section 61 applies to any new certificate or new combined certificate issued under this section. “

15 As it happened, by 8 October 2008, amendments to s63 effected by Act 95 of 2007 had come into operation (1October 2008) including ss (3A):

“(3A) The review of a medical assessment is not limited to a review only of that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.”

16 While I think, as a matter of statutory construction, ss (3A) did not apply to this case, that is of no significance as the Court of Appeal had held to the same effect in McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163. Moreover, Dr McClure and the Review Panel had only one discreet matter to focus upon.

17 The incorporation of s61 brought with it the obligation for the Review Panel to set out the reasons for its finding “as to any matter certified in the certificate in respect of which the certificate is conclusive evidence”.

18 On 19 December 2008, the Review Panel published its “assessment” on review:

“The panel revokes the certificate of assessment dated 30 July 2008 and issues a new certificate under S63(4)
The following injuries caused by the motor accident give rise to a whole person impairment which, in total, is not greater than ten percent.
No diagnosable psychiatric disorder.”

19 The assessment was accompanied by reasons, the sufficiency, or otherwise, of which was the subject of the debate before me.

20 The reasons recorded that the Review Panel decided to call for, and obtained, further information including the notes of Dr K Wong and all of the psychiatric hospital admissions from 30 January 2002 to date. It also decided to examine Mr Rahme itself, such examination being conducted by 2 panel members, Dr Lewin and Dr Samuels on 12 December 2008. A professional interpreter was present to assist Mr Rahme.

21 In relation to the examination, the reasons stated:

“The panel noted at an early stage that Mr Rahme’s behaviour was unusual. There were a number of inconsistent statements and bizarre behaviours. This was noted particularly at the beginning of the examination.
As the assessment progressed, Mr Rahme’s behaviour changed dramatically. He became more engaged and he interacted in a more direct manner. He was calm and he answered in a purposeful manner. At the beginning of the assessment, Mr Rahme motioned to leave on repeated occasions. His wife encouraged him to stay. For at least half the assessment, Mr Rahme sat quietly in the chair and was cooperative with the examination.
The panel realised at an early stage that a number of the responses to questions were inconsistent and it was felt that the historical data may not have been entirely reliable. Mr Rahme repeatedly referred to his “friend in the sky” and answered many question with reference to this matter.
The history reported was manifestly inaccurate with regard to historical sequence, detail and consistency.
The panel observed bizarre behaviours, including Mr Rahme’s producing a Lebanese cucumber and chomping on this very loudly and offering the balance to the interpreter. At one stage in the examination, Mr Rahme produced a pack of cards and started to deal the interpreter into a game. He picked at books on the shelf, leafing through the volume, and also inspected a number of objects from the doctor’s desk. He then stood up, faced into a corner, opened his fly and attempted to urinate in the corner. Mr Rahme was invited to use the toilet.
The panel felt that it was noteworthy that this pattern of exaggerated behaviour ceased during the second half of the assessment.
The panel asked Mr Rahme a range of questions regarding his current situation. He was initially rather wary, repeatedly responding with questions such as “why do you need to know that?” or “why does this concern my family?” Alternatively, Mr Rahme said “What is your business with my family?”
The panel asked detailed questions regarding persecutory delusions, bizarre delusional experiences, auditory hallucinations, and hallucination in other sensory modalities.
Mr Rahme did not describe any pattern of psychosis. He referred to communication with “the friend in the sky.”
The panel also asked questions regarding a depressive condition. Mr Rahme did not report feelings of guilt or shame. There was no evidence of a vegetative depressive state and no complex of depressive symptoms was reported.
When asked about his physical status, Mr Rahme described his head expanding. He made no other complaints of physical symptoms. When questioned further about this, his answers were odd and he said that he related this to his “friend in the sky”.

22 It should be noted that references to “the panel” presumably encompassed only Dr Lewin and Dr Samuels but no point was taken about this.

23 After making further comments about Mr Rahme’s behaviour at his examination by Dr Lewin and Dr Samuels, the Review Panel listed the further documentation received by it but noted, “the Panel did not consider that the information provided in these documents provided any information that was significantly different to the information available to Assessor McClure. Under the heading Panel Deliberations, the reasons continued:

“Injuries:
The panel considered all possible psychiatric injuries including Major Depression, Melancholia, Post traumatic Stress Disorder, anxiety and adjustment Disorder.
The panel noted that many assessors had noted that the claimant’s behaviour was unusual and uncooperative as described by Assessor McClure.
The claimant’s presentation at re-examination by the panel was bizarre. The examining assessors at the re-examination considered the full gamut of psychiatric possibilities to try to gain an understanding of the claimant’s presentation. They considered conditions such as anxiety or depressive conditions, psychotic disorders, somatoform disorders and organic brain conditions. It was the unanimous opinion of the panel that the claimant’s presentation was not consistent with any psychiatric diagnosis.
The panel understood why different doctors had considered a variety of diagnostic possibilities because of the wide range and unusual presentation that the claimant had exhibited in the years since the subject accident. The inconsistencies in his presentation had been noted by a number of assessors and the panel felt that assessment by Professor Mattick, dated 13 April 2007, represented an objective attempt to determine the nature of his complaints. The panel believed that the conclusion by Professor Mattick that “the overall picture is one of exaggeration” was a sound conclusion.
The panel concluded that while the claimant had suffered initial distress at the time of the accident, his presentation in recent years, and at the time of the re-examination, was not consistent with a diagnosable psychiatric disorder.
The panel agreed with Assessor McClure that this was a very difficult and complex case. The panel also agreed with Assessor McClure’s conclusion that the claimant’s behaviour is inconsistent with any psychiatric diagnosis, whether post traumatic stress disorder or psychosis.
The panel noted that Assessor McClure also stated that “Mr Rahme could well have continuing symptoms of Post Traumatic Stress Disorder” but the panel thought it was incorrect for Assessor McClure to have concluded that Mr Rahme did have chronic post-traumatic stress disorder caused by the accident because of the lack of credible evidence for that conclusion.
The panel felt that to draw such a final conclusion was inconsistent with the material in front of Assessor McClure, especially after the panel considered all the information available including the re-examination of the claimant.”

24 The Court of Appeal in Campbelltown City Council v Vegan (2006) 67 NSWLR 372 decided that an Appeal Panel constituted under the Workplace Injury Management and Workers Compensation Act, in circumstances analogous to the constitution of the Review Panel presently under consideration, was obliged to provide reasons for its decision, notwithstanding the absence of a provision to that effect in the relevant statute. The Court also dealt with the adequacy of the reasons provided by the Appeal Panel, as to which Basten JA with whom Handley JA and McColl JA concurred said:

“[121] Where it is necessary for the Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant's condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.
[122] On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical
specialists in reaching a professional judgment. At least, that will be so where the medical science is not controversial: if it is, a more expansive explanation may be required.” (reference to authority omitted)

25 Later at paragraph 130 his Honour said:

“[130] There is extensive authority for the proposition that a failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal, where the right of appeal is limited to errors of law: see, for example, Soulemezis . Whether it also constitutes jurisdictional error is not a matter which needs to be determined, in relation to the statutory mandate of the Appeal Panel. It is sufficient for the purposes of relief under s 69 of the Supreme Court Act that an error of law has been identified, which appears on the face of the record. Because the record includes the reasons of the Panel, inadequacy of reasons will inevitably be such an error. As a result, the decision of the Panel may be set aside.”

26 The Federal Court has on a number of occasions been called upon to consider the sufficiency of reasons given by the Administrative Appeals Tribunal in pursuance of its statutory obligation to give reasons under s43 of the Administrative Appeals Tribunal Act. For instance, French J in Secretary Department of Employment and Workplace Relations v Homewood [2006] FCA 778 observed:

“[40] The obligations set out in s 43 are not necessarily discharged by merely setting out findings on material questions of fact, referring to the evidence on which those findings are based and then stating a conclusion. There will always be some legal rule or principle or discretion to apply. It may be that a rule or principle, like the major premise of a syllogism, will embody the factual circumstance necessary to give rise to a right or liability. Then it may be sufficient to state that rule or principle in the reasons, the facts found as the minor premise, the evidence on which they are based and, the result which follows. Not all, and perhaps not many results are so easily explained. Whether the reasoning is syllogistic or otherwise, the Tribunal will have discharged its duty under s 43 if its reasons disclose its findings of fact, the evidence on which they were based and the logical process by which it moved from those findings to the result in the case.

[41] Where a case involves the exercise of a discretion, the Tribunal’s duty is not discharged by setting out the findings of fact necessary to enliven the relevant discretion. That is so even in a case in which the enlivening facts are of an evaluative character, such as the existence of special circumstances. What must appear from the reasons is why the discretion was exercised in the way it was.”

27 Particularly apposite are the words of Tamberlin J in Australia Postal Corporation v Wallace (1996) 41 ALD 455 at 457:

“It is clear that s43 is not to be construed with a pedantic eye but in a practical common sense way in order to determine, in substance, whether the decision conveys sufficient of the decision making process to enable the parties and other interested persons to properly understand it. Where the reasons expose the logical process underlying the decision and contain findings on matters of fact essential to that reasoning process, then as Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691:

"... it will not be easy to demonstrate a failure of compliance with the requirements to include 'findings on material questions of fact'".

It is also important to bear in mind that where a question arises as to whether the above requirements have been satisfied, particularly in the case of an administrative review body, constituted by an expert, a court should apply caution when determining whether the reasoning, findings or evidence are adequate. This is because the question as to the sufficiency of reasons, as opposed to the need for them and the sufficiency of the findings is one of degree. In the present case the question, to a large extent, calls for an exercise of judgment, which cannot be specifically tied down to precise and detailed reasoning.
It is also appropriate to bear in mind the observations of Lockhart J in Polities v Federal Commissioner of Taxation (1988) 88 ATC 5029 at 5032 that the Court should not construe the AAT's reasons minutely and finely with a keen eye attuned to the perception of error. The Court should rather approach its task sensibly, in a balanced way, so as to be careful not to read passages from the reasons for decision in isolation from others to which they may be related, thereby taking them out of context. The question is essentially one of substantial compliance. See Opitz v Repatriation Commission (1991) 29 FCR 50 at 61 per Hill J.”

28 All parties to the proceedings were represented before me by counsel, Mr Baran for the Plaintiff, Mr Rewell SC for the First Defendant, and Ms Mitchelmore for the Authority. Although it had filed a submitting appearance, she appeared to assist the court and helpfully made submissions as to the Scheme of the Act and as to the content of the obligation to provide reasons under s61.

29 Mr Baran submitted that the Review Panel was required to address and give reasons for its rejection of the possible diagnoses which it listed, particularly having regard to Mr Rahme’s long term psychiatric history. It was not enough, so Mr Baran submitted, to rely virtually exclusively upon his presentation to two members of the Review Panel on one occasion, without explaining why it did so. Nor did it explain why it accepted as “sound” Professor Mattick’s conclusion that “the overall picture is one of exaggeration”, and it gave no reasons for its apparent conclusion that functional overlay wholly negated a diagnosis of psychiatric injury.

30 Mr Rewell reminded me of the need to resist any temptation to enter into the merits of the matter and submitted that I must be vigilant to ensure that the decision focuses solely upon the adequacy or otherwise of the reasons of the Review Panel. While that submission is undoubtedly correct in general terms, the passage I quoted above from the decision of Tamberlin J in Wallace makes it clear, in my view, that the adequacy of the reasons must be considered in the context of the dispute which gives rise to them. As his Honour in effect pointed out, there is no bright line but an exercise requiring judgment. In this case there were complex medical issues productive of voluminous medical records and reports stretching over a period of some six years. Moreover, the Review Panel was considering issues of very considerable importance to Mr Rahme.

31 Mr Rewell submitted that on the authorities, a court examining the reasons of an administrative body is entitled to take a different approach from that of an appeal court considering the decision of a lower court in that much less formality and detail is required of an administrative tribunal. He contended that the reasons must be plainly inadequate. I agree with those submissions.

32 Nonetheless, approaching the task in the manner which I believe the authorities require, I am of the opinion that the reasons of the Review Panel fell well short of its obligation under s61 (9) of the Act. Nowhere, as it seems to me, does the Review Panel provide reasons for its apparent conclusion that Mr Rahme’s bizarre behaviour wholly excluded any psychiatric illness. This is particularly significant, in my view, in a situation where other psychiatrists, including Dr McClure, have noted the same sort of presentation as Mr Rahme’s presentation to the two members of the panel who interviewed him yet have felt able to diagnose a post traumatic stress disorder. In effect, contrary to virtually all of the medical material available, the Review Panel, as I understand it, decided that Mr Rahme wholly feigned, and has always wholly feigned, his symptoms. It was, of course, entitled to reach that conclusion but s61 (9) of the Act, in my opinion, required much more by way of reasoning than it provided. Unsupported conclusions, not reasons are, in my view, constituted by what seem to me the crucial statements in the final section of its Statement of Reasons:

“The claimant’s presentation at re-examination by the panel was bizarre.
……..
It was the unanimous opinion of the panel that the claimant’s presentation was not consistent with any psychiatric diagnosis.
………………………..
The panel believed that the conclusion by Professor Mattick that “the overall picture is one of exaggeration” was a sound conclusion.
……………………..
The panel concluded that while the claimant had suffered initial distress at the time of the accident, his presentation in recent years, and at the time of the re-examination, was not consistent with a diagnosable psychiatric disorder.
……………… but the panel thought it was incorrect for Assessor McClure to have concluded that Mr Rahme did have chronic post-traumatic stress disorder caused by the accident because of the lack of credible evidence for that conclusion.
………………… such a final conclusion was inconsistent with the material in front of Assessor McClure, especially after the panel considered all the information available including the re-examination of the claimant.”

33 While I accept Mr Rewell’s submission that the Review Panel was not obliged to provide reasons for excluding all the possible diagnoses which it identified, I do think it was, at least, bound to give brief reasons for excluding the diagnosis actually made by Dr McClure, beyond referring to Mr Rahme’s presentation to two members of the panel. It needed to do no more than list the diagnostic criteria for post traumatic stress disorder and explain why Mr Rahme’s symptoms did not meet those criteria. This, in my view, it quite failed to do.

34 An error of law having been exposed, The Review Panel’s determination should be quashed and the matter returned to the Second Defendant for determination according to law. The First Defendant should be ordered to pay the Plaintiff’s costs. There should be no order as to the costs of the Second Defendant.

35 I make these orders:

1. I quash the “Assessment Made on Review” by the Review Panel herein dated 19 December 2008.
2. I order that the proceedings be returned to the Second Defendant to be dealt with according to law.

3. I order the First Defendant to pay the Plaintiff’s costs.

4. No order as to the costs of the Second Defendant

5. Exhibits may be returned.