Ryan v The Grange at Wodonga Pty Ltd

[2015] VSCA 17

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0044

TERESA ANN RYAN
Appellant
v
THE GRANGE AT WODONGA PTY LTD (ABN 30 112 555 432)
First Respondent
and
VICTORIAN WORKCOVER AUTHORITY
Second Respondent
and
DR EDMOND VAN AMMERS DR GIANNI D ORTENZIO DR JENNIFER HARMER DR SUSANNE HOMOLKA MR PAUL KIERCE (MEMBERS CONSTITUTING MEDICAL PANEL REFERENCE NO. M112/4026)	Third Respondents

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JUDGES:	NEAVE and SANTAMARIA JJA, and GINNANE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 OCTOBER 2014
DATE OF JUDGMENT:	13 FEBRUARY 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 17
JUDGMENT APPEALED FROM:	Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135 (Kyrou J).

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ADMINISTRATIVE LAW – Judicial review – Medical panel - Determination of whether the plaintiff was capable of performing her pre-injury duties - Whether the medical panel exceeded its jurisdiction by failing to comply with the time limit prescribed by s 68(1) of the Accident Compensation Act 1985 - Whether the medical panel’s opinion was perverse or illogical or vitiated by other jurisdictional error - Whether medical panel took account of irrelevant matters, or failed to consider relevant matters - Whether medical panel’s reasons for decision were adequate - Appeal allowed - matter remitted to reconstituted medical panel – Accident Compensation Act 1985 ss 45, 52F, 55A, 55, 56, 63, 65, 67, 68, 117 - Order 56, Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Wheelahan QC with Mr M Waugh	Constable Connor & Co Pty Ltd
For the First and Second Appellants	Mr M Fleming QC with Ms M Lang	IDP Lawyers

NEAVE JA:

1. This is an appeal by Ms Teresa Ryan (‘the appellant’) from the judgment and orders of a trial division judge dismissing her application for judicial review of an Opinion of a Medical Panel (‘Opinion’) constituted under the Accident Compensation Act 1985 (‘the Act’).[1]  The Opinion related to the effects of a bilateral shoulder injury that the appellant sustained in the course of her employment with the first respondent, The Grange at Wodonga Pty Ltd (‘Grange’).

   [1]The application for review was made under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (the ‘Rules’). At the time of referral Authorised Version No. 186 of the Act was in force, which incorporated amendments up to 1 July 2012.

1. The appellant seeks orders:

(i)         setting aside the decision of the primary judge;

(ii)       quashing the Medical Panel Opinion dated 6 February 2013; and

(iii)      remitting the Medical Questions to a differently constituted Medical Panel for determination.

1. The main issues in the appeal are:

(i) when did the 60 day period, within which s 68(1) of the Act requires the Medical Panel to form its Opinion, begin running;

(ii)       if the Panel failed to deliver its Opinion within the relevant time was the Opinion outside its jurisdiction and therefore invalid;

(iii)      did the Medical Panel take account of irrelevant matters, or fail to consider relevant matters, when it concluded that the appellant was capable of performing her pre-injury duties;

(iv)      did the Medical Panel reach an illogical conclusion or one which was unreasonable in the Wednesbury sense; and

(v)        did the Medical Panel fail to give adequate reasons for its Opinion.

Preliminary matters

1. The notice of appeal names the members of the Medical Panel as the third respondents.  As is appropriate, the Medical Panel did not make submissions or appear by counsel at the hearing.  A solicitor acting for the Medical Panel was present in Court to assist the bench, but was not called upon to do so.  For the remainder of these reasons, a reference to the ‘respondents’ refers to the first and second respondents, namely Grange and the Victorian Workcover Authority.

Background

1. The following statement of facts is drawn from the primary judge’s reasons, and is not in dispute between the parties:

The [appellant] is a 47 year old woman who, in June 2010, commenced working for Grange as a kitchenhand in Grange’s 80 bed aged care facility in Wodonga ... Her regular hours were 19 hours per week but she often worked up to 30 hours per week. 

In 2006, the [appellant] suffered a right shoulder injury. She suffered symptoms of right shoulder pain in May 2009.  This injury had completely resolved and the [appellant] had been symptom-free by the time she commenced with Grange. 

On 14 January 2012, the [appellant] consulted her general practitioner, Dr Ian Cook.  He diagnosed bilateral shoulder impingement syndrome …

The [appellant] ceased work on 19 January 2012.  On 25 January 2012, she made a claim for weekly payments of compensation under the [Accident Compensation Act 1985], asserting that the [i]njury arose in the course of her employment with Grange.  The claim was accepted and the [appellant] began to receive weekly payments. 

Dr Cook arranged active treatment by way of ultrasound-guided cortisone injections in February 2012.

The WorkCover claim agent had the [appellant] examined by a consultant surgeon, Mr Roger White, on 12 March 2012. In his report dated 26 March 2012 (‘Mr White’s report’), Mr White stated that the [appellant] had the capacity to ‘return to work in modified pre-injury duties and hours.’ He said that she could perform those duties which did not require her to raise her arms above her head, lift items over 5kg in weight or involve sustained or repetitive activities using her upper limbs. He also said that pushing and pulling should be restricted to less demanding activities.  He concluded that part-time work of several hours per day would be appropriate.

The [appellant] returned to work on 26 March 2012 on modified duties at reduced hours.  She experienced pain in her right shoulder …  On 18 April 2012, Dr Cook certified that the [appellant] was not fit for her work. 

…

On 11 July 2012, the [appellant] was examined by a consultant occupational physician, Dr David Barton, at the request of the WorkCover claim agent.  According to Dr Barton’s report dated 12 July 2012 (‘Dr Barton’s report), the [appellant] reported that she was having lesser symptoms in the shoulders and that the level of her symptoms varied depending on what she did.  The [appellant] also told Dr Barton that she felt that the improvement had occurred because she moved from Wodonga to live in Melbourne with her sister and was ‘not doing much’.

Dr Barton’s report stated that the [appellant] ‘has mild persisting right shoulder symptoms following what appears to be an unresolved soft tissue injury’ and that ‘[f]rom a simple physical perspective [he saw] no particular reason why she could not work normally.’  In a supplementary report dated 23 July 2012, Dr Barton stated that the [appellant] could perform her pre-injury duties for her pre-injury hours.  I will refer to Dr Barton’s report and his supplementary report collectively as ‘Dr Barton’s reports’.

In reliance upon Dr Barton’s reports, the WorkCover claim agent terminated the [appellant]’s weekly payments effective from 10 August 2012 on the basis that she was no longer incapacitated for work. 

…

Dr Stephen De Graaff, the Director of Pain Services and Senior Rehabilitation Physician at Epworth Healthcare, saw the [appellant] on 30 July 2012, 17 September 2012 and 12 November 2012. He prepared a report dated 19 November 2012 (‘Dr De Graaff’s report’) in which he concluded as follows:

Assessment and Progress

…

On assessment Ms Ryan presented with a chronic right rotator cuff tear with significant pain associated with the supraspinatus partial tear …

I … felt she was not fit to return to full time normal duties.

Summary

…

She has documented tears of both supraspinatae muscles and is currently undertaking a pain management and rehabilitation program at Epworth Camberwell. 

She requires analgesia and neuromodulation for pain control.

Response to questions

…

C        Prognosis and estimate of future medical treatment and approximate cost of treatment.

Prognosis is guarded given the timeframe since the original injury although Ms Ryan is committed to improving her wellbeing and keen to undertake some form of vocational activity. She will have limitations working above shoulder height in the long term so any work conditions will need to respect this. 

…

Long term, there is a risk of recurrent injury, so any work duties … will need to address her injury risk.

…

Ms Ryan will not be able to return to her pre-employment duties as this involved significant amount of above shoulder activity.

She will be limited in her lifting and carrying capacities, probably to a level below 10 kg maximum and will need to avoid repetitive activities.

It is most likely that she will need modified duties in the long term, avoiding heavy lifting and carrying, repetitive lifting and carrying, and working above shoulder height.

Dr Cook prepared a report dated 3 December 2012 (‘Dr Cook’s report’) in which he stated as follows:

[Ms] Ryan has over 2012 attempted to return to her previous employment but this has been unsuccessful due to pain and limited shoulder function. If her pain was controlled she would need retraining for clerical type work, as it is my opinion that she will never be fit for work using repetitive lifting and shoulder movement.[2]

[2]Ryan v The Grange at Wodonga Pty Ltd [2014] VSC 135, [6]–[12], [14]–[16], [19]–[20] (‘Reasons’).

Proceedings before the Medical Panel

1. After the appellant’s weekly payments were terminated she referred the dispute for conciliation by a Conciliation Officer under s 55(1) of the Act.

1. On 5 December 2012, the Conciliation Officer referred two medical questions to the Convenor of Medical Panels, who then appointed Dr Homolka, an occupational physician, Dr Harmer, a rheumatologist, Mr Kierce, an orthopaedic surgeon, and Drs Van Ammers and Ortenzio, both  psychiatrists, from the approved list of medical practitioners as the Medical Panel to consider the referred questions.[3] The Opinion of the Medical Panel is dated 6 February 2013 and was accompanied by a statement of reasons for the Opinion (‘Reasons’). The Opinion answered the two medical questions (‘Medical Questions’) put to the Medical Panel as follows:

   [3]

Question 1. 

What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed injury?

Answer

In the Panel’s opinion the worker is suffering from an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder and from a mild chronic adjustment disorder with mixed anxiety and depressed mood, relevant to the claimed injury.

Question 2.

Is the worker capable of performing her pre-injury duties?

Answer

Yes.

1. The Reasons described the Medical Panel’s ultimate conclusions and the bases for those conclusions as follows:

The Panel concluded that the worker is currently suffering from an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder, relevant to the claimed both shoulders injury.

…

The Panel considered that the worker’s current psychiatric condition of a mild chronic adjustment disorder with mixed anxiety and depressed mood is mild and does not affect her work capacity in any way.

The Panel considered the nature of the worker’s pre-injury duties, which involved dishing up and serving meals, and other associated kitchen work, in an aged care facility, and which she was employed to perform for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice. The Panel also considered the nature and extent of the worker’s current physical and psychiatric conditions, its clinical examination findings, and the information contained in the reports from the various practitioners who have examined and or treated the worker and which were included with the Referral material.

The Panel considered that the nature and extent of the worker’s current physical medical condition of an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder is mild, and the Panel also considered that notwithstanding the worker’s reported symptoms of pain, she is capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.

The Panel therefore concluded that the worker is capable of performing her pre-injury duties.

The Panel noted the opinions of the worker’s treating medical practitioners, Drs. Stephen De Graaff, rehabilitation physician, and Ian Cook, general practitioner, expressed in their reports, dated 19 November 2012 and 3 December 2012 respectively, which were included with the Referral material. The Panel noted that both medical practitioners considered the worker to have no current work capacity. [The] Panel formed a different opinion to that of Drs. De Graaff and Cook in respect of the worker’s current work capacity based on its own examination of the worker on 21 January 2013 and for the reasons given above.

The Panel also noted the opinion of the independent medical examiner, Mr. Roger White, surgeon, expressed in his report, dated 26 March 2012, wherein he stated that the worker has ‘the capacity to return to work in modified pre-injury duties and hours’. Based on its collective experience and expertise the Panel considered that the worker’s occupational duties and hours of work did not require modification. The Panel therefore formed a different opinion to that of Mr White based on its own examination of the worker on 21 January 2013 and for the reasons given above.

The time limit and its effect on the jurisdiction of the Medical Panel

1. Section 63 of the Act requires the relevant Minister to appoint a Convenor, who is responsible for convening Medical Panels from a list of medical practitioners appointed by the Governor in Council.

1. Sections 67 and 68 of the Act provide as follows:

67 Examination by a 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 before, on or after the commencement of section 10 of the Accident Compensation (WorkCover) Act 1992 referred by a Conciliation Officer or the County Court or the Authority or a self-insurer.

(1A)     A Medical Panel must give its opinion on a medical question in accordance with this Division.

…

(2)       A Conciliation Officer, the County Court, the Authority or a self-insurer may, at any time or from time to time, require any worker—

(a) who claims compensation under this Act; or

(b) who is in receipt of weekly payments of compensation under this Act—

to submit himself or herself for examination by a Medical Panel on a date and at a place arranged by the Convenor of Medical Panels.

(3)       If—

(a) a worker has submitted himself or herself for examination by a medical practitioner in accordance with a requirement of the Authority or self-insurer or has been examined by a medical practitioner selected by the worker; and

(b) the Authority or self-insurer or the worker (as the case may be) has furnished the other with a copy of the medical practitioner's report of the examination—

the Medical Panel may refuse to proceed with an examination if it is not provided with a copy of the medical practitioner's report of the examination.

(4) If a worker unreasonably refuses to comply with section 65(5) or in any way hinders the examination—

(a) the worker's rights to recover compensation under this Act with respect to the injury; or

(b) the worker's rights to weekly payments—

are suspended until the examination has taken place, and when it takes place, any period between the date on which the worker refused to comply with section 65(5) or in any way hindered the examination and the date of the examination shall be taken into account for the purpose of calculating, subject to this Act, a period of time for the purposes of Part IV.

(5)       Any weekly payments which would otherwise be payable during the period of suspension are forfeited.

68 Opinions

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

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

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

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

1. For the purposes of the proceedings below it was agreed that:

(i)         the referral was received by the Convenor on 6 December 2012;

(ii)       

the Medical Panel was convened by the Convenor on

12 December 2012;

(iii)      letters of appointment to each member of the Medical Panel were dated 3 January 2013; and

(iv)      the Medical Panel formed its Opinion on 6 February 2013.[4]

[4]Ibid [24].

1. In the proceedings below, Ms Ryan contended that by forming its Opinion on 6 February 2013, the Medical Panel had breached the 60 day time limit imposed by

   
   

   s 68(1) (‘the prescribed period’). The effect of that breach was that the Medical Panel had acted beyond its jurisdiction, so that the Opinion was invalid.

1. The learned judge held that under the Act time began running when the Medical Panel was convened by the Convenor on 12 December 2012. Thus an Opinion formed on 6 February 2013 fell within the 60 day period. Further, even if the prescribed period commenced at an earlier date (for example when the Convenor received the referral from the Conciliation Officer on 6 December 2012),

   
   

   s 68(1) was not intended to invalidate an Opinion formed beyond the prescribed period.

Grounds of appeal 1–3

1. The appellant’s first three grounds of appeal are that:

The primary judge erred … in holding that the 60 day time period prescribed by s 68(1) of the Accident Compensation Act 1985 (Vic) commenced to run upon a Medical Panel being convened rather than from the time of the act of referral by the referring body.

In consequence, the primary judge erred … in finding that the Medical Panel formed its opinion within the period prescribed by s 68(1).

The primary judge erred … in holding that a Medical Panel opinion formed outside the prescribed period is not invalid.

Appellant’s submissions

1. The appellant argued that the primary judge should have held that the Opinion was formed outside the prescribed time.  The appellant submitted that
   

   [5]See s 45.

   [6]See s 55AA.

   [7]See s 55A and s 104B(9) which provides for referral where there is a dispute about the extent of an impairment.

   s 68(1) had to be interpreted within the context of other provisions in the Act which provided for referral of medical questions to a Medical Panel by a court exercising jurisdiction under pt III of the Act,[5] by a Conciliation Officer[6] or by an insurer or the Victorian Workcover Authority.[7]

1. The fact that a referral could be made by a number of bodies (‘referring bodies’) and the reference in s 68(1) to the forming of an Opinion ‘within 60 days after the reference is made‘ was said to support an interpretation under which the 60 day period began running when a medical question was referred to the Convenor. The trial judge’s decision that the 60 day period did not begin running until a Medical Panel was convened was said to be inconsistent with the legislative goal of ensuring that disputes between a worker and an employer were resolved as quickly as possible, particularly when they concerned an entitlement to weekly payments. The appellant contended that the goal of speedy resolution was reflected in various other sections of the Act, including:

·s 45 which provides for the referral of questions to Medical Panels by a court;

·s 52F(1)(a) which provides that the functions of a Senior Conciliation Officer are to ensure conciliations are conducted in an expeditious and consistent manner;

·s 55A which provides for the authority or a self-insurer to apply to a Senior Conciliation Officer to refer medical questions to a Panel with the consent of the worker;

·s 55AA which requires the Conciliation Officer to refer medical questions arising in the context of specified disputes to a Medical Panel, within seven days of the Conciliation Officer becoming aware of the medical question;

·s 56(2) which requires a Conciliation Officer to have regard to the need to be fair, economical, informal and quick, and to make all reasonable efforts to conciliate a dispute;

·s 65(2) which requires a Medical Panel to act informally without regard to technicalities and as speedily as proper consideration of the reference allows; and

·s 66 which ensures that a Medical Panel decision is not invalid by reason of any irregularity in or in connection with the appointment of a member.[8]    

[8]The written submission also referred to s 103 which sets out the procedures for claiming weekly payments, s 108 which imposes duties on employers designed to ensure that employers promptly forward claims to the Authority and s 109 which is designed to ensure that decisions are made about entitlements promptly.

1. The appellant submitted that the provision for commencement of the 60 day period when the Conciliation Officer referred the matter to the Convenor, provided ample time to permit the convening of a Medical Panel, and the formation of its Opinion within the prescribed time. Any difficulties which a Medical Panel might have in completing its task because there was a delay in convening a Medical Panel could be overcome by the provision in s 68(1) allowing the referring body to agree to extend the 60 day period, as well as by s 65(5C) of the Act, which enabled the Panel to suspend the time limit in order to obtain additional information. The interpretation adopted by the trial judge would mean that a Convenor could fail to refer a dispute to a Panel for a significant time, which would be inconsistent with the goal of speedy resolution of disputes about medical questions. If the Act were interpreted in that way, in a case where the dispute was not referred to a Medical Panel in a timely manner, the only remedy for an injured worker would be to seek an order in the nature of mandamus to force the referral to occur.

1. The appellant also submitted that the judge should have found that the word ‘must’ in s 68(1) meant that the prescribed period was mandatory, so that failure to comply with the prescribed period invalidated the Opinion. This was said to be reinforced by the words of s 66 which provided that:

An act or decision of a Panel is not invalid by reason only of any defect or irregularity in or in connection with the appointment of a member.

1. If it had been intended that an Opinion formed outside the prescribed period would be valid, this could readily have been dealt with in s 66.  Further, the appellant argued that the conclusion reached by his Honour was inconsistent with Mikhman v Royal Victorian Aero Club[9] (‘Mikhman’), in which Kaye J (as he was then) held that the failure of a Medical Panel to comply with time limits imposed by s 28LZG of the Wrongs Act 1958 (‘Wrongs Act’) meant that a determination made by the Medical Panel outside the time limits was made outside jurisdiction and was invalid.

Respondents’ submissions

[9][2012] VSC 42.

1. The respondents submitted that the governing words in s 68(1) of the Act are ‘referred to it.’ Accordingly, the 60 day period commenced on the day the Medical Panel is convened to resolve a medical question referred to it. The respondents also submitted that, although s 68(1) of the Act uses the term ‘must’, the scope and objects of the Act indicate that compliance with the prescribed period was not intended to be a condition of a Medical Panel’s jurisdiction.

1. The respondents relied on Accident Compensation Commission v Murphy[10] in which the Victorian Full Court held that the requirement in s 117(5)(a) of the Act that ‘[a] Tribunal division shall commence to hear an application … within 60 days of an application … being lodged with the Tribunal’ was directory only. The Court stated:

[A] court will be strongly inclined to the view that the provision in question is directory only. We are of [the] opinion that to do otherwise in the present case would work serious inconvenience and injustice to a party who has no control over the performance of the relevant duty.[11]

[10][1988] VR 444.

[11]Ibid 452.

1. The respondents argued that the Act’s objective of resolving disputes quickly would not be furthered by an interpretation of s 68(1) that would wholly invalidate an Opinion formed shortly after the expiration of the prescribed period.

1. The respondents submit that the Act provides for suspension of the prescribed period only if a Medical Panel requests further information.[12] Together with the requirement in s 65(2) of the Act that Medical Panels must act ‘as speedily as a proper consideration of the reference allows’, this indicates that failure to comply with the time limit did not invalidate the Opinion. In addition:

   [12]Act s 65(5C).

(i) The provision in s 68(1) requiring the formation of an Opinion within 60 days or ‘such longer period as is agreed by the Conciliation Officer, the County Court, the Authority or self-insurer’ does not provide for notification of the worker or employer that this has been done. This is inconsistent with the imposition of a time limit, which if not satisfied invalidates the Opinion.

(ii)       The Act does not purport to impose strict time limits for the procedures which occur after a Medical Panel provides its Opinion and reasons.[13]  For example, no time limits are imposed for the completion of a conciliation. This was said to militate a failure to comply with the prescribed period invalidating the decision. 

[13]Although s 68(2) requires the Medical Panel to give its written Opinion and reasons to the referring body within seven days of forming the Opinion.

(iii) Although s 68(1) and (3) prescribe time limits, they do not set out the consequences of non-compliance.

(iv) The Act uses the word ‘must’ in a variety of senses, some of which could not possibly result in invalidity for non-compliance. Sections in which the word is used include ss 65(2), (4), (4A), (5B), (6A), (6B) and 45(1G), (2) and (4).

1. The respondents also sought to distinguish Mikhman on the basis that the provisions of the Act are materially different from the provisions of the Wrongs Act that were considered by Kaye J.

Analysis

1. In my view, his Honour correctly held that the 60 day period in s 68(1) of the Act does not begin to run until the Medical Panel is convened. As he pointed out, there are no standing Medical Panels. When a Conciliation Officer refers a medical question to a Medical Panel, the Convenor must appoint a Medical Panel from the list of possible appointees. This means that the time when a Medical Panel is convened and can begin to carry out the tasks set out in s 67 of the Act will necessarily vary from case to case.

1. If the period were to run from the date when the Convenor received the reference from the Conciliation Officer under s 56(6), there would be arbitrary differences between the times in which particular Medical Panels were required to carry out their functions. As his Honour observed, the interpretation put forward by Ryan would result in:

medical panels having a variable period within which to deliberate, the length of which will depend on the extent of the delay between the referral date and the date that the medical panel is convened. Grange’s interpretation is more compatible with the nature and seriousness of the function performed by medical panels.[14]

[14]Reasons [59].

1. When s 68(1) is read as a whole, the words 'referred to it' are apposite to describe the time at which the medical question is referred to the Medical Panel by the Convenor. The words '60 days after the reference is made' refer to the making of the reference to the Medical Panel. Like his Honour, I consider that the words 'or such longer period as is agreed by the Conciliation Officer, the County Court, the Authority or self- insurer' in s 68(1), reinforce the interpretation that the period does not begin to run immediately after the Convenor has the medical questions referred to him or her. Two other matters support the view that the 60 days begins to run only once the Convenor refers the question to the Panel. First, there is no provision for an extension of time after the Convenor refers the matter to the Panel, although there is provision for suspension of the period in the circumstances described in s 65(5C).[15] Secondly, s 65(5C) provides for suspension of the 60 day period if the Medical Panel considers that further information is required to enable it to form an Opinion. Again, this supports the view that the 60 days does not begin to run until a Medical Panel is convened and a medical question referred to it.

   [15]In addition, the rights of a worker are suspended under s 67(4) if a worker unreasonably refuses to comply with s 65(5) or hinders an examination.

1. It follows that grounds 1 and 2 must fail.

1. Because I have reached that conclusion, it is strictly unnecessary to deal with  ground 3. However, in my view his Honour correctly held that, even if the Opinion was formed after the 60 day time limit, it was within the jurisdiction of the Medical Panel.

1. In Project Blue Sky Inc vAustralian Broadcasting Authority,[16] the High Court considered the effect of an act done in breach of a statutory provision which regulates the exercise of a power.  McHugh, Gummow, Kirby and Hayne JJ said  that:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. …

Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority.  Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority.  Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition.  Cases falling within the second category are traditionally classified as directory rather than mandatory.[17]

[16](1998) 194 CLR 355.

[17]Ibid 388-9 [91]–[92] (citations omitted).

1. Having discussed the case and the various earlier approaches which had been taken by courts deciding whether a statutory requirement was mandatory or directory on the issue, their Honours observed that ‘[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.’[18]

   [18]Ibid 390 [93]. See also the discussion in Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393 as to the matters which may be relevant in deciding whether failure to observe a time limit will render a decision invalid.

1. As the appellant submitted and the respondent conceded, the use of the word ‘must’ in s 68(1) supports the argument that parliament intended that failure to comply with the time limit would make the Opinion invalid. Against that argument it may be observed that there are other examples of the use of the word ‘must’ in procedural sections relating to Medical Panels which do not support the view that non-compliance with statutory requirements will invalidate an Opinion. His Honour referred to:

(a) a failure to act speedily in accordance with s 65(2) of the Act, where the opinion is formed within the Prescribed Period;

(b) a failure to conduct a worker’s attendance before the medical panel in private in accordance with s 65(4) of the Act; and

(c) a failure of a court referring a medical question to a medical panel to provide relevant documents to each party in accordance with s 45(2) of the Act.[19]

[19]Reasons [89].

1. The fact that the body which refers the matter to a Medical Panel can extend the time limit also supports the view that s 68(1) was not intended to make an Opinion delivered outside the time limit invalid.

1. Further, interpreting s 68(1) as invalidating an Opinion delivered outside the time limit would cause considerable difficulty to a person in the position of Ms Ryan. An injured worker has no control over when a matter is referred to a Convenor or how long the Medical Panel takes to reach its decision. If s 68(1) were to have the effect for which the appellant contends, even a very minor breach of the time limit would mean that the Medical Panel had no power to form and deliver an Opinion. The invalidation of the Medical Panel’s Opinion could cause considerable delay for the parties, because the Convenor would then have to refer the medical question to a Medical Panel again (and possibly to a differently constituted Panel) with consequent additional costs. Treating the time limit as having this effect would undermine the statutory goal of speedy decision-making and could also require unwarranted expenditure of public money.

1. I agree with his Honour that the decision of Kaye J in Mikhman, that non-compliance with the time limit imposed on a Medical Panel for making a determination under s 28LZG(3)(a) of the Wrongs Act invalidates the Medical Panel’s decision, does not require the same conclusion to be reached in relation to s 68(1) of the Act. I would accept the respondents’ submission that there are significant differences between the Wrongs Act provisions and s 68(1).

1. As Kaye J remarked in Mikhman, the provisions in the Wrongs Act spell out ‘a series of time limits, within which each particular step, in the statutory scheme, is to be carried out’.[20]Section 28LZG(3)(a) of the Wrongs Act sets out a period of 30 days for a Medical Panel to make a determination and that period commences only once the Medical Panel has all the necessary information.  There are also default provisions which spell out the consequences for a claimant or respondent of failure to comply with those time limits.[21] These features are sufficient to differentiate the statutory scheme in the Act from the statutory scheme in Mikhman.  For these reasons ground 3 fails.

   [20]Mikhman [28].

   [21]See, eg, s 28LWE(1) and (3).

Relevant / irrelevant considerations

The judge’s reasons

1. Before the primary judge, the appellant relied on ground of review (a) which contended that the Medical Panel had failed to take material considerations into account.  The appellant also relied on grounds of review (e), (f) and (g), which claimed that the Medical Panel:

failed to consider or adequately consider that the plaintiff is currently suffering from an aggravation of pre-existing rotator cuff degenerative changes in both the right and the left shoulder caused by the injury to both shoulders arising out of her pre-injury duties;

failed to consider or adequately consider whether or not the plaintiff’s present condition would be aggravated or worsened if she were to return to the duties that caused her injury and condition in the first place;

failed to consider or adequately consider whether or not [she] had an enhanced susceptibility or vulnerability to injury or further injury and/or failed to consider or adequately consider whether or not such vulnerability or susceptibility would affect her ability to return to her pre-injury duties …

1. In support of ground of review (g), the appellant relied on seven relevant matters, including the contents of the medical reports and the fact that the appellant continued to suffer symptoms from the original injury. 

1. In the proceedings below, the appellant argued, among other things, that she would logically be more prone to injury by the same duties that initially caused the injury and that she was in any case more vulnerable to further injury. 

1. The primary judge held that the Medical Panel had not failed to take account of relevant considerations and that in essence the appellant was complaining about the weight given to these and other matters.

1. Grounds of review (b) and (j) appear to make the same complaint as those now relied upon by the appellant in support of the argument that the Medical Panel took account of irrelevant considerations, though they were expressed differently. They state:

(b) The Medical Panel took into account extraneous considerations;

(j) The Medical Panel made an error of law or an error of fact or took into account an irrelevant consideration, namely, that the plaintiff’s pre-injury duties were ‘for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice’ (emphasis in original).

1. The primary judge rejected the argument that the Medical Panel had reached its conclusion on the basis of an understatement of the appellant’s hours of work. [22]

   [22]Reasons [134]-[135].

Grounds of appeal 4 and 5

1. The appellant’s fourth and fifth grounds of appeal were that:

4. The primary judge erred … in not finding that the Medical Panel had failed to take into account relevant considerations. In particular, the primary judge erred by failing to find that the Medical Panel had not taken account of the consideration that a return to work was liable to aggravate the very injury that led to the worker's incapacity.

5. The primary judge erred … in not finding that the Medical Panel had taken into account irrelevant considerations, namely the Medical Panel's assumptions relating to the worker's normal hours of work as being 19 hours per week, and that it was the worker and not the employer who determined what hours the worker worked beyond 19 hours per week, which assumptions were significant and material to the premise on which the Medical Panel's opinion was given. In particular, in evaluating this issue, the primary judge erred … in finding that the Medical Panel had found that the worker was capable of performing all her duties for at least 30 hours per week without restriction.

Appellant’s submissions

Failure to take into account a relevant consideration

1. In answering the first question put to it, the Medical Panel said that the worker was suffering from ‘an aggravation of pre-existing rotator cuff degenerative changes of the right and left shoulder.’ The appellant’s primary submission was that in light of that conclusion, the Medical Panel was required to consider whether she could perform the very duties that she had previously performed without causing a recurrence of her shoulder injury, because this issue was central to the question whether she could return to her pre-injury employment.[23] The primary judge had wrongly concluded that this matter had been considered by the Medical Panel.

   [23]The appellant relied on Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533, where a slaughterman’s dermatitis, which was not caused by his work, was aggravated by working in the abattoir and in a number of other occupations.

1. The appellant submitted that the Medical Panel was required to consider this issue, both because it was central to the appellant’s claim that she could not return to her previous work without further aggravating her shoulder condition and because
   s 65(6B) of the Act requires the person or body referring a medical question to a Medical Panel to submit copies of all documents relating to the medical question in the possession of that person or body to the Medical Panel. It follows that the Medical Panel is required to take account of the contents of such documents when it forms its Opinion. The materials submitted to the Medical Panel included the reports of Dr Cook and the specialists, Dr De Graaf and Mr White, all of whom made comments relating to the risk of recurrence of the injury.

1. In particular, Dr De Graaf said that:

(i)         the appellant’s occupation was a significant contributing factor to her injury; and

(ii)       long term, there was a risk of recurrent injury, so any work duties will need to address her injury risk.

1. Although the Reasons of the Medical Panel referred to these reports, those Reasons did not address the significance of the appellant returning to the very duties that caused the injury, or to the risk that the appellant’s work duties would cause a recurrence of her injury.  In Wingfoot Australia Partners Pty Ltd v Kocak,[24] the High Court held that a Medical Panel can reach its own view on the question it is asked to resolve and that it is unnecessary for its Reasons to resolve a conflict between medical opinions.  However, the appellant submitted that this principle did not relieve the Panel from considering whether the risk of recurrence of the previous injury made it impossible for the appellant to return to her pre-injury duties.[25] 

   [24](2013) 303 ALR 64 (‘Wingfoot’).

   [25]This issue was also raised under the inadequate reasons ground.

1. The Reasons did not indicate that the Medical Panel had considered this question.  All the Medical Panel had done was to refer in the penultimate paragraph of its Reasons to Dr De Graaf’s and Dr Cook’s opinions that the appellant had no work capacity, and to state that:

[The] Panel formed a different opinion to that of Drs De Graaff and Cook in respect of the worker’s current work capacity based on its own examination of the worker on 21 January 2013 and for the reasons given above.[26]

[26]Reasons of Medical Panel, 9.

1. The failure of the Panel to refer to, consider, evaluate or explain these opinions and particularly to consider whether there was a risk that the previous injury would recur if the appellant continued to perform her pre-injury duties, justified an inference that the Medical Panel had failed to consider whether the risk of recurrence prevented the appellant from performing her pre-injury duties. The primary judge had erred in failing to draw that inference.

Taking account of irrelevant considerations

1. In support of this ground, the appellant submitted that the relevant history taken by the Medical Panel was that the appellant:

told the Panel that she was employed to work 19 hours per week on a variable roster basis, including weekends, but she said that she routinely ‘took on extra shifts’, often working up to 30 hours per week.[27]

[27]Reasons of Medical Panel, 3.

1. The appellant argued that the judge wrongly considered that the Medical Panel had found that the appellant ‘was capable of performing all her duties for at least 30 hours per week without restriction,’[28] when the Medical Panel’s finding was actually that:

[The appellant] is capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.[29]

[28]Reasons [135].

[29]Reasons of Medical Panel, 9.

1. In addressing the question of pre-injury duties the Panel should have had regard to the appellant’s undisputed evidence that she had often worked up to 30 hours per week.  If the appellant was fit only for the compulsory 19 hours and was fit only for additional hours if she felt her symptoms could cope, she was not fit for pre-injury work. The primary judge was in error in misstating the Panel’s conclusion, and in failing to uphold the corresponding grounds of review.

First and second respondents’ submissions 

Failure to take into account relevant considerations

1. The respondents submitted that the Panel took appropriate account of the worker’s history of injury, her treatment and its efficacy, her attempts to return to work, its own findings on clinical examination and the opinions of other medical practitioners.  By acknowledging that her shoulder injury was an aggravation of the previous shoulder injury, from which she had recovered and stating that she was fit for all aspects of the work she did at the Grange, the judge correctly held that the Panel had decided that if the appellant returned to her pre-injury duties there was no risk of further injury, or no risk of an injury which would make her incapable of performing that work. 

1. The Panel’s reasons showed that it had considered all relevant matters, including the opinion of Dr De Graaf, on which the appellant relied.  In expressing its ultimate conclusion, the Panel specifically took into account her reported symptoms of pain, but said that the injury was minor.  The history provided by the worker in respect of her pain included increased symptoms on her attempts to return to work in March and April 2012 (i.e. that her duties in that period caused an exacerbation of her compensable injury).

Taking account of irrelevant considerations

1. The respondents argued that the reference to ‘further hours’ which the worker ‘may wish to undertake’ was not, properly understood, an acknowledgment that she was ‘fit only for these hours if she felt her symptoms could cope’; rather, it was simply an acknowledgement that it was the worker who determined the hours she worked beyond the contracted 19 hours per week.

1. The respondents submitted that the appellant’s characterisation of the Panel’s Reasons simply attempted to find error in what could, at most, be described as a ‘looseness of language’ or ‘unhappy phrasing’.

Analysis

1. Clearly it would not be open to the appellant to rely on different grounds to challenge his Honour’s conclusion that the Medical Panel had not failed to consider relevant considerations or taken account of irrelevant matters.  Although grounds 4 and 5 are not expressed in precisely the same way as the grounds of review considered by the learned judge, they raise issues which were considered by his Honour alongside a number of other complaints. 

Failure to have regard to relevant considerations

1. An administrative decision-maker makes a jurisdictional error if it fails to take account of a matter which it is bound to take into account and its failure to do so materially affected its decision.[30]  In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[31] Mason J said that the factors which a decision-maker is bound to consider when making the decision are to be determined by construing the legislation conferring the discretion.  Where the matters to be taken into account in the exercise of the discretion are not expressly confined by the terms of the statute:

the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject–matter, scope and purpose of the Act.[32]

[30]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J) (‘Peko-Wallsend’).

[31]Ibid.

[32]Ibid 40. For a useful summary of the Peko Wallsend principles see Moyston Court Fisheries Ltd v Dr John Malios and Ors [2007] VSC 518, [43].

1. Under the Act, the role of a Medical Panel is to form an Opinion relating to medical questions which are referred to it for the various purposes set out in the legislation. In this case the Medical Questions were referred for the purpose of deciding whether the appellant should continue to receive weekly payments because her injury prevented her from returning to her pre-injury duties.

1. Under s 65(5), a Medical Panel may ask a worker to meet with the Panel to answer questions, to supply relevant documents and to submit to a medical examination. Under s 65(6B), a person referring a medical question to a Medical Panel must submit copies of all documents relating to the medical question in his or her possession to the Medical Panel. It necessarily follows that the Panel is bound to consider the worker’s answers to questions and the documents submitted by the worker and the referring body, when the Panel forms its Opinion and delivers its Reasons.[33] If the worker’s answers[34] or the documents provided raise an issue which the Reasons do not address, the Panel has failed to take account of a relevant consideration.

   [33]Wingfoot, [47].

   [34]For an example of failure to do so, which meant that the Medical Panel decision was outside jurisdiction, see Milwain v Sim [2009] VSC 75, particularly [28].

1. A court must proceed carefully when reviewing an administrative decision on the ground that the decision-maker did not have regard to a relevant consideration ‘lest it exceed its supervisory role by reviewing the decision on its merits’.[35] As Kyrou J (as he was then) observed in Milwain v Sim,[36] when reviewing a Medical Panel decision which was ultimately held to have ignored relevant considerations:

[T]his Court must be careful not to cross the line between judicial review and merits review and misconstrue dubious findings of fact or questionable weight being given to particular evidence as jurisdictional errors.[37]

[35]Peko-Wallsend, 42. However at least in the case of the exercise of a discretion, if the decision was so unreasonable that it could not have been made in the proper exercise of the decision-maker’s discretion, that is, if it satisfies the test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228 it can be set aside.

[36][2009] VSC 75.

[37]Ibid [22].

1. The primary judge concluded that in this case the Medical Panel had not failed to take account of a relevant consideration.  His Honour said that:

The Medical Panel was obviously aware that the plaintiff’s claim in January 2012 that she was incapacitated from performing her pre-injury work had been accepted by VWA. The Panel itself was not asked to, and did not, express an opinion about the plaintiff’s capacity for work at that time. The Panel was also aware of the plaintiff’s unsuccessful return to work on modified duties and that she had some ongoing symptoms. Once again, the Panel was not asked to, and did not, express an opinion about the plaintiff’s capacity for work at that time. I agree with Grange that it did not necessarily follow from the above matters that the plaintiff would be prone to suffer further injury by the performance of her pre-injury duties, less still that any further injury would result in incapacity. A work-related injury which has not fully resolved and which continues to cause some pain does not necessarily prevent the worker from performing his or her pre-injury duties. These were matters for the Panel’s professional medical assessment and opinion.

The Medical Questions that the Medical Panel was required to answer concerned the nature of the plaintiff’s current medical condition relevant to the Injury and whether she was capable of performing her pre-injury duties. In answering these questions, the Panel took into account, among other things: the plaintiff’s history in relation to the Injury, the treatment the plaintiff received for the Injury and the efficacy of that treatment; the events relating to the performance of the plaintiff’s duties with Grange, including the brief period of the return to work on modified duties; the Panel’s own observations of the plaintiff’s condition and ongoing symptoms when it examined the plaintiff; and the opinions of other medical practitioners which were provided to the Panel. The opinions of other medical practitioners included those of Dr De Graaff and Dr Cook, who stated that the plaintiff’s condition would be aggravated or worsened if she were to return to her pre-injury duties and that she was not fit to perform those duties.

It simply cannot be said that the Medical Panel failed to consider the above matters. The weight to be given to them was a matter for the Panel. [38]

[38]Reasons [117]–[119].

1. Unfortunately I disagree with that conclusion.  Although the question is not without difficulty, I consider that the Panel did not take account of a matter it was bound to consider when it failed to address the question whether the appellant’s  return to her pre-injury duties would again aggravate her shoulder condition.

1. The definition of injury includes a recurrence or aggravation of any pre-existing injury.  In its answer to Medical Question 1, the Panel characterised the appellant’s injury as ‘an aggravation of pre-existing rotator cuff degenerative  changes of the right and left shoulder’. 

1. In his report of 12 March 2012 to the insurer, Mr Roger White, a consultant surgeon, said that:

The acute changes may be the consequence of her duties at the workplace … Her duties at the workplace have been the cause of the acute changes, which have involved preparation of meals, drinks, light lunches and snacks, washing dishes, loading a dishwasher, setting tables and dishing out meals.

1. In his report of 26 March 2012, Mr White considered that the appellant could perform modified duties which did not require her to raise her arms above her heads, lift items over five kilograms in weight or involve sustained or repetitive activities.  He considered she should return to work part time with a later review of the effect of modification of her duties on her symptoms.  When questioned by the Panel, the appellant said that she had returned to modified duties on 26 March 2012 but had struggled with increasing pain and was certified unfit for work on 18 April 2012.  

1. In his report of 3 December 2012, Dr Ian Cook, the appellant’s general  practitioner, noted that she had unsuccessfully returned to work and said that if her pain was controlled, she would need retraining for clerical work.  In his opinion, she will never be fit for work using repetitive lifting and shoulder movement.

1. Dr Stephen De Graaf, Senior Rehabilitation Physician at Epworth Health Care, provided a report to the appellant’s solicitor on 19 November 2012, which noted her unsuccessful attempt to return to work.  He considered that the repeated lifting and carrying and working above shoulder height stressors had led to injuries to both her shoulders and noted that ‘[l]ong term, there is a risk of recurrent injury, so any work duties will need to address her injury risk’.

1. In my view the appellant’s answers to the Panel and the reports of the above practitioners squarely raised the issue whether the appellant’s return to her pre-injury duties would further aggravate her pre-existing shoulder condition.  It is not for this Court to decide whether such an aggravation was likely or probable.  However, I accept the appellant’s submission that if, after considering the matter, the Panel concluded that a return to duties would aggravate the appellant’s pre-existing injury, she should not have been regarded as capable of returning to her pre-injury duties.  Although the Panel’s task was to reach its own conclusion and not to resolve the differences between the views of the various practitioners,[39] I consider that by failing to consider the question whether the appellant’s work would aggravate her previous shoulder injury, the Panel failed to have regard to a relevant consideration.

   [39]Wingfoot, [47].

1. The learned trial judge observed that the Panel referred to the nature of the work done by the appellant at the Grange and to the medical history which she gave to it, and noted that she had experienced increasing pain in her shoulders and had been treated with ultrasound guided cortisone injections and prescribed pain medication.  The Panel’s reasons also referred to her unsuccessful attempt to return to work.  However, there is nothing in the Reasons which indicates that the Panel considered whether what they described as ‘minor pain’ would worsen if the appellant returned to work and performed the same duties which had initially aggravated her shoulder condition.  The Panel’s summary of the matters it had taken into account is set out in [8] above.

1. Although the Panel referred to its own examination of the appellant and the views of her treating doctors and Mr White, its Reasons do not indicate that the Panel undertook any meaningful consideration of the effect which a return to work could have on aggravating the pre-existing injury.  The Medical Panel was not required to explain why it took a different view from Dr De Graaf and Dr Cook about the appellant’s capacity to return to her pre-injury duties.  However, it was required to explain how it had taken account of the chronology of events and why it had not inferred from its own finding that the injury was an aggravation of a pre-existing condition that, if the appellant returned to the same work, it was likely that she would again experience an aggravation of her shoulder condition.

1. For these reasons ground 4 is made out.

1. I take a different view of ground 5, which alleges that the Panel had regard to an irrelevant consideration by assuming that the appellant normally worked 19 hours per week.  As his Honour observed:

The Medical Panel correctly recorded in the plaintiff’s history that she ‘was employed to work 19 hours per week on a variable roster basis, including weekends, but … she routinely ‘took on extra shifts’, often working up to 30 hours per week.’ Later in its Reasons, the Panel returned to the plaintiff’s hours of work on three occasions. On the first occasion, the Panel stated that the plaintiff ‘was employed to perform [the work] for a total of 19 hours per week, and where she was able to engage in additional hours of work based on her own choice.’ On the second occasion, the Panel said that the plaintiff was ‘capable of performing all aspects of her pre-injury employment for 19 hours per week, and also for any such additional further hours as she may wish to undertake.’ On the third occasion, the Panel stated that it considered that the plaintiff’s ‘occupational duties and hours of work did not require modification.’

In my opinion, the Medical Panel’s use of slightly different language on the four occasions in which it referred to the plaintiff’s hours of work does not indicate that the Panel formed its Opinion on the basis of an understatement of the plaintiff’s hours of work.

When the Reasons are read as a whole and in context, it becomes clear that the Medical Panel made two relevant findings regarding the plaintiff’s hours of work. The first finding was that it was the plaintiff, rather than Grange, who determined what hours she worked beyond 19 hours per week. The second finding was that the plaintiff was capable of performing all her duties for at least 30 hours per week without restriction. Both these findings were relevant to the Panel’s Opinion.[40]

[40]Reasons [133]–[135].

1. In my view, his Honour’s reasoning relating to the Medical Panel’s approach to the hours of work question cannot be faulted. For these reasons ground 5 fails.

1. Because the appellant has succeeded on ground 4, I will only consider the other grounds of appeal briefly. 

Grounds of appeal 6 and 7

1. The appellant’s sixth and seventh grounds of appeal were that:

6.        The primary judge erred … in finding that there was nothing illogical, irrational or unreasonable about the Medical Panel's conclusion that the worker was capable of performing her pre-injury duties.

7.        The primary judge erred … in distinguishing unreasonableness in the Wednesbury sense from irrationality or illogicality, and holding that unreasonableness in that sense was not a ground of review.

Appellant’s submissions

1. Relatively little emphasis was placed on these grounds in oral submissions.   However in her written submissions, the appellant contends that the Medical Panel was required to form an Opinion on the questions put to it and that this function is similar to the process of making a discretionary judgment, which may be set aside on the grounds of irrationality, illogicality or unreasonableness.[41] The appellant concedes that a factual decision made by an administrative decision-maker will rarely be set aside on such grounds, but argues that in this case the decision must be set aside.  The appellant contends that it is implicit in the requirement that the Panel give written reasons, that reasons which are illogical, irrational or which could not be made by a reasonable decision-maker require the setting aside of the Opinion.  Reliance is based on the decision of Dixon J in Moore v Barton[42] in support of these submissions.

   [41]The appellant cites Norbis v Norbis (1986) 161 CLR 513 at 518 in support of her contention that the opinion-forming function of a Medical Panel has many characteristics of a discretionary decision.

   [42][2014] VSC 78.

1. The appellant argues that there is an inherent illogicality or irrationality by comparing the Panel’s finding that she was capable of returning to the same work she was doing prior to her injury and its acceptance of the fact that those very duties were the cause of the aggravation to her condition which gave rise to the compensable injury. The primary judge had erred in failing to consider the illogicality, irrationality or unreasonableness exposed by the Medical Panel’s reasons. 

Respondents’ submissions

1. The respondents argue that, even if irrationality is a ground for setting aside a discretionary decision, (which they dispute), such a ground does not provide a basis for challenging a finding of fact.[43]  Traditionally, mere ‘illogicality’ has not been regarded as amounting to a reviewable error of law,[44] as his Honour correctly recognised in his reasons.[45]  To permit review on these grounds would amount to review on the merits of the decision, rather than a review of its legality.

   [43]The respondents concede that there is some support in recent High Court decisions for holding that at least in cases where satisfaction as to a certain matter is required as the basis for the decision illogicality or irrationality may amount to a jurisdictional error. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (‘SZMDS’). Some Victorian cases also seem to have acknowledged that this is an area where new grounds of review are emerging.  See Commissioner of AFP v Magistrates’ Court of Victoria [2011] VSC 3, [65]–[66], [77]; Rees v County Court [2011] VSC 67, [8]–[9], [19]–[23] (‘Rees’); Barro Group Pty Ltd v Brimbank City Council [2012] VSC 154, [108] (‘Barro’).

   [44]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356 (Mason J).

   [45]Reasons [157].

1. Further, the notion of unreasonableness in the Wednesbury sense (that is that no reasonable decision-maker could have reached the decision on the basis of the material before that decision-maker) only provides the basis for setting aside

discretionary decisions and does not permit the setting aside of a factual finding.[46]  The respondents contend that a finding as to a worker’s capacity for work is a finding of fact and not a discretionary decision.[47]

[46]Minister for Immigration v Eshetu (1999) 197 CLR 611, 648ff (Gummow J). See also S v Crimes Compensation Tribunal [1998] 1 VR 83, 91 (‘S v CCT’).

[47]S v CCT, 89.

1. The respondents also argue that although a ground of jurisdictional error based on illogicality was applied to the decision of a Medical Panel in Moore v Barton,[48] in that case Dixon J incorrectly failed to differentiate between a finding of fact and the exercise of a discretionary power.  Furthermore, although the primary judge ultimately accepted that the Medical Panel had engaged in unreasonable, irrational or illogical reasoning, in substance he upheld an argument that it had made the relevant finding without evidence, which is an accepted ground of jurisdictional error.

   [48][2014] VSC 78.

Analysis

1. There is still considerable debate about the extent to which irrationality or the related claims of illogicality or unreasonableness, are grounds for review of an administrative decision.  In Aronson and Groves’ important work on Judicial Review of Administrative Action[49] (‘Aronson and Groves’) the authors remark that:

the High Court now recognises review for ‘serious irrationality’. Although the irrationality has to be serious indeed (the ‘last resort of the desperate’, according to Gummow J), it does represent a safety net of sorts for cases where the standard review grounds cannot apply. We saw, for example, that decisions which gave utterly inadequate consideration to mandatory factors withstand review on the relevancy grounds, because those grounds give no comfort to a complaint of merely inadequate consideration. ‘Serious irrationality’ provides a safety net here for those situations where no reasonable decision-maker would have treated the mandatory factors so irrationally. Similarly … ‘serious irrationality’ now provides a back-stop for situations in which the ‘no evidence’ ground is unavailable (because there was at least a scintilla of evidence), but in which no reasonable decision-maker would have made the same factual inferences or conclusions. These are very high standards, equivalent to the demanding standard of Wednesbury unreasonableness. Successful challenge for serious irrationality will be rare enough, and even more rare beyond the two fields just mentioned. [50]

[49]Mathew Groves and Mark Aronson, Judicial Review of Administrative Action, (Thomson Reuters, 5^th ed, 2013).

[50]Ibid 286, [5.200].

1. Aronson and Groves also observe that the principle allowing the exercise of a discretion to be reviewed on the ground of ‘unreasonableness’ now has limited scope because the ground of serious illogicality or irrationality has taken its place.[51]

   [51]Ibid 362, [6.390].

1. In Minister for Immigration and Citizenship v SZMDS,[52] the Minister for Immigration and Citizenship appealed against a Federal Court decision allowing an appeal from a decision made on a judicial review by the Federal Magistrates’ Court.  The Federal Magistrates’ Court had quashed a decision of the Refugee Review Tribunal (‘RRT’), refusing the respondent a protection visa.  Because of a privative clause in the Migration Act (Cth), the review was under s 75(5) of the Commonwealth Constitution. Accordingly it was necessary to show a ‘jurisdictional error’ in order to quash the decision of the RRT.

   [52]SZMDS (2010) 240 CLR 611.

1. In their dissenting judgment, Gummow ACJ and  Kiefel J upheld the claim of jurisdictional error. Their Honours said that the legislation required the Minister to be satisfied of certain facts, and that a decision ‘based upon a contradiction in the processes by which conclusions were reached or upon the drawing of inferences which were not properly open’ amounted to a failure to exercise jurisdiction.[53]  At the same time Gummow ACJ and Kiefel J emphasised that the appeal did not raise the question whether a ‘defective fact finding’ was, of itself, ‘an independent ground of judicial review.’[54]  Their Honours’ reasons emphasised the important difference between merits review of a decision and review concerned with the existence of a jurisdictional fact.  In the latter case ‘the same degree of caution as to the scope of judicial review does not apply when the issue is whether the jurisdictional threshold has been crossed.’[55]

   [53]Ibid 620-21 [23]–[24]. Their Honours, at [25], also noted that in the case of a legislature with limited powers a ‘jurisdictional fact’ could include a ‘constitutional fact.’ If the process of determining a jurisdictional fact could not be reviewed the result would be that ‘the legislation could rise higher than its constitutional source’.

   [54]Ibid 622 [31].

   [55]Ibid 624 [38].

1. Crennan and Bell JJ[56] also considered that illogicality and irrationality could provide the basis for judicial review of a jurisdictional fact, although unlike Gummow ACJ and Kiefel J they held that this ground had not been established. Their Honours cautioned that ‘[n]othing said in these reasons sanctions the deployment of “illogicality” or “irrationality “ to achieve what is sometimes called merits review.’[57]  In their view the question whether illogicality or irrationality gave rise to jurisdictional error was to be ascertained by considering whether the decision made by the Tribunal was one which no rational or logical decision-maker could arrive at on the same evidence.  They said that:

In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

Was the Tribunal's fact finding "illogical" or "irrational"?

Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal's conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error.

…

[T]he correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.[58]

[56]Heydon J delivered a separate judgment reaching the same result as Crennan and Bell JJ.

[57]Ibid 636 [96].

[58]Ibid [130]–[133]. It may be noted however that, at [132], Crennan and Bell JJ referred to ‘findings on the way’ to the Tribunal’s conclusion revealing illogicality or irrationality amounting to jurisdictional error.

1. Their Honours also noted the overlap between setting aside a discretionary decision because it was unreasonable in the Wednesbury sense and setting aside a decision on a jurisdictional fact because it was illogical or unreasonable.[59]

   [59]Ibid [128].

1. In Minister for Immigration and Citizenship v Li,[60] the High Court considered the circumstances in which an unreasonable exercise of an administrative discretion, in that case the refusal of an adjournment of a hearing, would constitute a jurisdictional error. Hayne, Kiefel and Bell JJ stated that:

A standard of reasonableness in the exercise of a discretionary power given by statute had been required by the law long before the first statement of ‘Wednesbury unreasonableness’ in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.[61]

[60](2013) 249 CLR 332.

[61](2013) 249 CLR 332, 362–3 [64].

1. Their Honours concluded:

Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[62]

[62](2013) 249 CLR 332, 367 [76].

1. In Minister for Immigration and Border Protection v Singh[63] (‘Singh’), the Full Court of the Federal Court held that the Migration Review Tribunal’s failure to exercise its statutory discretion to adjourn a review, in order to permit Mr Singh to obtain a re-mark of an English skills test, which the Tribunal had agreed he should be permitted to undertake before it completed its review, was an unreasonable exercise of its discretionary power to grant an adjournment and accordingly amounted to jurisdictional error.

   [63][2014] FCAFC 1.

1. Singh supports the view that, at least where the exercise of a discretionary power is concerned, the lack of an intelligible justification for the conclusion reached may permit a court to set aside an administrative decision. 

1. Despite these decisions, there remains considerable uncertainty about the circumstances in which the irrationality/illogicality/unreasonableness grounds of review may apply. In particular it is not clear about the circumstances, if any, in which these principles permit the setting aside of:

·factual decisions which cannot be regarded as ‘jurisdictional facts’ such as the ‘satisfaction’ of the decision-maker, as was the case in SZMDS;

·decisions which do not involve the exercise of a discretion.[64]

[64]See SZMDS (2010) 240 CLR 611, [39] (Gummow ACJ and Kiefel J), [128]–[130] (Crennan and Bell JJ); Rees [2011] VSC 67, [7].

1. Nor is it clear whether, assuming that these grounds for review are available, the decision itself must demonstrate irrationality, illogicality or unreasonableness, or whether it is sufficient to show that it has been reached by reasoning which demonstrates such flaws.[65]

   [65]As to which see the discussion of SZMDS above.  See also Rees, [22].

1. There is also uncertainty about the relationship between these principles and the concept of Wednesbury unreasonableness, which in Australia has been confined to a ground for review of the exercise of a discretion.[66]

   [66]Aronson and Groves, above n 49, 367 [6.450].

1. Recent decisions in the trial division of this Court have acknowledged these uncertainties.[67]  In Rees v County Court,[68] where it was argued that a judicial officer in an inferior court had made a finding of guilt that was so unreasonable that no reasonable person could make it,[69] Cavanough J considered it was unnecessary to reach a conclusion as to the extent to which deficient fact finding could amount to jurisdictional error.  He observed that:

The ‘illogicality or irrationality’ ground of review referred to in SZMDS seems to be quite new and its scope remains to be fully explored, notwithstanding that it is at least closely related to the well known ‘Wednesbury unreasonableness’ ground. The arrival of the new ground casts very great doubt on any continuing role that Wednesbury unreasonableness might otherwise have had in relation to non-discretionary decision-making of the kind presently in question.  Nevertheless, bearing in mind ground 2 of the plaintiff’s originating motion, I will assume in the plaintiff’s favour, without deciding, that it is open to him to allege both ‘illogicality or irrationality’ and ‘Wednesbury unreasonableness’ as separate grounds. On the other hand, I will respectfully adopt the view apparently taken by Crennan and Bell JJ in SZMDS that they are similar allegations, in that the former is ‘of the same order’ as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ (in the sense that it could not be arrived at by a reasonable person).[70]

[67]See, eg, Commissioner of AFP v Magistrates’ Court of Victoria [2011] VSC 3, [65]–[66], [77]; Rees, [8]–[9], [19]–[23]; Barro, [108].

[68][2011] VSC 67.

[69]The plaintiff sough certiorari under O 56 of the Rules to quash an order made by a County Court judge, on the basis that there was no probative evidence on the basis of which the judge could have reached the conclusion he did.

[70]Rees [2011] VSC 67, [21].

1. In Barro Group Pty Ltd v Brimbank City Council,[71] Emerton J said that:

In my view, the availability of the illogical or irrational ground remains somewhat uncertain where the provision conferring the decision-making power does not require the decision-maker reach a state of satisfaction about a specified matter. Justice Cavanough has very helpfully reviewed the current status of the illogical or irrational ground in Rees v County Court.His Honour referred to the recent decision of the High Court of Australia in Minister for Immigration and Citizenship v SZDMS, in which Gummow and Kiefel JJ appeared to hold that jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, whereas according to Crennan and Bell JJ, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker.[72]

[71][2012] VSC 154.

[72]Ibid [108].

1. In the case before us the trial judge assumed, without deciding, that in SZMDS the High Court ‘stands for the proposition that Australian law recognises irrationality as a separate ground for administrative review.’[73]  He then applied the following test in determining whether irrationality had been established:

In order for the plaintiff to succeed on the irrationality ground, she must satisfy me that no rational or logical decision-maker could have concluded, as the Medical Panel did, that the plaintiff is capable of performing her pre-injury duties. She will be able to do so if she can demonstrate that the Panel’s conclusion was based on reasoning that was not open to it or that the evidence before the Panel mandated a different conclusion.[74]

[73]Reasons [149].

[74]Reasons [150].

1. In light of the cases discussed above, both his Honour’s assumption that irrationality may be a separate ground of administrative review and his focus on the Medical Panel’s reasoning (and not just the decision it actually reached) were favourable to the appellant.  Nevertheless, his Honour found that the ground was not made out because the factual finding made by the Panel was open to it, based on its examination of the appellant and its collective medical expertise.  He said:

This is not a case where the members of the Medical Panel, properly assessing the evidence and applying their expertise, could only have concluded that the plaintiff was not capable of performing her pre-injury duties or that such performance required modification to the nature, scope and duration of the pre-injury duties.

This is also not a case where it was inevitable that, on the evidence, only one path of reasoning was open to the Medical Panel, namely, that, because the plaintiff’s pre-injury duties caused the Injury which persisted, she was not capable of performing those duties without modification to accommodate her ongoing symptoms.

It was open on the evidence for the Medical Panel to conclude, as it did, that, notwithstanding that the Injury persisted in a mild form and the plaintiff had ongoing pain, she was capable of performing her pre-injury duties without modification. There was nothing irrational or illogical (in the relevant sense) about this conclusion or the reasoning upon which it was based.

The fact that the Opinion is consistent with the views of Dr Barton supports the proposition that it is not irrational or illogical in the relevant sense.

In considering the irrationality ground, I have not been assisted by the plaintiff’s reference to particular observations in Li. That is because those observations relate to the separate ground of Wednesbury unreasonableness which is not a ground of review in this proceeding. In any event, I am not satisfied that the Opinion is unreasonable within the Wednesbury principles as they were explained in Li.[75]

[75]Reasons [153]–[157].

1. His Honour applied the test which the authorities suggest applies, assuming that irrationality can provide the basis for setting aside a factual decision. For the reasons that his Honour gaves he also applied the test correctly in the circumstances  of this case. It follows that ground 6 fails. 

1. I would also reject ground 7.  In [152] of his Reasons it is clear that his Honour assumed, for the purpose of his Reasons, that ‘unreasonableness’ could be a stand alone ground of review, though he held that it had not been made out.  In [157] his Honour observed that Wednesbury unreasonableness was not relied upon as a ground for review.  Because Wednesbury unreasonableness is traditionally confined to discretionary decisions, it is not surprising that the appellant did not rely on it. But even if it could have been relied upon, his Honour specifically found that the Opinion was not unreasonable in the Wednesbury sense.  I agree with that conclusion.

Grounds of appeal 8

1. The appellant’s final ground of appeal was that:

8.        The primary judge erred … in holding that the reasons of the Medical Panel were not inadequate. In particular, the primary judge erred … in rejecting the worker's submission that the Medical Panel's reasons did not explain why, with a persistent injury and symptoms, the worker can return to perform the duties that caused the injury in the first place, and … in holding that the Medical Panel's path of reasoning was evident from the reasons.

Appellant’s submissions

1. The appellant submits that s 68(2) of the Act requires the Panel to give reasons for its Opinion. A corollary of this requirement is that any opinion of a Medical Panel is to be a reasoned one.

1. The appellant argues that the question whether she was capable of performing her pre-injury duties necessarily raised the question whether there was a risk that performance of those duties would cause a recurrence or aggravation of the injury. The Panel’s Reasons fail to engage with that issue.  She therefore submitted that the Reasons fail to expose a path of reasoning that meets the content of the obligation to give reasons, as explained by the High Court in Wingfoot.

1. The appellant submits that the primary judge was in error in rejecting her submissions simply on the ground that, ‘the Reasons sufficiently explain that whatever the severity and effects of the Injury prior to the Medical Panel’s examination of the plaintiff on 21 January 2013, on that day, the injury persisted in a mild form and was not such as to prevent the plaintiff from performing her pre-injury duties.’[76] Any such explanation does not address the risk of recurrence raised by the material.

   [76]Reasons [175].

The respondents’ submissions

1. The respondents argue that it was not necessary for the Panel to ‘reconcile’ its Opinion as to the worker’s capacity for her pre-injury duties with the risk of recurrence of injury and that the Panel considered (as was open to it) that she was able to perform all aspects of her pre-injury employment, a finding from which it can properly be inferred that any exacerbation of her compensable injury would not give rise to any incapacity for work.

1. The Panel’s Reasons explain its ‘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’.[77]

   [77]Wingfoot 79, [55].

Analysis

1. In Wingfoot the High Court[78] held that where a Medical Panel constituted under the Act gives inadequate reasons for its answers to Medical Questions an order in the nature of certiorari is available to remove the legal consequences of the opinion.

   [78]          (French CJ, Crennan, Bell, Gageler and Keane JJ).

1. The question whether reasons are adequate is to be determined by reference to the functions conferred on the panel, which do not require a panel to resolve a dispute between medical practitioners:

The medical panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

The reasons that s 68(2) of the Act obliged the medical panel to set out in a statement of reasons to accompany the certificate as to its opinion were the reasons which led the medical panel to form the opinion that the medical panel was required to form for itself on the medical question referred for its opinion. What is to be set out in the statement of reasons is the actual path of reasoning by which the medical panel arrived at the opinion the medical panel actually formed for itself.[79]

[79]Wingfoot, 77 [47]–[48].

1. I agree with the primary judge that the Medical Panel gave adequate reasons for answering the Medical Questions in the way that it did.  Based on the answers which the appellant gave to the questions put to her, its examination of the appellant and the documents provided to it, which included the medical opinions to which I have already referred, the Panel considered that the nature and extent of her left and right shoulder injury was mild, that she was capable of performing her pre-injury duties, and that her hours of work and the duties she performed did not require modification.  It follows that the Reasons set out the path of reasoning by which the

Panel arrived at its Opinion.  As has frequently been stated, administrative tribunals whose members are not legal experts are not expected to give the reasons of a standard which would accord with the requirements imposed on a judge or lawyer.  In that sense its Reasons are entitled to a beneficial construction.  The Reasons contained sufficient detail to enable the Court to decide whether or not the Opinion involved any error of law.

1. There is no inconsistency between my conclusion that the Medical Panel failed to have regard to a relevant consideration (that is the possibility that the appellant’s  shoulder injury would be aggravated by the performance of duties which had previously injured her shoulder) and my conclusion that the Reasons which the Medical Panel did give were adequate to explain the actual path of reasoning which led the Medical Panel to opine that the appellant was able to return to her pre-injury duties.

Orders

1. For the reasons given above, I would allow the appeal.  I would make orders quashing the Opinion and remitting the Medical Questions to a different Panel.

SANTAMARIA JA:

1. I agree with Neave JA.

GINNANE AJA:

1. I agree with Neave JA.

- - - - -

Reasons [23]. Section 63(2) of the Act required the Minister to appoint a Convenor. Under

s 63(4), the Convenor may convene a Medical Panel and determine the number of members of that Panel.