Santos v Wadren Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8296 of 2008

JOSE SANTOS	Plaintiff
v
WADREN PTY LTD AND OTHERS	Defendants

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2009
DATE OF JUDGMENT:	30 July 2009
CASE MAY BE CITED AS:	Santos v Wadren & ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 303

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Judicial Review – Order 56 – medical panels – a specific error of law – inadequate reasons; principles to be applied – application of s 8 Administrative Law Act 1978 in proceedings under Order 56 Supreme Court Rules.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram and Mr R Kowalski	Melbourne Injuries Lawyers
For the First Defendant	Mr J Brett	HWL Ebsworth
For the Second and Third Defendants	Mr D Masel	Monahan & Rowell

HIS HONOUR:

The proceedings

The plaintiff, Jose Santos, has brought proceedings by Originating Motion seeking an order quashing the opinion of the Medical Panel (the third named defendants) and certified in writing dated 7 July 2008 and an order referring the matter back to a new Medical Panel for hearing and determination according to law.

Background to the proceedings

By letter dated 31 March 2008, Jose Santos lodged a claim with Pacific Shopping Centres Pty Ltd. He alleged that, on 1 February 2006, he slipped in a pool of water on the floor of Werribee Plaza and fell hitting the floor damaging his left knee and right ankle. The claim was received by the public liability insurer Chubb Insurance Company of Australia Limited.

By letter dated 8 May 2008 it forwarded to the Convenor of Medical Panels a claimant’s notice under s 28LT of the Wrongs Act 1958 (the Act) together with a Certificate of Assessment dated 29 February 2008 prepared by and signed by Mr Owen Deacon, an orthopaedic surgeon. The letter from the insurer, in accordance with s 28 LWE of the Act, referred a medical question in relation to the Certificate of Assessment to the Medical Panel for determination as follows:

“Does the degree of impairment resulting from the injury to the claimant as alleged in the claimant’s prescribed information form satisfy the threshold level under Part VBA of the Wrongs Act?
In providing its determination, we request that the Medical Panel provides written reasons for its determination.”

The determination was needed to establish whether the plaintiff had suffered significant injuries so as to entitle him to claim non-economic loss damages. I note that the request for reasons was received by the Convenor prior to any referral to a Panel.

The Certificate of Assessment by Mr Deacon stated that he was satisfied that “the degree of impairment resulting from the injury is more than 5 percent”. He also provided a description of the injury assessed in the following terms

“This was a left knee injury, when he fell with his whole body weight on it, flexed 90 degrees on a concrete floor, at Werribee Plaza when he slipped on a puddle from a leaking roof – there was no warning sign. Initially it was painful, red, tender to touch and swollen. He thought it would recover, however, he did see two doctors who gave him certificates ‘To Whom It May Concern’. Initially, there was no treatment or investigations, but on or about 26/2/07, he commenced having episodes of locking and swelling with insecurity of the knee, and he was on an off work between 10/2/07 and 25/3/07. This led to an arthroscopy on 14/6/07 by Miss Anita BOECKSTEINER, orthopaedic surgeon, who removed a bony fragment avulsed by part of the anterior cruciate ligament from the tibia and debriding the ligament which was partially torn. At first, he appeared quite well and returned to work a fortnight after surgery. But since then, the knee has become more painful, swollen and insecure, aggravated by walking. He cannot run and he presently needs more investigation, possibly surgery.”

The Medical Panel received the reference on 9 May 2008. It appears from the Schedule of Attachments to the Reasons delivered by the Panel that it received the following documents “prepared by” (sic)

· Referral and Questions to Medical Panels – 8/5/08 (2 pages – including the request for reasons)

· Letter from Melbourne Injury Lawyers to Pacific Shopping Centre – 31/3/08 (3 pages)

· Certificate of Assessment – 29/02/08 (1 page)

· Submission from claimant’s legal representative – 13/05/08 (2 pages)

· Mr O Deacon – 24/02/08 (8 pages)

· Mr O Deacon – 14/03/08 (3 pages)

· X-ray both knees – 03/03/08 (1 page)

· MRI Left Knee and Haematology – Various dates (2 pages)

On 22 May 2008 the claimant was jointly examined by the two panel members.

The Panel on 7 July 2008 issued a Certificate in response to the referral. The presiding member signed the document for and on behalf of the Panel. It stated the following

“As Presiding Member of this Panel, I have discussed the answers herein with the other Panel Member and this is the opinion of the Panel on the Medical Questions set out below
Medical Question:
Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?

Answer:
The Panel determined that the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim does not satisfy the threshold level.”

Reasons for Determination were attached to the Certificate and also dated 7 July 2008.
Ground of the application

In challenging the determination of the Medical Panel the plaintiff relies upon the following alleged errors of law

(a)the Medical Panel stated that it had assessed the impairment of the plaintiff’s right knee and not his left knee in accordance with the AMA guides;
(b)the Medical Panel failed to have regard to the operation findings as reported by the treating surgeon Ms Boecksteiner;
(c)the Medical Panel failed to have regard to weight bearing X-rays performed on 3 March 2008 which demonstrated medial compartment osteo-arthritis in the plaintiff’s left knee;
(d)the Medical Panel failed to assess the impairment attributable to degenerative changes in the plaintiff’s left knee as aggravated and rendered symptomatic in the subject incident;
(e)the Medical Panel failed to fully assess the plaintiff’s impairment in accordance with the AMA guides and in particular Table 62 of Chapter 3 thereof;
(f)the Medical Panel failed to provide adequate reasons for its determination”

Reasons for determination

The plaintiff’s arguments require consideration of the Medical Panel’s Reasons for Determination.

In paragraph 3 of the reasons it was stated that

“3. The Panel formed its opinion by reference to:
(a) the documents and information referred to in Enclosure A; and
(b) the history provided by the claimant and examination findings solicited by the Panel at the abovementioned examination of the claimant.”

The Reasons are set out in paragraph 4 of the Reasons document and are introduced by the following–

“ The Reasons for the Panel’s determination are as follows:”

After a brief account of the claimant’s employment and duties as a warehouseman and reference to the fact that his duties included some lifting and fork lift driving, the slipping event of 1 February 2006 was described as follows
“He said that on 1 February 2006 he slipped in a puddle of water on the floor of Werribee Plaza and fell hitting the floor with his left knee and hyperflexing his right ankle. That night his knee was a bit swollen and painful, but the next day he was able to continue to attend work.”

As to the subsequent history, the Panel recorded the following:
“He told the Panel that he continued to have some symptoms in his knee until in February 2007 while walking, his knee locked. The next morning his knee had unlocked, but was still painful and he attended his local doctor and was referred to a specialist surgeon. He said he later underwent arthroscopic surgery on 14 June 2007 and was told that he had snapped a cruciate ligament although this was not repaired, and some bone chips were removed from his knee. He said that following the operation his knee was a little better.
The claimant told the Panel that at present he has difficulty walking especially down a slope or stairs. His knee sometimes swells while at work and he treats this with an ice pack. When he sits for a prolonged period, as when he drives a fork lift all day, he needs to do exercises for his knee every hour. The knee has not again locked and does not give way. He is able to squat fully but cannot run as he did before the fall and is limited to driving for no more than an hour.
The claimant said that he considers that his knee is still slowly improving. He said that his right ankle recovered completely without specific treatment and now causes him no symptoms at all. He said he no longer has any active treatment for his knee.”

The Panel then referred to his physical examination of the claimant
“On physical examination the Panel noted that the claimant had a normal gait. He was able to squat deeply, although there was some pain in the left knee at full squat. There was mild lateral swelling of the left knee and a small effusion in the left knee joint. There was mild anterior cruciate laxity, but no collateral ligament laxity or evidence of meniscal damage. There was mild patello-femoral crepitus and irritability. Thigh and calf circumference were of equal size and both lower limbs were of the same length. There was a mild flexion contracture and a normal range of flexion on measurement with a goniometer. There was no abnormality of the right ankle.”

Next the Panel referred to its review of MRI and Intra-operative photographs dated 15 March 2007 and 14 June 2007 respectively and commented –
“The Panel reviewed an MRI of the left knee dated 15 March 2007, which showed mild thickening of the anterior cruciate ligament with healthy cartilage and normal bone separation. Intra-operative photographs dated 14 June 2007 showed slight wear changes in the knee with intact menisci and good joint surface cartilage.”

The Panel then stated its conclusions in the following terms
“The Panel concluded that the claimant is suffering from residual left knee dysfunction following a soft tissue injury to the knee, treated surgically.
The Panel also concluded that the claimant is not suffering from any intrinsic medical condition of the right ankle.
The Panel considers the claimant’s medical condition is stabilised.”

The Panel then turned to the question of assessing the impairment and expressed itself as follows

“The Panel conducted an impairment assessment using the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition, Third Reprint) as required by Section 28LH of the Wrongs Act 1958.
The Panel assessed impairment due to the right knee[1] in accordance with Section 3.2 of Chapter Three.
The Panel concluded that as there was no limb length discrepancy, gait derangement, unilateral muscle atrophy or weakness, joint ankylosis, amputation, skill loss, peripheral nerve injury, causalgia or vascular disorder, and the use of the diagnosis based estimates or arthritis, produced a lower limb impairment, the most appropriate method to assess the impairment of the right knee[2] was by reference to Range of Motion pursuant to Section 3.2e.
The Panel considers that it is not appropriate to combine impairment for range of motion with that for a diagnosis based estimate having regard to the instructions in the Guides at page 84 that ‘The evaluating physician must determine whether diagnostic or examination criteria best describe the impairment of a specific patient’. In this case impairment is appropriately assessed by range of motion.”

[1]Emphasis added.

[2]Emphasis added.

It then stated its assessment in the following terms

“The Panel concluded that the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim is not more than 5% and is permanent”.

I turn to the errors of law alleged to arise.

Alleged specific error – Assessment of impairment to the right knee not the left knee.

Counsel for the plaintiff submitted that in assessing the impairment of the plaintiff’s right knee, the Panel fell into error of law because it identified the wrong issue or asked the wrong question.[3] Counsel submitted that the error amounted to an error of law going to jurisdiction or constituted an error of law on the face of the record and the decision should be set aside.[4]
[3]Craig v South Australia (1995) 184 CLR 163, 179; Kuek v Victoria Legal Aid (2001) 291.
[4]Ripper v Kotzmann & Ors [2005] VSC 448.

The defence of the proceedings was borne primarily by the first defendant Wadren Pty Ltd. On this issue, the first defendant submitted that the reference in the reasons to the assessment of the plaintiff’s “right knee” was clearly a typographical or dictational error and should be corrected as a slip, as the Panel had done with what purported to be amended reasons.

I note that there was a debate before me as to whether the Panel had the power to correct a slip and whether it was functus officio once it had handed its original reasons and certificate. It is unnecessary for me to determine these questions. I proceed for present purposes on the basis that the Panel could correct a slip and could do so by publishing amended reasons.

Counsel for the first defendant argued that there was no doubt the Panel considered the correct knee – the left knee. In its written submissions it was put that the plaintiff had not sworn any affidavit suggesting that the incorrect knee was examined. In response, the plaintiff filed an affidavit on 26 March 2009 deposing to the fact that the Panel did examine his right knee. That evidence was received without objection. Counsel for the first defendant put that the plaintiff’s argument in any event had no merit.

An examination of the reasons as stated above reveals reference to injury to the left knee on a number of occasions up to and including the statement of conclusions referred to above. It is in the final section dealing with the impairment assessment that the Panel has referred to the right knee. It did not refer to it once. It did so twice. On the face of it, the assessment was of the wrong knee. A typographical or dictation error is one possible explanation but other explanations are also possible. For example, the particular Medical Panel may have been considering a number of cases at about the same time including someone else who had a right knee injury and the conclusion expressed in this assessment as to the right knee injury related to that person. Pressure of work could explain the error. So too could cutting and pasting material from other documents.

The second and third defendants have attempted to provide evidence to support the assertion of a technical slip. It, however, fails to do so for several reasons.

It comprises an affidavit sworn by the solicitors for those defendants. It merely exhibits a document which purports to be a corrected statement of reasons. The affidavit says nothing of the provenance of the document. The document purports to bear the signature of one member of the Panel. Unfortunately it is dated 28 February 2008, as is the exhibit covering sheet reference to it, a date over two months prior to the date on which the Panel received its reference and over four months prior to the decision.

I note that it is possible for the Panel members to give evidence. They are competent though not compellable.[5] Counsel sought to explain the absence of evidence from them relying on the Hardiman[6] principle. Accepting for present purposes that that may sufficiently explain the lack of evidence[7] and the situation is one where the Jones v Dunkel principle does not apply, we are left with a situation in which the Panel has published its reasons and on the face of them has made an error. The purported amended reasons are not authenticated in any way and pre-date the reference. The error is not obviously a technical one. The error could well explain why the Panel made the decision it did.
[5]Accident Compensation Act s 48.
[6]R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, 35-6.
[7]The policy behind Hardiman appears to be a concern about loss of impartiality for the Tribunal by becoming involved in the litigation and that, if that happened, the Tribunal could not further deal with the matter if the matter had to be returned to the Tribunal. That could be a problem where there was only one Tribunal. It might not arise, or might at least be lessened, if the members of the Tribunal were called by another party as a witness. The impartiality issue might in any event be adequately addressed, if necessary, by referral to a new Panel. An unfortunate consequence of evidence not being called from the Panel is that it may in fact be unfairly criticised. I also note that the Hardiman principle has exceptions; see F Merck & Co Inc v Sankyo Co Ltd (1992) 23 IPR 415. It is arguable that the giving of evidence at the request of a party, does not directly cause a tribunal to become a protagonist.

There might have been more scope for the defence argument if an examination of the rest of the reasons had pointed to an otherwise conscientious and competent handling of the issues in the matter. Some of the other issues raised on behalf of the plaintiff, however, show further errors and failures which run counter to such a conclusion. The Panel was clearly aware that it was stating its reasons and its decision. The reasons purport to be complete and appear to have been otherwise carefully drawn and structured. The wrong question was stated and answered. I am persuaded that error of law has therefore been demonstrated.

Alleged specific error – failure to have regard to the operation findings as reporting by the treating surgeon, Ms Boecksteiner

The Panel had not received any report of Ms Boecksteiner but Mr Deacon’s first report of 24 February 2008 contained the following

“He was referred to Anita Boecksteiner, orthopaedic surgeon on 16/4/07 with a history of six weeks earlier complaining of locking episodes in his left knee and pain and loss of confidence with it. Examination then showed him to have a stable knee but tenderness along the medial joint line. He was thought to probably have a medial meniscus tear and an MRI was taken which did show some changes in the medial compartment and an intact looking ACL and an arthroscopy was recommended and carried out on 14/6/07, the findings being an avulsed segment of bone on the base of the ACL which was partially avulsed with the remainder of the ACL intact with no instability and there was some scuffing of the adjacent medial femoral condyle on the condylar notch side which was thought not to be a problem”

Instead of referring to that information, the Panel appears to have relied solely on the plaintiff’s account of the surgery and what subsequently happened. This was set out in the following passages to which reference has already been made.

“He said he later underwent arthroscopic surgery on 14 June 2007 and was told that he had snapped a cruciate ligament, although this was not repaired, and some bone chips were removed from his knee. He said that following the operation his knee was a little better.”

It is submitted for the first defendant that the Panel was not provided with a report from Ms Boecksteiner or with an operation note. Counsel submitted that the Panel while it had the power to inform itself in any manner it thought fit, was not under any obligation to seek the operation notes as the nature of the operation had been fully discussed in the abovementioned report by Mr Deacon. Further, the issue for the Panel was the present state of impairment rather than the history of treatment of the injury.

The issue raised by the plaintiff is not whether the Panel should have had a report from Ms Boecksteiner. It is whether the Panel considered the information supplied by Mr Deacon about the operation. As to the last point raised by the first defendant, I do not accept that the history of treatment is irrelevant to the assessment of present impairment. The history of treatment is significant information.

As to the general issue, the plaintiff is correct in saying that the reasons contain no referral to the operation findings set out in Mr Deacon’s report. It was the most accurate statement available and contained technical information that one would have expected an expert to refer to rather than the plaintiff’s own account. The Panel was plainly aware that it was stating the reasons for its decision. It comprised professional experts who would have understood the purpose of the reasons. The failure to refer to the information in otherwise detailed reasons raises a strong inference that it was ignored.[8] That inference should be dawn.

Alleged specific error – failure to have regard to the results revealed by weight-bearing exercises performed on 3 March 2008 and x-rays.

[8]A point not argued is whether in determining whether there was a failure to consider relevant matters, a presumption of regularity based upon the legal obligation to give reasons supports the conclusion of such a failure where a matter is not mentioned – see the reasoning of Fisher J in Sullivan v Department of Transport (1978) 20 ALR 323, 352 and following. The reasoning employed appears to be that bearing in mind the legal obligation to give reasons it should be presumed that the tribunal complied with it and, therefore, where no findings of fact were made on particular material, it must have considered that they were not material. See also Dennis Wilcox v FCT (1988) 79 ALR 267, 276.

In his report on 14 March 2008 which was supplied to the Panel, Mr Deacon began by referring to his previous report of 24 February 2008 in which he had foreshadowed the need to take further X-rays. In that earlier report Mr Deacon stated the following:

“Your client’s left knee continues to be a problem. The diagnosis currently being rather incomplete because of the need for further investigations. It is now two years since his accident, he is able to work as a Warehouse Manager, Forklift and Storeman but he has continuing discomfort in the knee and swelling, he walks with a slight limp and he has some loss of extension and of full flexion, he cannot run and he has a limit to walking to about 40 minutes and slowly, and restriction of capacity for lifting, pulling, pushing, squatting and changing direction to the left.
I think the investigations will suggest that currently he mainly has a patello-femoral problem with his left knee, there may be some evidence of mal-tracking and wear of the patellar and trochlear articular surface and I hope can clarify the area in front of the anterior-cruciate ligament attachment to the tibia which shows some disorganisation in the earlier MRI taken pre-operatively. What I had in mind was to see first what the plain films show and then have an MRI taken at Victoria House Hospital…and I will make that decision on the basis of seeing the plain films and send you a further report.”

He then stated that he was “certain” that the plaintiff had an “impairment level greater than five percent whole person when assessed in accordance with the AMA Fourth Edition Guides” and that he had completed and enclosed a signed Certificate of Assessment. He went on to suggest that it might be necessary for the plaintiff to have a further arthroscopy “so that the patella and trochlear articular surfaces can be further inspected and debrided and the area in the inter-condylar notch paid attention to as well”. He went on to say, however, that he would not be sure until he had seen the plain films and possible new MRI as well.

In his report of 14 March 2008 Mr Deacon reported on the results of the x-rays taken of both knees for comparison purposes on 3 March 2008. He expressed the following observations and opinions based on his viewing of the films taken.

“They show quite obvious medial compartment osteo-arthritis in the left knee especially evident in the postero anterior weight bearing films in 30[degrees] and 45[degrees] of knee flexion. The extent of the OA is almost grade 3 out of 4 on the medial side of the left knee and almost 2 out of four on the medial side of the right knee, that is he has bilateral idiopathic primary medial compartment osteoarthritis of both knees.
He also has radiological evidence of patellofemoral degeneration on the left plus some tilting and lateral subluxation of the left patella compared with the right and so two of his three left knee compartments are already showing clear cut signs of osteoarthritis. I believe these changes pre-dated his accident on 1/2/06 but as far as the left knee is concerned it was significantly aggravated by the fall on to his left knee in the Werribee Plaza Shopping Centre, especially the patelo femoral component of his knee.
I do not believe the accident on 1/2/06 accelerated the rate of development of the OA but I feel that the effect of the accident on the left knee still applies and has not passed”.

Turning to the future he commented

“It raises the question of whether at the age of 55 he should be looking at having an ‘unloading’ high tibular osteomoty to take the weight off the medial compartment and place more of his body weight to the lateral compartment which radiologically looks to be fairly sound and free of arthritis. I think it would help to have a further MRI of his left knee by Frank Burke at the Victoria House Imaging in Prahran and if you are happy for me to arrange for this, please phone my secretary and I will do so and have a look at the films and report further on them.”

He then commented further on possible future operations as follows
“If it is decided that he has a high tibial osteotomy which will mainly help his left knee medial compartment OA then possibly a lateral retinacular release could be carried out at the same time. This will help to unload his patellofemoral joint in the anteroposterior plane, but the X-rays were ordered with the marker on the tibial tubercle and on the left side there is a discrepancy between the positioning of the left tibial tubercle as compared with the right towards external rotation and in this group of people the lateral release does not appear to be effective.”

When the foregoing material is compared with the reasons of the Panel, what is striking is the total absence of any reference to it in the reasons notwithstanding that

· the material appears to express a view contrary to that of the Panel which expressed the opinion that the claimant’s medical condition had stabilised, and

· the reasons do not discuss the existence of osteoarthritis – and its possible aggravation.

Again this marked disparity between the content of the reasons given and this highly relevant material before the Tribunal, and the failure to mention it in otherwise reasonably detailed reasons, point to it having been ignored. Further, the reasons make no reference to the weight-bearing x-rays – only the earlier MRI and the intra-operative photographs. The x-rays, however, provided the most up to date information about the state of the left knee.

The expert Panel purported to state its reasons and did so in a reasonably detailed, structured and careful way. If that was its intention, if it had considered the above evidence and had, for sound reasons, rejected it, why would it not have said so and addressed the issues in its detailed reasons? Great detail was not required but sufficient was required to inform the parties of the reasoning process employed. The inference that the material was ignored is strong.

In response, counsel for the first defendant submitted on the basis of paragraph three of the reasons, that the Panel had considered the documents in Enclosure A which included the x-ray report. It was also put that the Panel was informed by the reports of Mr Deacon which discussed the x-rays. Counsel submitted that there was no reason to believe that the Panel did not properly consider these x-rays. The first defendant argued further that the position was closely analogous to that described in paragraphs 50 and following of Moysten Court Fisheries Ltd v Malios [2007] VSC 518. In addition it was put that the Panel was aware that arthritis was demonstrated in the left knee but considered that assessment pursuant to range of motions rather than arthritis was more beneficial to the plaintiff.

Taking each of these points in turn, the reasons do not say that the Panel considered the documents mentioned. What they stated was – “the Panel formed its opinion by reference to”. The nature of that reference is not explained and the reasons contain no assessment of them. Bearing in mind that the Panel was attempting to set out its reasons for its decision, it becomes significant that the reasons advanced do not draw on, or address, in any way the x-ray report or the report of Mr Deacon dealing with the x-rays. As to the reference to arthritis, it will be observed in the passage I have quoted above that the reference was to the use of the regime in the AMA standard relating to assessment of arthritis. At most this reveals that the Panel directed its mind to the possibility of using that form of assessment but there is nothing in the reasons to support the conclusion that it gave any serious consideration at all to understanding, let alone assessing, the extent of the arthritis problem. I note also that unlike the circumstances in the Moyston Court case,[9] the reasons do not contain any references to the information in question.
[9]At 5.

I am satisfied that the inference should be drawn that the Panel failed to have regard to the above information, particularly that relating to the weight-bearing x-rays.

Alleged specific error; failure to assess the impairment attributable to degenerative changes in the plaintiff’s left knee as aggravated and rendered symptomatic in the subject incident

This issue requires consideration, amongst other things, of the section of the reasons where the Panel stated that it assessed impairment in the right knee in accordance with s 3.2 of Chapter 3. It then went on to list different forms of assessment dealt with including that relating to arthritis and went on to assert that the most favourable method to assess the impairment of the right knee was referenced to s 3.2(e) “Range of Motion” of the AMA Guide. It will also be recalled that it noted that the Guide at p.84 required the evaluating physician to determine whether diagnostic or examination criteria best described the impairment of a specific patient. It will be recalled that the Panel proceeded on the basis that it was appropriate in this case to assess by range of motion.

Counsel for the plaintiff submitted that the Panel reached that position as a result of a combination of matters namely the failure to have regard to;

· the operation findings reported of Ms Boecksteiner,

· the weight-bearing x-rays, and

· the failure to assess the impairment referable to degenerative changes in the left knee.

It is put that these errors had the consequence that the wrong method of assessment was used.

Counsel for the plaintiff submitted that the Panel failed to conduct an assessment in accordance with the AMA Guide in that it ought to have assessed the degree of impairment using s 3.2(g) “Arthritis” and Table 62. It was particularly emphasised that, in forming a judgment as to the most appropriate method of assessment, reference had to be made to the degree of degenerative change revealed in the x-rays and, alternatively, the treating surgeon’s opinion before any determination could be made as to that.

As to the allegation of a failure to assess in accordance with the AMA Guide, counsel for the first defendant submitted that the Panel was entitled to choose the most appropriate assessment. It was argued that the information provided to the Panel did not include a roentgenographic grading and, insofar as the plaintiff sought to rely upon an alleged failure to consider the osteoarthritis, the argument put overlooks the fact that it pre-dated the accident and at best the plaintiff could rely only on the aggravation or acceleration of it – if any.

Accepting that the question to be determined was which method was the most appropriate, the Panel needed to fully inform itself about all relevant matters. I refer to my statements about the stated purpose and quality otherwise of the reasons. The failure in the reasons to refer to any of the above material or to express any opinion as to the osteoarthritis and its relevance, raises the strong inference that it made that choice as a result of ignoring that material. That inference should be accepted.

I note that the first defendant submitted that the Panel chose the method of assessment which was more beneficial to the plaintiff. Counsel relied on the Panel’s comment

“The use of the diagnosis based estimates or arthritis produced a lower impairment”

This argument, however, assumes that the Panel in fact gave due consideration to evidence relevant to the alternative assessment method. A failure to consider that information would explain why it chose the diagnosis that it did. On the evidence, its opinion as to which method best favoured the plaintiff does not carry any weight.
Alleged specific error – conclusion

Considering the alleged errors individually, if it be incorrect to find error of law, they need to be considered together. The picture that emerges is of error in formulating and considering the question to be determined combined with a failure to mention all significant matters and information. This was an expert panel giving reasons. It was aware of its obligations. It stated its intention was to provide its reasons. As to the omissions, if it had considered the evidence relevant to these matters and had reasons to reject them, why would it not mention them? Regrettably, a significant pattern emerges of the panel ignoring those critical matters which favoured one party, namely the claimant.

I have come to the conclusion that singly and in combination the specific errors of law identified by the plaintiff are made out.

I note another circumstance, not debated, but potentially significant, is the fact that the Convenor and Deputy Convenor of Panels had prior to this reference given directions to Panels[10] pursuant to s 28LZ(4) of the Act. It should be noted that under s 28LZ(5) it is provided that

“(5) A Medical Panel must comply with (a)…..
(b) any directions given by the Convenor under sub-section(4)”

Under s 28LB, “Convenor” means the Convenor or Deputy Convenor appointed under s 63 of the Accident Compensation Act 1985. Extracts from the relevant directions are appended to those reasons.

[10] Directions had been made under the statute in 2006 and are referred to in the judgment of Williams J in Campbell v Adlard & Lloyd [2008] VSC 349. Reference was made to them in the course of the hearing before me. Further research has revealed that on 1 March 2008, new Directions were issued by the Convenor and Deputy Convenor. The 2008 Directions of the Convenor include similar provisions. The provisions relating to reasons, however, are more elaborate.[10]

The existence of that regime only strengthens the inference of misstatement of the question and a failure to consider those matters not mentioned. The Directions system under which the expert Panel operated placed a legal obligation on the Panel to give adequate reasons. It is true that the obligation was initially an internal administrative one, but it is there to ensure that requests for reasons can be satisfactorily addressed. The Directions serve to reinforce the need to take the giving of reasons seriously. The omission of any issue, or significant information relating to that issue, strongly points to the conclusion that they were not considered.

Alleged error – failure to provide adequate reasons
Introduction

In the alternative, counsel for the plaintiff submitted that relying on the matters already referred to, the reasons were plainly inadequate because they failed to disclose a discernible path of reasoning to the conclusion reached. Counsel for the defendant submitted that this was not so.

The first issue identified by the plaintiff is, of course, the issue of the reasons stating that it was the right knee that was assessed. The reasons were insufficient to provide the required discernible path of reasoning to the conclusions reached about that knee or why that knee was assessed. Counsel also argued that it was incumbent on the Panel to consider and evaluate the opinions expressed by Mr Deacon concerning the weight-bearing exercises of the plaintiff’s knee and any conclusion to be drawn from that both as to the manner in which to undertake the impairment assessment and the degree of impairment assessed. Further, the reasons should have referred and considered those reports and opinions and x-rays but they do not. Counsel also submitted that where an orthopaedic surgeon had determined the plaintiff’s impairment on the arthritic basis (that addressed in Table 62 of the AMA Guides), it was incumbent upon the Panel to state why it did not adopt the arthritic impairment assessment approach. In addition, in view of the strong opinion expressed by Mr Deacon, the Panel should have dealt with it in its reasons and said why the opinion was wrong.

The defence position – Sherlock v Lloyd

For the defendant it is submitted that “arguably” a failure to provide adequate reasons is not a ground for relief pursuant to Order 56. Counsel relied upon Sherlock v Lloyd (2008) VSC 450 which, it is put, was cited with approval in Kuek v Victoria Legal Aid [2009] VSC 43.

The source of the obligation to give reasons

In the present case, the legal obligation to provide reasons to the parties arose from the request. This imposed a legal obligation to give such reasons as a result of s 8 Administrative Law Act 1978 (ALA).

Sherlock v Lloyd

Turning to Sherlock v Lloyd,[11] it addressed the adequacy of reasons issue on the basis that the legal obligation to give reasons was the result of the operation of s 8 of the ALA. It was held that, where an administrative tribunal is under no common law or specific statutory obligation to give reasons, the nature and extent of the obligation of the tribunal to give reasons and the consequences flowing from inadequacy of reasons were controlled entirely by s 8 of the ALA and there was no room for the operation of common law remedies. As to remedies, it was also held that they were controlled entirely by s 8(4) and the ALA. As Kyrou J concluded

“35.It follows that where one seeks to complain about the inadequacy of reasons given by Medical Panel pursuant to a request under s 8 of the ALA, one can only do so pursuant to an application for review under s 3 of the ALA or an application for a further statement of reasons under s 8(4) of the ALA. In both cases, the relief that the Court can give (in the absence of any substantive ground of review) is the relief set out in s 8(4).”
[11]Above.

Construction of Section 8 – preliminary issues
The common law context.

In construing s 8, it is necessary to place it in its relevant legal context. As to that, a preliminary issue to be resolved is whether, at common law, the decision of a tribunal made under a legal obligation to provide reasons may be quashed where the reasons are inadequate and, if so, on what basis.

I suggest that, until recently, the accepted law in Victoria, as stated by this Court since at least 1992,[12] has been that where a tribunal is under a legal obligation to give reasons but fails to give adequate reasons, that failure can constitute an error of law on the face of the record and can provide a basis for quashing the tribunal’s decisions in proceedings for judicial review. This proposition has been accepted in a number of applications for judicial review since[13] by a significant number of judges of this Court, particularly in medical panel cases. It is consistent with a line of authority commencing with Dornan & Ors v Riordan & Ors,[14] a decision handed down two years before SEC.[15] In Dornan, a Full Court of the Federal Court held that a "substantial failure to state reasons" where a statement of reasons "is a requirement of the exercise under the statute of the decision-making power" constitutes an error of law.
[12]Following the decision of Gobbo J in SEC v Commissioner for Equal Opportunity [1992] 1VR 79, 87-8 (hereinafter S.E.C.).
[13]See cases listed by Pagone J and Western Health, above para.[17] and in Sherlock at [34] to such cases.
[14](1990) 95 ALR 451.
[15]See above.

Exceptions to the above proposition, noted in Sherlock, are three decisions of Bongiorno J, including his decision in Brambles Industries Ltd v Niselle relating to a medical panel.[16] In those decisions his Honour drew on a statement of principle of Brennan J in Repatriation Commission v O’Brien.[17] In the three cases his Honour does not appear to have been referred to Dornan, SEC or Pyle and the subsequent decisions. It should also be noted that his Honour found the reasons to be sufficient. His Honour stated the principle to be applied as follows in Brambles Industries Ltd v Niselle.[18]
“21 The mere failure of a body charged with the decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respects, to exercise its powers according to law and that inference is drawn by the Court. If the Court draws such an inference, then it may act upon it and proceed to review the administrative decision but the invalidity invoked as a justification for such review is not a mere failure to give reasons but is the inference drawn by the Court from such failure.”[19]
I note that the statement of principle sits comfortably with that in Dornan, a case not cited to his Honour, unless the proposition concerning the drawing and acting upon an inference of a specific failure of law was intended to be exhaustive. As discussed below, I take the view that Brennan J did not attempt an exhaustive statement in O’Brien.[20]
[16][2005] VSC 82. See also State Trustees v Transport Accident Commission [2002] VSC 428, [37] – [39] and Wight v Transport Accident Commission [2003] VSC 214, [13.
[17](1989) 155 CLR 422.
[18]Above.
[19]His Honour cited a number of authorities: Repatriation Commission v O’Brien (1985) 155 CLR 422 especially per Brennan J at 445, Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW) (1949) 79 CLR 296; Sullivan v Department of Transport (1978) 20 ALR 323, 348, 349 and 352 and Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 per Barwick CJ at 679. In Denver & Sullivan, the approach taken was to consider whether the lack of reasons led to the conclusion that relevant matters had not been considered. They were cited by Brennan J. In Kentucky Fried Chicken Pty Ltd, the passage at 679 cited by counsel emphasised the need to demonstrate a material error. Stephen J drew a distinction between tribunals obliged to give reasons and those that are not. His Honour adverted to the probability in the former that the failure to give reasons would “at least reveal a failure to comply with the requirement of the statute and may go so far as to impugn the decision itself, particularly where some statement of reasons does appear but omitted from it are considerations relevant to the determination of the matter in issue” (at 682).
[20]Above.

In Sherlock, reference is made[21] to what is described as

“the questionable proposition that inadequate reasons given by a Tribunal (as distinct from a court) pursuant to a legal obligation to provide reasons constitute an error of law…..”

The “questionable proposition” was not resolved in Sherlock prior to, or in the course of, the construing of s 8. A number of authorities described as supporting the proposition and "against the proposition" were cited in Sherlock in a footnote set out below[22]

[21]At [34]

[22]The footnote in Sherlock read as follows:

Both sides of the debate appear to accept that “mere failure” to fully expose the reasons is not sufficient to invalidate the decision. The debate concerns what more is required – “a substantial failure” to give adequate reasons or a finding of specific error of law.

The principal authority generally relied upon in support of the specific error test is the judgement of Brennan J. in Repatriation Commission v O'Brien (1985) 155 CLR 422, 445-6.[23] The following passage in his Honour's reasons needs to be considered

“Keely and Fitzgerald JJ. perceived a further ground for setting aside the AAT's decision to affirm the Commission's refusal to grant the respondent's claim, though their Honours would have remitted the matter to the Tribunal if this had been the only error of law that they had perceived. Their Honours thought that the AAT had failed "to expose a satisfactory process of reasoning which led to the rejection of (Mr O'Brien's) claim" and that the Court "should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected". It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the Court may act upon the inference and set the decision aside. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: see Denver Chemical Manufacturing Co. v. Commissioner of Taxation (N.S.W.) (1949) 79 C.L.R.296, at p.313; Sullivan v. Department of Transport (1978) 20 A.L.R.323, at pp.348,349,352. An obligation to give oral or written reasons for a decision is cast on the AAT by s.43(2) of the AAT Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the Court to do so.[24] An AAT decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. In my opinion the reasons given by the AAT in this case do not warrant an inference that it failed to review the Commission's decisions according to law.”

It should be noted, therefore, that his Honour held that the reasons were adequate.

[23]The other members of the Court in that case did not discuss the issue.

[24]His Honour was there dealing with the situation where there is no reason.

Brennan J in his statement gives examples of specific errors discerned from inadequate reasons. That was the sort of situation dealt with in one of the cases he cited, Sullivan. He also rejected a test of “failure to comply adequately with the obligation to give reasons”. I can understand, therefore, that what was stated might be interpreted as meaning that a failure to adequately comply with a legal obligation to give reasons will only result in the decision being quashed where the Court is satisfied that the Tribunal in fact failed to exercise its powers according to law, for example, by taking into account any relevant considerations or by failing to consider material issues or facts. But that conclusion assumes Brennan J intended to make a definitive statement to that effect. The central passage is as follows

“If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking into account relevant considerations or by failing to consider material issues or facts), the Court may act upon the inference and set the decision aside. In such a case the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reason for making the decision, but because of the failure to make the decision according to law;”[25]

[25]Brennan J identified the overarching principle as being "a failure to make the decision according to law.” The latter phrase echoes that used by Stephen J in the Kentucky Fried case. It should be noted, however, that Brennan J did not refer to that case but did refer to Denver and Sullivan.

Brennan J was describing the classic situation where the inadequacy of the reasons gives rise to an inference that certain matters were not considered. Arguably, Brennan J was doing no more than saying that where the inference of specific error of law arises, and it is drawn, the appropriate way to proceed to the quashing of the decision is to focus on the basis of a specific error of law rather than the underlying failure of the legal duty to give adequate reasons. From a practical point of view, that may be a preferable course; for when the matter is considered by the tribunal to which it returns, the tribunal will be in no doubt of the errors to be avoided.

Returning to the central passage, the significant words are “warrants an inference” and “may act upon the inference”. It should be noted that Brennan J did not state that the Court must in fact draw the relevant inference of specific error before it can intervene. If that was the intention, the critical sentence could have been expressed as follows;

“If a failure to give adequate reasons for making an administrative decision [delete ‘warrants an inference’] results in a finding that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court [delete ‘may act upon the inference’], having so found, may set the decision aside.”

Arguably, the language used left open the possibility that at common law, a court could intervene to quash a tribunal decision where the reasons were not only inadequate but an inference was reasonably open on the evidence that the Tribunal has failed to exercise its powers according to law in the way suggested. In that situation the Court could "act upon" that inference and set the decision aside. That situation might be described as one where there was more than mere failure to give adequate reasons.

Be that as it may, what is significant, I suggest, is that Brennan J used language which left open the question of the precise scope and terms of any test to be applied. That was appropriate because, on the facts as found by him, such a statement was unnecessary.

This analysis is supported by an examination of the passages from the two cases cited by him.

(a) They appear to have been cited to support the proposition that to establish invalidity there must be “a failure to make the decision according to law”.

(b) They dealt with different situations. In Denver, the issue discussed was the test to be applied when no reasons are given. In that context, Dixon J used the expression “valid exercise of functions” of the body in question. In Sullivan, the challenge mounted was that relevant matter had been ignored. Brennan J was not attempting to define a test to be applied in both such situations.

(c) In Sullivan the process followed in the reasons for judgment was to determine whether an inference arose that a relevant matter had been ignored and whether the inference should be drawn. In the first passage cited from that case, Deane J held that the Tribunal proceedings “miscarried” because of a failure to consider relevant matters. The other passage cited is from the judgment of Fisher J. He too considered whether the inference should be drawn. Fisher J’s approach, however, was different in that he applied a form of presumption of regularity reasoning based on the statutory obligation to give reasons – that is, he assumed compliance with the statutory obligation to produce reasons for the decision and concluded that the failure to mention the relevant matter in the reasoning meant that the Tribunal had taken the view that it was not material. The approach taken by Fisher J received subsequent approval.[26] Brennan J did not address this approach. He may well have thought it worth considering but chose not to address it. It was of considerable significance for the operation of any specific error test and, if he was intending a definitive statement, it would have been addressed.

[26]For example Dennis Wilcox v FCT (1988) 79 ALR 267 at 276.(per Jenkinson J, Woodward and Foster JJ agreeing) and discussion in Matthew Smith, “The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons “(1992) 3 PLR 259, 260.

For these reasons, I suggest, that Brennan J was not seeking to spell out a definitive test. Rather, he was attempting to give some guidance but to leave open the question of the circumstances in which decisions could be quashed for inadequate reasons. Subsequently, the issues were resolved by the Full Court of the Federal Court in Dornan’s case. It appears to have supplanted the approach of Fisher J in Sullivan.

In my view, the Dornan test is to be preferred to the interpretation of Brennan J’s statement relied upon in Brambles. The interpretation by Bongiorno J describes a situation most likely to satisfy the Dornan test, but it is too specific to be used as an exhaustive test. The Dornan test can address all cases of inadequate reasons where it may fairly be said that a consideration of them points to "a failure to make the decision according to law". At the same time the Dornan test also satisfactorily addresses the major countervailing concern – avoiding inappropriate interference with the decisions of administrative tribunals.

I also agree with the view of Pagone J that Dornan[27] should be followed for the reasons the High Court recently suggest in Farac Constructions v Say-ddee Pty Ltd.[28]It also is consistent with the position taken by most judges of this Court for many years. The Executive and the Parliament have not seen fit to change the legislation. In addition, while a few judges have expressed disagreement or reluctance, the Dornan test has received widespread approval at both state[29] and federal levels. [30]
[27][1990] 95 ALR 451.
[28][2007] 230 CLR 89 151-2.
[29]Re Narula, Ng & Hammersley; Ex Parte Atanasoski [2003] WASCA 156 and the cases there cited. The principle that a failure to give adequate reasons will constitute error of law where a tribunal is obliged by law to give reasons (in that case implied) was accepted in NSW in Campbelltown City Council v Vegen & Ors (see above citation). Alliance was placed in that case in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.
[30]Australian Telecommunication Commission v Barker (1990) 12 AAR 490, 492 per Davies J, Gummow and Hill JJ. Muralidaharan v Minister for Immigration & Ethnic Affairs and Anor (1996) 136 ALR 84[30]; Shingles v Dfrdba [2005] FMCA 1251; Military Rehabilitation and Compensation Commission v SRGGGG [2005] 215 ALR 459; Hill v Repatriation Commission (2004) 207 ALR 470; Preston v Secretary, Department of Family and Community Services [2004] FCA 300

One of the cases referred to in Sherlock was Comcare v Lees where Finkelstein J followed the Federal Court decision in Dornan v Riordan but he did so reluctantly.

Finkelstein J disagrees with the Dornan test and prefers the specific error interpretation of the Brennan test. I note that in support of his position, his Honour commented that Ormiston J in Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No.2)[31] had expressed views similar in effect to those of Brennan J in O’Brien and Lord Parker and Bridge J in the Divisional Court decision in Mountview Court Properties Ltd v Devlin (1970 21P & CR 689. I suggest that that comment needs to be qualified.
[31][1984] VR 903.

It is true that Ormiston J said the following[32]
[32]At 912.
“Except in the case of statutory arbitrations, such as the Poyser & Mills’ case, there is much to be said for limiting the remedy to mandamus or an order in the nature of mandamus. Such a conclusion was also reached (obiter) by Gowans J in Wattle Glen Estate Pty Ltd v MMBW (1974) 40L.G.R.A.104 at 108.”
In my view, this comment was more circumspect than was suggested in Comcare v Lees. It left open the possibility of quashing the decision. His Honour went on to say
“In the case of total absence of reasons, the object of such provisions is better served by compelling the delivery of reasons rather than by the outright quashing of the decision: but see. De Smith, Judicial Review of Administrative Action, 4^th ed.p.151 and Clark v Wellington Rent Appeal Board [1975] 2N.Z.L.R. 24 at p.27.”
That situation is not, of course, the present case. His Honour then went on to talk about defective reasons and appropriate remedies in the following paragraphs[33]
“However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether.
In the present case the form of the determination points clearly enough to the Board providing some reasons for its decisions, whatever may otherwise be the deficiencies of that reasoning. To ask the Board to give further reasons now is not only impractical, in that I am told that the Chairman of the Division has retired, but it is also undesirable that it should appear that the Board might have the opportunity to reconstruct its reasoning to meet the defects pointed out in the hearing of these appeals.”[34]
While his Honour ultimately dealt with the issue by considering whether the absence of relevant reasons led to the conclusion of specific error, that was consistent with the “specific error” approach of that time as his Honour’s decision preceded Dornan.

[33]At 912 line 30.

[34]A passage since applied; e.g. in Clarke v National Mutual Life Insurance Ltd [2007] VSC 341 [70] and Taylor v Mountain Pine Furniture [2004] VSC 324 [43].

Returning to the question of the test to be applied, ultimately, I have difficulty understanding why, when the reasons themselves reveal a substantial failure to discharge a legal obligation attaching to the decision making process, namely, to give adequate reasons, an error of law has not been shown on the face of the record. It seems to me also that there is then a “failure to make the decision according to law." Plainly the failure to state reasons must be a substantial one as laid down in Dornan v Riordan.

What lies behind the differences in the judgments, I suggest, are different views as to how best to address the concerns raised many times in these cases and discussed by Bongiorno J in Brambles Industries Ltd v Niselle and Ors.[35]Courts must be careful not to engage in overzealous examination of the reasons of the administrative decision makers. Courts should not be looking for reviewable error. Further, when expert tribunals are appointed that is usually done so that their expertise can be brought to bear in the determination of the matter before them and due respect must be given to that purpose and the expertise of the Panel members. At the same time, an appropriate test is required. There is the danger with the specific error of law test that decisions of tribunals which in fact result from specific errors of law will avoid correction; for that test requires the drawing of inferences from omissions in the reasons in circumstances where, because of the Hardiman principle, any silence as to explanations can be explained and the Jones v Dunkel inference avoided.
[35]Above.

In conclusion, I suggest the cases referred to above show gradual development of the common law in addressing the approach to be taken, culminating in the position articulated in Dornan.[36] To apply only the specific error test would be to turn the clock backwards. It would also be necessary to revisit the presumption of regularity approach applied by Fisher J in Sullivan.[37] I turn to the issue of the construction of s 8.
[36]The progress of the common law in this area up to 1992 is discussed by Matthew Smith in ”The Obligation of the Administrative Appeals Tribunal to Give Adequate Reasons”. (1992) 3 PLR 258.
[37]Above.

Construction of s 8 – primary conclusions.

Like Pagone and Kyrou JJ, I accept the proposition that the nature and extent of a statutory obligation depends upon the construction of the relevant section. As to s 8, I should first indicate that I agree with the reasons of Pagone J for not accepting the reasoning in Sherlock as to the legal obligations and remedies resulting from s.8 of the ALA.[38] I also agree with his analysis of the nature, scope and purposes of the “carefully structured remedies” in s 8(4) of the Act and his statement of the nature and purpose of the Act itself. I share his view that the Act was “intended to supplement and extend the rights at common law and not to provide a conclusive code.” As he points out, this has been the judicial view of the ALA for many years. In my view, the construction adopted in Sherlock would be inconsistent with the purposes of the Act for the reasons Pagone J advances.[39]
[38]At [18] to [23].
[39]Ibid.

As noted above, the defendant submitted that the decision in Sherlock v Lloyd was approved in Kuek v Victoria Legal Aid[40]. In that case[41] Beach J expressed agreement with Kyrou J’s view that “mere inadequacy” of reasons was not an error on the face of the record for the purpose of judicial review when the reasons are requested under s 8. Beach J, however, went on to hold that the omission of a significant topic from the reasons had the result that the reasons were inadequate and the decision should be quashed for that reason.

Section 8 – some specific construction issues from Sherlock

[40]Above.

[41]At [30].

I also wish to address specific construction arguments raised in Sherlock: [42]
[42][33] – [37].

(1)Section 8 – is there an illogicality?

In Sherlock, Kyrou J referred to the fact that in s 8(4) inadequacy of reasons is defined by a test of whether the reasons do not
“enable a court to see whether the decision does or does not involve any error of law”

Kyrou J expressed the view that it is, therefore, illogical to characterise inadequacy of reasons as an error of law.
In addition, he referred to the fact that the remedies are described as follows:
“any such order as might have been made if error of law had appeared on the face of the record”.

His Honour expressed the view that, in other words, s 8(4) referred to a deemed error of law and that this suggested strongly that inadequacy of reasons would not, in the absence of a deeming provision, constitute an error of law.

(2) Is Section 8 a Code confined to the ALA procedure?
In Sherlock it is stated that, while an application to quash a Medical Panel’s opinion can be brought on the grounds that the reasons given under s 8 of the ALA are inadequate, it can only be brought under the ALA and not under Order 56. It is also stated that, nonetheless, a summons seeking a further statement of reasons under s 8(4) of the Administrative Law Act can be filed in conjunction with a proceeding under Order 56 as long as that is done within a reasonable time. I note his Honour left open the question whether an order in the nature of mandamus to compel compliance with s 8 can be sought in proceedings under Order 56 in lieu of a summons under s 8(4) and whether such a summons can be filed in the Order 56 proceeding.

Approach to analysis

In analysing these arguments it is necessary to place them and the provisions concerned in context. The state of the common law is part of that context.

There are two aspects to consider.

(a) When s 8 was first enacted, the common law had not addressed the question of breach by a tribunal of a statutory obligation to give reasons. In addition there were few, if any, such obligations at the time. It is understandable that, therefore, s 8 was drafted cautiously, particularly in relation to remedies.

(b) Today, the section has to be applied in changed circumstances because, on any view of the case law, the common law has come up with a test to be applied under which decisions with inadequate reasons may be quashed. Thus, s 8(4) is not the sole potential remedy and the question is whether, consistently with the purposes of the ALA, s 8(4) adds to the common law or excludes it. Why could not, for example, the specific error test be applied, if it be the law, at the point when the reasons supplied under s 8(4) in response to the request are inadequate and reveal a specific error?

Section 8 allows a party, by making a request, to impose a legal obligation to give reasons before the decision is made or afterwards. What is at issue is whether, in that situation, once the legal obligation is imposed, common law remedies are excluded. Bearing in mind the purposes of the legislation, the prima facie conclusion should be that they are not; for there is nothing stated in the provisions of s 8 excluding them.

Analysis
(1)The “illogicality” argument As to the language employed, s 8(4) is not attempting to define “error of law” either at common law or for the statute. Parliament was primarily addressing a situation where there was no legal obligation on the part of a Tribunal to give any reasons and it wished to provide a process by which a statement of reasons could be obtained by request, aided by orders in two situations:
· where no statement of reasons is furnished; or
· where a statement of reasons is furnished but it is not adequate "to enable a Court to see whether the decision does or does not involve any error of law."
Accepting that, at common law, breach of the legal obligation to give adequate reasons can constitute an error of law, there is no illogicality or inconsistency. The words in s 8, "error of law", would simply have application only to other errors of law.[43] That construction better serves the purposes of the Act. It would also follow that the party that requested reasons could pursue common law remedies unless the statute excludes them.
[43]If the categorisation is “a failure to make a decision according to law”, there is no inconsistency.
As to the second issue, the formula used in describing the remedies, the quoted expression is a composite one designed merely to link the ultimate relief available under the section to the common law relief that is available where there is an error of law on the face of the record. It does not seek to define what that is or limit it in any way. It would add nothing to the choice of relief to define the words exhaustively. I also suggest that the right to seek the ultimate relief described is included to give an incentive to tribunals to provide reasons when requested. The focus of s 8 is on the provision of reasons. It should not be construed as shutting out other remedies.
As to the language employed, it is not uncommon in the discussion of judicial review issues. For example in Dornan v Riordan, the Court quoted the case of Pettitt v Dunkley[44] stating that in it
[44][1971] 1 NSWLR 376.
“…it was held that the failure of the Trial Judge to give reasons for his decision constituted an error of law because such a failure made it impossible for the appellate court to determine whether or not the verdict was based on an error of law.”

As has been said, the ALA was reforming legislation intended to facilitate the pursuit of judicial review of the decision of tribunals and, amongst other things, to remove the technicalities that then bedevilled the law of judicial review. Having regard to that facultative purpose, I suggest that the strict interpretation adopted in Sherlock, while, possibly appropriate for a Crimes Act, or a Confiscation Act, is not appropriate for legislation intended to be facultative and permissive. The language might have been more precise perhaps but is understandable as the section is not directed to defining what is an error of law. Plainly the phrase “errors of law” covered specific errors of law which the inadequacy of reasons denies you the opportunity to explore.
(2)The Code/ALA only issue On the issue of whether s.8 can only be used in ALA proceedings, I note that it is stated in Williams[45] that –
[45]10231.5.
“the common law supervisory jurisdiction of the Supreme Court exercisable by application for review under the Administrative Law Act 1978 is also exercisable by judicial review under Order 56 of Chapter 1 of the Rules of the Supreme Court but with the qualification that under the Act there is no power to review the decision of an inferior Court. See the definition “tribunal” in s 2.”

There is nothing in the section itself to indicate that s 8 was to provide the only remedy or was not to be available in proceedings under Order 56.
Bearing in mind the facultative objectives of the legislation, the questions to be answered, I suggest, are –
· Should s 8 be construed as providing the only remedy with common law remedies excluded?
· Must the application to use s 8 be made under s 3 of the Act to the exclusion of Order 56?
Again, the narrow construction advanced in Sherlock would, in my view, be contrary to the purpose of the Administrative Law Act and s 8 itself. To approach s 8 in that manner would re-introduce technicality which would serve no useful purpose.[46]
In addition, both the structure of the Act and the content of the section support the broader interpretation. The ALA creates a new procedure in its early sections – ss 3, 4, 5, 6 and 7. The expression “judicial review” is not used in those early sections. They, like Order 56, provide a procedure by which this Court’s common law supervisory jurisdiction can be exercised.[47] The ALA, however, then goes on to set out provisions that are not confined by their language to that procedure and are of general application to facilitate any proceedings for judicial review whatever procedure is used[48]. Section 10 is plainly such a provision and it has been so held[49]. So too is s 9 which empowers the Court to intervene to prevent irreparable damage “pending judicial review”. Sections 11 and 12, like s 10, in their own terms clearly extend beyond the operation of the ALA because they operate as well in matters concerning inferior courts. I suggest that s 8 is another such provision similarly intended to be available in common law judicial review proceedings, whatever procedure is raised.[50] Like ss 9, 10 and 11, it is intended to empower persons in relation to “tribunals” – by giving them a statutory right to seek reasons. It is not tied to any particular procedure be it a classical prerogative writ or the s 3 order nisi procedure or Order 56. It is not a code. The section does not say it is exclusive in its operation. It is intending to add rights and not to fetter them.
Finally, the suggested strict construction of s 8 requires that a party, in the position of the plaintiff in this case, who has received inadequate reasons from the tribunal can only seek an order for further reasons. In that situation the relevant tribunal will then be given the opportunity, as Ormiston J put it, to “patch” them up in a way that can never be adequately reviewed. It would also require the Court to go through the process of ordering the provision of a statement or further statement of reasons even in circumstances where a tribunal in refusing to comply with the request indicated that it would not comply with any order. It makes more sense to view the options listed in sub-s (4) as simply that and not as a “structured” process that has to be followed in all cases where a request has been made under s 8.[51]

[46]As to the relation between Order 56 and the Act, the provisions of Rules 1.14 and 1.15 of the Supreme Court Rules may also be relevant.

[47]Diep v Appeal Costs Board [2003] VSC 386, 25. Williams, above, 10,231.5.

[48]Section 8 following and see Sherlock, [25d].

[49]See Williams Civil Procedure – Victoria Volume 1 56.01.17 and the cases there cited.

[50]The Statute Law Revision Committee Report of 30 November 1971 stated (para.6) that the request procedure was “to facilitate the granting of the writ of certiorari” – the objective also of the Chief Justice’s Law Reform Committee (see Report of 14 August 1968 in Appendix to the Statute Law Reform Committee Report).

[51]See also Western Health (above) [22] and SEC (above) 97.

For the foregoing reasons I am satisfied that the plaintiffs have demonstrated error of law on the face of the record in the form of substantial inadequacy of reasons.

Conclusion

In conclusion, for the foregoing reasons, the plaintiffs’ application is made out and an order in the nature of certiorari should be made quashing the opinion of the Medical Panel comprised by the third named defendant certified in writing and dated 7 July 2008. The matter should be referred to a new medical panel for hearing and determination according to law.

APPENDIX: EXTRACTS FROM THE CONVENOR’S DIRECTIONS
1. 2006 Directions

The purpose and objectives of the directions were stated as follows

“8.      The purpose of these directions is to define the procedures to ensure Medical Panels provide the appropriate Determination or Certificate in response to the medical question as to whether the degree of the impairment resulting from the injury to the claimant alleged in the claim for damages for non-economic loss satisfies the threshold level (s 28LB)
9.        To fulfil this purpose, these directions aim to facilitate:
(a)       The referral of the medical question (s 28LB);
(b)A Determination or Certificate of a Medical Panel that is responsive to the medical questions; and
(c)A process by which the Determination or Certificate is produced in a manner that is efficient and transparently thorough and fair.”

Later in the directions the following appears as to the determination
“Determination or Certificate
38.After the Medical Panel has made an impairment assessment and:
·if it is satisfied that the injury alleged in the claim has stabilised, it will issue a determination in the form set out in Schedule 1; (s 28LZG(2)(a))…

39.The presiding member will also prepare and circulate to any other Panel members, a draft of the written reasons in the form set out in Schedule 5 for settling.”

2. 2008 Directions
The Directions of the Convenor stating the reasons are as follows
“39. After the Medical Panel has formed its opinion on each medical question, the presiding member should prepare, and circulate to any other Panel members, a draft certificate of opinion and draft written reasons, in the form similar to that set out in SCHEDULE 1 and SCHEDULE 2[52] respectively, for settling. Once so settled by the Panel, the Certificate of Opinion and Reasons for Opinion are to be forwarded to the Convenor for sending to the referrer. The Panel should also forward to the Convenor copies of any relevant documents obtained or received by the Panel additional to those provided to it by the Convenor.
[52]In Schedule 2 an instruction is given in the following terms:
“(Reasons should be written succinctly and in plain language. They should clearly reveal the Panel’s reasoning. They should include the core clinical and other findings. In the case of a multi-member Panel, the Reasons (including the core clinical and other findings) should be those of the Panel as a whole arising from the consultative process)”.
40. The Convenor will ensure that the Certificate of Opinion and the Reasons for Opinion are in the appropriate form and that the medical questions have been answered. In performance of this task, the Convenor will commonly seek advice from the advisers or legal advisers he has appointed for the Panel’s assistance.
41. If the Convenor believes there is any deficiency in relation to the form of the answers to the Medical Questions on the face of the Certificate of Opinion or the Reasons for Opinion are not clear then he will communicate his concerns to the presiding member of the Medical Panel.
42. On receiving details of the concerns of the Convenor, the presiding member will communicate with the other Panel members with a view to deciding whether or not to take any further action in relation to the opinion and the reasons, and to redrafting Certificate of Opinion and/or Reasons for Opinion.
43. After the Panel resolves the concerns over the form of the Certificate of Opinion and/or the clarity of the Reasons for Opinion, the presiding member will forward the final signed documents to the Convenor.
44. On receiving the final signed Certificate of Opinion and final signed Reasons for Opinion from a Medical Panel, the Convenor will forward the Certificate of Opinion to the referrer. Where the referral was received from the Victorian WorkCover Authority, a WorkCover Agent or a Self-Insurer, a copy of the Certificate of Opinion will also be forwarded to the worker.
45. On written request from a relevant party made within the timeframe set out in the Administrative Law Act 1978, the Convenor will also provide a copy of the written Reasons for Opinion.”

In the Deputy Convenor’s directions, the following was stated, among other things
“Purpose and objectives
8.The purpose of these directions is to define the procedures to ensure Medical Panels provide the appropriate Determination or Certificate in response to the medical question as to whether the degree of impairment resulting from the injury to the claimant alleged in the claim for damages for non-economic loss satisfies the threshold level.

9. To fulfil this purpose these directions aim to facilitate;
(a)…
(b)A Determination or Certificate of a Medical Panel that is responsive to the medical questions; and
(c)A process by which the Determination or Certificate is produced in a manner that is sufficient and transparently thorough and fair”

Later after referring to the schedules appropriate for different determinations, the following appears
“39.The presiding member will also prepare, and circulate to any other Panel members a draft of the written reasons, in the form set out in Schedule 5 for settling.
40.The Determination or Certificate or reasons for determination or certificate are to be forwarded to the Deputy Convenor for sending to the respondent and claimant within the appropriate prescribed time limit. The Panel should also forward to the Deputy Convenor copies of any relevant documents obtained or received by the Panel additional to those provided to it by the Deputy Convenor.”

The referral to the Panel occurred on 9 May 2008. Thus it occurred after the new directions came into force and the new directions applied.

“Cases supporting the proposition that inadequate reasons constitute an error of law (apart from SEC, Pyle and Clarke and the cases referred to in paragraph 34 of this judgment) include Dornan v Riordan (1990) 95 ALR 451, 460 (this case refers to a “substantial failure to state reasons” where a statement of reasons “is a requirement of the exercise under the statute of the decision-making power”) and Campbelltown City Council v Vegan (2006) 67 NSWLR 372, 377 [31] (Handley JA), 377 [33] (McColl JA, agreeing with Basten and Handley JJA), 399 [130] (Basten JA). Cases that are against the proposition include Repatriation Commission v O’Brien[1985] HCA 10; (1985) 155 CLR 422, 445-6 (Brennan J, dissenting; the other members of the Court did not discuss this issue); Comcare Australia v Lees (1997) 151 ALR 647, 656-9 and Brambles [2005] VSC 82, [21]. Cases in which an appellate court was divided on the issue include Absolon v NSW Technical and Further Education Commission [1999] NSWCA 311, [67] (Powell JA), [148]-[149] (Fitzgerald JA), [178]-[179] (Sheppard AJA) and Re Croser; Ex parte Rutherford[2001] WASCA 422, [13]-[18] (Murray J), [28] (Steytler J), [61]-[68] (Olsson AUJ).”

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Citations

Santos v Wadren Pty Ltd [2009] VSC 303

Most Recent Citation

Melbourne Health v Lloyd [2009] VSC 370

Cases Citing This Decision

6

Sherlock v Lloyd [2010] VSCA 122

Melbourne Health v Jinan Maran; Jinan Maran v Melbourne Health [2024] VSC 514

Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285

Cases Cited

23

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0

R v Chand [2005] VSC 448

Kirk v Industrial Court of New South Wales [2010] HCA 1

Craig v South Australia [1995] HCA 58

[2009] VSC 303

30 July 2009