Sherlock v Lloyd
[2008] VSC 450
•29 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5178 of 2008
| KAREN SHERLOCK | Plaintiff |
| v | |
| DR JOHN LLOYD, DR DAVID FISH, MERCANTILE MUTUAL WORKSURE LIMITED and LE-ROSE NOMINEES PTY LTD | Defendants |
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JUDGE: | Kyrou J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2008 | |
DATE OF JUDGMENT: | 29 October 2008 | |
CASE MAY BE CITED AS: | Sherlock v Lloyd | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 450 | |
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Judicial review – Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) – Accident Compensation Act 1985 (Vic) – medical panel – alleged failure to comply with rules of natural justice – medical panel relying on own knowledge – inadequacy of reasons – principles to be applied where inadequacy of reasons is relied upon as a ground of review – whether inadequacy of reasons constitutes error of law on the face of the record – remedies available where reasons inadequate – Administrative Law Act 1978 (Vic), s 8.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M O’Loghlen QC and Mr G Wicks | Slater & Gordon |
| No appearance for the First and Second Defendants | ||
| For the Third and Fourth Defendants | Mr M Fleming | Dibbs Abbott Stillman Lawyers |
HIS HONOUR:
Introduction and summary
This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“Rules”) in relation to an opinion of a medical panel dated 19 January 2008 answering seven medical questions including question 5 which asked whether the plaintiff, Karen Sherlock, has a current work capacity. Question 5 was answered “Yes”.
The plaintiff seeks an order quashing the answers to questions 5, 6 and 7 on the grounds that the panel breached the rules of natural justice and that its reasons are inadequate. The first and second defendants constituted the panel and did not take part in this proceeding. The third defendant, Mercantile Mutual Worksure Limited (“MMWL”), is the agent of the Victorian WorkCover Authority and the fourth defendant, Le-Rose Nominees Pty Ltd (“Le-Rose”), is the plaintiff’s former employer.
For the reasons set out in this judgment, I have decided that the rules of natural justice were not breached and that although the panel’s reasons are inadequate, no relief can be provided in the absence of an application for an order under s 8(4) of the Administrative Law Act 1978 (Vic) (“ALA”) for a further statement of reasons.
Facts and procedural background
The plaintiff suffered depression and was treated by a psychiatrist in 1997 and 1998. She commenced employment with Le-Rose as a payroll officer on 23 October 2001 and resigned on 22 or 23 September 2004. On 24 September 2004, she lodged a claim for weekly payments of compensation and medical and like expenses in respect of stress and depression she allegedly developed in January 2003 in the course of her employment. MMWL rejected the claim on 3 November 2004. On 5 October 2006, the plaintiff filed a Magistrates’ Court complaint in respect of her claim. The proceeding was uplifted to the County Court in June 2007.
In June 2007, the plaintiff lodged a claim for permanent impairment benefits. This claim was rejected by MMWL in July 2007. In August 2007, the County Court proceeding was amended to include the plaintiff’s claim for impairment benefits.
The plaintiff and Le-Rose obtained medical reports from various medical experts. None of them said the plaintiff had a current work capacity.
On 15 November 2007, a County Court judge made an order pursuant to s 45(1)(b) of the Accident Compensation Act 1985 (Vic) (“ACA”) referring seven medical questions to a medical panel constituted by the first and second defendants. The panel examined the plaintiff on 8 January 2008. The panel did not raise with the plaintiff, either before or at the examination, the existence or otherwise of any types of jobs near her place of residence. In its opinion dated 19 January 2008, the panel answered the questions as follows:
Question 1:Whether the Plaintiff’s employment with Le-Rose Nominees Pty Ltd at any time or times during the period from 23 October 2001 until 22 September 2004, or generally during that period, was in fact a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease of the [P]laintiff’s mind?
Answer:Yes.
Question 2:Whether the Plaintiff’s employment with Le-Rose Nominees Pty Ltd at any time or times during the period from 23 October 2001 until 22 September 2004, or generally during that period, could possibly have been a significant contributing factor to the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease of the Plaintiff’s mind?
Answer:Yes.
Question 3:What is the nature of the medical condition of the Plaintiff’s mind?
Answer:The Panel is of the opinion that the Plaintiff suffers from a Chronic Adjustment Disorder with depression on a background of underlying personality difficulties, relevant to the alleged psychiatric injury.
Question 4:Does the Plaintiff have an incapacity for work?
Answer:Yes.
Question 5:Does the Plaintiff have a current work capacity?
Answer:Yes.
Question 6:If no to question 5, is the Plaintiff likely to continue indefinitely to have no current work incapacity?
Answer:Not applicable.
Question 7:If yes to question 4, does that incapacity result from, or is it materially contributed to by the matters inquired of in questions 1 and 2 hereof?
Answer:In the Panel’s opinion, the Plaintiff’s incapacity for her pre-injury employment is still materially contributed to by the alleged psychiatric injury.
The panel also prepared reasons for its opinion dated 19 January 2008. These reasons were provided to the plaintiff following a request from her solicitors dated 5 February 2008. It was common ground before me that the reasons were provided pursuant to a request under s 8(1) of the ALA.
The panel’s reasons deal predominantly with background factual matters. The key paragraphs in the reasons for present purposes are as follows:
On mental state examination the panel noted that the worker presented wearing makeup and with a tanned appearance, and she was well groomed. She was alert and communicated mild anxiety and some irritation when questioned or challenged. She appeared close to tears once or twice. There were a number of inconsistencies obtained in the history compared to that given in a number of the earlier medical reports, and it was considered that the worker was evasive on a number of matters. There was no evidence of disorder in the form or content of thought and no psychotic features were recognised. Intelligence appeared in the average range.
The Panel concluded that the worker has a Chronic Adjustment Disorder with depression on a background of underlying personality difficulties.
The Panel carefully considered the information provided with the referral the contemporaneous medical report of her general practitioner and the information provided by the worker at the examination by the Panel, and considers the worker had a genuine perception that she was subject to inappropriate workplace pressures and stress resulting in the development of a psychiatric condition by September 2004 and the worsening of that condition.
The Panel therefore concluded that the worker’s employment with Le-Rose Nominees Pty Ltd, during the period from 23 October 2001 until 22 September 2004, could possibly have been and was in fact, a significant contributing factor to the development of and the aggravation, acceleration, exacerbation or deterioration of a psychiatric injury and that her current psychiatric condition is relevant to the alleged psychiatric injury.
The Panel considers the worker is not capable of performing her pre-injury employment due to the nature and causes of her psychiatric condition and this incapacity is still materially contributed to by the alleged psychiatric injury.
The Panel took into account all aspects of the definition of “suitable employment” in the Act. In particular the Panel took into account the nature and extent of her psychiatric condition, her age and previous work experience. She lives in outer suburban Melbourne and has a drivers licence.
The Panel considered that, although the worker cannot return to her former place of employment due to the causative factors involved with her condition, she is capable of performing similar work as a book-keeper or as an administrative assistant with another employer. The Panel is able to say of its own knowledge that [these] jobs exist near her place of residence.
The Panel therefore concluded that there is work for which the worker is currently suited and which she could perform on a consistent basis. She therefore has a current work capacity.
The plaintiff issued an originating motion dated 17 March 2008 seeking an order quashing the answers to questions 5, 6 and 7 in the panel’s opinion and remitting those questions to a differently constituted panel. She relied on two grounds of review. The first was that the panel breached the rules of natural justice by failing to give the plaintiff advance warning that it proposed to rely on its own knowledge of the existence of book-keeper and administrative assistant jobs near the plaintiff’s place of residence, and not giving her an opportunity to make submissions on that issue. The second ground was that the reasons for the panel’s opinion were inadequate.
Relevant statutory provisions
Section 5(1) of the ACA contains the following relevant definitions:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following –
(a) the nature of the worker’s incapacity and pre-injury employment;
(b) the worker’s age, education, skills and work experience;
(c) the worker’s place of residence;
(d)the details given in medical information including the medical certificate supplied by the worker;
(e)the worker’s return to work plan, if any;
(f)if any occupational rehabilitation services are being provided to or for the worker.
Section 8 of the ALA provides:
(1)A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.
(2)The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.
(3)The statement of reasons shall be in writing and furnished within a reasonable time.
(4)The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.
(5)Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned. …
Decision on first ground of review – natural justice
A medical panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinion on medical questions and is a “tribunal” for the purposes of the ALA. A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel’s own medical expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[1]
[1]See Vegco Pty Ltd v Gibbons [2008] VSC 363, [23].
The question of whether book-keeper and administrative assistant jobs exist near the plaintiff’s place of residence in Mornington is relevant to the question of whether the plaintiff has a current work capacity, as the definition of “suitable employment” in s 5(1) of the ACA lists the worker’s place of residence as one of the factors that the panel had to take into account. However, in Barwon Spinners Pty Ltd v Podolak[2] and State of Victoria v Rattray,[3] the Court of Appeal made it clear that what is relevant is the existence of work near the worker’s place of residence rather than the availability of such work. In other words, if the plaintiff is capable of working as a book-keeper or administrative assistant and such jobs exist near her place of residence, the definition of “suitable employment” is satisfied whether or not there are vacancies for such jobs. The Court of Appeal also indicated that the concept of proximity to a job is relative. If a worker lives in Melbourne, a job in Mildura is not near. Also, if a worker lives near a country town, proximity must be determined by reference to the relevant region. It follows that if a worker lives in a Melbourne suburb and jobs exist within commuting distance in other parts of Melbourne, proximity is satisfied.
[2](2005) 14 VR 622, 636 [25]; overruled on other grounds: Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257.
[3][2006] VSCA 145, [16]-[20].
In light of the above, the panel’s statement about the existence of book-keeper and administrative assistant jobs near the plaintiff’s place of residence was a statement of the obvious and there was no obligation on the panel to give the plaintiff advance notice that it proposed to rely on this matter and to give her an opportunity to make submissions on it. Accordingly, I find that the panel did not breach the rules of natural justice.
Even if my conclusion in paragraph 15 of this judgment is wrong, the panel’s opinion could not have been affected by any submissions the plaintiff may have made on the issue.[4] If the panel had asked the plaintiff whether book-keeper and administrative assistant jobs exist within commuting distance from Mornington, the only truthful response she could have given is that there are. I note that in her affidavit, the plaintiff complains that she was not given an opportunity to comment on the existence of jobs in or near Mornington but does not state that, if she had been given that opportunity, she would have said that they did not exist. Mr O’Loghlen, who appeared with Mr Wicks for the plaintiff, conceded that the plaintiff had the onus of establishing an entitlement to an order in the nature of certiorari. She has failed to satisfy me that the panel’s decision could possibly have been different if the rules of natural justice had been complied with.
[4]See Stead v State Government Insurance Commission (1986) 161 CLR 141.
For the above reasons, I reject the plaintiff’s first ground of review.
Decision on second ground of review – inadequate reasons
There have been numerous proceedings in this Court seeking to quash opinions of medical panels on the ground that the relevant panel’s reasons were inadequate and that this constituted an error of law on the face of the record. There is no doubt that a medical panel’s opinion can be reviewed on the ground of an error of law on the face of the record.[5] However, there is doubt whether inadequate reasons, in and of itself, constitutes an error of law. The decisions of this Court, at first instance, have not always been consistent. It is therefore useful to analyse the underlying principles.
[5]Craig v South Australia (1995) 184 CLR 163, 175-6.
The underlying principles discussed below deal with inadequate reasons given either where there is no legal obligation to do so or pursuant to a request under s 8 of the ALA. They do not deal with inadequate reasons given by a statutory body which is obliged by the Act establishing it to provide reasons for its decisions, or by a court. Accordingly, authorities dealing with inadequate reasons by bodies such as the Victorian Civil and Administrative Tribunal and the Commonwealth Administrative Appeals Tribunal, whose enabling legislation contains an obligation to provide reasons and a right of appeal on questions of law, are not directly relevant to the discussion below.
Underlying principles
At common law, an administrative decision-maker is not obliged to provide reasons for decision.[6] If a decision-maker who is not legally obliged to provide reasons for a decision refuses to provide reasons, an affected person cannot obtain an order compelling the provision of reasons. If such a decision-maker chooses to provide reasons (whether or not following a request), the inadequacy of the reasons cannot, in and of itself, be a ground of review of the decision. Nor can an order be obtained for the delivery of further reasons.
[6]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
However, if a decision-maker who is not legally obliged to provide reasons provides reasons which are inadequate, and the reasons, although inadequate, disclose that the decision-maker made a jurisdictional error, that error can be a ground for review of the decision. Additionally, s 10 of the ALA provides that reasons for a decision of a tribunal or inferior court, whether or not given pursuant to a request or order under s 8 of the ALA, shall be taken to form part of the record of the decision of the tribunal or court. Accordingly, where the reasons, although inadequate and provided without a legal obligation to do so, disclose an error of law that is not a jurisdictional error, the error can be a ground for review of the decision on the basis of error of law on the face of the record.
Medical panels constituted under the ACA are not subject to an automatic obligation under the ACA or the ALA to give reasons for their opinions on medical questions. The obligation to give reasons under the ALA arises only if s 8 of the ALA is complied with, namely where a request for reasons is made to the panel orally or in writing
by any person affected by a decision made or to be made by [the panel] … either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.
If a medical panel provides reasons for an opinion otherwise than pursuant to a request that satisfies the requirements of s 8 of the ALA, the principles set out in paragraphs 20 and 21 of this judgment apply.[7] As the words “decision made or to be made” in s 8(1) indicate that a request for reasons can be made in respect of a prospective decision, a written request for reasons can be included with the documents by which medical questions are referred to a medical panel so as to put it beyond doubt that the panel’s reasons are furnished pursuant to s 8 of the ALA.
[7]In Victoria v McKenna [1999] VSC 310, [32], Smith J held that it is inappropriate to treat reasons given by the Anti-Discrimination Tribunal in the absence of a request under s 139 of the Equal Opportunity Act 1995 (Vic) as an error that will vitiate the decision of that Tribunal.
If a medical panel provides reasons for an opinion pursuant to a request that complies with s 8 of the ALA, and the reasons (irrespective of whether they are adequate) disclose a jurisdictional error or an error of law on the face of the reasons, those errors can be grounds for review of the decision.
If there were no authority on the matter, I would conclude that if a medical panel provides inadequate reasons for an opinion pursuant to a request that complies with s 8 of the ALA and the reasons do not disclose any legal error (whether jurisdictional or not), the inadequacy of the reasons is not in and of itself an error of law on the face of the record that affords a ground for review of the opinion independently of the remedies set out in s 8(4) of the ALA. This is because s 8(4) clearly indicates that inadequacy of reasons in response to a request under s 8 is not in and of itself an error of law for the following reasons:
(a) The test set out in s 8(4) for determining whether reasons are adequate is whether the reasons do not “enable a Court to see whether the decision does or does not involve any error of law”. As, in order for reasons to be inadequate, a court must not be able to determine whether the tribunal made an error of law, it is illogical to characterise the inadequacy of the reasons as an error of law.
(b) The sole remedy provided by s 8(4) for inadequate initial reasons is an order for a further statement of reasons (subject to the matters set out in s 8(5)). The reference to alternative remedies when the reasons are subsequently provided pursuant to an order under s 8(4) and the absence of a reference to alternative remedies when the tribunal initially refuses to provide reasons or provides inadequate reasons, confirms that at the initial stage, the sole remedy the Court can give is an order that reasons (or further reasons) be provided.
(c) It is only if that order is not complied with or the further statement of reasons provided pursuant to the order is inadequate that s 8(4) empowers the Court to quash the decision “in addition to or in lieu of any order to enforce compliance by the tribunal”. The power to quash is described as “any … order as might have been made if error of law had appeared on the face of the record”. In other words, s 8(4) refers to a deemed error of law, which suggests strongly that inadequacy of reasons would not, in the absence of a deeming provision, constitute an error of law.
(d) The ALA reformed the procedures for seeking judicial review but did not expand or alter the common law grounds of review.[8] This is made clear by s 7 of the ALA. Provisions such as ss 8, 10, 11 and 12 of the ALA were inserted to facilitate the ability of a person affected to seek judicial review and prove the common law grounds of review, but not to alter those grounds. Thus, the ability to obtain reasons under s 8 assists in identifying errors which may have remained undetected in the absence of reasons. Likewise, by deeming reasons to form part of the record of the decision, s 10 facilitates the ground of review of error of law on the face of the record. The concluding words of s 8(4), which enable the Court to quash a decision where an order for the provision of reasons or further reasons is not complied with on the basis of a deemed error of law, confirm that, save to this limited extent, s 8 does not alter the common law position as to the existence of inadequacy of reasons as a ground of review of the decision.
[8]FAI Insurances Ltd v Winneke (1982) 151 CLR 342, 358, 389, 406; Monash University v Berg [1984] VR 383, 388-9.
However, the matter is not completely free of authority. In State Electricity Commission v Commissioner for Equal Opportunity,[9] Gobbo J rejected an argument that s 8(4) of the ALA constituted a code as to the available remedies where no reasons or inadequate reasons are provided in response to a request under s 8(1). His Honour held that a refusal to provide reasons or the provision of inadequate reasons constitutes an error of law on the face of the record and thus enables an order for review to be sought under s 3 of the Act to quash the relevant decision. In doing so, his Honour said that s 8(4) “plainly provides that it is not to operate alone”[10] but did not consider the issues I have discussed in paragraph 25 of this judgment.
[9][1992] 1 VR 79, 87-8 (“SEC”).
[10][1992] 1 VR 79, 87.
In Kuek v Victoria Legal Aid, the Court of Appeal said that SEC “relevantly decided no more than that the failure of a tribunal, to which the Administrative Law Act applies, to provide reasons conformably with s. 8 can afford a ground of an order for review granted under s. 3.”[11] The Court also said that: “A complaint of that kind [namely a complaint, in respect of which an order for review is sought, of a failure or refusal to give reasons], among others, is one which the Act is obviously designed importantly to facilitate.”[12]
[11][1999] 2 VR 331, 336 [14] (Tadgell JA, with whom Winneke P and Ormiston JA agreed) (“Kuek”).
[12][1999] 2 VR 331, 335 [12].
The above comments in Kuek do not support the proposition that the inadequacy of reasons given pursuant to a request under s 8 of the ALA, in and of itself, constitutes an error of law. The Court was dealing with a case where Victoria Legal Aid had refused to provide reasons and the only question before the Court was whether the applications for review of the substantive decisions were out of time.[13] The Court dealt with procedural issues and its reference to s 3 of the ALA should be read in that context. The Court did not deal with what grounds of review enliven the Court’s power to quash a decision. It said no more than that a complaint about a failure to provide reasons conformably with s 8 of the ALA can be the subject of an application for review under s 3 of the ALA, presumably for the purpose of obtaining relief in the nature of mandamus under s 7 of the ALA or an order under s 8(4) to compel compliance with s 8. The issue of what relief the Court may provide in respect of the underlying decision based on inadequate reasons and, in particular, whether inadequate reasons in itself is a sufficient ground for review warranting the quashing of that decision was not before the Court.
[13][1999] 2 VR 331, 334 [6], [7].
Accordingly, the Court of Appeal in Kuek should not be seen as approving the statement in SEC that refusal to provide reasons or the provision of inadequate reasons constitutes an error of law on the face of the record. The Court did not expressly say that, and the qualified way in which it referred to SEC (namely that SEC “relevantly decided no more than”) is a clear indication that the Court was seeking to limit the scope of that decision. Even if I am wrong about this, any observations the Court made in relation to inadequate reasons were obiter.
SEC and Kuek were followed in Pyle v Nisselle,[14] which dealt directly with an application under the ALA for review of an opinion of a medical panel where the sole remaining ground of review was the inadequacy of the reasons provided by the panel pursuant to a request under s 8 of the ALA. In Pyle, Smith J examined the aims of the ALA and said that in light of those aims “there would need to be a clear statement in s. 8 that remedies under s. 3 of the Act were not available where the attack was based on inadequacy of reasons”.[15] His Honour did not consider the matters I discuss in paragraphs 25 and 28 of this judgment. He held that where a medical panel provides inadequate reasons, this constitutes an error of law on the face of the record which enables the Court to either quash the panel’s opinion or make an order under s 8(4) requiring the panel to provide a further statement of reasons. Applying Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2)[16] (which involved reasons provided pursuant to an obligation in the relevant enabling Act rather than pursuant to s 8 of the ALA), his Honour quashed the opinion and directed that the matter be referred for further consideration to another panel.
[14][2000] VSC 398 (“Pyle”).
[15][2000] VSC 398, [32].
[16][1984] VR 903, 912.
Pyle was followed in Clarke v National Mutual Life Insurance,[17] which involved an application under the ALA to quash an opinion of a medical panel based on the ground of inadequacy of the panel’s reasons. Since 2000, Pyle has generally been taken by judges in the trial division of this Court to correctly state the law.[18] However, in Brambles Industries Ltd v Nisselle,[19] Bongiorno J held that the inadequacy of reasons is not sufficient in itself to justify a review of a decision of a medical panel under the ALA. His Honour did not refer to SEC, Kuek or Pyle.
[17][2007] VSC 341, [68] (“Clarke”).
[18]Many of the cases referred to in paragraph 34 of this judgment, where this Court has quashed a medical panel’s opinion based on the inadequacy of its reasons, expressly or implicitly accept the correctness of Pyle, although they involved proceedings under Order 56 of the Rules rather than the ALA.
[19][2005] VSC 82, [21] (“Brambles”). Bongiorno J repeated his view that inadequacy of reasons is not, in and of itself, an error of law in State Trustees v Transport Accident Commission [2002] VSC 428, [37]-[39]; Wight v Transport Accident Commission [2003] VSC 214, [13]. These cases dealt with the statutory obligation of the Victorian Civil and Administrative Tribunal to give reasons for its decision.
With respect, for the reasons discussed in paragraph 25 of this judgment, I prefer Brambles to SEC, Pyle and Clarke. Accordingly, I am of the view that the inadequacy of reasons given by a medical panel for its opinion pursuant to a request under s 8 of the ALA is not, in and of itself, an error of law on the face of the record which entitles this Court to quash the opinion in proceedings under the ALA.
However, the present proceeding is not such a case. Although the plaintiff sought and obtained a statement of reasons for the panel’s decision under s 8 of the ALA, this is a proceeding under Order 56 of the Rules rather than under the ALA. In my opinion, the argument in favour of the proposition that the inadequacy of reasons given by a medical panel for its opinion pursuant to a request under s 8 of the ALA is not, in and of itself, an error of law on the face of the record which entitles this Court to quash the opinion, is even stronger where the proceeding is under Order 56 of the Rules rather than the ALA. This is because the reasoning in SEC and Pyle does not apply to an Order 56 proceeding. Neither do the observations in Kuek set out in paragraph 27 of this judgment.
Although cases under Order 56, such as Kamener v Griffin,[20] Moyston Court Fisheries Ltd v Malios,[21] Davidson v Fish,[22] Collins v Nave,[23] Robert Bosch (Aust) Pty Ltd v Barton,[24] and Treacy v Newlands,[25] have quashed opinions of medical panels on the ground (sometimes among other grounds) of the inadequacy of reasons, the basis on which this was done is unclear. Insofar as those cases are based on the proposition that a failure to give reasons constitutes a denial of natural justice, that proposition is contrary to authority.[26] Insofar as they are based on the questionable[27] 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, they ignore that what determines the matter is the wording of the statutory provision that imposes the legal obligation, and that, in the case of reasons given under s 8 of the ALA, the position is governed by s 8. There is no basis in principle for ignoring the carefully structured remedies in s 8(4) of the ALA where it is alleged that reasons given by a medical panel pursuant to s 8(1) are inadequate. To the extent that the abovementioned cases have held that an opinion of a medical panel can be quashed solely on the basis of the inadequacy of the panel’s reasons in proceedings under Order 56 of the Rules, I am unable, with respect, to follow them.
[20][2004] VSC 235, [57]-[64].
[21][2007] VSC 518, [83]-[87].
[22][2008] VSC 32, [6], [12]-[13], [19].
[23][2008] VSC 85, [45].
[24][2008] VSC 227, [32].
[25][2008] VSC 395, [8]-[12], [29]-[32].
[26]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 662-3, 671, 675, 676-7, 678.
[27]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) 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).
It follows that where one seeks to complain about the inadequacy of reasons given by a 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).
An application under s 8(4) must be made within a reasonable time after the medical panel fails to provide reasons or provides inadequate reasons.[28] It is usually made by summons returnable before a judge.[29]
[28]Keller v Bayside City Council [1996] 1 VR 356, 383; Aboriginal Hostels Ltd v Fisher (No 1) (1997) 12 VAR 373, 385; aff’d (without discussion of s 8(4)) Fisher v Aboriginal Hostels Ltd (1998) 14 VAR 416; [1998] VSCA 130.
[29]See Order 46.02 of the Rules; Footscray Football Club Ltd v Commissioner of Pay-roll Tax [1983] 1 VR 505. For a recent example of an order being made under s 8(4) of the ALA requiring a medical panel to furnish a further statement of reasons, see Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204.
Although an application to quash a medical panel’s opinion on the ground that reasons given under s 8 of the ALA are inadequate cannot be made in an originating motion under Order 56 of the Rules, a summons seeking a further statement of reasons under s 8(4) of the ALA can be filed in conjunction with a proceeding under Order 56 as long as this is done within a reasonable time. It will often be convenient for the summons to be heard at the same time as the Order 56 proceeding. I leave open the question whether an order in the nature of mandamus to compel compliance with s 8 of the ALA can be sought in proceedings under Order 56 in lieu of a summons under s 8(4) of the ALA and whether such a summons can be filed in the Order 56 proceeding.[30]
[30]Compare Keller v Bayside City Council [1996] 1 VR 356, 383.
Where an order is obtained under s 8(4) of the ALA requiring a medical panel to provide a statement of reasons or a further statement of reasons, if the reasons provided pursuant to the order are adequate, s 8 of the ALA is exhausted. Whether any remedies outside s 8 are available pursuant to an application for review under s 3 of the ALA or Order 56 of the Rules will depend on whether the reasons provided pursuant to the order disclose a jurisdictional error or an error of law on the face of the record. If the reasons provided pursuant to the order are inadequate, the Court may make an order under s 8(4) quashing the medical panel’s opinion on the basis of a deemed error of law on the face of the record. Of course, if the inadequate reasons disclose a jurisdictional error or an error of law on the face of the record, the Court may quash the medical panel’s opinion independently of s 8(4) of the ALA (that is, pursuant to an application for review under s 3 of the ALA or Order 56 of the Rules).
Test for determining adequacy of reasons under s 8 of the ALA
In the case of reasons for decision provided by a medical panel pursuant to a request under s 8 of the ALA, s 8(4) sets out the criterion for determining whether the reasons are adequate, namely whether the statement is “adequate to enable a Court to see whether the decision does or does not involve any error of law”. The meaning of this expression has been authoritatively considered by Masters v McCubbery.[31] In that case, the members of the Court of Appeal made the following observations:
[31][1996] 1 VR 635 (“Masters”).
Winneke P said: [32]
[32][1996] 1 VR 635, 640, 650, 651.
Section 8 was no doubt introduced because it was seen to be a necessary incident of the function of a tribunal which owed an obligation to accord procedural fairness to provide reasons for its decision. It is only by setting out its reasons in sufficient detail to demonstrate whether it has acted on proper principles that the Court will be in a position to effectively review its decision …
…
A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions. This, after all, is the limit of the obligation imposed by the ALA upon any “tribunal” which is required to accord natural justice in arriving at its “decision”: see s. 8(4) of the ALA.
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If I am correct in coming to the view which I have that medical panels are required to accord natural justice, they are not obliged to overwhelm themselves with the provision of elaborate reasons. As I have already pointed out they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably …
Ormiston JA said: [33]
It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.
Callaway JA said:[34]
In the present context, [the kind of reasons that s. 8 requires] are medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience.
[33][1996] 1 VR 635, 653.
[34][1996] 1 VR 635, 661.
The above observations provide succinct and authoritative guides for determining whether reasons given by a medical panel are adequate.
Application of underlying principles and test of adequacy of reasons
The plaintiff does not allege that the panel’s reasons disclose a jurisdictional error or an error of law on the face of the record, other than the allegation of breach of the rules of natural justice which I have already rejected. The sole issue, therefore, is whether the panel’s reasons in respect of the answers to questions 5, 6 and 7 are adequate within the meaning of s 8(4) of the ALA. The plaintiff has not complained about the answers to the other questions.
This issue can be disposed of quickly. The panel’s reasons do not satisfy s 8(4) of the ALA as clarified in Masters (see paragraph 39 of this judgment). The panel has not provided true reasons for its answers to questions 5, 6 and 7. They are bare conclusions.
The reasons recite various facts and observations but do not explain how they informed the panel’s conclusions on questions 5, 6 and 7. Likewise, the panel states that it took various matters into account but does not say how those matters informed its conclusions. Its statement of reasons does not set out its process of reasoning in sufficient detail to demonstrate whether it has acted on proper principles so as to enable the Court to effectively review its opinion. One is left uneasy as to whether the panel gave proper consideration to the matters that were relevant to the panel’s opinion, including the medical reports of both parties that were submitted to the panel. One could speculate, as Mr Fleming (who appeared for MMWL and Le-Rose) did in argument before me, as to why the panel decided as it did, but neither the Court nor the parties should be placed in the position of having to speculate. This is not a case where the reasons for the panel’s decision can be inferred as distinct from being the subject of speculation.
In respect of question 5, the panel’s reasons set out the issue for determination, mention some of the factors listed in the definition of “suitable employment” in s 5(1) of the ACA that they took into account and then state a conclusion. No reasons at all are given for the panel’s conclusion, let alone adequate reasons. In the circumstances of this case, where both the plaintiff’s and Le-Rose’s medical experts agreed that the plaintiff did not have a current work capacity, the panel’s reasons do not enable the Court or the parties to understand why it arrived at the opposite conclusion. There is no express explanation and none can be inferred with any confidence.
Likewise, in relation to question 7, the panel simply states its conclusion without indicating how and why it arrived at this conclusion. The answer to question 6 is consequential upon the answer to question 5.
Relief to be granted
Although I have concluded that the panel’s reasons are inadequate, it follows from what I have said above that this is not a basis upon which I can quash the panel’s opinion or any specific answers set out in the opinion in an application for judicial review under Order 56 of the Rules.
As the matter was not argued before me, I am unable to say whether, in the circumstances of this case, the reasonable time within which a summons must be filed seeking an order for a further statement of reasons under s 8(4) of the ALA has expired.[35] I will hear from the parties on this issue (if they wish to make submissions on it) and on the order to be made in light of my findings, including costs.
[35]See paragraph 36 of this judgment and fnn 28 and 29.
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