State of Tasmania v Gravina
[2022] TASFC 4
•23 March 2022
[2022] TASFC 4
| COURT: | SUPREME COURT OF TASMANIA (FULL COURT) |
| CITATION: | State of Tasmania v Gravina [2022] TASFC 4 |
| PARTIES: | STATE OF TASMANIA |
| v | |
| GRAVINA, Teri Ann | |
| FILE NO: | FCA 1919/2021 |
| DECISION | |
| APPEALED FROM: | G v The State of Tasmania (Department of Health) [2021] TASWRCT 26 |
| DELIVERED ON: | 23 March 2022 |
| DELIVERED AT: | Hobart |
| HEARING DATES: | 11 March 2022 |
| JUDGMENT OF: | Blow CJ, Pearce and Geason JJ |
| CATCHWORDS: |
Workers Compensation – Proceedings to obtain compensation – Determination of claims – Medical examinations – Medical panels, boards and referees – Referral of medical question to medical panel –
What amounts to medical question.
Workers Rehabilitation and Compensation Act 1988 (Tas), ss 3, 49(3), 75, 77AA.
Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 252 CLR 480, applied.
Aust Dig Workers Compensation [317]
REPRESENTATION:
Counsel:
Appellant: O Robinson Respondent: R J Phillips
Solicitors:
Appellant: Solicitor-General Respondent: Phillips Taglieri
| Judgment Number: | [2022] TASFC 4 |
| Number of paragraphs: | 64 |
Serial No 4/2022
File No FCA 1919/2021
STATE OF TASMANIA v TERI ANN GRAVINA
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ PEARCE J GEASON J |
| 23 March 2022 | |
| Orders of the Court: |
1 Appeal allowed.
2 Order of the Workers Rehabilitation and Compensation Tribunal set aside.
3 Matter remitted to the Tasmanian Civil and Administrative Tribunal for determination by that Tribunal, differently constituted, according to law.
Serial No 4/2022
File No FCA 1919/2021
STATE OF TASMANIA v TERI ANN GRAVINA
| REASONS FOR JUDGMENT | FULL COURT BLOW CJ 23 March 2022 |
1 I agree with the reasons of Pearce J and the orders that he proposes.
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File No FCA 1919/2021
STATE OF TASMANIA v TERI ANN GRAVINA
| REASONS FOR JUDGMENT | FULL COURT PEARCE J 23 March 2022 |
2 The Workers Rehabilitation and Compensation Act 1988, s 49(3)(b) (the Act), empowered the Workers Rehabilitation and Compensation Tribunal[1] (the Tribunal) to refer a medical question arising in proceedings under that Act to a medical panel. On 22 July 2021 the Tribunal, constituted by Commissioner Wilkins, dismissed the appellant's application in proceedings involving the respondent for referral of two questions to a medical panel. The Tribunal determined that the questions were not medical questions within the legal meaning of those words: G v The State of Tasmania (Department of Health) [2021] TASWRCT 26. The appellant contends that the Tribunal was wrong to reach that conclusion. The appeal was referred by a single judge to this Court pursuant to the Supreme Court Rules 2000, r 703(4). For the following reasons the appeal should be allowed.
[1] Since 5 November 2021 the Tasmanian Civil and Administrative Tribunal: Tasmanian Civil and Administrative Tribunal (Consequential Amendments) Act 2021.
3 On 26 February 2016 the respondent suffered an injury to her lower back in the course of her employment as a registered nurse at the Royal Hobart Hospital. According to her claim form she experienced sudden acute lower back pain and spasm when she bent over to pick up baby scales from a coffee table. The respondent accepted her claim for compensation and compensation was paid. In April 2020 the respondent, through her solicitor, requested the appellant to reimburse her for a considerable number of medical and related expenses incurred between 2017 and 2020. The appellant's insurer disputed the claim for payment of the expenses. The respondent referred the dispute to the Tribunal. The respondent made a further claim for other medical and related expenses. That claim was also disputed by the appellant and separately referred to the Tribunal.
The legislation
4 In Tasmania, an employer is liable to pay compensation in accordance with the Act to a worker who suffers an injury, not being a disease, arising out of and in the course of his or her employment, or who suffers an injury, which is a disease, arising out of and in the course of his or her employment and to which the employment contributed to a substantial degree: s 25. Where incapacity results from a compensable injury, the employer must pay weekly payments of compensation for lost earnings calculated in accordance with s 69. Where an employer has accepted liability, or been determined to be liable to pay compensation under the Act for an injury to a worker, the employer must also pay as compensation to the worker "the reasonable expenses necessarily incurred by the worker as a result of his injury for medical services, hospital services, nursing services, constant attendance services, rehabilitation services, household services, road accident rescue services and ambulance services": s 75(1AA) and (1). When a claim is made for payment of such an expense an employer must, within 28 days, either pay the expense or serve the worker with notice in writing disputing the claim: s 77AA(1). A notice to the worker disputing the claim must "give the reasons why the employer disputes liability to pay the expense" and be accompanied by medical or other evidence relied upon for disputing liability: s 77AA(2)(b) and (c). A worker who receives a notice of dispute may refer the matter to the tribunal: s 77AA(5). All of the procedural and notice provisions were complied with in this case.
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5 In the proceedings before the Tribunal, the employer carries the onus of proving that the worker is not entitled to the payment of the disputed expense: s 77AA(7).
6 Section 49 of the Act is entitled "Procedure of Tribunal" and relevantly provides:
Where a medical question arises in any proceedings, to which this Act relates, that are before the Tribunal, the Tribunal may –
"(3)
(a)
determine the medical question on any medical evidence presented to the Tribunal; or
(b)
refer the medical question, subject to subsection (3A), to a medical panel formed under section 50 .
(3A) The Tribunal may only refer a medical question under subsection (3)(b) if –
(a) there is a conflict of medical opinion presented to the Tribunal on the question between –
(i) a medical practitioner engaged by the worker; and (ii)
any medical practitioner provided and paid by the employer or insurer; and
(b) one or more of the parties wishes the proceedings to continue.
(3B) If the parties to the proceeding cannot agree on the medical practitioner nominated by the Tribunal, the Tribunal must choose another medical practitioner who the Tribunal considers is appropriately qualified to provide the medical advice or opinion.
(4) The Tribunal is bound by the determination of a medical panel given in response to a medical question referred to it under subsection (3)(b).
7 The term "medical question" is defined in s 3:
"medical question means a question relating to –
(a) the existence, nature or extent of an injury; or (b) whether an injury is, or is likely to be, permanent or temporary; or (c) a worker's capacity for work or specific work duties; or (d) the loss, or the degree of loss, of any of the parts or faculties of the body; or (e) the permanent loss of the effective use of a part of the body; or (f) the assessment of the degree of permanent impairment, including whether the impairment is permanent; (g) a medical service provided or to be provided to a worker for an injury, including the adequacy, appropriateness or frequency of that service."
8 If a question is a medical question, s 49(3) gives the Tribunal discretion to either determine the question itself, or refer the question to a medical panel formed under s 50. Medical panels are regulated by Division 4 of Part V of the Act. They comprise either two or three medical practitioners selected by the Tribunal from a register of suitably qualified persons: s 50(1) and (2). At least one must be a general practitioner, s 50(2), and at least one is to have particular expertise in the "medical field to which the question relates": s 50(3). The Tribunal is to ensure that the medical panel is "provided with any information in its possession likely to assist in determining the medical question": s 50(6). The panel must determine the question as soon as practicable and in any event within 28 days of the referral: s 51(2). The question may be determined by the agreement of two or more members of the panel: s 51(1). If there is no agreement the question must be returned to the Tribunal: s 51(3).
9 A medical panel is not bound by the rules of evidence: s 55B. A worker is entitled to attend before the panel with an accompanying person: s 53(2). However a worker is not entitled to be
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represented before the medical panel unless it appears to the panel that representation "should be allowed": s 53(1). The medical panel may medically examine the worker and, for that purpose, require the worker to answer questions, produce relevant documents and consent to the production of documents by other persons: s 54(1) and (2). Once a determination is made, a written determination with reasons must be provided to the Tribunal within 7 days: s 52. The Tribunal is bound by the determination of the medical panel given in response to the medical question: s 49(4).
The Tribunal proceedings and the application
10 In neither reference did the appellant contend that the expenses incurred by the respondent were not reasonably and necessarily incurred, or were not for medical or rehabilitation services within the meaning of those terms in the Act. The appellant's contention was that it was not liable to pay the expenses because they were not necessarily incurred by the respondent "as a result of her injury". The two questions the appellant requested the Tribunal to refer to a medical panel were in these terms:
"(a) What was the injury suffered by the worker on 26 February 2016? (b) Was the surgery performed by Mr Hunn on 4 October 2018 (described as a L4/5 and L5/S1 disc arthroplasty) a result of that injury of 26 February 2016?
11 One of the many expenses incurred by the respondent was for the cost of lumbar spinal surgery performed by a neurosurgeon, Mr Andrew Hunn, on 4 October 2018. The surgery is referred to in the second proposed question. Before the Tribunal the appellant conceded that, if the questions were referred to a medical panel and the panel determined that the surgery performed by Mr Hunn was necessarily incurred by the respondent as a result of the injury she suffered on 26 February 2016, the same finding would apply to all of the other disputed expenses.
The material before the Tribunal
12 In disputing the respondent's claim for payment of the expenses, and in the Tribunal proceedings, the appellant relied on the opinions of two neurosurgeons, Dr Gautum Khurana and Dr Ashish Jonathon, and a radiologist, Dr Katie Daniels. The respondent relied primarily on the opinion of her treating neurosurgeon, Mr Hunn. Although reports from Dr Khurana and Dr Daniels were attached to the notice disputing the respondent's claim, none of the reports found their way to the Tribunal. The Tribunal was confined to consideration of summaries and extracts of the reports given by counsel for the appellant during the course of submissions, and in the appellant's written notice of dispute. However the material which was put before the Tribunal sheds light on the reasons for the dispute. It is unnecessary to consider the conflict of medical opinion in detail. At the risk of over simplification, it is sufficient to explain that the appellant's contention was that the cost of the 4 October 2018 surgery was not incurred as a result of an injury suffered by the respondent in February 2016, but rather as a result of an underlying chronic degenerative condition. Dr Daniels, in her report of 17 January 2020, stated:
"The MRI scans do not definitely show a traumatic injury to the lumbar spine associated with any of the injuries sustained since 2016. The findings are more consistent with lumbar and cervical spine disc and facet joint degeneration."
13 An example of the expression of Dr Khurana's opinion appears in his report of 14 January 2020 extracted in the material before the Tribunal:
"There is no specific work incident-caused spinal trauma evident in all the MROs post- dating the reported incident. The findings are those of pre-existing degenerative change at L4/5 and L5/S1.
She had no spinal injury arising from her employment but she probably had a musculoligamentous strain at the time of the reported work injury, not unlike previous and subsequent incidents/events/symptomatic exacerbations."
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14 The Tribunal also recorded Dr Khurana as having stated that:
"any treatments beyond six weeks from the workplace incident/injury of 26/2/2016 were not properly required in relation to the 26/2/2016 injury, but rather the underlying spinal disease process (pre-existing and not specifically/structurally aggravated by the incident of 26/2/2016) and non work related aggravations."
15 The contrary opinion of Mr Hunn, relied on by the respondent, and as explained by the Tribunal in its reasons, was that the incident on 26 February 2016 rendered an underlying, but largely asymptomatic, back condition symptomatic. Mr Hunn's opinion, again as recorded by the Tribunal, was that "absent the incident, the worker would not necessarily have been symptomatic at any particular point after 26 February 2016 and therefore the incident had been important in the genesis of the current and ongoing symptoms (although not the only genesis)".
16 In summary, the material before the Tribunal revealed that there were competing explanations for the necessity for the surgery. On the one hand, that it resulted from an injury suffered by the respondent on 26 February 2016. On the other hand, that it resulted from the natural progression of an underlying degenerative condition, and possibly non-work related injuries or aggravations suffered both before and following the 2016 injury.
The Tribunal decision and the right of appeal
17 The Tribunal was satisfied that there was a conflict of medical opinion as required by s 49(3A)(a) and that both parties wished the proceedings to continue in accordance with s 49(3A)(b). Those findings are not challenged. However the learned Commissioner determined that the questions were not medical questions. She stated, at [44] of her reasons:
"I do not consider that the questions proposed by the employer are 'medical questions' as contemplated by the Act that would, in the circumstances, be appropriate for the Tribunal to refer to a medical panel. It is not necessary for me to determine whether there ought to be an exercise of the Tribunal's discretion for a referral to a medical panel to be made."
18 In any application for referral of a medical question to a medical panel two issues arise. The first is whether the question is a medical question which arises in the proceeding before the Tribunal. The second issue, which only arises if the first is answered in the affirmative, is whether the question should be referred to a panel or determined by the Tribunal. If a proposed question is not a medical question, the discretion given by s 49(3) of the Act to refer the question to a medical panel does not arise. This appeal concerns only the first issue. Although the reference in the Tribunal reasons to whether the questions were "appropriate" to refer to a medical panel creates some ambiguity, it is sufficiently clear that the learned Commissioner decided that the questions were not medical questions at all, and did not consider whether the discretion to refer the questions to a medical panel should be exercised.
19 Section 63 of the Act provides for a right of appeal to this Court if any party to a proceeding before the Tribunal is aggrieved by a determination or order of the Tribunal, but the right is confined to appeals "in point of law". Both grounds of appeal assert that the Tribunal's determination that the questions were not medical questions was an error in point of law. The first ground asserts, in substance, that the Tribunal erred by determining that a jurisdictional fact, a medical question, did not exist. The second ground asserts legal error on the basis that the only determination open to the Tribunal on the material before it was that the questions were medical questions in accordance with the terms of the Act.
20 In the factual and legislative context described, the questions proposed by the appellant for referral to a medical panel are either medical questions or they are not. As to the first ground of appeal,
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if the Tribunal mistakenly denied the existence of jurisdiction to refer the questions to a medical panel, the Tribunal committed jurisdictional error which is an error of law: Kirk v Industrial Court (NSW) [2010] HCA 1, 239 CLR 531 at 573-574 [72]. In any event, the respondent does not submit that the error identified by the appellant in ground 2, if established, is not an error in point of law. It was not a case in which the Tribunal was required to find facts one way or the other and apply the law to the facts as found. The only question before the Tribunal was whether the proposed questions fell within the legislative definition of medical question. The matter in issue was a question of law only: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J (as he then was). See also the recent comprehensive analysis of the distinction between questions of fact and questions of law by Bathurst CJ and Bell P in in Orr v Cobar Management Pty Limited [2020] NSWCCA 220, 103 NSWLR 36. Nor was the Tribunal considering the application or non-application of the common understanding of an expression used in a statute to facts that have been found, which is itself a question of fact: Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 at 450-451 [24]-[25], Comptroller- General of Customs v Pharm-A-Care Laboratories Pty Ltd [2020] HCA 2, 375 ALR 98 at [41].
21 If this Court decides, contrary to the conclusion of the Tribunal, that one or both of the proposed questions were medical questions, the Tribunal must have fallen into error in point of law.
Interpretation of the legislation
22 The task of statutory construction is to be undertaken in accordance with the principles recently
restated in R v A2 [2019] HCA 35, 269 CLR 507 by Kiefel CJ and Keane J at [32]–[37] and by Bell and
Gageler JJ at [124]. The Court is to consider the ordinary and grammatical meaning of the words used, taking into account both context and legislative purpose.
23 The appellant submits that the definition of medical question is an "open definition", and "not confined to certain types of medical questions." What is meant by reference to an open definition is not made clear. The function of definition sections is not to enact substantive law, but to provide aid in construing a statute: Kelly v The Queen [2004] HCA 12, 218 CLR 216. In general, if, as in the opening words of this definition, the word "means" is used, the definition is intended to be exhaustive. It is to be contrasted with provisions using the words "include" or "including" which, subject to any contextual or purposive indication to the contrary, are generally intended to enlarge, extend or expand the ordinary meaning of a word. Here, use of the word "means" in the definition of "medical question" in s 3 confines the scope of what is a medical question to questions "relating to" the matters specified in pars (a) to (g) of the definition.
The first question
24 The first question the appellant asked to be referred was "What was the injury suffered by the worker on 26 February 2016."
25 It is necessary to address the respondent's contention that the question is not a medical question because it did not "arise in the proceedings before the Tribunal." The contention should be rejected. The respondent's initial claim in 2016 for a "lower spine injury" was accepted by the employer. Referrals to the Tribunal in November 2017 in which the appellant sought to terminate or reduce the respondent's entitlements were resolved by agreement between the parties on the basis that the respondent's entitlements were continued. At issue in those earlier referrals was whether, pursuant to s 86(1)(c), the respondent had wholly or substantially recovered from the effects of her injury or whether her incapacity was no longer due to the injury. An employer who wishes to dispute liability to continue to pay compensation or benefits may apply to the Tribunal under s 81A(5) which provides:
"(5) Notwithstanding that liability has not been disputed in accordance with
subsection (1), an employer who wishes to dispute liability to continue to pay
compensation by way of weekly payments for an injury referred to in section 81(1) or7 No 4/2022
to pay the cost of any benefits payable under Division 2 of Part VI in respect of the injury may, at any time after the expiration of the period referred to in subsection (1), refer the matter to the Tribunal."
None of that means however that the nature of the respondent's injury is not in issue in the claim for payment of medical expenses.
26 An employer may make application under s 81A(5) to the Tribunal to dispute an ongoing liability to pay compensation or the cost of benefits. However, that does not mean that when a claim is submitted for payment of medical expenses, and the claim is properly disputed in accordance with the procedure expressly provided for by s 77AA, that an employer is prevented from arguing that the cost of the benefit does not result from a compensable injury. Section 77AA applies both when a claim for compensation has been accepted and when a claim is determined by a Tribunal. The terms of the dispute notice required under s 77AA(2) permit an employer to state that it disputes liability to pay only the expense to which the claim relates, expenses of a particular class, or expenses of any kind whatsoever for medical and other services. It is not argued that any issue estoppel arises. Questions of abuse of process aside, an essential issue in every dispute referred under s 77AA(5) will be whether the expense was not only reasonably and necessarily incurred by the worker, but whether it was incurred as a result of the compensable injury. Identification of the compensable injury is a necessary logical step in reasoning the answer to that question.
27 The first proposed question plainly falls within the ordinary and grammatical meaning of the words of par (a) of the definition because it is a question "relating to the existence, nature and extent of an injury." There is nothing in the legislative context or purpose which suggests that the ordinary meaning should not be attributed to the provision. The contrary is the case. The objects of the Act, stated in s 2A, are to establish a rehabilitation and compensation scheme for workplace injuries that, amongst other things, provides an effective and economical mechanism for resolving disputes relating to the treatment and management of, and compensation in relation to, workplace injuries, and is fair, affordable, efficient and effective. Other provisions of the Act are directed to fostering those objects by encouraging consideration and resolution of claims without the need for a full hearing before the Tribunal. Section 81A creates a prompt way of ensuring that an employer who wishes to dispute a claim has a reasonably arguable case. The parties to claims for compensation, other than those referred under s 81A, must undertake a conciliation process aimed at facilitating resolution: ss 42B and 42F. Conciliators have power to make a range of recommendations to a Tribunal, including to refer a medical question to a medical panel: s 42I(2)(e). Referral to a medical panel constituted by appropriately qualified independent medical practitioners is a means of facilitating the fair, expeditious and efficient determination of medical questions.
28 The learned Commissioner reasoned that the question was not a medical question because it:
"… is likely to require some findings of fact to resolve the conflict in the history of the
symptoms. That is not the task of a medical panel, but of the Tribunal following an
arbitrated hearing."
29 That approach was, with respect, in error. It reveals a misapprehension about the function of a medical panel and imposed a limitation, not stated or to be implied from the terms of the legislation, on the scope of what may be a medical question. It will commonly be the case that a medical question may involve disputed facts or competing contentions. The task of a medical panel, or similar statutory entities, is to determine a quintessentially factual issue and to make binding factual determinations on the material before it: NRMA Insurance v Keen [2021] NSWCA 287 per Leeming JA (with whom Basten CJ and Simpson AJA agreed) at [40]-[41]. The Tribunal's reliance on the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 252 CLR 480 as authority for the approach it adopted was misplaced. Contrary to the respondent's submission, Wingfoot does not support the conclusion reached by the Tribunal. In that case the Court made clear that a medical panel is not required to decide a dispute or make up its mind by reference to competing contentions or
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competing medical opinions. The nature and scope of the functions of a medical panel were described
by the Court at [47]:"The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise."
30 At issue in Wingfoot was the adequacy of reasons given by a medical panel for its answer to three medical questions, one of which in that case was "What is the nature of the [worker's] neck/cervical spine condition relevant to the alleged neck/cervical injury." The definition of "medical question" in the Victorian legislation which applied was detailed, and encompassed a question as to: "the nature of a worker's medical condition relevant to an injury or alleged injury." The legislation expressly contemplated that the questions of fact relevant to the medical question which were in dispute be specified to the panel. It was not argued, or suggested in the Court's reasons, that a question was not a medical question because it involved disputed questions of fact and opinion. The passage from the reasons just quoted makes clear why that is so, because the function of the panel was not arbitral nor adjudicative, it was to form and to give its own opinion on the medical question referred to it
31 The analogous Victorian provision was also considered in Chang v Neill [2019] VSCA 151, 62 VR 174. As was the case in Wingfoot, Chang v Neill considered a challenge to the determination of a medical question by a medical panel after the question was answered. However the reasoning of the Court illuminates the meaning of the term "medical question". A claim for weekly payments under the Act for a psychological injury arising from bullying by two co-workers in the course of the claimant's employment was referred to a medical panel for answer to questions including "What is the nature of the [applicant's] medical condition (including any sequelae) relevant to the claimed injury." A "medical question" in the legislation under consideration relevantly included questions as to "the nature of a worker's medical condition relevant to an injury", the "existence, extent or permanency of any incapacity of a worker for work" and "whether a worker's incapacity for work ... resulted from ... or was materially contributed to by an injury". In contrast to the Tasmanian legislation, the Victorian provision permitted a medical panel, if it became apparent to the panel that the formation of an opinion would depend substantially on the resolution of factual issues which were more appropriately determined by a court, to decline to give an opinion. The Court of Appeal applied Wingfoot in describing the nature and scope of a medical panel's functions. The Court stated at [49]:
"As appears from the provisions of the Act summarised at [12]–[19] above and the
observations of the High Court in Wingfoot set out at [34] above, a medical panel is different from many other statutory tribunals. This is because it does not adjudicate on parties' rights and obligations after engaging in an adversarial hearing. Rather, it answers medical questions referred to it by applying its expert medical knowledge after reviewing the information referred to it and, where it examines a worker, the information gathered in the course of the examination. It is true that the answers provided by a medical panel may be decisive in the determination of the parties' rights and obligations by the formal decision-maker. However, that does not detract from the
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distinctive characteristic of a medical panel as an expert statutory body that provides
answers to medical questions." [Footnotes omitted.]
32 Nothing said in Chang v Neill suggested that consideration of disputed factual issues relevant to the opinion sought from the medical panel served to remove a question from the scope of a medical question.
33 The definition of "medical question" in the Tasmanian legislation contemplates issues which may commonly require a panel to form its own opinion about issues of fact and opinion which may be in contention as between the parties. The existence, nature and extent of an injury is but one example. Assessments of capacity for work, par (c), or the degree of permanent impairment, par (f), are other obvious examples. In the determination of such questions, the history of events and symptoms given by an injured person will be relevant. The panel will consider the medical reports of other doctors who have treated or examined a worker. The reports may include reference to the medical history given by the worker to those doctors and will include the opinions of the doctors. A panel may take its own medical history from a worker and make its own assessment of the reliability of the history based on all of the material available to it. It will make findings from its own physical examination, and from its own viewing of current and historical x-ray and MRI scans and any other diagnostic testing or investigation made available to it. That a medical panel, in performing its function, may be required to undertake that process does not mean that the question is not a medical question. The provisions which permit the Tribunal to suspend the right to benefits if a worker refuses to comply or obstructs compliance, ss 54 and 55, imply that such powers are to sometimes be exercised in situations of conflict or disagreement. However, as Wingfoot demonstrates, the medical panel, having formed its own opinion, will not be required to explain why it did not form an opinion it did not form, or make a finding it did not make.
34 Determination of what "injury" was suffered by the respondent on 26 February 2016 may not be a simple task. As has already been suggested, the medical history may be contentious. It is self- evident that there are competing contentions about the conclusions to be drawn from all of the relevant material. The panel has a very limited time available to it to reach a determination. It is now six years since the injury was suffered. Such considerations may be relevant to the exercise of the Tribunal's discretion to refer the question to the Tribunal. However, they do not take this proposed question beyond the scope of a medical question when the terms of the definition so clearly apply to it.
35 In the present context, with one possible exception, the proposed question raises no issue about the causal connection between the respondent's injury and her employment. Identification of the respondent's 2016 injury is to be undertaken by reference to the legislative meaning of the term "injury" as defined in the Act, s 3, and as explained by Brett J in Bradshaw v Tasmania Networks Pty Ltd [2019] TASSC 41 at [23]. The terms of s 25 distinguish between the suffering of an injury, and the causal connection with employment which makes the injury compensable. Under s 25(1)(a), an injury, not being a disease, is not compensable unless it arose out of or in the course of employment. Under s 25(1)(b), an injury, which is a disease, is not compensable unless the worker's employment contributed to a substantial degree. As will be explained, the definition of "medical question" was amended on 30 June 2001. One change to the definition was to remove express reference to a question related to whether the employment of a worker contributed to a substantial degree to the injury suffered by the worker. The amendment supports a construction of the current definition such that assessment of whether employment contributed to a substantial degree to an injury which is a disease is not a medical question. It may be however, that, in one respect, the answer to a question requiring identification of the existence, nature and extent of an "injury" may still include determination of the degree of contribution of employment to it. According to the definition in s 3, "injury" includes "the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration." The existence of an "injury" in that relevant sense depends upon
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establishing the relevant connection to employment. Unless the connection is established, it is not an injury. However, the issue does not arise in this case because the appellant's liability to pay compensation to the respondent for an injury suffered on 26 February 2016 is not in issue. Liability was accepted and compensation was paid.
36 For those reasons, the Tribunal fell into error in point of law in determining that the first question was not a "medical question".
The second question
37 Different considerations apply to the second question the appellant sought to have referred. In substance, the respondent's contention, and the position taken by the Tribunal, was that the question is not a medical question because it requires resolution of disputed questions of fact which cannot properly be resolved without evidence of witnesses, as well as resolution of the potentially difficult and contentious issue of causation. For the same reasons as expressed earlier in these reasons about the proposed first question, the fact that the medical question may involve disputed facts or competing contentions does not mean that it is not a medical question. Self-evidently, medical questions arising in Tribunal proceedings will involve determinations about issues which are not the subject of agreement as between the parties. Medical opinion almost always depends on factual assumptions, inquiries or findings. The same purposive considerations, pointing to the efficient and economical resolution of disputes about workers compensation entitlements, apply with equal force.
38 In Bessell v AQA Oysters Ltd [2020] TASSC 29, 32 Tas R 304 the issue to be determined by Blow CJ was whether an injury "resulted in" the death of a worker. His Honour stated at [6]-[7]:
"[6] Thus compensation became payable in this case only if the back injury 'resulted in' the death of the worker. The principles applicable in applying the 'results in' test of causation are as summarised by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, where his Honour said, at 463-464:
'The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase "results from", is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death "results from" a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death "results from" the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.'
[7] The death or incapacity of a worker often does not have a single cause. The common law recognises that a single tortious act amounts to a cause of a person's injuries if it is established that the injuries were 'caused or materially contributed to' by that act: March v Stramare (E & MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ at 514. The question whether the requisite causal connection exists between a particular event and a particular asserted consequence is a question of fact that has to be resolved 'as a matter of common sense and experience': Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, per Deane, Dawson, Toohey and Gaudron JJ at 6."
39 Whether the surgery performed on 4 October 2018 was incurred "as a result of" the injury suffered by the appellant on 6 February 2016 is thus a question of fact to be resolved by examination of the causal relationship between the compensable injury, identified by the answer to the first question, and the necessity for the surgery, as a matter of common sense and experience. Whether that question
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is a medical question involves a more difficult question of statutory construction. The respondent contends that the often complex and combined issues of fact, law and opinion involved in the assessment of whether a state of affairs results from an injury takes the question beyond the proper scope of a medical question as defined in the Act.
40 The appellant submits that the question falls within the terms of par (g) of the definition as a
question "relating to … a medical service provided or to be provided to a worker for an injury, including
the adequacy, appropriateness or frequency of that service". Paragraph (g) is the only part of the definition of "medical question" which relates to the provision of a medical service and is the only part of the definition which could have application to the proposed question. The appellant contends that the definition should be read broadly. The terms, context and legislative history of the statute shed light on whether the contention is correct, but raise competing considerations. Some aspects of the terms, context and legislative history of the definition in s 3 of the Act support the broad construction contended for by the appellant. Other factors point to a more narrow meaning of the words "relating to", a meaning which does not extend to whether the expense was incurred as a result of an earlier injury.
41 In the broadest sense of its ordinary meaning, a question "relating to" a medical expense might incorporate almost any question about or concerning the expense. In O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356, the High Court considered the use of the term "in relation to" in the context of the provision in the Mining Act 1968-1983 (Qld) which gave exclusive jurisdiction to a Warden's
Court to "hear and determine all actions … arising in relation to mining …". The appellant relies on the
passage of the reasons of McHugh J at 376. His Honour said:
"The prepositional phrase 'in relation to' is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters."
42 McHugh J was in the minority in that case. Toohey and Gaudron JJ, with whom Dawson J agreed, adopted a somewhat narrower approach based on the context of the provision under consideration. They stated at 374:
"Although 'in relation to' is an expression of broad import, in context with 'arising' it presupposes a direct connexion between a presently existing action, suit or proceeding and mining or a mining tenement, not merely an incidental connexion."
43 The provision considered in O'Grady v Northern Queensland Co Ltd continued by specifying particular matters for which the Warden's Court had jurisdiction but expressly providing that they were "without limiting the generality of the foregoing jurisdiction." It was, thus, in the nature of an inclusive provision, to be contrasted with the definition in issue in this case. Moreover, the view expressed by McHugh J about the breadth of the words "in relation to" was subject to any contrary indication arising from the legislative history and the terms and context of the legislation.
44 In support of the contention that the proposed question goes beyond the scope of a medical question, the respondent points to the central importance of the question in both references and the proposition that the answer will be determinative of the so-called "ultimate question." As has already been explained, the only issue in dispute in the references to the Tribunal is whether the claimed expenses were incurred as a result of the work injury suffered on 26 February 2016. That being so, and in light of the agreement that the conclusions drawn about Mr Andrew Hunn's surgery on 4 October 2018 will apply to all of the expenses, the question of whether that surgery resulted from the injury will resolve the only question in issue. Because the answer to the question will be binding on the Tribunal, it will effectively determine whether the appellant is liable to pay the disputed expenses. Counsel for the respondent referred the Court to the decision of the Full Court of the Supreme Court of Western Australia in Ex parte Ansett Australia Ltd v Medical Assessment Panel (1998) 19 WAR 395. In that case a conflict of medical opinion was referred by a conciliator to a medical assessment panel
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constituted under the Western Australian workers compensation legislation. The legislation authorised referral of a question "as to the nature or extent of a disability, or as to whether a disability is permanent or temporary". The referral sought a report on the "extent of a disability", but the report prepared by the panel went further and set out the panel's view on the condition the worker had suffered and the worker's fitness for work. The Court quashed the decision on the basis that it went beyond the panel's jurisdiction. In the course of its reasoning the Court commented, at 399, that:
"Issues of causation are not issues as to the nature or extent of the disability and are
beyond power …
It seems to us that issues such as causation and fitness to work are equivalent to the
ultimate issue in a jury trial. It is the province of the tribunal of fact … to determinethose questions. It is not for the Panel to do so. The Panel is to decide questions that are referred to it and it does so to assist the tribunal of fact in coming to its ultimate conclusion. The task of the Panel is essentially diagnostic in character."
45 After describing the constitution and powers of the panel in the relevant legislation the Court
continued:
"… it would be a little surprising if the legislature had intended that issues such as
causation could be decided by the Panel in a way that would be binding on the employer
without giving the employer an opportunity to be heard on the issue."
46 According to the terms of the legislation the Court was considering in Ansett, the statements just quoted are, with respect, unsurprising. However they do not readily transpose into a different legislative context. It will not always be the case that, if the answer to the medical question will effectively resolve proceedings before a tribunal of fact, if that is what the Court meant by reference to the ultimate question, that the question is not a medical question. Put in the terms used in Ansett, a question may well be the ultimate question but, according to the terms of the legislation to be applied, still be a medical question which may be referred to a medical panel. A simple example demonstrates the point. In proceedings concerning a disputed claim for payment for a medical or related service, the only issue in contention might be the adequacy, appropriateness or frequency of the service. A question relating to those matters is, by definition, a medical question although the answer may be the ultimate question in the proceedings. Similarly, a question of the existence or degree of permanent loss of the effective use of a part of the body will in most cases resolve a claim for compensation for permanent impairment under s 71. Assuming the impairment to result from a work injury, the degree of impairment is the ultimate question, and again is a medical question by definition.
47 The respondent submits that the question, as it is expressed, does not arise in the proceedings when regard is had to the onus of proof provision in s 77AA(7). Application of an onus may, in questions to be decided by the Tribunal, give one party an advantage. The respondent suggests that she is in a better position, and conversely it is more difficult for the appellant, if the appellant must prove on the balance of probabilities that the expenses did not result from her injury. For that reason the respondent submits that the question is not whether the expense resulted from the injury, but whether the appellant has established that the expense did not result from the injury.
48 In my view, application of an onus, while possibly relevant to the exercise of the discretion to refer a medical question to a panel, is not relevant to whether a question is a medical question. The onus provision applies equally to the elements of the entitlement to payment of expenses which are medical expenses by express definition: the adequacy, appropriateness or frequency of a service. Other onus provisions are included in the Act. One example is s 49(2) which relevantly provides that in proceedings before the Tribunal the onus of proving an initial entitlement to a payment of compensation to a worker lies on the worker, and the onus of proving that a worker is no longer entitled to the payment of compensation lies on the employer. Medical questions may arise in either type of proceedings. Almost inevitably, in proceedings before the Tribunal, one party or the other will bear the onus of establishing the relevant question. A medical panel may be informed by the Tribunal of the existence of an onus,
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and a question might be framed having regard to it in an appropriate case. However, the question proposed here arises in the proceedings because it relates directly to the causal relationship between the compensable injury and the claimed expense. In light of the non-adversarial function to be performed by the medical panel, as explained in Wingfoot, it is not required to apply any onus in the determination of any question referred to it.
49 Use of the words "including the adequacy, appropriateness or frequency of that service" in par (g) of the definition adds an element of uncertainty in construction. As has already been explained, use of the word "includes" in a definition often indicates that the definition is not intended to be exhaustive. However "includes" is used in a number of different definitional senses in the Act, even within s 3. In some cases, as in the definition of "injury" or "worker", it extends the meaning of the term beyond its ordinary meaning. In some cases, as in the definitions of "place of residence" and "police officer", it avoids possible uncertainty by expressly providing for what might be uncertain cases. In par (g) of the definition of "medical question" the term "includes" does not seem to either extend the ordinary meaning of a question relating to a medical service or address uncertainty. Questions of the adequacy, appropriateness or frequency of a medical service would normally fall well within the scope of a question "relating to" a medical service. In the context in which they are used, they are illustrations of how the general words of the provision are to be interpreted. That is, the specific examples are illustrations of the general words indicating that the general words are limited to instances such as the specific matters referred to: D Pearce, Statutory Interpretation in Australia, 9th Ed (2019) at 4.40. The words provide a guide as to the class of questions which may properly be included as being "relating to" a medical service. A similar approach was taken by Cavanough J in Higgins v Weissman [2010] VSC 294. In that case his Honour reviewed the answers given by a medical panel to questions referred under the Victorian Accident Compensation Act 1985 to determine whether there was jurisdictional error. The legislation contained a definition of "medical question" included in par (ac), which read:
"(ac) A question as to the medical service provided, or to be provided, to a worker for an injury, including a question as to the adequacy, appropriateness or frequency of that service ...".
50 Cavanough J cited Lianos v Inner and Eastern Health Care Network [2001] VSCA 53, 3 VR 136 at 143 per Chernov JA in support of the proposition that the medical panel scheme "is designed to have medical people answer medical questions in place of the courts", and found it "noteworthy" that the examples in s 5(ac) "seem to be limited to questions about the medical or therapeutic aspects of the service."
51 The legislative history of the definition of "medical question" gives some indication as to its present meaning and scope. The workers compensation legislation was extensively amended by the Workers Rehabilitation and Compensation Amendment Act 2000 which came into effect on 1 July 2001. One of the amendments was to the definition of "medical question". Until then, the definition of "medical question" in s 3 read:
"medical question means a question relating to –
(a)
the fitness for work of a worker in respect of whom a claim for compensation has been made;
(b) the nature of an injury suffered by a worker; (c) the extent of the incapacity for work of an injured worker; (d) whether the incapacity of a worker is permanent or temporary; (e)
where a worker has suffered any permanent partial incapacity as a result of an injury, the nature and extent of that incapacity;
(ea) whether a worker's incapacity allows the worker to undertake suitable alternative
duties or participate in a rehabilitation program; or14 No 4/2022
(f) the duration of any period of incapacity resulting from an injury suffered by a worker; or (g) the nature or necessity of any treatment recommended or required to be undergone by a worker as a result of an injury suffered by the worker –
and includes a question relating to –
(h) the day on which an injury to a worker occurred; or (ha) the day on which a worker became totally or partially incapacitated by reason of
an injury; or
(i) whether the employment of a worker contributed to a substantial degree to an injury suffered by the worker."
52 Of particular note is par (i) of the definition. To understand the significance of that part of the definition it is necessary to refer to s 25. Under s 25, liability to pay compensation arises, as explained by Brett J in Bradshaw v Tasmania Networks Pty Ltd (above):
under par (a) if a worker suffers an injury which is not a disease, arising out of or in the course of
his employment; under par (b), if a worker suffers an injury, which is a disease and to which his employment
contributed to a substantial degree, that is, if it is the major or most significant factor: s 3(2A); under par (b) of the extended definition of injury in s 3 if a worker suffers the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration. 53 The effect of par (i) of the definition was that, prior to 1 July 2001, the question raised by s 25(b), which applied to an injury which was a disease, of whether the employment contributed to a substantial degree, was, by definition, a "medical question". No part of the definition suggested that whether an injury arose out of or in the course of a worker's employment, or whether employment was the major or most significant contributing factor to an aggravation etc, were medical questions. The 1 July 2001 amendments removed par (i) of the definition. The removal of par (i) suggests an intention to remove issues of causation from the scope of a medical question, at least as it applies to whether an injury suffered by a worker is compensable. In the second reading speech given in the House of Assembly on 23 November 2000 for the amending Bill, the Minister recorded the recommendation of the joint select committee into workers compensation that "the definition of 'medical question' should be redefined to limit it to purely medical issues". That recommendation was also in the context of other recommendations concerning the conciliation of claims. In that context it is likely that the amendment to the definition was intended to limit rather than broaden the meaning of "medical question".
54 The amendment to the definition on 1 July 2001 also changed the definition as it applied to payment of expenses for medical and related services, par (g). Prior to the amendment par (g) referred questions relating to "the nature or necessity of any treatment recommended or required to be undergone by a worker as a result of an injury suffered by the worker". After the amendment par (g) referred to questions relating to "a medical service provided or to be provided to a worker for an injury, including the adequacy, appropriateness or frequency of that service". Why the amendment was made and what was intended to be achieved by it is not readily apparent. The terms of the former par (g) seem to me to be narrower than the current definition because the earlier form of words suggests that the causal relationship between the treatment and the injury is to be assumed, and confines the question to the nature or necessity of treatment which is recommended or required. However, I do not think that much can be drawn from the fact and terms of that amendment which assists interpretation of the current provision.
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55 The terms of the current Tasmanian legislation may also be contrasted with legislation in other States which more readily incorporate broader issues of causation into the definition of "medical question". For example, the "elaborate and exhaustive" definition of "medical question" in the Victorian legislation considered in Wingfoot, the Accident Compensation Act 1985 (Vic), included "the nature of a worker's medical condition relevant to an injury or alleged injury"; "whether a worker's employment was in fact, or could possibly have been, a significant contributing factor to an injury or alleged injury, or to a similar injury"; or "the extent to which any physical or mental condition ... results from or is materially contributed to by the injury". The definition in the Victorian legislation now in place, the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), includes questions in the same terms.
56 In New South Wales, the Workplace Injury Management and Workers Compensation Act 1998, permits a "medical dispute" to be referred to a medical panel or medical referee. According to the statutory definition, medical dispute includes a dispute about "the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided)", and "whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion": s 319(a) and (d).
57 In South Australia, the Return To Work Act 2014 authorises referral of a medical question to an independent medical adviser. The definition of "medical question" refers to questions about permanent impairment and hearing loss, but also to "any other matter that the tribunal or a court considers should be subject to assessment or advice under this Part for the purposes of particular proceedings".
58 However, with due allowance for the arguments arising from the text, context and legislative history of the definition of "medical question", the broader interpretation contended for by the appellant
should be accepted. It is more consistent with the ordinary meaning of the words "relating to … a
medical service", and I do not see that the use of the additional words in par (g) restricts the meaning in what is otherwise an inclusive provision. A broader interpretation is consistent with legislative purpose of facilitating the fair, expeditious and efficient determination of medical questions earlier referred to. The Acts Interpretation Act 1931, s 8A(1), provides that an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not promote the purpose or object. An interpretation of the words "relating to" in the definition, as they apply to par (g), which permits referral of questions of causation is also consistent with at least one other part of the definition. The context in which the terms "as a result of", "results in" or "resulting from" are used elsewhere in the Act, give some indication, when considered with the definition, of whether issues of causation may be a medical question:
s 67 provides for payment of lump sum compensation "[w]here a worker dies as a result of an injury suffered by him or her and in respect of which his or her employer is liable to pay compensation under this Act";
s 67A provides for payment of weekly payment to dependants "[i]f a worker dies, as a result of
injuries in respect of which he or she is receiving compensation under this Act"; s 69 provides for calculation of benefits where "total or partial incapacity for work results from an
injury suffered by a worker"; s 69B(6) concerns calculation of a total period of incapacity "in the case of separate periods of
incapacity for work resulting from the same injury"; s 71(1) provides for payment of compensation to a "worker who suffers permanent impairment
resulting from an injury which entitles the worker to compensation under this Act";
s 71(3) applies to calculation of the degree of permanent impairment to "a worker who suffers an injury resulting in, or consisting in whole or in part of, the loss of a foetus that the worker has carried for at least 16 weeks since conception";
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s 72 concerns assessment of the degree of permanent impairment and, in subs (2)(d), provides that "an impairment arising otherwise than from the injury is not to be taken into account in assessing the degree of the impairment resulting from the injury"; s 75(1)(a), the provision relevant to this appeal, provides for the payment of "the reasonable expenses necessarily incurred by the worker as a result of his injury for medical services …"; s 75(1)(b) provides for payment of expenses "if the worker dies as a result of the worker's injury"; s 75(3) allows application to the Tribunal to determine a question which arises as to the necessity, period and level of payment for constant attendance services or household services said to be as a result of an injury suffered by a worker; s 97B concerns disputes between employers, and subs (5) applies where the "Tribunal finds that the
liability to pay compensation arose as a result of one or more injuries".59 In all of these provisions, including s 75(1)(a), determination of the causal relationship between an injury and a state of affairs will be a combined matter of evidence and opinion. One of those provisions, s 72, is expressed in terms which indicate that whether an impairment results from a compensable injury falls within the definition of "medical question". By par (f) of the definition, a question relating to the assessment of the degree of permanent impairment, including whether the impairment is permanent, is a medical question. According to s 75(2)(d), in assessing a degree of impairment of an injury, an impairment arising otherwise than from the injury is not to be taken into account in assessing the degree of the impairment resulting from the injury. Consequently, assessment of a degree of medical impairment, which is a medical question, may necessarily involve assessment of what degree of impairment "results from" an injury and what does not. In other words, the legislation, at least in that respect, supports a construction that a question requiring determination of the causal relationship between an injury and a consequence, is a medical question. Counsel for the respondent submitted that determination of the degree of permanent impairment involves differing considerations. However I am not persuaded that there is any material distinction between the determination of the causal relationship between an injury and impairment and injury and a medical expense.
60 Accordingly, I have concluded that the second question is also a medical question.
Result and disposition
61 For the foregoing reasons the appeal should be allowed and the order dismissing the application set aside. Because the Tribunal incorrectly decided that the questions were not medical questions, no decision has been made under s 49(3) about whether the medical questions should be determined by the Tribunal or referred to a medical panel. Counsel for the respondent submits that the questions should not be referred to a medical panel and asks this Court to make that decision. This Court may, by operation of rr 709 and 693 of the Supreme Court Rules, "give or make any judgment the Court or judge considers should have been given or made by the [statutory tribunal]". However, the discretion is for the Tribunal, as a specialist tribunal, to exercise and it expressly did not do so. It is not appropriate for this Court to exercise the discretion which the Tribunal did not exercise. Had this appeal been against the exercise of discretion it would have raised substantially different issues.
62 The application should be remitted to the Tribunal to be determined in accordance with the law. Counsel for the appellant submits that the Tribunal should be differently constituted. The respondent contends that the Tribunal need not be differently constituted. The principles which govern the power to remit to a different judicial officer or a differently constituted tribunal were reviewed and stated by Porter J in Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46, 22 Tas R 15 at [9]-[18]. See also the decision of Blow J (as he then was) in Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2012] TASSC 79. The power to direct remittal to a differently constituted tribunal is to be exercised sparingly and only when it appears that it is
17 No 4/2022
appropriate in the interests of justice. In this case, I consider it prudent to remit the question to a differently constituted Tribunal. Although the learned Commissioner stated that she had not exercised the discretion, comments were made in the course of her reasons which suggested that referral of the questions to a panel was not "appropriate". There is a risk that a fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to the resolution of that issue were it to be remitted to her.
63 I would order that the application be remitted to the Tribunal, differently constituted, for determination in accordance with the law.
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File No FCA 1919/2021
STATE OF TASMANIA v TERI ANN GRAVINA
| REASONS FOR JUDGMENT | FULL COURT GEASON J 23 March 2022 |
64 I have had the benefit of reading the reasons for decision of Pearce J. I agree with those reasons and the orders he proposes.
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