State Trustees v Transport Accident Commission

[2000] VSC 494

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 7028 of 2000

STATE TRUSTEES AS GUARDIAN FOR COLIN DICKINSON	Applicant
v.
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 NOVEMBER 2000
DATE OF JUDGMENT:	14 NOVEMBER 2000
CASE MAY BE CITED AS:	STATE TRUSTEES v. TRANSPORT ACCIDENT COMMISSION
MEDIUM NEUTRAL CITATION:	[2000] VSC 494

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CATCHWORDS:      Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal – No arguable error of law on part of Tribunal – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr. R. Gorton Q.C. and Mr. J. Gorton	Riordan & Partners
For the Respondent	Mr. G. Nash Q.C. and Mr. G. Lewis	T.A.C. Law Pty. Ltd.

HIS HONOUR:

1. This is an appeal from an order of a Master of this Court made 23 October 2000, whereby the Master dismissed the appellant's application for leave to appeal from an order of the Victorian Civil and Administrative Tribunal. On 5 September 2000, the Tribunal had ordered that a determination of the Transport Accident Commission made on 25 June 1999, to the effect that at that time the appellant had an impairment of 30 per cent within the meaning of the Transport Accident Act be set aside, and that there be substituted for it a determination that the appellant suffered a 45 per cent "of permanent impairment as a result of the transport accident on 6 January 1999".

1. It is contended by the appellant that the Tribunal erred in law by

1.        Failing to determine that Colin Dickinson's impairment was at least 50 per cent under part 3 of category 3, "Disturbances of Complex, Integrated Cerebral Functions" on page 63 of the American Medical Association Guides, 2nd edition;

2.        Failing to consider and to determine in accordance with law the appellant's submissions as to the construction of the criteria set out in part 3 of category 3 "Disturbances of Complex, Integrated Cerebral Functions" on page 63 of the American Medical Association Guides, 2nd edition;  and

3.        Failing to give proper reasons in relation to the appellant's submissions as to the construction of the criteria set out in part 3 of category 3 "Disturbance of Complex, Integrated Cerebral Functions" on page 63 of the American Medical Association Guides, 2nd edition.

1. It has long been the practice in this Court and the High Court, not to give reasons for granting leave to appeal in a particular case or for refusing leave to appeal.  The matter was adverted to by Fullagar, J. in Leighton Contractors Pty Ltd v. Kilpatrick Green Pty Ltd (1992) 2 VR 505.

1. Although that was a case in which the Full Court was determining an appeal from the decision of a single Judge of the Court whereby the Judge had refused leave to a party to appeal from an interim award of an arbitrator, his Honour's observations are equally applicable to an appeal from the decision of a Master of the Court refusing a party leave to appeal from a decision of the Tribunal.  At page 514 Fullagar, J. said: 

"I have spoken above of a yielding to temptation, and it is of course a natural and instinctive wish of judges to give reasons for their decisions, so that their decisions may be seen to be the rational dictate of the law rather than the result of their own individual opinions or prejudices.  But in this particular field, paradoxically, the giving of reasons may be seen to be decidedly inimical, in the long run, to the doing of justice between the parties, and especially so in modern times when every utterance of a judge is likely to be reported, or misreported in some book or self-styled law report.  If reasons are given, they will be seized upon as the laying down and application of a principle, rather than merely the application, to all the circumstances of the individual case, of a wide judicial discretion.  After the first half dozen reported decisions the discretion will begin to take on limitations and boundaries, and in the end there will be no discretion but only a complicated set of hard and fast rules of law manufactured entirely by the judiciary, although with the assistance of the reporters and commentators.  Compare Mallet v. Mallet (1984) 156 CLR 605 at pp.608-609, per Gibbs CJ.

In Antaios Compania Naviera S.A. V. Salen Rederierna A.B. (The Antaios) [1985] 1 AC 191 Lord Diplock, with whom the other Law Lords agreed, re-affirmed the guidelines given in The Nema, but he also added that a judge should not give reasons for granting or refusing leave to appeal from the arbitrator to the court, and with this addendum I would respectfully agree for reasons adumbrated above, although the addendum itself cannot be viewed as binding.  I understand that it has been the general practice in Victoria not to give reasons for refusing leave to appeal, but if this is not the general practice then it ought to be:  See e.g. Karenlee [1988] VR 614 at p.620. It is, I think, the more usual practice of our Full Court itself not to give reasons for refusing leave to appeal to this court, and in the past it certainly used to be the more general practice of the High Court not to give reasons for refusing special leave to appeal to the High Court."

1. Of course there may be cases in which it is appropriate for the Court to give reasons for the granting of leave to appeal, for example, where a Judge directs that the appeal be heard instanter and allowed.  In such cases it is appropriate for the Judge to state his reasons for granting leave as well as for allowing the appeal.  See for example Beneys and Another v. Delafotis and Another (No. 1) (1996) 2 VR 695.

1. But that is not the situation in the present case.

1. I have considered the reasons of the Tribunal for its determination which I should add run to some 16 typed pages.  I am not satisfied that it is arguable that the Tribunal made any error of law in the matter.  True it is that the interpretation of the guides to the evaluation of permanent impairment 2nd edition is a question of law but a determination as to the level of impairment is a determination of fact.

1. I consider that it cannot be successfully contended that the Tribunal made any error of law so far as its interpretation of the guidelines is concerned.  Further, that the finding of fact that the appellant's impairment was 45 per cent was clearly open to it on the evidence.

1. As to the contention that the Tribunal failed to give proper reasons in relation to the appellant's submission as to the construction of the criteria set out in part 3 of category 3 "Disturbances of Complex, Integrated Cerebral Functions" on page 63 of the American Medical Association Guides, 2nd edition, is concerned, I simply say that having considered the Tribunal's reason, in my opinion that contention cannot be sustained.  The reasoning processes of the Tribunal which led to its determination are disclosed with sufficient certainty to enable the appellant to know that the result ensued, and if one has regard to the whole of the Tribunal's reasons, I consider that it cannot be successfully contended that it made any error of law in the matter.

1. Accordingly, the appeal from the Master will be dismissed.  I order that the appellant pay the respondent's costs of the appeal including any reserved costs.

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