Summers v Director of Housing
[2013] VSC 233
•3 May 2013
| Send for Reporting | |
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 02060
IN THE MATTER of an application pursuant to section 3 of the Administrative Law Act 1978
BETWEEN:
| JOHN SUMMERS | Applicants |
| – and – | |
| DIRECTOR OF HOUSING and others | Respondents |
JUDGE: | MUKHTAR AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF JUDGMENT: | 3 May 2013 | |
CASE MAY BE CITED AS: | Summers v Director of Housing | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 233 | |
---
ADMINISTRATIVE LAW ― Administrative Law Act ― Decision of Medical Panel under Wrongs Act ― Reasons for determination published ― Request for reasons ― Application for review for jurisdictional error and for error on face of reasons as published ― Ancillary application for review for inadequacy of reasons ― Inadequacy of reason per se not a ground of review ― Administrative Law Act 1978, s 3, 4 and 8
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Wicks | Slater and Gordon Ltd |
| For the Defendant |
HIS HONOUR:
Mr John Summers has applied to the Court under s 3 of the Administrative Law Act 1978 (“the ALA”) for an order to review a decision made by a Medical Panel under Part VBA of the Wrongs Act. As is well known, the first step to a review is an application ex parte under s 3 for an order for review. To that end, under s 4, the applicant needs to show a prima facie case for relief under s 7. If granted, it is then a matter for the Court, on return of the order, to determine the merits of the application for review. The initial order may subsequently be discharged or, if sustained, the Court can grant any remedies as might be granted in proceedings for remedies under the prerogative writs, such as certiorari.
The underlying facts of the personal injury need not be exposed in any detail. It is sufficient to say for present purposes that Mr Summers, now 80 years old, suffered an injury in 2007 on premises leased to him from the Director of Housing, the first respondent. He claims he sustained a back injury and aggravated a pre-existing back injury when he dodged a cyclist riding on a public path outside his door; and in so doing, twisted his back and fell. He also claims to have suffered consequently an infection (medical term: cellulitis) in both his legs and feet. Under the Wrongs Act he cannot recover damages for non-economic loss unless he has “suffered significant injury”. The Medical Panel is there under that Act to form an opinion about the degree of impairment.
On 26 March 2013 the Panel made a determination. It published a certificate under s 28LZG (2)(a) of the Act that “the degree of whole person impairment resulting from the physical injury alleged in the claim does not satisfy the threshold level”. On the same date, it published written reasons for its determination. The function of the Panel is to provide an opinion on a medical question. It does not perform a judicial function. It has no obligation at common law to give reasons, and nothing in the Wrongs Act requires it to do so: see generally Colquhoun v Capitol Radiology.[1] The Panel’s opinion cannot be challenged on the merits but it is amenable to judicial review. And, there is no doubt the panel is a “tribunal” under the ALA and its determination is a decision under that Act.
[1][2013] VSCA 58.
Ordinarily an application for an order for review under s 3 of the ALA, as a first step, would not require published reasons. But, there is a history to this case and there was to my mind an aberrant feature about the application which has impelled me to expose how this application was put to the Court; and how it has been dealt with; and why. In particular, I have had real doubts about the further or alternative ground of review propounded by counsel for the applicant concerning the failure to furnish a statement of reasons or adequate reasons, to the point where I have decided that I would not order a review on that ground. That is, it is one thing to seek review on the grounds of jurisdictional error, or error on the face of the record on the basis of the reasons as given. But I do not think Mr Summers can also seek a review of the decision under s 3 of the ALA on the ground of inadequacy of reasons per se.
But first, I recount some procedural history that informs the Court’s caution here. In April last year, I granted a similar but not identical application to Mr Summers concerning an earlier determination of the Panel made on 6 March 2012 for the same injuries arising from the same incident. Even then, I circumscribed the grounds of review by confining it to the ground “whether the medical panel erred at law by not taking into account adequately or at all certain considerations relevant to the degree of impairment, that is, the alleged consequential infection in both legs and feet and/or vascular disorder and/or skin disorder affecting both legs and feet”.
On 7 September 2012, upon return of that order for review, Dixon J made that order absolute. That is, his Honour determined the panel did not take into account properly, or at all, Mr Summers’ injury constituted by the infection of his legs and feet.[2] His Honour said:
I do not consider that the panel did take into account properly, or at all, Mr Summers injury constituted by the infection of his legs and feet. Under the Guides, a class 1 skin disorder, in the range of 0% to 9% impairment may exist where signs and symptoms of skin disorder are present or only intermittently present and there is no limitation in the performance of few activities of daily living and no treatment or intermittent treatment is required. The nature of this injury and the extent of any impairment is a matter for a medical panel but I am satisfied that a medical panel’s determination may have been different had the condition of Mr Summers’ legs and feet and the question of any resulting impairment being addressed.
[2]See [2012] VSC 395 at [50].
His Honour quashed the panel’s determination and remitted the medical question to a differently constituted panel to be reconsidered based on the injuries described in the letter from Mr Summers’ solicitors to the Medical Panel Convenor dated 22 August 2011. In that letter the injuries were described as (see especially paragraph (d):
(a)Injury to the lumbar spine;
(b)Aggravation of lumbar disc degeneration;
(c)Referred pain into the lower limbs;
(d)Consequential infection in both legs and feet;
(e)Development of reaction depression;
(f)Pain and Suffering.
For the purposes of the remitted hearing, Mr Summers’ lawyers submitted a report of a dermatologist, Dr J. Yeatman. I isolate this sentence from that report …
Mr Summers’ reduction of mobility caused by the aggravation of his back injury on 12/7/07 and/or the need for hydrotherapy contributed to the inflammation and subsequent cellulitis of the legs and feet. This is a common picture seen in people with reduced mobility.
They also submitted a report of a plastic surgeon, Mr Stapleton. He said “profound cellulitis” was demonstrated in this case. I isolate these points from his statement:
· The diagnosis here is chronic cellulitis with reddened, tender skin and swelling of both legs.
· He will require permanent care for his cellulitis. I do not consider there will be any definitive treatment which will solve the problem. It is difficult to estimate a cost as a private patient for one can never be sure how many times, for example, he may need hospitalisation. For example, his cellulitic legs are much more vulnerable to injury, which may require him to be admitted to hospital for treatment and even possibly skin grafting.
On the remitted question, the Medical Panel gave its certificate on 26 March 2013, stating again that the whole person impairment did not satisfy the threshold level. The Panel published its reasons for that determination. The reasons are a nine page document and they are what they purport to be. The reasons were received by the plaintiff’s lawyers on 4 April 2013. But they then wrote to the Convenor of the Panel saying:
Pursuant to Section 8 of Administrative Law Act 1978, my client Mr Summers, being a person affected by the medical panel’s decision requests the medical panel to furnish him with a Statement of the Medical Panels reasons for the decision.
Section 8(1) says that “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. Under section 8(2) the request has to be made within 30 days of notification of the decision.” If the tribunal does not, the Court can under s 8(4) order the Tribunal to furnish a statement or further statement of its reasons. If there is non compliance with that order, then the Court “in addition to or in lieu of any order to enforce compliance by the tribunal … may make any such order as might have been made if error of law had appeared on the face of the record”.
The Convener did not response to the request but, I would say, not surprisingly so because without more the request is perplexing. The Panel had already published its reasons. Mr Summers may wish to say that those reasons as published reveal an error or something else that makes the decision impeachable on judicial review, but that is another matter. If it was meant to be a request for further reasons to overcome a perceived inadequacy of the reasons, that too is another matter. It is not what the letter said. Moreover s 8 of the ALA does not permit a first instance request for a further statement of reasons. As reasons had already been given, this was a strange request.
For all outward appearances this proceeding was an application under s 3 of the ALA for an order for review for reviewable error on the reasons as given. However, the affidavit in support of this application sworn by the plaintiff’s solicitor says he seeks an order under s 8(4) of the Act compelling the Tribunal to furnish a statement or further statement of reasons, and also says he seeks to have the decision quashed on the grounds of an error on the face of the record. But I should make it plain, the matter did not proceed as an application under s 8(4). It could not have anyway because a section 8 application is outside the authority of an Associate Justice.[3]
[3]See rule 77.01 2(a)(ii).
On the presentation of the application, the two became commingled. First and foremost, counsel sought an order to review under s 3 and 4 of the ALA on the ground that the reasons as provided show that the Panel disregarded relevant considerations and made no allowance for the consequential infection in both legs and feet. It was submitted that the reasons as provided show the tribunal failed to take into account adequately or at all certain considerations relevant to the degree of impairment from the alleged consequential infection in both legs and feet. The Panel reasons make a passing reference to Dr Yeatman’s report but do not undertake a consideration or give an explanation whether it accepted or rejected his opinion or that of the plastic surgeon Mr Stapleton, both of whom stated unequivocally that Mr Summers suffered from cellulitis affecting both legs as a consequence of injury. Further, it was submitted the reasons record that Mr Summers had not been treated with antibiotics for 12 months, yet they also record that his current medication regime included an antibiotic known as “Vibra-Tabs”. To compound that error, Mr Summers has sworn an affidavit saying in essence that on the physical examination by the Panel he told the doctors about his antibiotic therapy in hospital, and his use of Vibra Tabs antibiotics.
Thus the case for review is that those matters were required to be considered; they were manifestly not; and they could have in the aggregate led to a different finding about the significance of the injury and the degree of impairment. It was therefore an application under s 3 of the ALA for an order for review on the ground that there was jurisdictional error, or an error on the face of the record both of which would attract certiorari.
I am willing to accept for the purposes of s 3 and 4 of the ALA that Mr Summers ought be allowed to put a case forward on that basis. I will grant an order for review. I do so recognising that this is yet another challenge after a remittal, and it will prolong the matter but I cannot say refusal will impose no substantial injustice. On the face of it ― and I put it no higher ― it is curious that the panel’s opinion did not seem to concern itself with the affliction of cellulitis or deal with the two medical opinions.
But the plaintiff seeks to go further, and this is where the Court had its apprehensions. Mr Wicks of counsel submits, further or in the alternative that the reasoning process is inadequate and the panel may be compelled under s 8(4) of the ALA to provide further and better reasons. In his proposed orders (as revised), it is there put forward as a ground of review under s 3. That is, he seeks an order that the Panel show cause why its decision should not be reviewed on the grounds that the medical panel failed to furnish a statement or adequate statement of its reasons. Thus, as I understand the position taken, there is a double barrelled approach under section 3 of the ALA that –
(a)the reasons as furnished show an error on the face of the record, or jurisdictional error, in disregarding relevant considerations;
(b)but if not, or in any event, the reasons are inadequate and on a review the Court should order further reasons to enable the plaintiff to see if the decision does or does not involve any error of law.
The inconsistency or tension between the two is apparent. It is not a ground of review, that contrary to s 8, the tribunal failed to furnish adequate reasons. Section 8 stands independently of the review procedure under s 4 and 7. Moreover, under s 3 a person “affected by a decision” may seek review. The reasons are not the decision. One does not seek review of reasons.
It was submitted the double barrelled review approach (as I have called it) was justified or driven by the decision of Kyrou J in Sherlock v Lloyd.[4] I do not think that is so, although that case does require close reading. Sherlock concerned judicial review of a panel’s decision under Order 56 and not the ALA. It is important to see that the reasons in that case were provided pursuant to a request under s 8(1) of the ALA. In the application for review under O 56, the applicant put forward as a ground of review that the reasons were inadequate.[5]
[4][2008] VSC 450.
[5]At [10]
Sherlock stands for these propositions.[6] First, inadequacy of reasons is not a basis for quashing a panel’s decision in an application for judicial review under Order 56. Secondly, if a Medical Panel provides reasons pursuant to request under s 8 and the reasons (irrespective of whether they are adequate) disclose a jurisdictional error that error can be a ground for review under the Act. Thirdly, inadequacy of reasons in response to a request under s 8 of the ALA is not an error of law nor is it sufficient in itself to justify a review of a decision of a medical panel under the ALA. Sherlock means that if a request for reasons is made under s 8, and reasons are not given or are inadequate as given, then one must look to the ALA (not order 56) to see what can be done about it.
[6]At [25], [31], [33] and [34]
On the question of inadequate of reasons given in response to request under s 8, Kyrou J concluded:
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 a substantive ground of review) is the relief set out in s 8(4).
…
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 orders 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). [7]
[7]See [35] and [38]
Thus to my mind it comes to this.
First, although there was ostensibly or notionally a request for reasons under s 8, it was unreal or spurious because reasons had truly been given beforehand. The question is whether those reasons, inadequate as the applicant contends them to be, disclose the decision to be affected by an error on the face of the record or jurisdictional error. That is a substantive matter. That is properly a matter for review under s 3.
But secondly, if Mr Summers wants to also say the reasons are inadequate per se, that is not a matter for review under s 3. It is not a substantive ground of review. When Sherlock says such a complaint may be made “pursuant to” an application for review under s 3, it presupposes a legitimate request under s 8 had been made in the first place. That will be an issue here. Even then, as I read Sherlock in the passage I have quoted above, if on a properly grounded application for review under s 3 the reasons are not adequate to enable a Court to see whether the decision does or does not involve any error of law, then, on application, an order may be made on the return of the order nisi for relief by way of a further statement of reasons. But that is not a ground of review. And it is not relief under section 7, to which the review procedure in s 3 and s 4 is directed.
The outcome on this application is that the Court will grant an order nisi under s 3 requiring the respondents to show cause why the decision of the Medical Panel should not be reviewed on the grounds that it erred at law by not taking into account adequately or at all, certain considerations relevant to the degree of impairment from the alleged consequential infection in both legs and feet and, or skin disorder affecting both legs and feet. Any application, contingent on the outcome of that ground on the return of the order nisi, for relief by way of an order for further reasons is a matter for the applicant and the Court on the return of the order nisi. But it is not a ground of review.
In the interests of expedition, I have with these reasons redrafted counsel’s proposed orders so as to conform with the procedures in Practice Note No 4 of 2009. If the propose dates are suitable, this order will be authenticated without the need for a Court attendance. If not, the matter will be listed for mention on 7 May 2013.
---
0
2
0