Turnbull v QBE Workers Compensation (Vic) Limited
[2014] VSC 263
•5 June 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2012 07078
BETWEEN:
| KATHLEEN TURNBULL | Plaintiff |
| - and – | |
| QBE WORKERS COMPENSATION (VIC) LTD and others | Defendants |
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JUDGE: | Mukhtar AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2014 | |
DATE OF JUDGMENT: | 5 June 2014 | |
CASE MAY BE CITED AS: | Turnbull v QBE Workers Compensation (Vic) Limited & Ors | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 263 | |
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ADMINISTRATIVE LAW – Judicial review − Certiorari − Opinion of Medical Panel − Adequacy of reasons – Error conceded by parties concerned − Court’s approach to making a consent order
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr A Ingram | Harris Liberman |
| For the first defendant | Mr R Kumar | Wisewould Mahony |
| For the second to fifth defendants | Mr B Butler, solicitor | Moray & Agnew |
HIS HONOUR:
Kathleen Turnbull suffered injury in the course of her employment on 28 October 2004. She claimed to have suffered the injury to her head, neck, left shoulder and arms. The circumstances were that she was stacking archive boxes of documents into a trailer which overbalanced and tipped towards her. A metal canopy frame on the trailer struck her.
She filed an originating motion in this Court on 19 December 2012 for judicial review and an order in the nature of certiorari to quash the Certificate of Opinion given by the Medical Panel with accompanying Reasons for Opinion on 6 November 2012.[1] The Panel’s opinion was sought under the Accident Compensation Act on a referral by the first defendant, QBE Workers Compensation (Vic) Limited, of the plaintiff’s application for continuation of weekly compensation payments.[2] There is no need to recite the history of payments, and their termination. Those matters are stated in the originating motion as amended.
[1]The Panel was bound to give written reasons under s 68(2) of the Accident Compensation Act.
[2]See s 93CD (4) (b) of the Accident Compensation Act.
There were two questions for the Panel’s opinion. The first was: “Is the worker likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury?” To that question, the answer given was: no. The second question was: “If not, what further employment or work is the worker capable of undertaking?” To that question, the answer was: “The Panel is of the opinion that the worker is capable of undertaking additional hours of work in her current employment as a business manager.”
The application for review was sought on multiple grounds. One ground was that the Panel erred in law by not giving sufficient written reasons to satisfy the statutory obligation under s 68(2) of the Accident Compensation Act.
According to my reading of the file, the progress of the proceeding was consensually held back because the parties were awaiting the outcome of an application for special leave to appeal to the High Court of Australia (from the Court of Appeal of this Court), in a case of Wingfoot Australia Pty Ltd v Kocak to be heard in May 2013. That application was obviously granted because the High Court heard the appeal and published its judgment on 30 October 2013.[3] That case raised questions about s 68 of the Accident Compensation Act and squarely considered the question of the standard required of a written statement of reasons for an opinion of the Medical Panel.
[3]See Wingfoot Australia Pty Ltd v Kocak (2013) 88 ALJR 52; [2013] HCA 43.
The hearing of this proceeding was fixed for 4 September 2014. By letter to the Registrar of this Court dated 7 May 2014, the solicitors for QBE Workers’ Compensation submitted a proposed consent order by which the plaintiff and QBE sought an order to quash the Panel’s opinion and remit the questions to a differently constituted medical panel to be reconsidered in accordance with law, together with an order that the first defendant pay the plaintiff’s costs. In accordance with the Court’s Practice Note No. 4 of 2009 for the Judicial Review and Appeal List, those parties also submitted a Joint Memorandum explaining the legal justification for the proposed orders.
The submission of a joint memorandum is something referred to by French J (as his Honour then was) in the Federal Court case of Kovalev v Minister for Immigration and Multicultural Affairs.[4] I shall make brief reference to this decision as it is pertinent to a request that has been made on behalf of the Panel.
[4](1999) 100 FCR 323; [1999] FCA 557.
Kovalev explains the significance of consent orders in a judicial review case and why it is that a judge making consent orders in such a case should be satisfied they are within power and appropriate. His Honour said –
(a)the Court is exercising judicial power in making a consent order, and in this type of case, it is the exercising of the Court’s supervisory jurisdiction which is of a public character;
(b)an order disposing of proceedings must be self-explanatory and not of uncertain content or the content of which is to be derived from materials which are not on the public record;
(c)there is a particular public interest which requires the Court’s specification of the error of law and the Court’s satisfaction that error occurred;
(d)where a consent order remits a matter to be decided “according to law”, it is fundamental that the Court is apprised of the nature of the error conceded, which in a practical sense, also gives the Tribunal the benefit of a direction what it is that the decision‑maker is required to do;
(e)there is no requirement for an exacting enquiry into the basis for every such order that is sought but, it is a minimum requirement in every case that the order should be expressed in clear and intelligible terms.
Kovalev concluded by saying that it is unnecessary in making a consent order that there should ordinarily be elaborate reasons given by the judge for being satisfied they were within power and appropriate. His Honour suggested that the parties seeking the order could submit a brief joint memorandum “identifying from the record those parts of the decision-maker’s decision or process which disclose the conceded error”.[5]
[5]At [19].
I have examined the Joint Memorandum. I think it is clear, explanatory and sufficient. Most importantly, I think it isolates the conceded error as being confined to a failure to give written reasons sufficient to comply with the statutory obligations under s 68(2) of the Accident Compensation Act. The Joint Memorandum identifies the conceded error as being an absence of a path of reasoning and identifies from the content of the opinion how and what way that absence is evident on the face of the opinion.[6] In so doing, the parties are adhering to the Wingfoot decision in two respects. First, if the reasons given are inadequate to meet the statutory standard, the Panel will have failed to comply with the statutory legal duty thereby making the opinion an error of law on the face of the record and error which would make available an order in the nature of certiorari. Secondly, the statute requires the Panel to explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.
[6]See paras 15–17.
If that was all there was to this case there would be no impediment to the Court acceding to the consent order. But the solicitors for the Panel have agitated for something in addition. They say that the Convenor of the Medical Panel and the Medical Panel neither opposes nor consents to the order, consistently with the Hardiman principle.[7] However they say that although the Joint Memorandum refers to certain passages from Wingfoot, it does not refer to a judgment of Kyrou J in Ryan v The Grange at Wodonga Pty Ltd.[8] The Court has been referred to paragraphs [159] to [165] of Ryan under the heading of “relevant legal principles” when it comes to determining the issue of inadequate reasons. I have considered those paragraphs. I do not regard the Joint Memorandum as being inadequate for not referring to Ryan. In the passages to which I have been referred, Kyrou J was stating concisely the relevant legal principles by reference to the law as it was stated in Wingfoot. The Joint Memorandum has made its contentions according to Wingfoot.
[7](1980) 144 CLR 13 at 35-36.
[8][2014] VSC 135. The Court is told an appeal was lodged in that matter.
In Ryan, the Court decided that the reasons in that case did comply with the Wingfoot test, concluding that: “The Reasons contain sufficient detail to enable this Court to decide whether the Opinion involves any error of law”.[9] That was that case.
[9]At [174].
In the present case, the reasons recite assiduously what the worker confirmed, what the worker said and described, what the Panel noted and considered. But the conceded error is that it came to a view notwithstanding the worker’s stated position without revealing why it rejected the worker’s stated position.
Further, the solicitors for the Convenor and the Panel request that, if the Court is satisfied with the proposed consent orders, the Court publishes reasons for the making of the orders consistently, they say, with Kovalev and Irwin v Military Rehabilitation and Compensation Commission.[10]
[10](2009) 174 FCR 577.
I have already referred to Kovalev. That says a judge should not ordinarily elaborate reasons for being satisfied the rules are within power and appropriate. There is nothing in this case which I think is extraordinary or manifestly arouses doubt about the appropriateness of the orders sought. For myself, I think there can be a real problem about giving reasons over and above those that are put forward by the parties. It would be akin to the Court giving an advisory opinion. The Court has not heard submissions and cannot undertake some additional adjudicative task particularly where the parties are not in dispute. I think what matters in this case is that the Joint Memorandum permits the Tribunal to understand precisely what it is that is said to be the nature or character of the error and what is to be revisited on the remittal.
As for Irwin, I do not see anything in that decision to alter the situation. That was an appeal from the Administrative Appeals Tribunal in which a Full Court of the Federal Court chose to give its own reasons for a consent order because there was a question about the competency of the appeal and the determination of the question of law was said to have an important practical consequence.
Accordingly, I would decline to give additional reasons, if that is what is sought by the Convener and the Panel. In this case I see it as the Court’s role to say that the orders are within power, appropriate, and when considered with the Joint Memorandum (which I think is clear and intelligible) will enable the Panel on a remittal to understand how and in what way it must determine the referral in accordance with law, in this case, the legal standard required under the statute for the adequacy of reasons. As a matter of formality it might be just as well to express the order so that it makes specific reference to the Joint Memorandum.
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