Vellios Electrical Contractors Pty Ltd v Barton

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 1253 of 2013

VELLIOS ELECTRICAL CONTRACTORS PTY LTD
ALLIANZ WORKERS COMPENSATION (VICTORIA) LTD	Plaintiffs
v
DR DAVID BARTON & ORS	Defendants

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 October 2013. Last written submission filed 6 November 2013.
DATE OF JUDGMENT:	19 December 2014
CASE MAY BE CITED AS:	Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 664	Revision No 1 (19 December 2014)

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ADMINISTRATIVE LAW – Judicial review – Accident compensation – Medical Panel – Opinion as to past incapacity for work – Alleged failure to consider submission – Alleged absence of evidence for conclusion in favour of worker – Alleged inadequacy of Panel’s statement of reasons – Application for judicial review dismissed – Accident Compensation Act 1985 ss 5, 39, 45, 65, 68, 93, 93C, 97(7), 98C, 114, 114B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M F Fleming SC and Ms F C Spencer	Herbert Geer
For the Defendant	Dr M J Walsh and Ms J M Lontos	Slater & Gordon

HIS HONOUR:

Overview

This is an application for judicial review[1] of a certified opinion given under s 68 of the Accident Compensation Act 1985 (“the Act”) by a Medical Panel comprising the first to fifth defendants.[2] The opinion was given in response to a medical question relating to the sixth defendant, Mr Victor Vellios (“the worker”). The question had been referred to the Panel by a judge of the County Court under s 45 of the Act. The proceeding in the County Court involved a challenge under s 39 of the Act to a decision under ss 114 and 114B of the Act to terminate the worker’s weekly payments of compensation.
[1]Under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.
[2]After the Panel’s opinion was given, s 68 and numerous other relevant provisions of the Act were repealed and substantially re-enacted in the Workplace Injury Rehabilitation and Compensation Act 2013. However, it is appropriate to continue to refer to the provisions of the Act in the form they took at the relevant time.

The referral was a follow-up to a certified opinion given some eight months earlier by the same Medical Panel upon a referral in the same County Court proceeding. The Panel’s first opinion was to the effect that, as a result of a very old work-related back injury, the worker had “no current work capacity” (as defined in the Act), at least at the time of the first opinion. The first opinion has not been challenged. Under the Act, it serves to entitle the worker to the restoration of weekly payments of compensation under ss 93 and 93C of the Act in respect of the back injury from the time the opinion was given, at least. The second opinion, being the opinion now in question, unless set aside, would establish (or, on one view, confirm) that, as a result of the self-same back injury, the worker had had “no current work capacity” throughout the period after his payments were terminated; and thus that he is entitled, as well, to certain unpaid arrears of weekly payments of compensation.

The plaintiffs (who are also the defendants in the County Court proceeding) are the worker’s former employer (“Vellios Electrical Contractors”) and its authorised claims agent/insurer (“Allianz”). They contend, in relation to the second opinion, that the Medical Panel failed to take into account a certain written submission made by them to the Panel; that the Panel wrongly failed to medically examine the worker and to request further information from him; that the Panel’s conclusion was not legally open to it on the material before it; and that the Panel failed to give a proper and adequate statement of reasons.

In my view, the plaintiffs have not made out any of these grounds of challenge. Their case does not pay sufficient regard to the relationship between the first referral to the Medical Panel and the second referral, or to the history of the claim generally. In important respects, their arguments are at odds with the judgment of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (“Wingfoot”).[3] In addition, there are factual inaccuracies in the premises of their arguments. The application for judicial review should be dismissed.
[3](2013) 303 ALR 64.

Factual and procedural background

In 1989, when the worker was 29 years of age, he fell awkwardly down some makeshift stairs at work. He hurt his lower back and suffered lacerations to his left hand. He stopped working. He made a claim for weekly payments of compensation under the Act. The claim was accepted and weekly payments began. The worker has not worked since. The weekly payments continued uninterrupted until 1 December 1993 when they were terminated (for the first time) pursuant to a decision made by Allianz. Shortly thereafter, however, Allianz reversed its decision. Accordingly, the weekly payments were reinstated as from the date of termination.

Between 1995 and 2000 Allianz made a series of three or four additional termination decisions, but it reversed each one in turn.

In July 2003, after weekly payments had been made for some 14 years, Allianz made yet another termination decision. It was expressed to be effective from 20 September 2003. The worker quickly took the matter to conciliation. On 2 April 2004 the conciliator found that there was a genuine dispute. Accordingly, weekly payments were not reinstated on this occasion.

In the meantime, in or about March 2004, the worker had gone into custody on charges of theft and armed robbery. He remained in custody in relation to those matters until 20 December 2005.

Some two years later, in November 2007, the worker issued proceedings in the County Court in relation to the termination in 2003 of the weekly payments. It seems from the prayer for relief, though not from any other part of the statement of claim, that the worker was also making a claim for a lump sum impairment payment under s 98C of the Act. The prayer for relief reads:

(a)Weekly payments of compensation to be backdated and paid in accordance with the [A]ct from the 20 day of September 2003 to the 30 day of March 2004 and from the 20 day of December 2005 to date, continuing in accordance with the law.
(b)A declaration that the plaintiff has suffered a work related injury and suffered a serious and permanent injury to his lower back and suffers psychiatric depression and anxiety, and is entitled to compensation for serious injury, permanent impairment in accordance with [section] 98C of the Accident Compensation Act.

Presumably, the worker excluded the period from 30 March 2004 to 20 December 2005 from his claim for arrears because he had been in prison during that period. Weekly payments were not and are not payable in respect of any period spent by a worker in a prison while serving a sentence of imprisonment.[4]

[4]Section 97(7) of the Act.

In or about December 2007, the then defendants (the present plaintiffs) filed an undated defence to the worker’s claim. By that defence, they denied that the worker had remained seriously injured and incapacitated for employment due to the alleged injuries. In particular, they pleaded:

(a)the Plaintiff is no longer entitled to weekly payments because they have been paid or payable for an aggregate period of 104 weeks (whether consecutive or not) and the Plaintiff does not have a serious injury and the Plaintiff has a current work capacity;
(b)the Plaintiff’s incapacity for work no longer results from and is not materially contributed to by injury arising out of or in the course of the Plaintiff’s employment;
(c)the Plaintiff did not make every reasonable effort to return to work in suitable employment;
(d)the Plaintiff did not make every effort to return to work in suitable employment at a place of employment other than that of the Plaintiff’s employer;
(e)the Plaintiff did not participate in assessments of the Plaintiff’s incapacity, rehabilitation progress and future employment prospects when required by the Second Defendant or the Authority.

In August 2008 the worker gave notice of a request for the referral of four stated medical questions to a Medical Panel. The four medical questions were directed only to the worker’s claim for restoration of weekly payments, as distinct from his impairment claim. The notice was accompanied by written particulars and a written submission under s 65(6A) of the Act. The written particulars included several paragraphs of “Agreed Facts”, being facts which, for the purposes of s 65(6A)(b) of the Act, the worker stated he was satisfied had been agreed. In one of those paragraphs, namely paragraph 13, it was stated that:

The plaintiff has not returned to any work in any capacity since the injury.

The worker’s accompanying written submission asserted that, as a result of his alleged physical and mental injuries, he had been totally incapacitated for work at all times since the accident, and would remain so for the indefinite future. In or about August or September 2008 the then defendants filed and served a written submission in response.[5] That submission asserted that the worker had sustained an aggravation of degenerative disc disease as a result of the work incident; that any current back symptoms were not “still” related to the original injury but, more likely, to underlying degenerative change, subsequent accidents and unrelated psychiatric and social problems; that, in particular, a motorcycle accident in 1991 in which the worker suffered serious injuries to his right knee and a post-traumatic stress disorder impacted significantly on his current condition; and that any work contribution to the worker’s current state had “long ceased” to play a part in any incapacity that the worker may then have had. The submission then proceeded with legal and factual contentions relating to causation. It asserted (as an alternative) that, if the work episode was “still” materially contributing to the worker’s condition in some way, nevertheless the worker did not have “no current work capacity” that was “likely to continue indefinitely” as a result of any residual work effects. It referred to a report of the worker’s own general practitioner of September 1990 (prior to the motorcycle accident) which was said to have included a statement that the worker was (then) fit for light manual duties. Next, the submission turned to the statutory definitions of “current work capacity”, “no current work capacity” and “suitable employment” and judicial commentary thereon. It concluded by asserting that the worker’s current incapacity for work “no longer” resulted from and was “no longer” materially contributed to by the effects of the work injury of 11 July 1989.
[5]This submission was in the form of the copy document at pp 96-99 of the Court Book save that (as I was informed from the bar table) the reference to the year 2013 at the foot of that copy document was not included in the original document as prepared and submitted in 2008.

It appears that, later in 2008, the County Court made an order pursuant to s 45(1)(b) of the Act for a referral of the four medical questions to a Medical Panel. However, it was then discovered that in May 2008 the worker had once again gone into custody on criminal charges and that he remained in custody. As a result, in December 2008, the referral was suspended with a right of reinstatement.

On this occasion the worker stayed in prison until November 2010. On 25 November 2010 the parties consented to orders by the County Court reinstating the referral to the Medical Panel.

On 9 August 2011 the worker filed in the County Court and served an amended notice of request pursuant to s 45(1)(b) of the Act for a referral. In the amended notice, one of the medical questions had been amended so as to link it expressly to the injuries pleaded, and two further medical questions had been added. They related to the worker’s level of impairment when assessed in accordance with the AMA Guides to the Evaluation of Permanent Impairment. At the same time the worker also filed and served an amended notice of particulars pursuant to s 65(6A) of the Act. That document was in the same form as the corresponding 2008 document save that, under the heading “Agreed Facts”, new paragraphs 13 and 13A were substituted for the old paragraph 13, which is set out above. The replacement paragraphs 13 and 13A of the “Agreed Facts” read:

13Between May 2008 and November 2010 the Plaintiff served a prison sentence in relation to a criminal matter. The plaintiff continued to suffer from an incapacity arising from his injury during that time.[6]
13AIn November 2010 the plaintiff was released from prison. He has not returned to any form of work since that time.

[6]My emphasis.

In addition, the worker filed in the County Court and served an amended accompanying submission. It was in substantially the same terms as the 2008 submission. At some time between 9 August and 18 November 2011 the then defendants filed and served an amended submission in response to the worker’s amended submission.[7] It was not suggested in the then defendants’ amended submission that there was any error in the worker’s amended statement of agreed facts, which included paragraphs 13 and 13A as set out above. Moreover, the then defendants’ submission was identical to their 2008 submission save for the addition of two paragraphs (numbered 3 and 8 respectively). Those additional paragraphs referred to the worker’s most recent period of incarceration (2008 to late 2010). It was asserted in those paragraphs that the records of the correctional health service indicated that the worker had had “further difficulties” with his right knee during his latest period of incarceration. It was further asserted that those difficulties would impact on the worker’s work capacity. In addition, it was asserted that the records showed that the worker was “involved in a further motor vehicle accident in 2010”. It is clear now that that last assertion was incorrect. The worker had not been involved in a motor vehicle accident in 2010, but rather, as mentioned above, in 1991. Moreover, the 1991 accident was well covered in numerous medical reports that were sent to the Medical Panel as part of the first referral.
[7]Once again, the relevant copy document in the Court Book contains what I was told was a mistaken reference to the year 2013: Court Book pp 110-116.

On 18 November 2011 the Convenor of Medical Panels received from the County Court a revised referral which included the pleadings, the amended notice of request with the set of six medical questions, the amended particulars under s 65(6A), the amended submissions to the Panel of the parties and many other documents, including a host of medical and like reports.

On 13 December 2011, the Convenor wrote to the referring judge of the County Court, Judge Wischusen, pointing out that in the referral a reference to the worker’s “left hand” in medical question number 1 had been crossed out notwithstanding that “left hand” remained as an alleged injury in the plaintiff’s statement of claim. It was subsequently confirmed that the alleged injury to the left hand was not to be assessed in any way by the Medical Panel.[8]
[8]It was confirmed ultimately that the alleged injury to the left hand was to be disregarded not only in relation to the questions relating to the impairment assessment but also with respect to the questions relating to the claim for restoration of weekly payments.

On 22 December 2011, the Convenor of Medical Panels wrote to the parties enclosing two lists of documents (enclosures “A” and “B”) which together were proposed to be considered by the Panel.[9] The listed medical and like reports had dates ranging from 1989 to 2011. Included was a large quantity of clinical records from “Justice Health” (the health service of the correctional authorities) relating to the period of the worker’s incarceration between May 2008 and November 2010.
[9]See Court Book pp 120-123.

On 25 May 2012 the Panel delivered a certified opinion comprising the six referred questions, as amended, and the Panel’s answers thereto, as follows:

Question 1:
What is the nature of the Plaintiff’s medical condition relevant to the accepted injuries to the:
(a)       lower back
(b)       ~~injury to the left hand~~;
(c)       anxiety and depression
(“the injuries”)?

Answer:
(a)In the Panel’s opinion, the Plaintiff is suffering from persisting symptoms following a soft tissue injury of the lower back, in the setting of the lower lumbar disc disease, without radiculopathy or residuals, relevant to the alleged lower back injury.
(c)In the Panel’s opinion the Plaintiff is not now suffering any psychiatric medical condition relevant to the accepted anxiety and depression injury.

Question 2:
Does the Plaintiff have as a result of the injuries pleaded:
(a) a current work capacity as defined under the Act; or
(b) no current work capacity as defined under the Act?

Answer:
(a)       No.
(b)       Yes.

Question 3:
If the Plaintiff has no current work capacity, state whether the Plaintiff will likely continue indefinitely to have no current work capacity.

Answer:
In the Panel’s opinion the Plaintiff will likely continue indefinitely to have no current work capacity.

Question 4:
Does that Plaintiff’s incapacity for work (if any) result from, or is it materially contributed to, by the injuries?

Answer:
In the Panel’s opinion the Plaintiff’s incapacity for work is still materially contributed to by the accepted lower back injury.

Question 5:
What is the Plaintiff’s level of impairment as a result of the injuries when assessed in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (second edition)?

Answer:
In the Panel’s opinion the Plaintiff has a whole person impairment of 21% when assessed in accordance with with [sic] the American Medical Association Guides to the Evaluation of Permanent Impairment (second edition).

Question 6:
What is the Plaintiffs [sic] level of impairment enquired of in the previous question if regard is not had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the injuries?

Answer:
In the Panel’s opinion the Plaintiff has a whole person impairment of 21%, if regard is not had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the injuries.

As mentioned above, the plaintiffs have not challenged the validity of the Panel’s opinion of 25 May 2012. It is therefore final and binding. As a consequence, the worker became entitled to an order for the restoration of weekly payments, at least from 25 May 2012 and thereafter. However, according to what I was told from the bar table, when the matter returned to the County Court the then defendants submitted that the question of the worker’s capacity during the period from September 2003 to May 2012, and thus the question of any entitlement to arrears in respect of that period, remained alive.[10] They submitted that the six questions which had been referred to the Medical Panel in late 2011 had all been expressed in the present tense and that the Panel’s answers to those questions had likewise been expressed in the present tense. On that basis, the then defendants asserted that the opinion of 25 May 2012 did not establish that the worker had had “no current work capacity” during any part of the period between 20 September 2003 (the effective date of the termination of weekly payments) and 25 May 2012 (the date of the Panel’s opinion). The then defendants asked the County Court judge himself to determine that question, and thus to determine any entitlement to arrears, without a further referral to a Medical Panel. I was not told what submission, if any, was advanced on behalf of the worker as to the interpretation of the opinion, but I gather that the worker ultimately expressed a preference for a further referral to the Medical Panel rather than an independent determination by the County Court judge. In the end, his Honour determined that there should be a referral back to the Panel; and thereafter the worker lodged a formal request under s 45(1)(b) for the referral of a further question or questions accordingly (see further below).
[10]As indicated above, by virtue of s 97(7) of the Act there would be no entitlement in any event in respect of the substantial periods spent by the worker in prison between those dates.

I do not have available to me any contemporaneous record of the debate before the County Court judge about this issue nor any record of any reasons his Honour may have given. However, I consider that the submission apparently made to the County Court judge by the then defendants as to the interpretation of the Panel’s certified opinion of 25 May 2012 was by no means self-evidently correct. Even without hindsight, ie even without the benefit of the Panel’s second opinion and second set of reasons, one might well have interpreted the Panel’s first opinion as having sufficiently conveyed a conclusion by the Panel that the worker had had “no current work capacity” (as defined) throughout the period from the termination of his weekly payments (20 September 2003) until the date of the original opinion (25 May 2012); in fact, ever since the accident.

Apart altogether from the contemporaneous statement of reasons given by the Panel for its first opinion, such an interpretation would have been supported by the following matters, in combination: first, the fact that, except when he was in prison, the worker had been in receipt of weekly payments of compensation for some fourteen years, including twelve years subsequent to the expiry of the critical statutory period of 104 weeks following the accident; second, the fact that the proceeding in the County Court, and thus the referral to the Panel, arose out of a decision to terminate those payments (as distinct from a decision of an initial kind, such as a decision to refuse to grant a claim);[11] third, the fact that, in the parties’ respective sets of submissions to the Panel (which were substantially the same on both sides as between 2008 and 2011), neither party had bothered to distinguish between past capacity and present capacity; fourth, the fact that the worker’s initial challenge to the termination of his weekly payments (by referral to conciliation) had been made in a timely fashion (though its progress had been delayed for reasons that were, at least in part, understandable and obvious); fifth, the fact that substantial parts of the material (including the pleadings and submissions) provided to the Medical Panel as part of the original referral related or referred to the period in question, including the statement of the agreed fact that the worker “continued to suffer from an incapacity arising from his injury” during the time he was in prison between May 2008 and November 2010; and, sixth, the very terms of the Panel’s original certified opinion, especially its answer to question 4 wherein the Panel stated that the worker’s incapacity for work was “still” materially contributed to by the accepted lower back injury, and its answers to questions 5 and 6 wherein the Panel impliedly indicated that the worker had a permanent impairment (at the level of 21 percent) as a result of the 1989 injury to his lower back, alone.
[11]See s 39(1AA) of the Act. The worker’s statement of claim in the County Court expressly referred to the 2003 termination decision, the referral to conciliation and the conciliation outcome certificate of April 2004.

In addition, to the extent that the original opinion might have been ambiguous, it would have been legitimate to interpret the opinion in the light of the contemporaneous statement of reasons that the Panel gave for the opinion.[12] In that statement of reasons, the Panel noted that it had taken into account not only the physical and psychological examinations of the worker which had been carried out by the members of the Panel but also the history that the worker had provided, the statutory particulars, the medical reports and like documents and the parties’ written submissions. The Panel expressly referred to numerous aspects of the worker’s history dating back to 1978, including his drug-taking, his criminal offences and his periods of imprisonment. It referred to the circumstances of the accident. It considered radiological imaging from 1989, 1991, 1994 and 2006. It referred to the worker’s current symptoms. It concluded that the worker was suffering from “persisting” symptoms following a soft tissue injury of the lower back, in the setting of lower lumbar disc disease, without radiculopathy or residuals. From a psychological point of view, the Panel found that the worker may have previously suffered from an adjustment disorder but that this was now in remission, it having been treated for the previous ten years with anti-depressant medication. The Panel further concluded that the worker was not capable of performing his pre-injury duties as an electrician having regard to the extent of the limitation of activity imposed by his “ongoing” back condition. The Panel went on to refer to the “persistence of symptoms since onset” and concluded that the worker’s “persisting symptoms following a soft tissue injury of the lower back” were “still materially contributed to by the accepted lower back injury”. The Panel said that it therefore concluded that the worker’s “incapacity for work” results from and is “still” materially contributed to by the back injury. The Panel proceeded to consider the statutory definitions relevant to the concept of incapacity, and it had regard to the various vocational reports supplied with the referral. The vocational reports had been completed in 2000 and 2002. The Panel concluded that the worker had “no current work capacity”.
[12]Lianos v Inner and Eastern Health Care Network (2001) 3 VR 136, 143 [22 (the sentence in parentheses)], 145 [29 (last sentence)], (Chernov JA, with whom Tadgell and Batt JJA agreed).

It is unnecessary to consider whether, or to what extent, the Panel’s first certified opinion might in law have precluded any judicial or other decision-maker from proceeding on the basis that the worker had had a capacity for work during any period between the date of the accident and 25 May 2012.[13] However, it seems to me that, in the course of the first referral, the parties had in effect already addressed the question of the worker’s past capacity and the Panel, for reasons which were quite apparent, had formed the view that, as a result of the back injury alone, the worker had had “no current work capacity” throughout the period since the 1989 accident.
[13]Compare Ajinvan Pty Ltd v Fry (2001) 3 VR 644; Kumar v QBE Mercantile Mutual Workers’ Compensation [2006] VSCA 103 (10 May 2006); Wingfoot (2013) 303 ALR 64, 75-6 [36]-[37], [39]-[40]; McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293 (21 November 2014), [53]-[64].

Nevertheless, the second referral proceeded.

Initially, the plaintiff’s request was for the referral of two further medical questions as set out in the request. However, it was later determined, apparently, that the second proposed question added nothing to the first. It was omitted. The second referral was received by the Panel on 20 November 2012.

The single question referred was as follows:

1 Did the Plaintiff have as a result of the injuries pleaded:
(a) no current work capacity as defined under the Act;
(b) a current work capacity as defined under the Act;

between 20 September 2003 and 25 May 2012, or any part of the period thereof?

The statement of particulars under s 65(6A) of the Act dated 25 October 2012, as prepared by the worker’s solicitors, read as follows:

The parties refer to the:
(a)Notice of request pursuant to s 45(1)(b) of the Act dated 9 August 2011;
(b)Notice of particulars pursuant to s 65(6A) of the Act dated 9 August 2011;
(c)Plaintiff’s statement/submission pursuant to s 65(6A) of the Act dated 9 August 2011;
(d)Medical Panel Certificate of Opinion and Reasons dated 25 May 2012 (with document enclosures “A” and “B”).

The Medical Panel is asked to answer the attached medical questions [sic, plural] which relate to past period of entitlement. On about 18 November 2011 his Honour Judge Wischusen referred the medical questions to the Panel together with all relevant documentation (as set out in enclosures “A” and “B”).
The question upon which the Medical Panel is to provide opinion is the Plaintiff’s incapacity for work for the period before 25 May 2012 when the Medical Panel provided its Certificate of Opinion.
The parties also refer the Medical Panel to the s 65(6A) statement dated 9 August 2011 which sets out the accepted injuries, the agreed facts[14] and the disputed facts.

[14]My emphasis.

The worker’s solicitors’ submissions under s 65(6A) dated 25 October 2012 were very short. They read as follows:

The Plaintiff refers to and repeats its submissions dated 9 August 2011, as provided to the Medical Panel by His Honour Judge Wischusen on about 18 November 2011, and contends further that:
1The Medical Panel, in its Certificate of Opinion dated 25 May 2012, accepted that:[15]
[15]A footnote inserted here read: “See questions 2 and 3 of the [worker’s] first Medical Panel referral dated 15 August 2008”.
(a) the Plaintiff has no current work capacity;
(b)such incapacity is likely to continue into the foreseeable future.

2It is implicit in the Medical Panel’s Opinion that the incapacity found by the Panel existed since September 2003 when the Plaintiff’s weekly payments of compensation were terminated by the Second Defendant.[16]
3The Plaintiff has continued to demonstrate incapacity for all work since 30 July 2003, being the date of the notice terminating the Plaintiff’s weekly payments.
4Further, the Plaintiff has had periods of incarceration and was most recently released from prison on about 4 November 2010. Since that time, he has continued to demonstrate a total incapacity for all work and has not returned to any form of employment.
5A finding of no current work capacity since July 2003 is the overwhelming conclusion the Panel should reach.

[16]My emphasis.

The then defendants filed and served a submission in reply dated 1 November 2012. That is the document which they now claim the Medical Panel failed to take into account, sufficiently or at all. In the circumstances, it is desirable that I set out the whole of the written submission. It read as follows:

1 On 25 May 2012, the Medical Panel provided an opinion that:
(a)the plaintiff was suffering from persisting symptoms following a soft tissue injury to the lower back, in the setting of lower lumbar disc disease, without radiculopathy or residuals, relevant to the alleged lower back injury;
(b)the plaintiff was not now suffering any psychiatric medical condition relevant to the accepted anxiety and depression injury;
(c)the plaintiff had no current work capacity;
(d)the plaintiff was likely to continue indefinitely to have no current work capacity;
(e)the plaintiff’s incapacity for work is still materially contributed to by the accepted lower back injury;
(f)the plaintiff had a whole person impairment of 21 percent when assessed in accordance with the AMA Guides (Second Edition).

2The plaintiff’s weekly payments of compensation were terminated as of 20 September 2003.
3Whilst the Panel’s opinion has to be adopted and applied by the parties as of 25 May 2012 (the date of the certificate of opinion), the Panel have not provided an opinion with respect to the plaintiff’s work capacity during the period from 20 September 2003 to 25 May 2012.

4        The Panel is now asked to provide an opinion as to whether:
(a)       the plaintiff had no current work capacity; or
(b)       no current work capacity [sic]:
between 20 September 2003 and 25 May 2012.
5If the Panel does not believe it can provide an opinion with respect to this issue, the Panel should state that it is unable to answer this medical question.
6As of 20 September 2003, the plaintiff had just turned 44. He was still at an age when his employment prospects should have been considered as reasonable, as distinct from what the Panel has now opined as to the plaintiff’s current work capacity.
7It is submitted that the employment options identified in the vocational assessments performed in 2000 and 2002 were realistic. If the plaintiff had been motivated at that time rather than intent on leading a life of crime, he should have had the capacity to perform the suggested options.
8It is submitted that the plaintiff’s apparent incapacity since 1989 and, in particular, from 20 September 2003 to 25 May 2012, has been significantly contributed to by his criminal activities and resultant terms of imprisonment. During this period the plaintiff’s lifestyle would have curtailed and severely hampered any employment prospects that he may have had, whether such work was available or not.
9The fact that the plaintiff was unemployed during this period clearly resulted from his dysfunctional lifestyle rather than as a result of persisting symptoms following a soft tissue injury of the lower back.
10The plaintiff told the Panel that he had been in prison in the following periods:
•        a week in 1993;
•        four months in 1994;
•        1997 to 2000 for drug trafficking;
•        2000 to 2001 for 11 months for breaching his parole;
•        2004 to 2005 for 20 months for armed robbery; and
•        2008 to November 2010 for armed robbery.

11The defendants have provided the Panel with three court decisions concerning the plaintiff and his criminal background dating back to 1997.
12On 28 September 1998 the plaintiff pleaded guilty in the County Court to drug trafficking in heroin. The period of trafficking was from 12 March 1997 to 22 August 1997, the date of his arrest. On 12 October 1998 the plaintiff was sentenced to a term of imprisonment of four years and nine months with a non-parole period of two years and eight months. As of that date the plaintiff had been in pre-sentence detention for a period of 416 days. (see Supreme Court of Victoria ‑ Court of Appeal decision [1999] VSCA 163).
13Upon release the plaintiff breached his parole obligations and, as he told the Panel, was imprisoned for a further 11 months in 2000/2001.
14On 14 September 2004, the plaintiff was sentenced to an effective period of three years and three months’ imprisonment with respect to one count of theft, two counts of attempted armed robbery and two counts of armed robbery. There was a minimum non-parole period of 21 months. The offences took place on 29 March 2004 and 31 March 2004. As of the date of the sentence the plaintiff had been in pre-sentence detention for a period of 167 days. (see County Court decision of Judge White – R v Vellios delivered 14 September 2004).
15In sentencing the plaintiff, Judge White noted that the plaintiff had admitted to 17 court appearances commencing in December of 1983, with there being a ten year gap until February 1994, and that the plaintiff had had a total of some 45 convictions. After the ten year gap, the plaintiff’s offending had recommended following the breakdown of his marriage and separation from his wife and son. Judge White also commented that, in the past, the plaintiff had been leniently treated by the courts and had received a number of suspended sentences.
16On 18 December 2008, the plaintiff was sentenced to an effective period of three years and six months’ imprisonment with respect to one count of armed robbery, one count of causing injury recklessly and summary charges of going equipped to steal and driving whilst his licence was suspended. There was a minimum non-parole period of two years and four months. The offences took place on 4 May 2008. As of the date of the sentence the plaintiff had been in pre-sentence detention for a period of 228 days. (see County Court decision of Judge Hicks – R v Vellios delivered 18 December 2008).
17In sentencing the plaintiff, Judge Hicks commented that, during the breakdown of the plaintiff’s marriage and, at the age of 35, the plaintiff started to abuse heroin. In particular, his Honour stated that from the commencement of taking heroin, the plaintiff’s life spiralled downwards and the plaintiff committed many criminal offences.
18In attempting to assess the plaintiff’s work capacity during the period from 20 September 2003 to 25 May 2012, the Panel is asked to consider that, but for the plaintiff’s criminal activities, he should have had a capacity for suitable employment. Whether such work was available or not was irrelevant.

It seems[17] that the worker lodged a submission dated 14 November 2012 in response to the then defendants’ submission, but no copy of it was included in the evidence before me nor was any mention made of it in the hearing before me. The Panel delivered its opinion and reasons for opinion on the second referral in January 2013.
[17]See the schedule of attachments in “Enclosure A” to the Panel’s reasons of January 2013.

The Panel’s second opinion was as follows:

Question 1. Did the Plaintiff have as a result of the injuries pleaded:
(a) no current work capacity as defined under the Act;
(b) a current work capacity defined under the Act;
between 20 September 2003 and 25 May 2012, or any part of the period thereof?

Answer:(a) In the Panel’s opinion the Plaintiff had no current work capacity between 20 September 2003 and 25 May 2012;
(b) No.

Whereas the Panel’s reasons for its original opinion had been set out at some length, the reasons for the second opinion were relatively short. They read as follows:

1.The referral to the Medical Panel was received on 20 November 2012. The documents considered by the Panel are described in Enclosure A.
2.A previous referral of medical questions to the Medical Panel was received on 18 November 2011, and an amended referral dated 15 August 2011 and the Medical Panel issued a Certificate of Opinion and Reasons for Opinion, ref: M 111/3408 dated 25 May 2012 (“the previous Opinion”).
3.The reasons for the Panel’s opinion are as follows:
The Panel noted from the referral that it is now asked to consider a [sic] whether the Plaintiff had, as a result of the injuries pleaded, no current work capacity or a current work capacity between 20 September 2003 and 25 May 2012, or any part of the period the period [sic] thereof.
The Panel considered that it was not necessary to meet with the Plaintiff again or obtain any further medical or other material to answer the further medical question.
The Panel reviewed the material and submissions provided to the Panel with the previous referral and reviewed its previous opinion.
The Panel noted
•The Plaintiff sustained an injury to his back and left hand on 11 July 1989 when he fell down some stairs and landed on his back.
•The Plaintiff ceased work and has not returned to work since that day.
•The Plaintiff also sustained injuries as a result of a motor bike accident in 1991.
•The Plaintiff has served terms of imprisonment during the period in question as detailed in the previous Opinion.
•The Panel concluded that the Plaintiff was suffering from persisting symptoms following a soft tissue injury of the lower back, in the setting of lumbar disc disease, without radiculopathy or residuals, relevant to the alleged lower back injury.
•The Panel concluded that the Plaintiff had no current work capacity when the Plaintiff was assessed by the Panel on 12 January 2012 and 1 May 2012, based on a consideration of the aspects of the definition of “suitable employment”, “current work capacity” and “no current work capacity” in the Accident Compensation Act 1985 and the plaintiff’s condition was unlikely to significantly improve in the foreseeable future and he was therefore likely to have no current work capacity indefinitely.

Based on the history, the Panel’s findings on examination its review of the imaging and other medical material contained in the referral and notwithstanding the further injuries sustained by the Plaintiff as a result of the motor bike accident in 1991, the Plaintiff’s lower back was affected by the incident on 11 July 1989 and his symptoms have persisted unabated since that time. The Panel considers that while there may have been some variation of his symptoms from time to time the nature and severity of the Plaintiff’s lower back condition has been such that the Plaintiff has had no current work capacity since sustaining his injury in 1989.
The Panel therefore concluded that the Plaintiff had no current work capacity between 20 September 2003 and 25 May 2012.
In accordance with the decision of Minter Ellison v Darbyshire and Ors [2012], when determining whether the Plaintiff has a current work capacity or no current work capacity the Panel did not consider any medical condition other than the worker’s workplace injuries which create an entitlement to compensation under the Accident Compensation Act 1985.

The plaintiffs’ submissions

In paragraph 3 above I refer briefly to the alleged acts or omissions of the Panel about which the plaintiffs complain. In their written outline of submissions to this Court,[18] the plaintiffs summarise and categorise those complaints under certain administrative law headings, as follows:

The Panel denied the plaintiffs procedural fairness by failing to address or deal with the plaintiffs’ case as set out in its submissions. Alternatively, by failing to take the submissions into account, the Panel failed to take into account a mandatory consideration. In concluding that the worker had no current work capacity between 20 September 2003 and 25 May 2012, the Panel fell into further jurisdictional error by arriving at a conclusion which was not open to it and/or by asking itself the wrong question and/or misunderstanding its jurisdiction. The Panel’s failure to provide adequate reasons for its decision is a further reason why relief in the nature of certiorari should be ordered.

Alleged failure to consider the plaintiffs’ submissions to the Panel[19]

[18]At [3].

[19]Ibid, [17]-[27], [41]-[46].

Uncontroversially, the plaintiffs submit that Medical Panels are bound to observe the rules of natural justice, including hearing a person before making a decision affecting the person’s interests.[20] They acknowledge that what fairness requires will vary depending on all the circumstances and on the construction of any applicable statute.[21]
[20]Citing Masters v McCubbery [1996] 1 VR 635.
[21]Citing Kioa v West (1985) 159 CLR 550, 584 (Mason J).

The plaintiffs submit that a Medical Panel may breach the hearing rule if it fails to give proper, genuine and realistic consideration to material matters advanced by a party[22] or if it fails to address or “deal with” material matters raised by a party.[23] In such a situation, the plaintiffs submit, the aggrieved party will have been denied a fair opportunity to be “heard” because the Panel will have failed to properly consider the merits of the matter before it.[24]
[22]Citing Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 (13 December 2006), [51], [56], [59] (Basten JA) (“Azriel”).
[23]Citing Plaintiff M 61/2010E v Commonwealth (Offshore Processing Case) (2010) 243 CLR 319, 356 and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, [23]-[24], [95] (“Dranichnikov”); LVR (WA)Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166, [124], [13], [142]-[145] (“LVR”). The plaintiffs observe that although the alleged error in LVR was framed as a failure to take into account a relevant consideration the Full Federal Court appears to have approached the matter according to the above authorities.
[24]Citing Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164, 175-176.

Further, the plaintiffs submit, a failure to deal with an important aspect of a party’s case may also amount to a constructive failure to exercise jurisdiction.[25]
[25]Citing Dranichnikov (2003) 77 ALJR 1088, [23]-[24], [32], [88] and [95]; Goodwin v Commissioner of Police [2012] NSWCA 379 (22 November 2012), [19]-[20], [104]-[108]; LVR (2012) 203 FCR 166, [142]-[144].

The plaintiffs submit that once a breach of procedural fairness is established, a court should only refuse relief if

(a) upon analysis of the basis for the decision there is an incontrovertible fact or point of law which provides a discrete basis for the decision which cannot be affected by procedural fairness; or

(b) the respondent can demonstrate that it would be futile to hold a further trial because the result would inevitably be the same.[26]

[26]The plaintiffs here cite many well-known authorities for this proposition. The proposition must be read subject to the equally well-known principle that relief in the nature of certiorari is generally discretionary.

Further or alternatively, in accordance with paragraph 10 of the originating motion, the plaintiffs submit that the Panel fell into jurisdictional error by failing to take into account a consideration it was allegedly bound in law to have regard to, namely the submission dated 1 November 2012.

The plaintiffs concede that this ground can only be made out where a decision-maker fails to take into account a consideration he or she was bound to take into account having regard to the applicable legislation.[27] The plaintiffs’ written submissions under this heading continue as follows:

Although it is generally for the decision-maker to determine the appropriate weight to be given to a mandatory matter,[28] taking a relevant consideration into account calls for more than mere advertence or lip service.[29]
Use of the language “proper, genuine and realistic” to describe what is involved in taking something into consideration has been criticised as risking a slide into impermissible merits review.[30] Nevertheless, the obligation of a decision-maker to consider mandatory matters was recently restated by the Full Federal Court to require a decision-maker “to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration”.[31]
Determining whether a matter has been considered is “essentially an evaluative process based exclusively on what the decision-maker has said or written”.[32]
Failure to expressly refer to a particular relevant consideration, or to give any weight to it, in a statement of reasons can justify an inference that it was not taken into account.[33] A bare reference to a document may not provide an adequate foundation on which to conclude that the substance of the material was taken into account.[34]
It is not for the court on judicial review to go into the merits of the matters raised in a submission or other document a party claims has been overlooked by a decision-maker.[35] Such consideration was a matter for the decision-maker.[36]

[27]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41 (Mason J).

[28]Ibid.

[29]Citing Anderson v Director-General of the Department of Environmental and Climate Change [2008] NSWCA 337 (4 December 2008), [51]-[59] (“Anderson”); Azriel [2006] NSWCA 372, [49]-[51] (Basten JA).

[30]Citing Swift v SAS Trustee Corporation (2010) NSWCA 182, [45] (Basten JA) cited in SZJSS (2010) 243 CLR 164, 175-176; and drawing attention also to the discussions in Anderson [2008] NSWCA 337, [51]-[59] and Azriel [2006] NSWCA 372, [51].

[31]Citing Bat Advocacy NSW Inc v Minister for Environment Protection Heritage and the Arts [2011] FCAFC 59 (6 May 2011), [44] (“Bat Advocacy”); and stating that the formulation in Bat Advocacy was referred to with approval by the Full Federal Court in LVR (2012) 203 FCR 166, [145].

[32]Citing Anderson [2008] NSWCA 337 at [58]; Victoria Police Toll Enforcement v Taha [2013] VSCA 37 (4 March 2013), [220] (Tate JA).

[33]Citing Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679-80 (Barwick CJ), 683-4 (Stephen J); Bat Advocacy [2011] FCAFC 59 [44], [46].

[34]Citing LVR (2012) 203 FCR 166, [52], [131].

[35]Citing LVR (2012) 203 FCR 166, [125] and [135].

[36]Ibid.

The plaintiffs contend that their submissions to the Panel dated 1 November 2012 were a mandatory consideration. They point out that the submissions formed part of the bundle of documents that was provided to the Panel pursuant to s 65(6B) of the Act. They submit that the Panel was bound to take into account the “material” provided by the County Court pursuant to s 65(6B) of the Act, including the documents relating to the medical question. For that proposition they cite Moyston Court Fisheries Ltd v Malios & Ors,[37] Treacy v Newlands[38] and Milwain v Sim.[39]
[37][2007] VSC 518 (14 December 2007), [47] (J Forrest J).
[38][2008] VSC 395 (2 October 2008), [14] (Beach J, who is said to have agreed with J Forrest J).
[39][2009] VSC 75 (12 March 2009), [23] (Kyrou J).

The plaintiffs submit that there is no reference at all in the Panel’s second set of reasons to the plaintiffs’ written submissions, let alone to the substance of those submissions. They say that this is a strong indication that the Panel failed to engage in any active intellectual process in relation to, or evaluation of, the submissions.

Further, the plaintiffs point out that the Panel expressly states in its second set of reasons that it reviewed the material and submissions provided to it with the previous referral and its previous opinion; and that the Panel then notes that the worker had served terms of imprisonment during the period in question “as detailed in the previous opinion”. However, the plaintiffs say, their submissions to the Panel on the second referral had contained contentions relating to the worker’s terms of imprisonment during the period in question, including by reference to three court decisions which were attached to the plaintiffs’ submissions (and which the Panel did not have before it on the first referral). The plaintiffs now contend that had the Panel had regard to their written submissions and the court decisions then one would have expected the Panel to have mentioned this “new” material and not merely its own previous opinion.

The plaintiffs acknowledge that their written submissions to the Panel were listed in Enclosure A to the Panel’s statement of reasons, and they further acknowledge that both the reasons and the statement set out under the schedule in Enclosure A state that the documents listed in Enclosure A were considered by the Panel. However, the plaintiffs contend that these are “pro-forma statements” and that they are “not determinative in circumstances where the reasons indicate that a particular document, whilst before the Panel, was not taken into account”.[40] They submit that the requirement of consideration will not be satisfied by formalistic reference.[41]
[40]Citing Milwain v Sim [2009] (12 March 2009) VSC 75, [35] (Kyrou J).
[41]Citing Azriel [2006] NSWCA 372, [49].

The plaintiffs further contend that even if the Court were not satisfied that the circumstances justified the inference that the Panel failed to take the submissions into account, the Panel’s alleged failure to address or deal with the plaintiffs’ case as set out in its submissions denied the plaintiffs procedural fairness.

According to the plaintiffs, the contentions set out in their written submissions to the Panel were relevant to whether the worker was incapacitated from employment in the relevant period due to injury “or whether his unemployment instead resulted from his criminal activities and lifestyle”. Because the procedure of fact finding by Medical Panels consists of a combination of private meeting with and/or examination of the worker and evaluation of written material supplied to it, the provision of written submissions by the plaintiffs was the only practical means by which it could put arguments to the Panel.[42] In those circumstances, the Panel’s alleged failure to deal with the plaintiffs’ case was, the plaintiffs submit, a denial of procedural fairness and a constructive failure to exercise jurisdiction.

Arriving at a conclusion that was allegedly not open to the Panel[43]

[42]Citing Silver Top Taxi Service Ltd v Fish [2006] VSC 448 (23 November 2006), [21] (Warren CJ).

[43]Plaintiffs’ written outline of submissions to this Court, [23]-[32], [47]-[63].

The plaintiffs submit that a Panel that decides a question of fact when there is no evidence in support of the finding makes an error of law.[44] There will be such an error, they submit, if a decision-maker’s conclusion depends on a finding of fact that was simply not open to it on the evidence (or other material, if relevant) in which case, they say, that conclusion was not open to it.[45]
[44]Citing, principally, Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 290, 418.
[45]Citing S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-90 (Phillips JA); Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.

Consideration of whether there was any evidence to support a finding is not confined to the primary facts, the plaintiffs submit, but extends to inferences that are reasonably open on the primary facts. However, they say, the inferential process “is not one where speculation, guess work or mere assumption is accommodated … inferences [must] be drawn as matters of legitimate deduction, based on probative values”.[46]
[46]Citing Tisdall v Webber [2011] FCAFC 76 (7 June 2011), [128] (Buchanan J, with whom Tracey J agreed).

The plaintiffs submit that, in order to answer the question before it, the Panel needed to consider the worker’s capacity for both pre-injury employment and “suitable employment” (as defined in the Act) at every point over the period from 20 September 2003 until 25 May 2012 having regard to the factors in the definition of “suitable employment”, including the nature of the worker’s incapacity over the period and details provided in medical information “such as certificates of capacity over the period”.[47]
[47]More accurately, the definition of “suitable employment” refers to “employment in work for which the worker is currently suited … having regard to … the nature of the worker’s incapacity and the details provided in medical information including but not limited to, the certificate of capacity [singular] supplied by the worker …”. See further below.

The plaintiffs acknowledge that the Panel had before it not only the material listed in Enclosure A to its reasons of January 2013 but also the material listed in Enclosures A and B to its statement of reasons dated 25 May 2012. The plaintiffs further acknowledge that the Panel examined the worker on 12 January 2012 and 1 May 2012 in connection with the first referral, but they point out that the Panel did not confer with or question the worker in connection with the second referral.

The plaintiffs submit that, having regard to the material that was before the Panel, even including what the worker had told the Panel when the Panel met with the worker in connection with the first referral, there was no evidence upon which the Panel could conclude that the worker had been incapacitated at every point over the period 20 September 2003 to 25 May 2012 “as a result of injury to his low back and/or anxiety and depression”.[48] The plaintiffs submit that the Panel’s conclusion depended on findings that:

(a)the worker’s “symptoms” have persisted unabated since [the incident on 11 July 1989]; and
(b)while there may have been some variation of his symptoms from time to time the nature and severity of [the worker’s] low back condition has been such that the [worker] has had no current work capacity since sustaining his injury in 1989.

[48]However, it is clear that the Panel did not treat any anxiety or depression of the worker as contributing to his incapacity during any part of the relevant period.

According to the plaintiffs, these findings were not open to the Panel on the material before it.

The plaintiffs submit that there is nothing in the material (or inherent in the circumstances of this case) to show how the Panel could have formed any view as to the worker’s capacity for employment between 20 September 2003 and March 2011 other than by relying upon the medical information put before it by the parties. The reference to March 2011 reflects an acknowledgement by the plaintiffs that the medical information included a report from the worker’s general practitioner, Dr Mario Marazita, dated 14 April 2011 stating that the worker remained disabled from manual work duties as a result of his back injury.

According to the plaintiffs, the only medical information from the period 20 September 2003 to March 2011 before the Panel was:

(a) a report from Dr Marazita dated 19 November 2003;
(b)a CT scan of the worker’s lumbar spine dated 11 January 2006; and
(c)Justice Health records spanning the period from approximately 23 May 2008 to 3 November 2010.

The plaintiffs submit that, although Dr Marazita had considered that as at 19 November 2003 the worker was incapacitated for employment, the doctor’s opinion was limited to the situation when he reported. They point to the following statement in the report: “I do not believe this man is presently capable of performing any gainful employment”. They emphasise the word “presently”. They say, in addition, that there were opinions of Mr Davie and Mr Entwisle from December 2002 and April 2003 respectively before the Panel that were to the opposite effect.

Further, the plaintiffs submit that, although there are references in the Justice Health records to the worker complaining of back and leg pain between 23 May 2008 and approximately 5 May 2009 and to the worker being given Panadeine Forte and Panadol for back pain in that period:

(a) the worker’s back and leg pain is described as “intermittent”;
(b)there is no indication in the notes as to the worker’s level of incapacity (if any) resulting from his alleged back and leg pain;
(c)there is no assessment made of the worker’s capacity for work;
(d)the records reveal that the worker was simultaneously complaining of and treated for numerous other health complaints including withdrawing from methadone, hepatitis C, an acute eye problem for which he had surgery in May 2009, feet problems secondary to burns from his 1978 car accident, asthma and knee problems;
(e)from approximately May 2009 onwards[49] the records do not reveal ongoing back complaints, but instead a focus on treatment for right knee bursitis and cellulitis.[50]

[49]Viz, until the worker’s release on or about 3 November 2010.

[50]But see below.

The plaintiffs acknowledge that the Panel is not bound by the rules of evidence and can inform itself as it sees fit[51] including by relying on information that may infringe an exclusionary rule of evidence or which might not otherwise be admitted into evidence in a conventional civil trial. Further, they acknowledge that the Panel is an expert tribunal which is entitled to rely on its own expertise in making a determination. However, they rely upon the following statement of Kyrou J in Hatswell v State of Victoria:[52]

… the Medical Panel is a statutory body performing an important function that can significantly affect people’s lives and it is obliged to comply with the rules of natural justice. As such, there must be a relevant relationship between a finding and the information upon which the Medical Panel relies to make that finding. The Medical Panel cannot engage in speculative reasoning or make findings for which there is no factual foundation.

[51]Subsection 65(1) of the Act.

[52][2013] VSC 262 (22 May 2013), [82] citing Chua v Lowthian & Ors [2011] VSC 468 (20 September 2011), [124], [135] (Osborn J).

The plaintiffs submit that, even though the Panel was not bound by the rules of evidence, and was entitled to inform itself as it thought fit, that did not mean that it could draw inferences, or jump to conclusions, which the available material did not “adequately” support. According to the plaintiffs, the Panel must have “an evidentiary basis” on which it can be “positively satisfied of incapacity”. The plaintiffs submit:[53]

In the absence of any evidence going to the nature of [the worker’s] incapacity between December 2003 and March 2011, a period of over seven years, the Panel engaged in impermissible speculation or conjecture in arriving at its conclusion.

[53]Plaintiffs’ outline of submissions to this Court [61].

In the alternative, the plaintiffs submit that the Panel fell into jurisdictional error by asking itself the wrong question and/or misunderstanding its own jurisdiction in failing to exercise its powers pursuant to s 65(5) of the Act to ask the worker to:

(a) meet with it and answer questions; and/or
(b)supply copies of all documents in the possession of the worker that relate to the medical question; and/or

(c) submit to a medical examination
in order to determine whether the worker was incapacitated during the relevant period and, if so, whether this was due to the injuries pleaded.

Instead, the plaintiffs submit, the Panel purported to answer the question based only on the materials supplied to it and its previous opinion, which material does not sustain its conclusions.

Allegedly inadequate reasons[54]

[54]Ibid [35]-[39], [64]-[68].

Finally, the plaintiffs contend that the Panel’s statement of reasons for its second opinion was inadequate.

Most of the plaintiffs’ submissions on this topic were made before the High Court decided Wingfoot, ie before the judgment of the Victorian Court of Appeal in Kocak v Wingfoot Australia Partners Pty Ltd was overturned.[55] After Wingfoot, by leave, the parties filed supplementary written submissions.
[55](2012) 35 VR 324.

In their original submissions as to the adequacy of the Panel’s reasons, the plaintiffs pointed out that s 68(2) of the Act provided that a Medical Panel must give a certificate as to its opinion and a written statement of reasons for that opinion. The plaintiffs submitted:

There is no doubt that this section obliges the Panel to provide reasons which are adequate. Recently the Court of Appeal in Kocak v Wingfoot Australia Partners[56] held that:
The obligation imposed on Medical Panels by ss.68(2) and (3) to give reasons is an obligation to give proper and adequate reasons which are intelligible and deal with the substantial points that have been raised … [57]

[56]Citing [43] and also [40] and [48]-[50] of the judgment of the Court of Appeal now reported at (2012) 35 VR 324.

[57]Emphasis in plaintiffs’ outline of written submissions.

The plaintiffs acknowledged that a Panel’s reasons should not be scrutinised too closely, lest review of the reasons on proper principles turn into a reconsideration of the merits of the decision; and that the Court on judicial review should not be “concerned with looseness in the language … nor with unhappy phrasing”.[58]
[58]Citing Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, especially at [19]-[20] and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287.

Nevertheless, the plaintiffs submitted, there is a countervailing consideration that “despite any shortcomings in the manner of expression or language used by a tribunal, the reasoning of a tribunal must be such that it demonstrates an adequate consideration of the submissions raised by the parties”.[59]
[59]Citing Minister for Immigration & Citizenship v Shea [2011] FCA 37 (4 February 2011), [33].

The plaintiffs submitted that one of the important objectives of the obligation to provide adequate reasons is that they be of sufficient quality to enable a party dissatisfied with a decision to determine whether there has been some reviewable error made.[60]
[60]Citing, among other cases, Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323, [69].

Next, the plaintiffs submitted that in Dennis Willcox Pty Ltd v Federal Commissioner of Taxation,[61] the Full Federal Court had found that the relevant tribunal’s reasons were devoid of reference to a submission “worthy of serious consideration” advanced before the tribunal; that the Court had inferred that the submission was inadvertently overlooked by the tribunal either when the matter was being decided or when the reasons for decision were being committed to writing; and that, in either case, there had been an error of law constituted both by the failure to consider the submission and because the absence of reasons meant that the court on appeal could not determine whether an error of law vitiated the decision.[62]
[61](1988) 79 ALR 267, 277 (Jenkinson J, with whom Foster and Woodward JJ agreed).
[62]Here the plaintiff drew attention to observations to similar effect in certain subsequent cases, including my own decision in XYZ v State Trustees Ltd (2006) 25 VAR 402, 419 [42].

The plaintiffs then pointed out that in Kocak the Court of Appeal had held that a failure to provide adequate reasons could of itself justify the grant of relief in the nature of certiorari.

In the present case, according to the plaintiffs, the reasons of the Panel were inadequate in that they failed to refer at all to the plaintiffs’ submissions or to deal with the substance of those submissions. As a result, the plaintiffs submitted, this Court was disabled from determining whether an error of law vitiated the decision.

Further, the plaintiffs submitted, the reasons were inadequate in that they did not identify the evidence or other material forming the basis of the Panel’s findings that:

(c) the worker’s “symptoms have persisted unabated since [the incident on 11 July 1989]”; and

(d) “while there may have been some variation of his symptoms from time to time the nature and severity of the [worker’s] low back condition has been such that the [worker] has had no current work capacity since sustaining his injury in 1989”.

Nor, according to the plaintiffs, did the reasons explain whether or how the Panel resolved what the plaintiffs called “the competing medical opinions as to the worker’s capacity” (referring to the abovementioned report of Dr Marazita dated 19 November 2003, on the one hand, and the opinions of Mr Davie and Mr Entwisle from December 2002 and April 2003 respectively, on the other hand) or what the plaintiffs describe as “the notation in the Justice Health records that the worker’s low back pain was increased as a result of his 1991 motor bike accident”.[63]
[63]See further below.

In the respects mentioned, the plaintiffs submitted, the Panel’s reasons were inadequate and certiorari should issue accordingly.

In their post-hearing further written submissions, the plaintiffs acknowledged that the Court of Appeal’s decision in Kocak had been overturned. They continued:

The plaintiffs’ understanding of the High Court’s judgment is that:
(a)a failure to afford an adequate statement of s 68(2) reasons can amount to an error of law on the face of the record attracting the remedy of certiorari; and
(b)the criteria for adequacy of such reasons are as stated by the Court of Appeal in Masters v McCubbery [1996] 1 VR 635, 661, 650, 653 (Masters), not as stated by the Court of Appeal in Kocak. [The plaintiffs refer here to footnote 61 of the High Court’s decision where, they say, Masters is cited with apparent approval.]

The plaintiffs maintain their submissions that the reasons for the Panel’s second opinion, whether read together with the Panel’s reasons for its opinion on the questions the subject of the first referral or separately, do not meet the standard explained by the Court of Appeal in Masters and by the High Court in Wingfoot (see in particular at [55]) in that they do not 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.

Relief sought

The plaintiffs submitted that the alleged errors of the Panel were either jurisdictional errors or errors apparent from the Panel’s reasons which were to be regarded as part of the “record”. The alleged errors were material, the plaintiffs submitted, in that, had they not occurred, the Panel might have reached a different decision on the medical question. On those grounds, the plaintiffs sought an order that the opinion be quashed and the medical question remitted to a differently constituted Panel.

Consideration of the plaintiffs’ submissions

I turn first to the plaintiffs’ contention that their submission to the Panel of 1 November 2012 was either not taken into account at all or not duly considered.

I accept that, as a matter of natural justice or procedural fairness, the Panel was obliged to read and consider the submission.[64]
[64]Wingfoot (2013) 303 ALR 64, [47].

I accept also, as a general proposition, that a failure to respond to a substantial, clearly articulated argument relying upon established facts,[65] or a failure to consider a claim or an ‘integer’ of a claim that a party is making,[66] or to ignore or overlook a submission that was ‘worthy of serious consideration’[67] may be to deny natural justice or procedural fairness to a party. On the other hand, it is not necessary for an administrative tribunal to refer in its written reasons to every piece of evidence and every contention of a party; there is a distinction between failure to refer to a piece of evidence or a particular contention and failure to address a contention which constitutes a claim or an integer of a claim.[68] Distinguishing between these two kinds of situations does not constitute trespassing into the merits of the tribunal’s decision.[69]
[65]Dranichnikov (2003) 77 ALJR 1088, 1092 [24].
[66]LVR (2012) 203 FCR 166 [143].
[67]Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1998) 79 ALR 267, 277.
[68]LVR (2012) 203 FCR 166, 198 [143].
[69]See LVR (2012) 203 FCR 166, [135]; Yao v Minister for Immigration and Border Protection [2014] FCAFC 17, [52] (Perry J, with whom White and Wigney JJ agreed), citing with approval the discussion by Flick J of this matter in Australian Postal Corporation v Hughes (2009) 50 AAR 267, 271-273 [12]-[19].

In my view, the fact that, normally, the written submissions of the parties to the Medical Panel are included in the bundle of documents submitted to the Panel by the person or body referring the medical question pursuant to s 65(6B) of the Act does not, of itself, mean that every such submission, much less every part of every such submission, must be dealt with in the Medical Panel’s statement of reasons in such a way as to show that the decision-maker has engaged in an ‘active intellectual process’ in relation to the submission or part. The requirement to engage in an ‘active intellectual process’ is a requirement that applies only in relation to mandatorily relevant matters, factors or considerations.[70] The identification of mandatorily relevant considerations for a statutory decision-maker depends on the terms of the relevant statute, not on the terms of whatever submission happens to be made to the decision-maker. Section 65(6B) of the Act does not make every submission, much less every part of every submission, a mandatorily relevant consideration for a Panel regardless of the terms of the submission. Further, as Wingfoot emphasises, it is not the function of a Medical Panel to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. Rather:[71]

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.

[70]Bat Advocacy [2011] FCAFC 59, [44]; LVR (2012) 203 FCR 166, [145].

[71]Wingfoot (2013) 303 ALR 64, 77 [47].

In the present case, in any event, the plaintiffs have not satisfied me that the Panel failed to consider their written submissions or that the Panel failed to address or deal with the plaintiffs’ case as set out in those submissions.

As the plaintiffs concede, the Panel’s reasons state expressly that the documents “considered” by the Panel “are described in Enclosure A”. The schedule of documents in Enclosure A lists only six documents. One of them is the plaintiffs’ written submissions. They are listed as the fifth document. The correct date of the submissions (1 November 2012) is given in the schedule. The number of pages (25, including annexures) is also correctly stated. Indeed, the submissions stand out in the schedule, because they can be seen to constitute almost 50 percent of the documentation sent to the Panel on the second referral (25 pages out of 51 pages). The only other documents were the referral itself (four pages), a minute of consent orders in the County Court (two pages), the previous opinion and reasons of the Medical Panel (14 pages), the statement/submission pursuant to s 65(6A) of 25 October 2012 (three pages) and the submission[72] of the worker dated 14 November 2012 (three pages). The Panel’s reasons were personally signed by the Presiding Member, Dr Barton, on behalf of the entire Panel of five medical practitioners.
[72]Now missing.

As the plaintiffs further concede, there is a statement at the foot of the schedule in Enclosure A, as follows:

I refer to the Medical Panel convened in this matter of which I am a member and acknowledge receipt of the medical and other material listed in this schedule and confirm that the Panel took this information into consideration in forming the opinion.

Again, this statement is signed by Dr Barton personally on behalf of the entire Panel.

Like Macaulay J in the comparable recent case of Maribyrnong City Council & Anor v Malios & Ors,[73] I see no reason in this case to suspect that the five members of the Panel were disingenuous in stating that the Panel had taken into consideration the material listed in the schedule which included (prominently) the plaintiffs’ submission of 1 November 2012.
[73][2014] VSC 452 (16 September 2014), [48].

The plaintiffs’ submission of 1 November 2012 is set out in full above. The first four paragraphs are purely formal or introductory. The fifth paragraph invites the Panel to state that it is unable to answer the question if it does not believe that it can provide an opinion on the question of the worker’s capacity between 20 September 2003 and 25 May 2012. Obviously, the Panel declined this invitation. I infer that the Panel was satisfied that it could adequately deal with that issue. Paragraphs 6 and 7 assert that as at 20 September 2003 the worker, being then 44 years of age, was at an age when his employment prospects should have been considered reasonable and that, had he not been “intent on leading a life of crime”, the employment options identified in the vocational assessments of 2000 and 2002 would have been realistic for him. These contentions were not really new. They amounted to little more than re-agitation of submissions made and rejected, with detailed reasons, on the first referral. In any event, the Panel dealt again with the substance of the contentions in its second set of reasons by rejecting them again.

In the remaining paragraphs of the plaintiffs’ submission of 1 November 2012 (paragraphs 9 to 18) the plaintiffs spell out details of the worker’s criminal history, including by referring to and annexing the sentencing remarks in three cases. Again, in my view, these paragraphs add little or nothing to what was already before the Panel on the previous referral. Indeed, in its first statement of reasons, the Panel accurately listed the worker’s convictions and periods of imprisonment. In paragraph 17 of the plaintiffs’ submission, it is noted that on 18 December 2008 Judge Hicks of the County Court commented in his sentencing remarks that, during the breakdown of the worker’s marriage and, at the age of 35, the worker started to abuse heroin; and that, in particular, Judge Hicks stated that from the commencement of taking heroin, the worker’s life spiralled downwards and the worker committed many criminal offences. However, the plaintiffs’ submission makes no particular point about those circumstances. All that remains is paragraph 18 in which the plaintiffs ask the Panel to find that, but for the worker’s criminal activities, he should have had a capacity for suitable employment and they observe that whether such work was available or not was irrelevant.

In oral submissions before me senior counsel for the plaintiffs sought to make much of the three sets of sentencing remarks annexed to the submission of 1 November 2012. He submitted that they indicated that the worker had given a history to the Medical Panel that differed from the pleas which had been made on his behalf to the sentencing courts. In particular, he contended that the worker had told the Panel (when interviewed in the course of the first referral) that he had commenced taking heroin because of the pain from his back injury, whereas, counsel contended, the worker had told both Judge White of the County Court in 2004 as well as Judge Hicks in 2008 that his heroin use was attributable to the breakdown of his marriage. However, no such point was made in the written submission of 1 November 2012 to the Panel. At the very end of the hearing before me, Mr Fleming conceded that there was not a single word in the submission to the Panel of 1 November 2012 to the effect that there was any inconsistency between what the worker said to the Panel and any of the sentencing remarks. In any event, it would have been a quite obscure point and it would have been undermined somewhat by the sentencing remarks of the Court of Appeal in the third case.[74] Indeed, it was really a point of no significance at all, because the finding of the Medical Panel that the worker had no capacity for work at any relevant time owed nothing to the matter of the worker’s use of heroin. The Panel’s finding was entirely based on its assessment of the state of the worker’s lower back.
[74]Court Book p 152 para 13.

In my view the plaintiffs have no basis for any complaint about the way in which the Panel dealt with their written submission of 1 November 2012.

Conclusion “not open”

In my opinion, the plaintiffs’ contention that the conclusion of the Panel was not open to it on the material before it is no more than a thinly disguised attack on the merits of the Panel’s decision.

As Ashley JA said in North v Homolka,[75] the “no evidence” bar is set very high.[76]
[75][2014] VSC 478 (2 October 2014), [63].
[76]See also Moore v Barton [2014] VSC 78 (17 March 2014), [65]-[66] (Dixon J) and cases there cited.

It will be recalled that the plaintiffs contended in their written submissions to this Court that the Panel needed to consider the worker’s capacity “at every point” over the relevant period. However, in oral submissions, counsel for the plaintiffs conceded that the Panel was not required to address itself to each and every day of that period of about eight and a half years.

The Panel accepted that there may have been some variation of the worker’s symptoms from time to time but considered, nevertheless, that the nature and severity of his low back condition has been such that he had had no current work capacity since sustaining his injury in 1989. I am far from satisfied that that finding of the Panel were not open to it. Indeed, I consider that the finding was amply supported by the material before the Panel.

For a time during oral submissions counsel for the plaintiffs made much of the proposition that the worker had not consulted his general practitioner, Dr Marazita, between November 2003 and April 2011. However, closer examination of the very voluminous material in the court book during the hearing revealed that it was Dr Marazita who had ordered the CT scan of the worker’s lumbar spine dated 11 January 2006. This undermined comprehensively the contention of the plaintiffs that Dr Marazita’s report of 14 April 2011 should have been given little weight with respect to the past position.

Likewise, the plaintiffs’ contention that from approximately May 2009 onwards the records of Justice Health do not reveal ongoing back complaints was, on closer inspection, seen to be simply wrong. Those records include an entry for 8 September 2010 in which it is recorded that the worker attended hospital complaining of pain including back pain and was assessed for pain relief.[77] Further, the Justice Health records up to May 2009 are replete with references to the worker suffering “chronic” back pain.
[77]Court Book p 371.

It must be kept firmly in mind that the Panel was an expert body comprised of five medical practitioners. The two psychiatrists on the Panel had examined the worker jointly on 12 January 2012 and the other members (an occupational physician, a neurosurgeon and an orthopaedic surgeon) had jointly examined the worker as recently as 1 May 2012. In their second set of reasons, they expressly mention that they did not consider it necessary to re-examine the worker for the purposes of the second referral. It is not for this Court to second guess that assessment.

In my view, it simply cannot be said in this case that the Panel engaged in “speculative reasoning” or made findings for which there was no factual foundation.[78]
[78]Cf Hatswell v State of Victoria [2013] VSC 262, [82] (Kyrou J).

This part of the plaintiffs’ challenge fails.

Adequacy of the Panel’s reasons

In the light of the judgment of the High Court in Wingfoot, the plaintiffs’ attack on the Panel’s statement of reasons cannot succeed. Their arguments depended on the view which had been adopted by the Court of Appeal in Kocak that a Medical Panel was obliged to resolve a dispute between parties, deal with the substantial points that had been raised by the parties and resolve any inconsistencies between medical reports. However, Wingfoot shows that the function of a Medical Panel is simply to answer medical questions in accordance with the Act.

In Wingfoot, the High Court said:[79]

The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that 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.

[79](2013) 303 ALR 64, 79[55].

As Ashley JA noted in North v Homolka,[80] in Wingfoot the High Court rejected the conclusion reached by the Court of Appeal that:

… it was incumbent on the [p]anel to provide a comprehensible explanation for rejecting [certain] expert medical opinions, or, if it be the case, for preferring one or more other expert medical opinions over them.

[80][2014] VSC 478, [59].

Even under the previous dispensation, the complaints made by the plaintiffs would have received short shrift. For example, to the extent that there were any matters to resolve as between the reports of Dr Marazita on the one hand and those of Mr Davie and Mr Entwisle[81] on the other, or in the Justice Health notation relating to the worker’s back pain being increased by the 1991 motorcycle accident, the effect of the Panel’s two sets of reasons, in combination, was to well and truly resolve them.
[81]Mr Entwisle was a psychiatrist and, in the end, the findings of the Panel in favour of the worker were not based on any psychiatric matters.

The plaintiffs’ arguments under this heading were closely linked to their arguments under the previous headings. For similar reasons they must fail.

Conclusion

For these reasons, this proceeding must be dismissed.

I will hear the parties on the question of costs.

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19 December 2014