Victorian Workcover Authority v Jamali
[2023] VSCA 240
•12 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0016 |
| VICTORIAN WORKCOVER AUTHORITY | Applicant |
| v | |
| FAHIM JAMALI & ORS (ACCORDING TO THE ATTACHED SCHEDULE) | Respondents |
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| JUDGES: | BEACH JA, J FORREST and TSALAMANDRIS AJJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 September 2023 |
| DATE OF JUDGMENT: | 12 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 240 |
| JUDGMENT APPEALED FROM: | [2022] VSC 634 (Daly AsJ) |
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ADMINISTRATIVE LAW – Judicial review – Workplace injury – Serious injury application – Referral of medical questions to Medical Panel – Application for judicial review of Medical Panel decision – Whether psychiatric origin of injury constituted relevant consideration – Whether Medical Panel failed to consider relevant consideration – Opinion of Medical Panel quashed – Leave to appeal granted – Appeal dismissed.
Workplace Injury Rehabilitation and Compensation Act 2013, ss 1, 3, 5, 10, 274, 303, 304, 305, 307, 313, 325, 327, 330, 335, 537.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 409 ALR 234, Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497, Victorian WorkCover Authority v Putrus [2023] VSCA 28, Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.
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| Counsel | ||
| Applicant: | Mr MF Fleming KC with Ms F Spencer | |
| First Respondent: | Mr J Ruskin KC with Mr M Hooper | |
| Second to Seventh Respondents: | No appearance | |
Solicitors | ||
| Applicant: | Russell Kennedy Lawyers | |
| First Respondent: | Zaparas Lawyers | |
| Second to Seventh Respondents: | Victorian Government Solicitor | |
BEACH JA
J FORREST AJA
TSALAMANDRIS AJA:
Introduction
This application for leave to appeal raises the issue, again, of whether a Medical Panel (the ‘Medical Panel’) in answering questions posed by a County Court judge was required to consider a worker’s specific medical condition: in this case, an alleged psychiatrically based chronic pain syndrome, resulting from a workplace injury. And, if so, whether it gave proper consideration to that condition and its effect on his ability to work.
The questions were referred to the Medical Panel by the judge as the result of an application by the first respondent, Mr Fahim Jamali, for leave to bring a common law proceeding under the Workplace Injury Rehabilitation and Compensation Act 2013 (the ‘WIRCAct’). He was required to demonstrate that he had sustained a serious injury as defined by that Act.[1]
[1]A ‘serious injury’ means permanent serious impairment or loss of a body function, permanent serious disfigurement, permanent severe mental or permanent severe behavioural disturbance or disorder, or loss of a foetus: Workplace Injury Rehabilitation and Compensation Act 2013 s 325(1) (the ‘WIRC Act’).
The Medical Panel answered that Mr Jamali had a ‘resolved soft tissue injury of the lower back and a non-specific lower back pain’ and ‘an adjustment disorder with anxiety and associated conduct disturbance’. The County Court is bound to apply those answers in determining whether Mr Jamali has satisfied the serious injury gateway.
Subsequently, on the return of an application for judicial review of the Medical Panel’s answers (by way of a writ seeking relief in the nature of certiorari) an Associate Justice quashed its decision and remitted the questions to a differently constituted Medical Panel. The applicant, the Victorian WorkCover Authority (the ‘VWA’), which stands in the place of the employer, seeks leave to appeal that decision.
The members of the Medical Panel (two psychiatrists, an orthopaedic surgeon, a physician and a neurosurgeon) are the second to sixth respondents in this proceeding.[2]
[2]The Convenor of Medical Panels is the seventh respondent. The second to seventh respondents did not participate in the proceeding, instead following the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6 (the Court); [1980] HCA 13.
For the following reasons, we consider that the Associate Justice was correct in quashing the Medical Panel’s decision. Leave to appeal will be granted and the appeal dismissed.
Background
Mr Jamali commenced employment with Super Metal Recycling Pty Ltd (‘Super Metal’) on 28 September 2017. He worked primarily as a truck driver and storeman.
On 20 September 2018, Mr Jamali suffered a sudden onset of lower back pain when closing heavy doors of a shipping container in the course of his employment (the ‘incident’). An attempt by him to return to work four days later was unsuccessful.
On 10 October 2018, Mr Jamali lodged a ‘worker’s injury claim form’ with the applicant, alleging ‘back bone pain’ resulting from the incident. Liability for the injury was accepted by the VWA.
However, as just mentioned, to commence a common law proceeding against his employer, Mr Jamali was required to establish that he had sustained a ‘serious injury’ pursuant to s 335 of the WIRC Act.
On 19 May 2020, Mr Jamali made a serious injury application pursuant to Part 7 of the WIRC Act in which he sought consent from the VWA to the institution of a proceeding claiming damages for pain and suffering and loss of earning capacity from Super Metal in respect of ‘a permanent serious impairment or loss of a body function, being an injury to the lumbar spine, chronic pain syndrome, anxiety and depression’.
The VWA denied that Mr Jamali had sustained a serious injury. So, on 14 September 2020, Mr Jamali issued an originating motion in the County Court pursuant to s 335(2)(d) of the WIRC Act. He sought:
a serious injury certificate for pain and suffering, damages and pecuniary loss damages for injuries sustained to his spine and/or consequential psychiatric injury suffered throughout the course of his employment with Super Metal Recycling Pty Ltd, and in particular as a result of an incident on or about 20 September 2018.[3]
[3]The relief was incorrectly identified by Mr Jamali. The reference to a serious injury certificate is erroneous. A serious injury certificate may only be given by the VWA if it grants a worker’s serious injury application: WIRC Act ss 330, 335. If the application is rejected, the worker may then apply to a court for leave to bring an action for damages for the alleged injury (WIRC Act s 335) — as was done in this case.
On 18 February 2021, a judge of the County Court at the request of the VWA referred six medical questions to a Medical Panel under s 274 of the WIRC Act.
Following two examinations by members of the Medical Panel, it delivered its Certificate of Opinion (the ‘Opinion’) with accompanying reasons (the ‘Medical Panel’s Reasons’) on 12 July 2021. The Medical Panel found that Mr Jamali suffered from a soft tissue injury to the lower back and a non-specific lower back pain, as well as psychological injury (in the form of an adjustment disorder, anxiety and associated conduct disturbance). With respect to the injury to the lower back, this was found to be caused by the incident but to have resolved.
On 9 September 2021, Mr Jamali commenced a proceeding in this Court seeking judicial review of the Medical Panel’s decision. He sought an order in the nature of certiorari quashing the Opinion of the Medical Panel and an order in the nature of mandamus referring the questions to a differently constituted Medical Panel.
In the claim, Mr Jamali alleged that he was denied procedural fairness by the Medical Panel (ground 1) and that it failed to consider a mandatory relevant consideration as to whether the origin of his injury and pain was a medical condition of the mind (ground 2). Ground 2 reads as follows:
The Medical Panel … failed to consider a mandatory relevant consideration by failing to consider or give genuine and realistic consideration to whether the plaintiff’s non-specific back pain and lower extremity symptoms were medical conditions of his mind, and thereby made a jurisdictional error and or an error of law on its record.
The proceeding was heard by an Associate Justice on 6 September 2022.
On 24 October 2022, the Associate Justice ruled that Mr Jamali had made out his case in relation to ground 2.
Her Honour concluded that the procedural fairness ground was not made out but accepted that the Medical Panel committed a jurisdictional error by failing to give genuine consideration to a relevant matter — namely whether Mr Jamali’s symptoms were the consequence of a psychiatrically based chronic pain syndrome. Consequently, the Associate Justice made orders quashing the Opinion and remitting the medical questions to be determined in accordance with law by a differently constituted Medical Panel.
The WIRC Act
It is convenient at this point to set out the relevant provisions of the WIRC Act in the context of a serious injury application under s 335(2)(d), and the role of a Medical Panel.
Part 7 of the WIRC Act is entitled ‘Actions and proceedings for damages’. Section 327 provides that a worker may recover damages in respect of an injury arising out of, or in the course of, or due to the nature of employment if the injury is a serious injury.
The worker may not bring proceedings for the recovery of damages in respect of that injury unless:
(a)the VWA is satisfied that the injury is a serious injury and issues to the worker a certificate in writing consenting to the bringing of the proceedings: s 335(2)(c); or
(b)a court (other than the Magistrates’ Court) gives leave: s 335(2)(d).
The court must not give leave unless satisfied on the balance of probabilities that the injury is a serious injury: s 335(5)(a).
The referral of medical questions is contained in Part 6 of the WIRC Act. Section 274 confers power on a court to refer a ‘medical question’ to a Medical Panel:
274 Medical questions
(1)In exercising jurisdiction under this Part, a court—
(a)may, on the court’s own motion, refer a medical question to a Medical Panel for an opinion under Division 3; or
(b)if—
(i)a party to the proceedings requests that a medical question be referred to a Medical Panel; and
(ii)the party notified the court, no later than 14 days prior to the date fixed for hearing of the proceedings, or another time determined by the court, of the party’s intention to request that a medical question be so referred—
the court must, subject to subsections (3), (4) and (5), refer a medical question to a Medical Panel for an opinion under Division 3.
(2)This section extends to, and applies in respect of, an application to the County Court for leave under section 335(2)(d) of this Act or section 134AB(16)(b) of the Accident Compensation Act 1985—
(a)so as to enable, in accordance with subsection (1)(a), the County Court to refer a medical question to a Medical Panel for an opinion; or
(b)so as to require the County Court, at the request of a party to the application, to refer, in accordance with subsection (1)(b), a medical question (other than a medical question referred to in paragraph (o) of the definition of medical question in section 3)—
to a Medical Panel for an opinion.
(3)If a request is made to a court under subsection (1)(b) to refer a medical question to a Medical Panel for an opinion, the court may refuse to refer the question if the court is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.
(4)A court has the discretion, if a request is made under subsection (1)(b), as to the form in which a medical question is referred to a Medical Panel.
(5)A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.
The phrase ‘medical question’ is defined by the WIRC Act and includes, amongst others, the following:
(a)a question as to the nature of a worker’s medical condition relevant to an injury or alleged injury;
(b)a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment;
(c)a question whether a worker’s incapacity for work results or resulted from, or is or was materially contributed to by, an injury or alleged injury; and
(d)a question as to the extent to which any physical or mental condition, including any impairment, results or resulted from or was or is, materially contributed to by the injury.[4]
[4]WIRC Act s 3 (definition of ‘medical question’).
The Medical Panel must be constituted by medical practitioners from a list of individuals nominated by the Minister on the recommendation of the Convenor of Medical Panels.[5] Its function ‘is to give its opinion on any medical question’ concerning injuries arising out of or sustained in the course of employment.[6]
[5]WIRC Act s 537.
[6]WIRC Act s 303(1).
Section 304 makes provision for the material to be provided to a Medical Panel:
304 Reference of medical question
A person or body referring a medical question to a Medical Panel must give the Convenor—
(a) a document specifying—
(i)the injury or alleged injury to, or in respect of, which the medical question relates; and
(ii) the facts or questions of fact relevant to the medical question that the person or body is satisfied have been agreed and those facts or questions that are in dispute; and
(b)copies of all documents relating to the medical question in the possession of that person or body.
That material is then provided by the Convenor to the relevant Medical Panel.[7]
[7]WIRC Act s 305.
The Medical Panel may ask a worker to meet with it and answer questions, supply documents and/or submit to a medical examination by it (or by one of its members).[8]
[8]WIRC Act s 307.
The Medical Panel must form an opinion on a medical question referred to it by giving a certificate as to its opinion and a written statement of reasons.[9] The opinion (ie its answers to the questions) will be binding upon a court in a serious injury application by reason of s 313(4) of the Act, which provides as follows:
(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a) is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.
[9]WIRC Act s 313(1)–(2).
The County Court proceeding
The referral of the medical questions
On 18 February 2021, a judge of the County Court at the request of the VWA referred six questions for determination by a Medical Panel pursuant to s 274 of the Act:
1.Whether the Plaintiff presently suffers from any physical medical condition of his lower back which results from, or is materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 (‘the physical lower back injury’).
2.If ‘yes’ to 1, whether any such work-related physical medical condition of the Plaintiff’s lower back is permanent (meaning likely to persist into the foreseeable future).
3. If ‘yes’ to 2, whether the Plaintiff has any, and if so what, incapacity for work having regard to the physical lower back injury and whilst disregarding any psychiatric/psychological consequences.
4. If ’yes’ to 3, whether such incapacity for work is permanent (meaning likely to persist into the foreseeable future).
5. If ‘yes’ to 4, whether the Plaintiff has a capacity for work in respect of the listed work options (including the number of hours per week he can perform such work for) having regard to the physical lower back injury and whilst disregarding any psychiatric/psychological consequences.
6. Whether any present medical condition of the Plaintiff’s mind which is consequential to the physical lower back injury is permanent (meaning likely to persist into the foreseeable future).[10]
[10]Jamali v Victorian WorkCover Authority [2022] VSC 634, [6] (‘Reasons’).
A number of documents (52 in number and running to approximately 160 pages) were referred to the Medical Panel. Whilst these appear to have been prepared by the lawyers for Mr Jamali and the VWA, the obligation is upon the judge to refer the requisite material to the Convenor (see [27] above). The documents are set out in a ‘schedule of attachments’ (the ‘Attachments’). At the commencement of the Medical Panel’s Reasons, there is a statement that the Medical Panel has considered the contents of the Attachments.
The Attachments comprised the following:
(a)Mr Jamali’s ‘worker’s injury claim form’ submitted to the VWA dated 10 October 2018;
(b)Mr Jamali’s serious injury application form, also known as ‘Form A’, dated 19 May 2020;
(c)Mr Jamali’s affidavit in support of his serious injury application affirmed on 16 April 2020;
(d)medical reports obtained by both Mr Jamali and the VWA as well as various documents including workplace assessments, certificates of capacity issued by medical practitioners and medical practitioners’ clinical notes;
(e)written submissions to the Medical Panel of Mr Jamali and the VWA dated 2 and 3 February 2021, respectively;
(f)a joint statement of agreed facts dated 3 February 2021 filed by the VWA and made pursuant to s 304(a) of the WIRC Act (the ‘joint statement’); and
(g)a notice of request made pursuant to s 274(1)(b) of the WIRC Act.
In the joint statement, the following appears:
Alleged injuries to which the Medical Questions relate
The Plaintiff alleges that he has suffered a physical injury to his lower back throughout the course of his work for Super Metal Recycling Pty Ltd as a result of frequent, awkward and repetitive bending, reaching, pulling and heavy lifting, and in particular on about 20 September 2018 when closing a shipping container’s doors. He also alleges to have suffered a consequential psychiatric/psychological injury.
The document then includes the following:
The Defendant accepts that the Plaintiff suffered a lower back injury as a result of performing storeman work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 when closing a shipping container’s doors. It also accepts that he developed a consequential psychiatric/psychological condition.
A series of issues said to be in dispute between the parties was identified, including the following:
Whether any present medical condition of the Plaintiff’s mind which is consequential to the physical lower back injury is permanent (meaning likely to persist into the foreseeable future).
If ‘yes’ to 6, whether the Plaintiff has any, and if so what, incapacity for work having regard to the psychiatric/psychological injury which is consequential to the physical lower back injury.
In his affidavit of 16 April 2020, Mr Jamali said that he had worked as a truck driver for approximately two years, which included a period of ‘about 8 months’ during which he worked for Super Metal. Then, on about 28 September 2017, he recommenced work with that company, working about 50 hours per week. From about June 2018, he also worked as a storeman and spent most of his time on the factory floor with shipping containers. He says he has experienced intermittent back pain between since 2015.
Mr Jamali described the September incident as follows:
On about 20 September 2018 I was at work closing shipping container doors when I felt severe pain in my back. I finished the shift. The pain was still there the next day. I had about 3 days off work. I went back to work on about 24 September 2018. I stuck to the lighter work, like driving forklifts. My back pain continued. I came in to work the next day and gave my duties another go but lasted only 2 hours because of the pain.
Mr Jamali described the back pain as being ‘there all the time’. He described chores, sports and activities which he is no longer able to engage in in the same way as he could before his back injury. He said that since the back injury, his mental health has deteriorated, which in turn has caused conflict in his interpersonal relationships.
In his Form A, Mr Jamali identified his injuries as injury to the lumbar spine, chronic pain syndrome, anxiety and depression.
In Mr Jamali’s written submissions to the Medical Panel (included in the Attachments), the following appears:
•Mr Jamali had not worked since 24 September 2018, having failed to complete a return to work attempt on 24 September 2018;
•Mr Jamali continued to attend a GP and a psychologist;
•Mr Jamali continued to suffer from constant pain in his lower back, but it was accepted that there were differing views of the source of the lower back pain; and
•some medical practitioners opined that he had aggravated preexisting lumbar degenerative disc disease, whilst others felt that he had suffered a soft tissue injury to the lumbosacral spine with an intervertebral disc injury at L4/5.
Having referred to the various medical opinions and the radiological findings, it was submitted on his behalf that ‘the totality of the medical evidence demonstrates that the Plaintiff suffers from an organic lumbar spine condition’.
Under the heading ‘Mind’, the following submission was made:
If the Medical Panel does not accept that the Plaintiff suffers from an organic condition of his lumbar spine that accounts for his pain and restrictions, the Medical Panel is asked to consider whether the Plaintiff suffers from a chronic pain syndrome as suggested by Dr Thomas and Dr Doig, which accounts for the symptoms in his spine and/or whether the Plaintiff’s spinal symptoms can be explained by any mental or behavioural disturbance or disorder.
The VWA’s submission commenced by stating that Mr Jamali:
does not presently suffer from any physical medical condition of his lower back which results from, or is materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 ... His present pain symptoms are attributable to postural factors in association with spinal degenerative changes and the influence of psychiatric/psychological consequences (including non‑organic factors).
In its submissions, the VWA referred to several medical opinions including that of Dr Clayton Thomas who specialises in rehabilitation and pain medicine and to whom Mr Jamali was referred by Super Metal. In particular, the VWA referred to a letter by Dr Thomas in which he ‘opined that it was hard not to draw the conclusion that there was a non-organic component present’.
The opinion and reasons of the Medical Panel
The Medical Panel was constituted by five medical practitioners:
(a)a physician, Associate Professor Paul Champion de Crespigny;
(b)a neurosurgeon, Professor Gavin Davis;
(c)an orthopaedic surgeon, Mr Gary Speck; and
(d)two psychiatrists, Dr Diane Neill and Associate Professor Alexander Holmes.
Mr Jamali was examined by the two psychiatrists on 1 June 2021, and by the other medical practitioners on 3 June 2021 (these other practitioners are referred to by the Associate Justice in her reasons as the ‘physical doctors’).
The Opinion and the Medical Panel’s Reasons were delivered on 12 July 2021.
The Opinion reads as follows:
Question 1. What is the nature of the medical condition/s of the Plaintiff’s:
(a) Lower back;
(b) Mind?
Answer:The Panel is of the opinion that the medical conditions of the Plaintiff are:
(a)A resolved soft tissue injury of the lower back and a non‑specific lower back pain with described lower extremity symptoms with no clinical or investigation evidence of structural pathology;
(b)an Adjustment Disorder with Anxiety and Associated Conduct Disturbance.
Question 2. Does any, and if so what, physical medical condition of the Plaintiff’s lower back as found in answer to Question 1(a) result from, or is it materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018? (‘the physical lower back injury’)
Answer:Yes. The Panel is of the opinion that the physical medical condition of the Plaintiff’s resolved soft tissue injury of the lower back and nonspecific lower back pain with described lower limb extremity symptoms with no clinical or investigation evidence of structural pathology suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 resulted from but is no longer materially contributed to by the physical lower back injury.
Question 3. If ‘yes’ to Question 2, is any, and if so what, physical medical condition of the Plaintiff’s lower back as found in answer to Question 2 permanent (meaning likely to persist into the foreseeable future)?
Answer: No. The Panel is of the opinion that the physical medical condition of the Plaintiff’s lower back as found in answer to Question 2 is not permanent.
Question 4. If ‘yes’ to Question 3, having regard to the physical lower back injury and whilst disregarding any psychological/ psychiatric consequences, does the Plaintiff have any, and if so what, incapacity for work?
Answer: Not applicable.
Question 5. If ‘yes’ to Question 4, is this incapacity for work permanent (meaning likely to persist into the foreseeable future)?
Answer: Not applicable.
Question 6. (a) if ‘yes’ to Question 5, having regard to the physical lower back injury and whilst disregarding any psychological/ psychiatric consequences, does the Plaintiff have a capacity for work as:
(i) Assembler (light);
(ii) Packer (light);
(iii) Gatehouse attendant;
(iv) Car park attendant;
(v) Delivery driver (local)
and, if so, for how many hours per week;
(b) if ‘no’ to Question 6(a) in respect of any of the listed work options, is this incapacity for work permanent (meaning likely to persist into the foreseeable future);
(c) if ‘yes’ to Question 6(a) in respect of any of the listed work options, is the found work capacity (including hours per week) permanent (meaning likely to persist into the foreseeable future)?
Answer: Not applicable.
Question 7. Is any, and if so what, present medical condition of the Plaintiff’s mind which is consequential to the physical lower back injury permanent (meaning likely to persist into the foreseeable future)?
Answer: The Panel is of the opinion that the present medical condition of the Plaintiff’s mind is Adjustment Disorder with Anxiety and Associated Conduct disturbance. The Panel considered the condition is consequential to Mr Jamali’s physical lower back injury and is permanent (meaning likely to persist into the foreseeable future).
Question 8.If ‘yes’ to Question 7, having regard to the psychiatric/ psychological injury which is consequential to the physical lower back injury, does the Plaintiff have any, and if so what, incapacity for work?
Answer: No. The Panel further concluded that having regard to the psychiatric/psychological injury which is consequential to the physical lower back injury, the Plaintiff has no incapacity for work.
Question 9. If ‘yes’ to Question 8, is this incapacity for work permanent (meaning likely to persist into the foreseeable future)?
Answer: Not applicable.
Question 10. (a) If ‘yes’ to Question 9, having regard to the psychiatric/ psychological injury which is consequential to the physical lower back injury, does the Plaintiff have a capacity for work as:
(i) Assembler (light);
(ii) Packer (light);
(iii) Gatehouse attendant;
(iv) Car park attendant;
(v) Delivery driver (local)
and, if so, for how many hours per week;
(b) if ‘no’ to Question 10(a) in respect of any of the listed work options, is this incapacity for work permanent (meaning likely to persist into the foreseeable future);
(c) if ‘yes’ to Question 10(a) in respect of any of the listed work options, is the found work capacity (including hours per week) permanent (meaning likely to persist into the foreseeable future)?
Answer: Not applicable.
Question11. If ‘no’ to Question 6(c) and/or to Question 10(c) in respect of any of the listed work options, would the Plaintiff have the capacity to work a greater, and if so what, number of hours per week in the foreseeable future?
Answer: Not applicable.
The Medical Panel’s Reasons commence with the medical history provided by Mr Jamali, recited by the Associate Justice as follows:
(a)Mr Jamali explained what occurred in the course of the September 2018 incident and in its immediate aftermath;
(b)Mr Jamali explained the nature and severity of his current symptoms, and said that there had been no significant change in his symptoms over the previous 12 months. The Medical Panel summarised Mr Jamali’s recounting of his current symptoms as follows:
Mr Jamali told the Panel that he currently suffers from bad lower back pain that goes down both legs, more down the right leg than the left leg and he suffers from numbness in both legs. He indicated his maximum lower back pain is in the entire lumbar spine area, equally to both paravertebral areas and the pain extends to the level to S1 and radiates to his right buttock. He said the pain goes to the back of his right thigh but also indicated it goes to the medial anterior aspect of his right thigh, which is intermittent, down the back of his right calf and to the back and to the top of his right foot indicating the dorsum of his right foot. He said the pain is worst in his back.
Mr Jamali told the Panel when sitting his lower back pain is 9 or 10 out of 10 in severity. He said it is best when he has been lying in bed for a short period of time when it is about 6 out of 10 in severity. He said after a short time in bed his lower back pain improves but after a long time in bed it gets worse. He said his pain mostly gets worse when sitting, which is after five or ten minutes. He said he has difficulty sitting for longer than 25 minutes because of increasing lower back pain. He said his lower back pain is very bad when he walks although sometimes his lower back pain feels better when he walks. He said standing often improves his lower back pain. He said coughing is associated with increased lower back pain.
He said he suffers lower back pain goes to his right leg on multiple occasions per day. He said he has days when he suffers no pain in his legs. He said his right foot ‘goes numb’ intermittently and every time the numbness is different although his right foot often ‘goes numb’ for about 10 minutes, at some times on top of his right foot, and at other times on the bottom of his right foot.
He said he suffers right leg pain if he starts to exercise and said his right leg can feel bad for one to two hours after exercise, but it can be for as little as 30 minutes or as long as four hours, and is different every time.
He said he suffers leg and left foot numbness that his highly variable in duration but can be 10 to 20 minutes in duration and at time has a sudden or electric pain in his left leg. He also suffers some numbness at the back of his left thigh although his numbness symptoms are greater on the right side.
…
(d)Mr Jamali told the physical doctors that he first suffered lower back pain in 2014,[11] which improved after treatment with physiotherapy and massage;
(e)Mr Jamali told the physical doctors about his medications and other treatment, which includes taking Panadeine Forte and Endone on a daily basis; and
(f)Mr Jamali told the physical doctors about his education and qualifications, and discussed with the physical doctors some of the employment options identified in the vocational assessments.[12]
[11]In his affidavit in the serious injury application proceeding, which was filed on or about 16 April 2020, Mr Jamali said he attended his general practitioner in 2015 having suffered intermittent back pain for two years, but his symptoms then went away.
[12]Reasons, [18].
The Medical Panel then commented upon the radiological evidence:
•Report of lumbosacral spine x-rays dated 23 July 2015 for the indication of ‘longstanding low back pain’ described a developmental variant of incomplete fusion of the spinous process of S1 but was otherwise described as normal;
•Report of a CT lumbar spine dated 1 October 2016 and reported 2 October 2016 performed for the indication of ‘Low back pain’ described minor degenerative disease with minimal to mild disc bulging, some mild to moderate facet joint disease, moderate facet and flavum hypertrophy with potential for mild transiting L5 impingement on both sides;
•Films and report a CT lumbar spine dated 1 October 2018 showed mild changes consistent with Mr Jamali’s age with no evidence of neurocompression. The Panel noted minimal or mild disc bulging at L2/3, L3/4, L4/5 and L5/S1. Mild to moderate facet joint disease was seen at the same levels with mild degenerative changes of the sacroiliac joints;
•Report of an x-ray lumbar spine dated 13 February 2019 described no abnormality;
•Report of an MRI lumbar spine dated 13 February 2019 and reported 14 February 2019 described a disc bulge, more to the right at L4/5 with mild right neuroforaminal narrowing and contact of the right exiting nerve but no other significant abnormality.
The Panel did not consider any additional medical reports or diagnostic imaging necessary in order for it to be able to complete its assessment of Mr Jamali’s medical condition and to answer the questions.
In relation to Mr Jamali’s physical injuries, the Medical Panel concluded as follows:
Medical Diagnosis
The Panel concluded that Mr Jamali is suffering from a resolved soft tissue injury of the lower back and non-specific lower back pain with described lower extremity symptoms.
Medical Discussion
The Panel considered there is no clinical or investigational evidence of structural pathology to explain Mr Jamali’s current lower back and lower extremity symptoms. The Panel noted Mr Jamali has no clinical signs consistent with structural disease of the lumbosacral spine and imaging showed age-related degenerative changes only of the lumbosacral spine.
The Panel further concluded that the physical medical conditions of a resolved soft tissue injury of the lower back and non-specific lower back pain with described lower limb extremity symptoms of Mr Jamali’s lower back results from and was materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal Recycling Pty Ltd, including on about 20 September 2018 but that the effects of the injury have now resolved.
The Panel noted that Mr Jamali suffered mild lower back symptoms prior to the incident which incrementally and persistently increased in severity the day following the incident.
The Panel further concluded that the physical medical condition of a soft tissue injury has resolved, but the non-specific lower back pain with described lower limb extremity symptoms with no clinical or investigation evidence of structural pathology of Mr Jamali’s lower back is permanent or likely to persist into the foreseeable future.
The Panel noted the report of Dr Alex Mogilevski dated 5 November 2019 in which he opined that Mr Jamali was suffering, ‘NONSPECIFIC NONORGANIC LOWER BACKACHE and NONVERIFIABLE RIGHT SCIATICA’.
The Panel noted the report of Dr Graeme Doig dated 4 February 2020 in which he opined that Mr Jamali is suffering from ‘a soft-tissue injury to the lumbo‑sacral spine with an inter-vertebral disc injury at the L4/5 level’. The Panel agreed with Dr Doig that there were minor disc changes at L4/5 but based on the Panel’s examination of Mr Jamali, and the Panel’s experience and expertise, the Panel considered the described disc bulge does not explain his persisting lower back symptoms.
The Panel noted that Mr Jamali’s overall symptoms have not improved in the 2.5 years since the incident.
The Medical Panel’s Reasons dealing with Mr Jamali’s psychiatric condition commence by recording the history he provided during the examination on 1 June 2021, including what occurred during the September 2018 incident, how he responded in the aftermath of the incident, the antidepressant medication he has been prescribed and other treatment he has received. The psychiatrists also noted Mr Jamali’s account of his current social circumstances and activities of daily living, and his description of his current psychiatric symptoms.
The Medical Panel undertook a ‘mental status examination’ and made the following diagnosis:
The Panel concluded that Mr Jamali is suffering from an Adjustment Disorder with Anxiety and Associated Conduct disturbance, which is mild to moderate in severity in the setting of pre-existing developmental trauma and psychological vulnerability, including persistent pain. The Panel further considered the condition is permanent or likely to persist into the foreseeable future.
The Panel further concluded that the Mr Jamali has a capacity for work despite his psychiatric/psychological injury.
The Panel noted that the opinion of his treating psychiatrist, Dr Srirekha Vadasseri dated 26 November 2020. Dr Vadasseri opined that by late 2019 his adjustment disorder had been supplanted by a major depressive disorder. The Panel further noted the opinions of medical examiners in Dr Chris Grant dated 26 March 2020, Dr Leon Turnbull dated 30 November 2020 and Dr Vadasseri dated 26 November 2020 that Mr Jamali was suffering from a major depressive disorder or from depressive disorder due to another medical condition. The Panel came to a different conclusion with respect to the dominant mood disturbance and the psychiatric condition, based upon its own history and examination, review of various reports and the Panel’s experience and expertise.
The Panel noted the nature of the psychiatric condition, the mild to moderate spectrum of emotional, behavioural and cognitive symptoms, and the type, intensity and stability of mental health treatment, and concluded that Mr Jamali’s psychiatric condition does not preclude him from performing work for which he is suitably qualified in training, skills and experience, and has physical capacity.
The decision of the Associate Justice
At the hearing before the Associate Justice, Mr Jamali challenged the decision of the Medical Panel on two grounds:
(a)the panel’s finding that his ongoing symptoms of back pain were related to an earlier back injury was unexpected, and accordingly, the panel was obliged to put him on notice of its intention to make that finding, and to provide him with the opportunity to make further submissions regarding the issue; and/or
(b)given its findings that there was no organic explanation for [Mr] Jamali’s ongoing symptoms of pain, the panel should have considered whether those symptoms are a medical condition of the mind, such as a chronic pain syndrome.[13]
[13]Reasons, [24].
The Associate Justice rejected the first ground of review, which alleged that Mr Jamali was denied procedural fairness.[14] No issue is taken with that decision on this application.
[14]Reasons, [57]–[64].
In dealing with the second ground, her Honour considered whether the Medical Panel was obliged to consider symptoms ‘of the mind, such as a chronic pain syndrome’. The issue was:
whether, in failing to make express reference to and form an opinion on the question of whether Mr Jamali’s ongoing symptoms of lower back pain were caused by, or otherwise associated with a chronic pain syndrome which was psychiatric in origin, the [Medical Panel] failed to consider a matter which it was required to consider in order to fulfill its statutory function.[15]
[15]Reasons, [65].
It is appropriate to quote the Reasons of the Associate Justice with respect to this issue at some length:
Accordingly, this is not a case where the referral materials were replete with references to a possible diagnosis of chronic pain syndrome. On the other hand, the possibility that Mr Jamali’s symptoms of pain could be explained by a psychiatrically based chronic pain syndrome (in the event that the panel found that those symptoms were not organically based) was raised squarely by Mr Jamali’s submissions to the panel. There was also a reference to ‘Chronic Pain Syndrome’ under the heading ‘injuries and body function alleged to be impaired…’ in the standard form accompanying his application in the serious injury application proceeding.
There was no reference to a chronic pain syndrome in the panel’s reasons. The physical doctors’ reasons make no reference to any non-organic component to Mr Jamali’s symptoms of pain save for a reference (without comment) to a report prepared by Dr Alex [Mogilevski], the general practitioner who treated Mr Jamali in the immediate aftermath of the September 2018 incident, of 5 November 2019, in which Dr [Mogilevski] opined that Mr Jamali was suffering ‘NON SPECIFIC NON ORGANIC LOWER BACKACHE and NONVERIFIABLE RIGHT SCIATICA’.
There is also no reference to chronic pain syndrome in the psychiatrists’ reasons (which were comprehensive), although the psychiatrists, when reporting upon their interview with Mr Jamali, stated as follows:
He stood for about half of the examination, often clutching his right buttock, but not with evident other pain behaviours.
The reference to ‘other pain behaviours’, and elsewhere in the reasons ‘somatised anxiety’ were the only references which might possibly be considered to touch on matters relevant to a diagnosis of a chronic pain syndrome.
Two questions arise in relation to the chronic pain syndrome issue:
(a)was the question of whether Mr Jamali’s symptoms of pain were caused by or associated with a chronic pain syndrome of psychiatric origin was a matter that the panel was required to consider in order to fulfil its statutory function when providing its opinion; and
(b)if so, did the panel consider this question when forming its opinion?
The question of whether the panel was required to consider whether Mr Jamali was suffering from a psychiatric chronic pain syndrome is finely balanced. On the one hand, there are only fleeting references in the referral materials to any possible non-organic cause of Mr Jamali’s pain symptoms. Accordingly, while Mr Jamali’s submissions to the panel refer to a possible diagnosis of a chronic pain syndrome (and the VWA’s submissions to the panel referred to ‘non‑organic’ factors as being relevant to Mr Jamali’s symptoms of pain), it is at least arguable, as contended for by the VWA, that the submission was not founded on a sound factual basis.
I also accept that the panel is not obliged to have regard to and refer to each and every submission advanced by a party. However, on balance, given the nature of the issue, given that the panel found that there was no clinical explanation for Mr Jamali’s reporting of his symptoms of pain, and given that the issue was expressly raised by Mr Jamali’s submissions, I consider that the possibility that Mr Jamali might suffer from a chronic pain syndrome was a matter that the panel was required to have regard to in order to fulfill its statutory function.
…
In the current case, the possibility that Mr Jamali suffers a chronic pain syndrome which is psychiatric in origin was raised in his submissions to the panel and was put as an alternative diagnosis in the event that the panel found (as it did) that Mr Jamali’s symptoms of lower back pain were not referable to an organic condition of the lumbar spine. While there was only limited support for such a diagnosis in the referral materials, there was some support. Further, as observed by Mr Jamali’s submissions in this proceeding, the panel was entitled to rely upon (and, arguably, the parties were entitled to call upon) the panel’s own experience and expertise when forming its opinion regarding Mr Jamali’s medical condition.
This is not to say that on all occasions when a party’s submissions raise the possibility of an alternative diagnosis that a medical panel must consider or have regard to that diagnosis. The inquiry is necessarily highly fact dependent, and there may be occasions where an alternative diagnosis is clearly spurious, or completely unavailable on the materials, or where a medical panel had formed the view that a claimant was clearly feigning their symptoms, such that it is not necessary for a medical panel to consider alternative diagnoses. But that is not the current case. There was nothing in reasons to suggest that Mr Jamali’s reports of his symptoms of pain was not accepted by either the physical doctors or the psychiatrists, indeed, the panel’s response to the medical questions refer to those ongoing symptoms of pain. Having found no organic explanation of these symptoms, and in the face of a direct request that the question of whether Mr Jamali suffered a pain disorder of psychiatric origin be considered by the panel, it seems to me that it was incumbent upon the panel to give active intellectual consideration to whether Mr Jamali suffered from a pain disorder of that nature.[16]
[16]Reasons, [71]–[77], [83]–[84] (emphasis added) (citations omitted).
That resolved the first question in favour of Mr Jamali. The remaining question was whether the Medical Panel had, in fact, considered the issue. Her Honour reasoned:
As for the question of whether the panel did in fact consider whether Mr Jamali suffered from a psychiatrically based chronic pain syndrome, again, the matter is finely balanced, but, on balance, I am persuaded that it did not.
First, while this is not determinative, there is no express reference in the reasons to the question of whether Mr Jamali’s symptoms of pain were caused by a pain disorder of psychiatric origin, or the term ‘chronic pain syndrome’. One would not have expected the physical doctors to opine on the matter, although conversely, it would not have been surprising if, having reached the conclusion that Mr Jamali’s symptoms had no apparent organic cause, the physical doctors had at least speculated whether those symptoms were associated with a psychiatric disorder.
There is nothing in the reasons or in the answers to the questions to suggest that either the physical doctors or the psychiatrists disbelieved Mr Jamali’s reports of his symptoms of pain. Further, the reasons are replete with references to other medical opinions contained in the referral materials, including Dr Doig’s opinion, which expressly raised the possibility that Mr Jamali’s report symptoms of pain were non-organic in origin.
However, and more significantly, the psychiatrists’ reasons made no mention of a chronic pain syndrome or like disorder. The only potentially relevant references referred to by the VWA in its submissions were, compared with the detail and analysis in the psychiatrists’ reasons as a whole, minimal and fleeting in nature.
I accept Mr Jamali’s submissions to the effect that the psychiatrists’ reasons focussed upon whether Mr Jamali suffered from depression and/or anxiety, or, as it found, an adjustment disorder consequent upon his physical injuries. The psychiatrists’ reasons did not evidence any active intellectual engagement on their part with the question of whether Mr Jamali was suffering from a psychiatric condition which caused his symptoms of pain. While the absence of any reference to such an analysis in the reasons is not necessarily determinative of the matter, the absence of any such discussion is to be contrasted with the thorough and careful reasoning the psychiatrists undertook and articulated with respect to the diagnoses they did reach, and their careful consideration of the other medical opinions in the referral materials, including those they did not agree with.
Another matter which reinforces my view that the panel did not consider the alternative diagnosis of a chronic pain syndrome with a psychiatric origin is the manner in which the panel carried out its examinations of Mr Jamali. The psychiatrists carried out their examination two days before the physical doctors carried out their examination, such that I can infer that the psychiatrists did not have the benefit of the physical doctors’ finding that there was no clinical basis for Mr Jamali’s symptoms of pain at the time they conducted their examination. Of course, practically speaking, the question of whether a psychiatrically based chronic pain syndrome only really arises if there is no identifiable organic cause of any symptoms of pain. The psychiatrists seemed to proceed upon the basis that Mr Jamali’s symptoms of pain were genuine. As observed by the VWA in its submissions, the psychiatrists referred to Mr Jamali’s psychological disorders, and his emotional, behavioural and cognitive symptoms as arising in the setting of persistent pain. With respect, that submission helps make good the argument that the psychiatrists failed to consider whether Mr Jamali’s persistent pain had a psychiatric origin, rather than being merely the setting for his psychological symptoms.[17]
[17]Reasons, [85]–[90] (emphasis in original) (citations omitted).
Her Honour concluded:
While the panel was not bound to conclude that Mr Jamali had a chronic pain disorder, the nature and severity of Mr Jamali’s medical condition, and its connection to his employment was a fundamental issue in the County Court proceedings in which the panel’s opinion would be determinative. Accordingly, even if there was no more than real possibility that the panel may have formed a different opinion had it considered the alternative diagnosis raised by Mr Jamali’s submissions, the panel’s opinion was affected by jurisdictional error.[18]
[18]Reasons, [96].
Application for leave to appeal
On 3 February 2021, the VWA filed an application for leave to appeal the decision of the Associate Justice.
It advances two proposed grounds of appeal:[19]
1.The associate judge erred in concluding that whether or not Mr Jamali was suffering from a psychiatric chronic pain syndrome was a mandatory consideration for the Medical Panel.
2.The associate judge erred in concluding that the Medical Panel’s reasons evidenced a failure on the part of the Panel to consider whether Mr Jamali’s lower back pain and described lower extremity symptoms were psychiatric in origin when makings its diagnoses.
[19]For convenience, each proposed ground will be referred to as a ground from here on.
Consideration
In its written case, the VWA reiterated a number of principles relevant to its application which can be readily accepted, namely —
(a)a court must ensure that it does not fall into the trap of engaging in a merits review;[20]
(b)the court should be extremely careful when analysing the reasons of an expert Medical Panel charged with answering medical questions;[21]
(c)in determining whether a decision-maker has had regard to a mandatory consideration, failure to especially refer to the matter does not necessarily lead to the inference that it was not considered;[22]
(d)determining whether a matter has been taken into account is a matter of fact and not of surmise;[23]
(e)the reasons provided by a Medical Panel should not be construed minutely and finely with an eye keenly attuned to the perception of error;[24] and
(f)a Medical Panel is under no obligation to explain why it did not reach an opinion it did not form.[25]
[20]See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 42 (Mason J, Gibbs CJ agreeing at 30, Dawson J agreeing at 71).
[21]Sidiqi v Kotsios [2021] VSCA 187, [32]–[41] (Beach, Kaye and Osborn JJA). See also Swidryk Investments Pty Ltd v El-Najjar [2023] VSCA 11, [48] (Beach, Macaulay JJA and J Forrest AJA).
[22]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679–80 (Barwick CJ). See, eg, Dundar v Bas [2019] VSC 469, [51] (Moore J). Very recently, the New South Wales Court of Appeal enounced a multitude of reasons why this is so: Ceerose Pty Ltd v A-Civil Aust Pty Ltd [2023] NSWCA 215, [62]–[69] (Payne JA, Ward ACJ agreeing at [1], Basten AJA agreeing at [203]) (‘Ceerose’).
[23]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679–80 (Barwick CJ).
[24]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271–2 (Brennan CJ, Toohey, McHugh and Gummow JJ).
[25]Wingfoot (2013) 252 CLR 480, 501–2 [55]–[56] (the Court); [2013] HCA 43, cited in Maimonis v Bourke [2019] VSCA 302, [51] (Ferguson CJ, Beach and Ashley JJA).
There was no dispute that the approach taken by the Associate Justice (regardless of her conclusion) in determining the question of whether there was a failure by the Medical Panel to consider a relevant matter was correct:
(a)first, whether the Medical Panel was obliged to consider the possibility that Mr Jamali’s symptoms and pain and disability were caused by, or associated with, a chronic pain syndrome of psychiatric origin (ie whether it was a mandatory consideration); and
(b)second, if it was, whether the Medical Panel gave proper consideration to this issue in forming its opinion.
The VWA contended that the answer to both questions should be ‘no’.
The VWA argued that the Associate Justice erred in concluding that this issue (that is, whether Mr Jamali’s symptoms of pain were potentially the product of a chronic pain syndrome which was psychiatric in origin) was a relevant consideration as it was not required to consider it, either by the terms of the statute or by the issues identified by the parties. As to the second, if it was required to be answered, the VWA conceded that the Medical Panel did not specifically mention this issue in the Medical Panel’s Reasons. This, it said, was not fatal and the Medical Panel should be taken to have impliedly considered this diagnosis and rejected it.
Unsurprisingly, Mr Jamali embraced her Honour’s reasoning as we have set out above.
Ground 1: Was the Medical Panel bound to take into consideration a chronic pain syndrome of psychiatric origin?
It is convenient to commence by setting out, in some detail, a recent decision of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (‘Plaintiff M1/2021’),[26] which both parties relied upon. This was a case, involving interpretation of provisions of the Migration Act 1958 (Cth), in which the plaintiff’s visa was cancelled by reason of his conviction for criminal offences.[27] The plaintiff made ‘representations’ in a letter to the Minister, having been invited to do so and consistent with a provision of the Migration Act 1958 (Cth). Section 501CA obliged the Minister to give the plaintiff a written notice that set out the original decision and ‘invite the person to make representations to the Minister … about revocation of the original decision’.[28]
[26](2022) 96 ALJR 497; [2022] HCA 17.
[27]Ibid 504 [2] (Kiefel CJ, Keane, Gordon and Steward JJ).
[28]Ibid 506 [14] (Kiefel CJ, Keane, Gordon and Steward JJ) (emphasis omitted).
Kiefel CJ, Keane, Gordon and Steward JJ, in dealing with the decision-maker’s approach to the representations, said as follows — and this was relied upon by the VWA:
It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder.[29]
[29]Ibid 508 [23]–[24] (citations omitted).
However, their Honours then went on to say:
It is also well-established that the requisite level of engagement by the decision‑maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement — the degree of effort needed by the decision-maker — will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Labels like ‘active intellectual process’ and ‘proper, genuine and realistic consideration’ must be understood in their proper context. These formulas have the danger of creating ‘a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised’. That is not the correct approach. As Mason J stated in Minister forAboriginal Affairs v Peko‑Wallsend Ltd, ‘[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind’. The court does not substitute its decision for that of an administrative decision-maker.[30]
[30]Ibid 508–10 [25]–[27] (emphasis added) (citations omitted).
Subsequently, this year, in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton,[31] Gordon and Edelman JJ said this:
What is required of a decision-maker in considering whether there is ‘another reason’ to revoke a cancellation decision under s 501CA(4) of the Migration Act was recently explained in Plaintiff M1/2021 v Minister for Home Affairs. That provision ‘confers a wide discretionary power’ to revoke a cancellation decision if the Minister is satisfied there is another reason to do so. The scheme for that determination ‘commences with a former visa holder making representations’. A decision-maker ‘must read, identify, understand and evaluate the representations’; that is, they ‘must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them’, and from that point the weight to be given to those representations is for the decision-maker.[32]
[31](2023) 409 ALR 234; [2023] HCA 17.
[32]Ibid 246–7 [52].
In our view, the Associate Justice was correct to conclude that the Medical Panel was required to take into account Mr Jamali’s contention that his continuing back symptoms were occasioned by a chronic pain syndrome of psychiatric origin. We have reached this conclusion for the following reasons.
First, the purpose and significance of the answers of a Medical Panel to medical questions in the scheme of the serious injury provisions of Part 7 of the WIRC Act. In the seminal decision of Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[33] Mason J said as follows:
What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act … where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.[34]
[33](1986) 162 CLR 24.
[34]Ibid 39–40.
The task of determining whether a particular matter is one which the decision-maker is bound to take into account begins and ends with the statute. Where, as here, the Act conferring the discretion in question does not prescribe any mandatory relevant considerations, that is not the end of the inquiry. This Court (Emerton P, Beach JA and Garde AJA), in the recent decision of Mondib Pty Ltd v Coral Rise Pty Ltd,[35] said as follows:
It is not correct to say as a matter of construction that because there are enumerated mandatory factors to be found in some provisions of the [Planning and Environment Act 1987] it follows that no mandatory factors are to be imported by implication into a provision like s 69(2) where no mandatory factors are to be found. Rather the position is that each head of power must be construed in its own right in accordance with the principles stated in Peko-Wallsend to determine whether there are implied mandatory considerations that arise from the subject matter, scope and purpose of the Act that the decision-maker is bound to take into account.[36]
[35][2023] VSCA 237.
[36]Ibid [34].
The WIRC Act does not expressly identify any or all of the matters which must be taken into account by the Medical Panel. Thus, the manner in which the Medical Panel exercises its discretion in giving its opinion, and the matters it must consider in expressing that opinion, are to be determined by reference to the terms of the Act and any implication to be drawn from the relevant provisions of that Act.
Medical Panels are creatures of statute, constituted under Division 2 of Part 12 of the WIRC Act.[37] A Medical Panel may only be constituted ‘as necessary for the purposes of [the] Act’ and it may only perform the function conferred on it.[38] The function of the Medical Panel in answering a medical question was explained by the High Court (French CJ, Crennan, Bell, Gageler and Keane JJ) in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’):
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions.[39] 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.[40]
[37]WIRC Act s 3(1) (definition of ‘Medical Panel’).
[38]WIRC Act s 537(1).
[39]Cf Masters v McCubbery [1996] 1 VR 635, 645 (Winneke P, Ormiston JA agreeing at 651).
[40]Wingfoot (2013) 252 CLR 480, 498–9 [47]; [2013] HCA 43.
We have set out a number of the relevant provisions of the WIRC Act at [20] to [29] above. In addition to these, the following provisions should be noted. The WIRC Act is primarily concerned with the entitlement of workers to compensation for workplace injuries.[41] One of the purposes of the Act is to ‘provide a single gateway for claims for compensation’: s 1(c). The objectives of the Act include, amongst other things, ensuring appropriate compensation is paid to injured workers: s 10. Where medical questions concerning the existence, permanency and/or nature of an alleged injury are referred to a Medical Panel for the purpose of determining whether that injury is a ‘serious injury’, it is plain that a worker’s ability to bring a common law proceeding may be curtailed or eliminated by the Medical Panel’s answers to the questions posed by the judge making the referral under s 274 of the Act.
[41]See, eg, WIRC Act s 5(1).
Although irrelevant to our consideration of this application, the facts of this case demonstrate the point. The Medical Panel’s Opinion has the consequence that Mr Jamali cannot establish that he has sustained a serious injury within the meaning of s 325(1) of the WIRC Act as its answers to questions 1 and 3 preclude a finding of permanency, a prerequisite to establishing the existence of a serious injury.
Second, as we mentioned earlier the WIRC Act specifies the material to be provided to the Medical Panel by the Court as part of its role in determining the answers to the medical questions relevant to whether a worker has sustained a serious injury.
This material comprises the joint statement and notice of request as required by s 304(a) of the WIRC Act, as well as ‘all other documents related to the medical question’ as required by s 304(b). It can be assumed that these are the documents described in the Attachments which we have set out at [32] above. These, it can also be assumed, are provided for the purpose of the Medical Panel performing its statutory function in giving an opinion as to the questions referred to it by the judge. The use of such material by a Medical Panel was explained by the High Court in Wingfoot.[42]
[42]See [75] above.
In our view, the nature of the inquiry undertaken by the Medical Panel in the context of the serious injury provisions of that Act and the consequences of its opinion — formed on the basis of material required to be given to it as well as its own conclusions — means this: where there is a serious contention about a particular condition (and its diagnosis) said to be a result of the impugned work activity, it is necessary for the Medical Panel to consider that specific claim.
So, if it is alleged that the Medical Panel failed to undertake that task, it will be necessary for the court engaging in judicial review to ascertain whether, on a fair reading of all the material before the Medical Panel (including its own examination, investigations and conclusions), the contention was sufficiently relevant to the alleged injury and was squarely raised.
In a recent case in this Court with factual similarities to those on this application, Victorian WorkCover Authority v Putrus (‘Putrus’),[43] the Court (Beach, Kennedy JJA and J Forrest AJA) said as follows:
It is well-settled that a medical panel will commit jurisdictional error if it fails to give genuine considerations to matters which it is required to consider, and that consideration could have materially affected its decision, or if it fails to give genuine consideration to fundamental issues raised by the facts of the case. Thus, a medical panel examining a worker in accordance with the provisions of the Act is required to consider:
· the medical questions referred to the panel;
· the submissions of the parties (if provided);
· the document provided by the parties, required by s 304(a) of the Act, specifying the alleged injury and the agreed facts and disputed facts;
· the documents relating to the medical questions, provided by the parties pursuant to s 304(b) of the Act; and
· matters arising out of the medical panel’s examination of the worker (including the worker’s history, evidence as to any investigations, tests, studies or the like, and the panel’s findings on examination).[44]
[43][2023] VSCA 28.
[44]Ibid [37] (citations omitted).
The Court held that the following factors demonstrated that the Medical Panel had failed to properly consider whether the worker suffered a psychiatrically based chronic pain syndrome:
•it was raised in the draft statement of claim;
•it was raised in the parties’ submissions to the Medical Panel;
•it was raised in the medical material provided to the Medical Panel;
•it was raised in the questions posed to the Medical Panel;[45]
•there was nothing in the Medical Panel’s Reasons which referred to any psychiatrically based pain syndrome from which the worker might have been suffering;[46]
•given that the Medical Panel accepted the worker’s complaints of pain as genuine, and it appeared to have ruled out physical causes, ‘the only viable explanation for his accepted pain’ would appear to be one of psychological origin.[47]
[45]Ibid [43]–[44].
[46]Ibid [45]–[46].
[47]Ibid [47]–[48].
Returning to the facts of this case, and the cause of Mr Jamali’s ongoing back pain, we have set out the material provided to the Medical Panel pursuant to s 304 of WIRC Act, contained in the Attachments at [32]. In particular, the following goes to the degree of relevance of the chronic pain syndrome of psychiatric origin in determining whether it merited consideration by the Medical Panel:
(a)the joint statement dated 3 February 2021 which explicitly acknowledges that Mr Jamali alleges that he suffered ‘consequential psychiatric/psychological injury’ in addition to his physical injury;
(b)Mr Jamali’s Form A dated 19 May 2020, in which he clearly identified his injury as not only physical (ie injury to the spine) but also psychiatric (ie chronic pain syndrome, anxiety and depression);
(c)Mr Jamali’s written submissions dated 2 February 2021, in which he expressly requested the Medical Panel to consider whether (in the event that it did not accept that he suffered from an ‘organic condition of his lumbar spine’) he suffered from a chronic pain syndrome as suggested by Dr Thomas and Dr Doig ‘which accounts for the symptoms in his spine and/or whether the Plaintiff’s spinal symptoms can be explained by any mental or behavioural disturbance or disorder’; and
(d)the following medical reports:
(i)the report of Dr Doig dated 4 February 2020 in which he opined that Mr Jamali ‘continues to suffer from chronic pain with secondary psychological issues’ and that his ‘clinical presentation is now consistent with a chronic-pain disorder with secondary psychological problems’;
(ii)the report of Mr Michael Dooley dated 26 August 2020 in which he said that he ‘believe[d] that [Mr Jamali] has had a psychological reaction to his situation and that this reaction is influencing his ongoing symptoms’;
(iii)various reports of Dr Thomas from 14 February 2019 to 4 December 2020 in which he considered that it was ‘[h]ard not to draw the conclusion that there was a nonorganic component’, that a psychiatric assessment was needed and that Mr Jamali should be treated with ‘some psychiatric support’; and
(iv)the report of Dr Alex Mogilevski dated 5 November 2019 in which he opined that Mr Jamali was suffering from ‘NONSPECIFIC NONORGANIC LOWER BACKACHE and NONVERIFIABLE RIGHT SCIATICA’.
It is not to the point that there was a significant body of other material analysing the potential physical causes of Mr Jamali’s symptoms. What was material was the fact that the question of a chronic pain syndrome of a psychiatric nature was raised in the material provided to the Medical Panel pursuant to s 304. It formed part of a cogent alternative submission and was supported by medical opinion. It provided an explanation for Mr Jamali’s ongoing back pain, which the Medical Panel had concluded had no physical basis.
As far as we can tell, the VWA did not contend that any of this material was irrelevant. Rather, it argued that it was peripheral and, as such, the Medical Panel was not required to give it realistic consideration. We disagree.
Of course, as the High Court pointed out in Plaintiff M1/2021, not every submission (or, in that case, representation, in the context of a very different piece of legislation) will constitute a mandatory relevant consideration. But here, on a fair reading of the material provided to the Medical Panel, the question as to whether there was a psychiatric origin for Mr Jamali’s pain such as chronic pain syndrome was squarely raised and was of real significance to the findings on his serious injury application, which was the sole remaining avenue available to him to establish an entitlement to common law damages. The issue of a chronic pain syndrome of psychiatric origin was neither irrelevant nor peripheral to the questions the Medical Panel was required to answer, particularly given that Mr Jamali continued to complain of ongoing back pain. The material (and particularly Mr Jamali’s written submissions and supporting medical documents) provided to the Medical Panel was of sufficient clarity and had a significant degree of relevance to the questions posed by the County Court judge to require consideration by the Medical Panel of that issue.
Whilst the High Court in Wingfoot made it clear that the Medical Panel’s role was neither arbitral nor adjudicative (see [75] above), that does not diminish its obligation to give genuine consideration to a clear submission which had medical support.
The Associate Justice’s conclusion that the Medical Panel was required to consider whether Mr Jamali’s back pain was the result of a chronic pain syndrome of psychiatric origin was correct. This was a mandatory relevant consideration.
Ground 1 is not made out.
Ground 2: Did the Medical Panel fail to consider the existence of a psychiatric origin of the pain?
Having concluded that the existence of chronic pain syndrome as a psychiatric origin of the back pain complained of by Mr Jamali was a mandatory relevant consideration, the question that now falls for determination is whether the Medical Panel failed to take that matter into account in forming its answers to the medical questions.
It has been established that a constructive failure to exercise jurisdiction occurs where an administrative decision-maker ‘fail[s] to respond to a substantial, clearly articulated argument relying upon established facts’.[48]
[48]Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, 1092 [22]–[25] (Gummow and Callinan JJ), 1101 [88] (Kirby J), 1102 [95] (Hayne J); [2003] HCA 26. See also Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 435–6 [13] (Bell, Gageler and Keane JJ); [2019] HCA 3; Saffari v Australian Information Commissioner [2023] FCAFC 127, [23] (the Court); Plaintiff M1/2021 (2022) 96 ALJR 497, 508 [24], 509–10 [27] (Kiefel CJ, Keane, Gordon and Steward JJ); [2022] HCA 17; Liddell Coal Operations Pty Ltd v Hector [2021] NSWCA 47, [53] (Gleeson JA, Basten JA agreeing at [1], McCallum JA agreeing at [57]); State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257, [11] (Basten JA, McColl JA agreeing at [1], Preston CJ of LEC agreeing at [66]); Ceerose [2023] NSWCA 215, [40] (Payne JA, Ward ACJ agreeing at [1], Basten AJA agreeing at [203]).
The onus of establishing such a failure lies with the party seeking judicial review. In this respect, Mr Jamali must demonstrate that the Medical Panel did not consider the question of whether his ongoing back pain was a consequence of a chronic pain syndrome of psychiatric origin.
We are conscious of the restraint that is to be exercised in reaching a determination that such a failure has occurred.
The relevant test has been described at times as whether the decision-maker engaged in an ‘active intellectual process’ or ‘proper, genuine and realistic consideration’ of the matter which, it is alleged, was required to be considered. However, superior courts have regularly warned that this form of analysis creates a risk of impermissibly engaging in merits review.[49]
[49]Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 175–6 [30] (the Court); [2010] HCA 48, quoting Swift v SAS Trustee Corporation [2010] NSWCA 182, [45] (Basten JA, McColl JA agreeing at [1], Preston CJ of LEC agreeing at [66]). See also Ceerose [2023] NSWCA 215, [58] (Payne JA, Ward ACJ agreeing at [1], Basten AJA agreeing at [203]); Plaintiff M1/2021 (2022) 96 ALJR 497, 509 [26] (Kiefel CJ, Keane, Gordon and Steward JJ); [2022] HCA 17.
It can also be readily acknowledged that the fact that there was a submission with supporting medical evidence contending that Mr Jamali’s back pain was of psychiatric origin did not oblige the Medical Panel to reach the same conclusion. It was open to the Medical Panel to accept or reject that submission and evidence (and in the latter case, to give that evidence whatever weight it considered appropriate), as explained in Wingfoot.[50]
[50]See [75] above.
Further, we accept that the failure to refer to a particular submission or contention in a set of reasons does not necessarily lead to the conclusion that it was not considered by the decision-maker. There may be other explanations for the omission. For example, the submission may have been misconceived or the decision-maker attached very little weight to it. Equally too, there may be circumstances in which the reviewing court may properly draw an inference that a relevant matter was not considered.[51] In Plaintiff M1/2021, the High Court said that:
[I]f review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error.[52]
[51]Ceerose [2023] NSWCA 215, [62]–[66] (Payne JA, Ward ACJ agreeing at [1], Basten AJA agreeing at [203]).
[52]Ibid 508–10 [27] (citations omitted).
Whilst this is not a case concerning the adequacy of reasons, the High Court’s statements in Wingfoot as to the purpose and use of the reasons of a Medical Panel are pertinent:
The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the Medical Panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain. …
The nature of the question referred to a Medical Panel, and the way that question was addressed by other medical practitioners in opinions supplied to a Medical Panel, might allow an inference to be drawn, on the balance of probabilities in a particular case, that the reasoning in fact adopted by a Medical Panel in arriving at its own differing opinion is not adequately reflected in its written statement of reasons. An inference might be drawn, for example, that the reasoning involved one or more steps not reflected in the written statement of reasons either at all or in sufficient detail to allow a court to see whether a Medical Panel made an error of law in those steps. That is not this case.[53]
[53]Wingfoot (2013) 252 CLR 480, 501 [54], 502 [57] (the Court); [2013] HCA 43.
Here, the Medical Panel in its Opinion concluded that although Mr Jamali suffered from back pain which was materially contributed to by the physical lower back injury suffered as a result of the work activity, there was no evidence of ‘structural pathology’ to explain his lower back and lower extremity symptoms which it said was ‘non‑specific’. It concluded that Mr Jamali’s physical medical condition was not ‘permanent or likely to persist into the foreseeable future’. The Medical Panel (presumably, the two psychiatrists) considered that he suffered from adjustment disorder with anxiety and associated conduct disturbance that was consequential to his physical injury.
Once the Medical Panel had concluded that Mr Jamali continued to suffer from non‑specific lower back pain with a resolved soft tissue injury, the next logical step was to endeavour to identify a potential alternative explanation for the ongoing back pain that it had found was present (as argued by Mr Jamali in his submissions to the Medical Panel).
Despite counsel for the VWA’s apparent reluctance at one stage to concede it, it is readily apparent that the Medical Panel’s Reasons make no reference whatsoever to Mr Jamali’s contention that his ongoing symptoms of back pain were linked to a chronic pain syndrome, or that there was a psychiatric origin for those symptoms.
Of course, a Medical Panel is not required to address in its reasons every matter raised in the parties’ submissions. But, here, one would reasonably have expected the issue (ie chronic pain syndrome of psychiatric origin) to be mentioned, if only briefly — particularly as that diagnosis provided a ready explanation for Mr Jamali’s ongoing back symptoms which the Medical Panel could not explain on a physical basis.
We do not accept the submission advanced on behalf of the VWA that the Medical Panel can be taken to have impliedly taken the issue into account and subsequently rejected it. There is simply nothing in the Medical Panel’s Reasons or the Opinion upon which to draw such an inference. Simply asserting that the Medical Panel must have considered the matter given its general statement of consideration of all the material goes nowhere.
During oral reply submissions, the VWA first advanced the proposition that it could be inferred that the Medical Panel found that Mr Jamali’s current symptoms could be attributed to pre-existing back pain which had existed from 2014. No such conclusion was expressed by the Medical Panel in its Opinion, and there is nothing in the Medical Panel’s Reasons which suggests that this condition was a cause of his ongoing back pain. Even if it was a potential explanation, it did not relieve the Medical Panel of its obligation to consider the alternative diagnosis of chronic pain syndrome of a psychiatric origin.
There is a further problem with the manner in which the Medical Panel conducted its inquiry and reached its conclusion, which may explain why the question of chronic pain syndrome of psychiatric origin was not addressed by the Medical Panel. As we mentioned earlier, the Medical Panel comprised two psychiatrists and three ‘physical’ doctors. Importantly, the physical and psychiatric examinations were carried out separately (that is, by different practitioners on different days). Mr Jamali was examined by the psychiatrists on 1 June 2021 (and this was presumably when the ‘mental status examination’ was carried out), and by the other practitioners on 3 June 2021.
Moreover, the psychiatric examination was conducted prior to the physical examination. This was not conducive to the performance of the task before the Medical Panel. In this respect, we agree with the observations of the Associate Justice:
The psychiatrists carried out their examination two days before the physical doctors carried out their examination, such that I can infer that the psychiatrists did not have the benefit of the physical doctors’ finding that there was no clinical basis for Mr Jamali’s symptoms of pain at the time they conducted their examination. Of course, practically speaking, the question of whether a psychiatrically based chronic pain syndrome only really arises if there is no identifiable organic cause of any symptoms of pain. The psychiatrists seemed to proceed upon the basis that Mr Jamali’s symptoms of pain were genuine. As observed by the VWA in its submissions, the psychiatrists referred to Mr Jamali’s psychological disorders, and his emotional, behavioural and cognitive symptoms as arising in the setting of persistent pain. With respect, that submission helps make good the argument that the psychiatrists failed to consider whether Mr Jamali’s persistent pain had a psychiatric origin, rather than being merely the setting for his psychological symptoms.[54]
[54]Reasons, [90].
The contention that there was a non-organic component to Mr Jamali’s back pain was advanced as an alternative submission. In written submissions to the Medical Panel, Mr Jamali made the primary argument that his pain was the result of, or was materially contributed to by, the physical lower back injury suffered throughout the course of his work for Super Metal. He also submitted that if the Medical Panel does not accept that he suffers from an organic condition of the lumbar spine, the Medical Panel is asked to consider whether he suffers from a chronic pain syndrome and/or whether his spinal symptoms can be explained by a condition of the mind. In other words, the question of there being a psychiatric origin for Mr Jamali’s pain only arose after the Medical Panel had reached a conclusion as to the physical condition.
When viewed in its entirety the Medical Panel’s Reasons give the clear impression of two separate medical reports (one physical and one psychiatric) being amalgamated, without due consideration of how the matters contained in one report might impact upon the other. Apart from the assertion in the Medical Panel’s Opinion that the presiding member discussed the answers to the medical questions with the other members of the Medical Panel and that the answers were the opinion of the Medical Panel on the medical questions, there is nothing to indicate that the psychiatrists met with the physical doctors to discuss their findings. There is nothing to suggest that the question of back pain caused by a chronic pain syndrome of psychiatric origin was considered by the psychiatrists as a group, the physical doctors as a group, or by the members of the Medical Panel jointly.
Notwithstanding the restraints and caveats we have adverted to, we are satisfied that the Medical Panel failed to address the question of whether there was a psychiatric cause of Mr Jamali’s ongoing back pain, such as chronic pain syndrome. In failing to do so, it fell into jurisdictional error. The Associate Justice was correct to find that the Medical Panel failed to consider a mandatory relevant consideration.
Ground 2 is not made out.
Conclusion
The end result is that we are satisfied that there was no error on the part of the Associate Justice in reaching the conclusion that the Medical Panel was required to give proper consideration to the question of whether Mr Jamali’s chronic pain syndrome was of a psychiatric nature, and that it failed to do so.
We will grant leave to appeal but dismiss the appeal and make orders accordingly.
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SCHEDULE OF PARTIES
| VICTORIAN WORKCOVER AUTHORITY | Applicant |
| v | |
| FAHIM JAMALI | First Respondent |
| DR DIANE NEILL | Second Respondent |
| ASSOCIATE PROFESSOR ALEXANDER HOLMES | Third Respondent |
| ASSOCIATE PROFESSOR PAUL CHAMPION DE CRESPIGNY | Fourth Respondent |
| PROFESSOR GAVIN DAVID | Fifth Respondent |
| MR GARY SPECK | Sixth Respondent |
| CONVENOR OF MEDICAL PANELS | Seventh Respondent |
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