Wingfoot Australia Partners Pty Ltd and Anor v Kocak and Ors
[2013] HCATrans 175
[2013] HCATrans 175
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M52 of 2013
B e t w e e n -
WINGFOOT AUSTRALIA PARTNERS PTY LTD
First Appellant
GOODYEAR TYRES PTY LTD
Second Appellant
and
EYUP KOCAK
First Respondent
DR PETER LOWTHIAN CONVENOR OF MEDICAL PANELS PURSUANT TO THE PROVISIONS OF THE ACCIDENT COMPENSATION ACT 1985
Second Respondent
MEDICAL PANEL (CONSTITUTED BY DR STEPHEN JENSEN, MR KEVIN SIU AND MR JOHN BOURKE)
Third Respondent
FRENCH CJ
CRENNAN J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 14 AUGUST 2013, AT 10.03 AM
Copyright in the High Court of Australia
____________________
MR M.F. WHEELAHAN, SC: If the Court pleases, I appear with my learned friend, MS M.C. NORTON, for the appellants. (instructed by Thomsons Lawyers)
MR A.G. UREN, QC: If the Court pleases, I appear with my learned friend, MR A.D.B. INGRAM, for the first respondent. (instructed by Slater & Gordon)
MR A.S. PILLAY: If the Court pleases, I appear on behalf of the second and third respondents in this matter. (instructed by Moray & Agnew)
FRENCH CJ: Yes, Mr Wheelahan.
MR WHEELAHAN: Your Honours, the resolution of the issues in this appeal requires that attention be directed to the terms of the legislation. We propose to take the Court to the legislation first. In the speaking note in paragraph 1 we have set out in a short table a brief aide‑mémoire of some dates relevant to the commencement of some amendments to the Accident Compensation Act which are material to the issues which arise on the appeal.
I propose to take the Court principally through reprint 16 of the Accident Compensation Act, and we have supplied the Court also with version 159D, either of which will be sufficient. We take the Court first to the definition of “medical question” in section 5 of the Accident Compensation Act.
FRENCH CJ: Yes.
MR WHEELAHAN: Your Honours, we draw attention to paragraphs (a), (b) and (ca) of the definition of “medical question”, and we ask the Court to note in paragraph (b), one of the medical questions is framed as:
a question whether a worker’s employment was in fact, or could possibly have been, a significant contributing factor –
and so forth. Those words “or could possibly have been” we will see later appear in the medical panel’s opinion given in response to the questions framed in this case. Could we also draw attention to paragraphs (h) and (i) of the definition of “medical question”. Those paragraphs were inserted into the Act in 2000 at the same time that section 45(1A) was inserted, which empowers courts hearing applications under section 134AB(16) for leave to bring a damages proceeding to refer medical questions to a medical panel. Paragraphs (h) and (i) relate to that particular exercise and not to the statutory compensation provisions.
Could we ask the Court now to turn to sections 39 to 43? They are not in the prints which we provided to the Court, and we have some additional pages which we would like to hand up from version 159D containing those additional sections. We ask the Court to note the terms of section 39, which confers what is described as an “exclusive jurisdiction” on the County Court:
to inquire into, hear and determine any question or matter under this Act –
Now, the history of that provision is when the Act was originally enacted in 1985, there was a Tribunal titled, Accident Compensation Tribunal. There was a similar provision which conferred exclusive jurisdiction on the Accident Compensation Tribunal to determine any question or matter as set out in the provision then enacted. In 1992, the jurisdiction was then conferred upon the County Court by section 39, and a concurrent jurisdiction was conferred on the Magistrates Court by section 43, so although it is referred to as an exclusive jurisdiction that is misleading having regard to the terms of section 43.
Now, the significance of this provision is that the words are “hear and determine any question or matter”. In our submission, I have picked up when we come to section 68(4), so that is the reason I draw this provision to the Court’s attention. I wish to turn now to section 45, and this is the first provision which enables reference of medical questions to a medical panel, and in this instance it is by the court. Subsection (1) is concerned with a court hearing a statutory ‑ ‑ ‑
FRENCH CJ: Which court are we referring to here, either or both?
MR WHEELAHAN: Either the County Court or the Magistrates Court, so the effect of section 43 – I will not take the Court back to it ‑ ‑ ‑
FRENCH CJ: No, no.
MR WHEELAHAN: Yes. So subsection (1) is concerned with statutory compensation. Subsection (1A) extends the section so that it applies to applications to leave to bring damages proceedings under 134AB (16)(b). Now, may I just pause and note for the Court that section 134AB applies only to injuries on and after 20 October 1999 and that date is referred to ‑ ‑ ‑
FRENCH CJ: The asserted injuries in 1996.
MR WHEELAHAN: Yes, and so in this proceeding the application for leave is not under 134AB (16)(b) but rather under section 135A(4) and, if I just direct the Court’s attention back to the short table at the outset of the speaking note, one of the reasons we have put the dates in is so that the Court can see the different phases of the statutory scheme. So this injury occurred - sorry, the first respondent’s injury, the claimed injury, occurred prior to the abrogation of common law rights which occurred from 12 November 1997. Common law rights were then reintroduced with effect from 20 October 1999 but retrospectively by the 2000 Amending Act.
FRENCH CJ: Now, was the abrogation retrospective in the sense that it affected prior injuries?
MR WHEELAHAN: No, it was not.
FRENCH CJ: So the abrogation did not affect him?
MR WHEELAHAN: No, it did not. It affected prior injuries procedurally but not substantively.
BELL J: Could you just give me the date of the abrogation again - the 1997 date?
MR WHEELAHAN: Yes, with effect from 12 November 1997. In Victoria we refer to that period colloquially as the “black hole” period. The reason I draw the Court’s attention to that feature of the legislation is that there is no capacity for a court hearing a leave application under 135A(4) to refer a medical question to a medical panel.
Just whilst I am still on subsection (1), I wish to note for the Court that subsection (1) appearing in this reprint was not in the form applicable to this reference to the medical panel. There is no material difference, in other words, nothing turns on the difference in language but I will take the Court shortly to section 45(1) which was in force or was applicable to this particular reference. The Court should note also that subsections (1D) to (1H) which appear in this reprint did not apply to this reference. The reason is because of the transitional provisions of the Act which we note in our ‑ ‑ ‑
CRENNAN J: Sorry, which section are you on now?
MR WHEELAHAN: I am still on section 45.
CRENNAN J: 45.
MR WHEELAHAN: And, because we are on re-print 16, I wish to note for the Court that subsections (1D) to (1H) were not relevant to the reference in this case, and that is because the compensation proceeding was commenced before those provisions became operative, and that is a consequence of the transitional provisions which we note towards the end of our written submissions.
Could I take the Court now to section 55AA, and this is the first of three provisions which enable a conciliator to refer questions to a medical panel. Just in broad outline, the conciliation process which is provided for in these sections is concerned only with disputes relating to statutory compensation, including for instance weekly payments. Now, there are three provisions: first is section 55AA which provides for a mandatory referral “in a dispute relating to section 93CD”.
Now, 93CD is a weekly payments provision. The second of the three provisions enabling a conciliation officer to refer is section 55A, and that is referral by consent of the parties. The third provision is section 56(6), which gives a conciliation officer a broad discretion to refer a medical question to a medical panel.
FRENCH CJ: What is the consequence of that referral?
MR WHEELAHAN: As a consequence of section 68(4), once the panel provides an opinion in relation to the questions referred by the conciliator, that opinion is then binding upon the courts determining any compensation dispute and also, in our submission, the parties to any such proceedings. We say that flows from section 68(4).
FRENCH CJ: Well, that is part of the debate?
MR WHEELAHAN: Yes. We turn now to section 63 which is the first section in Division 3 of Part III with the heading, “Medical Panels”. Subsection (2) provides that medical panels are to be constituted by medical practitioners, and that is the effect of the requirement that:
there is to be a list of members consisting of medical practitioners appointed by the Governor in Council.
Section 65 provides “Procedures and Powers” of medical panels, and we see in subsection (1), firstly, the panel is not bound by the rules of evidence but “may inform itself”. Subsection (2), it:
must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.
Subsection (4) is a provision which contemplates the attendance of a worker before the medical panel. That attendance is in private. Subsection (5) empowers the medical panel to require the worker to answer questions and to submit to a medical examination.
FRENCH CJ: The panel may ask a worker to meet with the panel and answer questions, there is no obligation to respond, is that right?
MR WHEELAHAN: There is no direct obligation but there is a later provision that if the worker does not co‑operate with the medical panel, compensation payments may be affected.
FRENCH CJ: Well, there is that consequence but, yes, it is not a coercive process though.
MR WHEELAHAN: It is not directly coercive. Subsection (9) makes provision for – or subsection (7) and (9) each make provision for the convenor to give directions and the convenor has, or did at the time publish directions in 2009 which are annexed to the written submissions of the second respondent. Could I turn now to section 67(1) which provides that:
The function of a Medical Panel is to give its opinion on any medical question in respect of injuries –
and so forth. In our submissions, we place weight on the words “its opinion” and we will be submitting that that function distinguishes the panel from other bodies which perform adjudicative functions. The function of the panel is to – by reason that the panel must consist of medical practitioners and must give its opinion, it is in the nature of provision of an expert opinion rather than necessarily making choices between cases put by parties in an adversarial process.
CRENNAN J: This feeds into your argument about the adequacy of reasons in relation to experts who have a different view from the panel, is that it?
MR WHEELAHAN: Yes, that is it. So, if the opinion is different to opinions which have been proffered to the medical panel, it is our submission that because the function of the medical panel is to give its opinion, it is no necessary part of that function to explain away opinions which are inconsistent with its opinion.
We turn now to section 68. Section 68(1) refers again to a medical panel forming its opinion. Subsections (2) and (3) when read together make provision for two things, firstly, a certificate of opinion and secondly, a written statement of reasons for that opinion. Both must be furnished to, as it states in subsection (3), the “Conciliation Officer or the County Court” – just pausing there, that should be read as including the Magistrates Court in consequence of section 43(3) – or the “Authority or self‑insurer”.
Now, in our submission, there is a sequence that can be observed in subsections (1), (2) and (3) and that is, firstly, the formation of the opinion; secondly, giving the certificate and the statement of reasons, and our submission is that they are conceptually distinct and they also are temporarily distinct, and we will come back to that point. Section 68(4) is the provision that was originally inserted into the Act in 1997 and the Court will observe that the opening words are:
For the purposes of determining any question or matter –
Now, a submission I will come back to is that that reflects the language of section 39. The subsection goes on –
the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and 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.
Now, it will be necessary to come back to that provision when I make submissions in relation to the Court of Appeal’s decision in Pope v Walker. Now, your Honours, in paragraph 57 of our written submissions we have noted that section 68 was amended in 2010. The amendments commenced on 5 April 2010 and the amendments affected the medical panel opinion in this case because the opinion was given after the commencement date of the amendments. The effect of the amendments was to introduce into section 68 a requirement for written reasons, whereas previously there was no requirement in the Accident Compensation Act itself for the provision of written reasons.
FRENCH CJ: Previously it was just to provide its written opinion.
MR WHEELAHAN: Yes, and a certificate ‑ ‑ ‑
FRENCH CJ: A certificate followed up by the opinion, I think, was that not right?
MR WHEELAHAN: Yes.
FRENCH CJ: Then the reasons are superadded?
MR WHEELAHAN: Yes.
FRENCH CJ: So the notion of the opinion was that those were the bottom line of their conclusions?
MR WHEELAHAN: Yes, and the effect of subsection (4) is it is the opinion that is adopted and applied, not the reasons. The reasons, in our submission, have no effect in relation to the operation of 68(4). Now, historically, reasons could be requested under section 8 of the Administrative Law Act 1978, and I will take the Court to that section shortly, but our submission is that one of the purposes of amending section 68 was to obviate the need for interested persons to make a request under the Administrative Law Act in circumstances where the convenor’s directions contemplated that medical panels would provide reasons in any event.
That purpose is evident from some passages of the Hanks Report, which we have set out in paragraph 57 of our written submissions, and our submission is that the 2010 amending Act, that is, Act No 9 of 2010, was the legislative response to the Hanks Report and we have made reference to the relevant Hansard in our written submissions.
Could I take the Court now to section 89(3D)? It is on page 196 of the electronic version we supplied to the Court. That is another instance in which a question may be referred to a medical panel, and in this case, it is in relation to hearing loss.
The last way in which a question may be referred to a medical panel is under section 104B(9), which is on page 339 of the print we provided to the Court. This referral is in relation to a dispute about an impairment assessment, and the level of impairment under this Act and under section 104B is relevant for two purposes, firstly for calculating no fault lump sum benefits. Secondly, if the degree of impairment is 30 per cent or more, then there is a deemed serious injury and common law proceedings for damages may be commenced. That is the relevance of a medical panel determining impairment pursuant to section 104B(9).
We have also supplied the Court with sections from version 159A, and reprint 15 would also suffice for this purpose. We have done so for the sake of completeness so that the Court has the version of section 45 of the Act which was relevant to the referral to the medical panel in this case.
Could we take the Court now to the Administrative Law Act 1978 (Vic) commencing with section 8. Section 8(1) requires a Tribunal to furnish a statement of reasons if requested, and it is similar in concept to section 13 of the AD(JR) Act.
FRENCH CJ: The content of the statement of reasons is the same? Is there a description of the content?
MR WHEELAHAN: The content, we submit, is not the same. The content is proscribed by subsection (4), to which I will take the Court now. Subsection (4) provides a person who has requested reasons with statutory remedies in the event that either reasons are not supplied or they are not adequate, and the statutory remedies are two-fold. Firstly, the court may order the provisions of reasons or further reasons. Secondly, if that order is not complied with and this is in the last six lines of subsection 4:
in addition to or in lieu of any order to enforce compliance . . . [the Court] may make any such order as might have been made if error of law had appeared on the face of the record.
Our submission is that would authorise an order quashing the decision. Now the content, that is, the standard of reasons which subsection 4 contemplates is that – and this is about one‑third of the way into subsection 4 – they have to be:
adequate to enable a Court to see whether the decision does or does not involve any error of law –
FRENCH CJ: I think in relation to Commonwealth statutes, there is a standard form definition of the term, the requirement for reasons including evidence, facts and so forth.
MR WHEELAHAN: Yes, and we have referred to section 25D of the Acts Interpretation Act (Cth) which contains such a provision.
FRENCH CJ: There is no equivalent here?
MR WHEELAHAN: There is no equivalent here, either in this Act or in any Act of general application in Victoria. In our written submissions we footnoted – I will just see if I can pick up the footnote quickly – in footnote 2, a number of provisions in Commonwealth legislation and legislation of other States and the ACT, which contains such provisions.
Footnote 2 is not a complete list of such provisions but it lists many of them.
So one of the submissions we will make when we get to the Court of Appeal’s reasons is the Court of Appeal has picked up criteria like those which appear in legislation such as section 25D of the Acts Interpretation Act (Cth) in circumstances where there is no express requirements in Victoria to that effect which would require medical panels to require reasons of such a standard.
Now, the reason I take the Court in particular to subsection (4) is that when we come to the Court of Appeal’s decision in Masters v McCubbery and the statements by Mr Justice Winneke as to what is expected of medical panels, it is against the background of subsection (4), that being the applicable statutory standard. In relation to the requirement in section 68 of the Accident Compensation Act to provide a statement of reasons, there is no express statutory requirement of this nature, the only requirement being that the panel must give reasons for its opinion. Section 8(4) of the Administrative Law Act does not apply to the reasons which were furnished in this case.
GAGELER J: Does section 10 apply?
MR WHEELAHAN: Yes, section 10 does apply. So I will take the Court to section 10 now. Section 10 was a remedial provision, so Craig v South Australia has been remedied by statute in Victoria, or it is affected by statute. Reasons are part of the record, and it is accepted that the reasons of a medical panel form part of the record.
KEANE J: Is it accepted that a medical panel is a tribunal within the meaning of the Act?
MR WHEELAHAN: Yes. That was decided by the Court of Appeal in 1996 in Masters v McCubbery and it is also accepted that the opinion is a decision for the purposes of the Administrative Law Act. I am now onto paragraphs 6 and 7 of the list of propositions which we have handed to the Court. There being no express requirements in the Act as to the content of the obligation of a medical panel under section 68 to give reasons, one must therefore look at what content is implied from the features of the Act.
In paragraphs 36, 39 and 40 of our written submissions, we identify those features which emerge from sections 63 to 68 of the Act to which we have taken the Court. Firstly, the medical panel “is comprised of medical practitioners”. Secondly, it is “not bound by rules or practices as to evidence”. Thirdly, it “must act informally”, and so forth. Fourthly, the process indicates that it is inquisitorial, and the indications of that are, or include, that the panel may examine the worker and may ask the worker questions. Fifthly, the opinion of a medical panel “must be accepted as final and conclusive”.
The other side of that point is that there is no appeal from a decision of a medical panel. A person aggrieved by a medical panel opinion is limited to seeking judicial review. I made this point earlier that the express content is simply that the medical panel give reasons for its opinion, and that, in our submission, in an inquisitorial process involving the expression of expert opinion, does not involve any adjudication and therefore no need to explain away contrary opinions.
GAGELER J: What is the point of the reasons?
MR WHEELAHAN: Our submission is it is the same point which emerges from section 8(4) of the Administrative Law Act, and that is that the reasons have to be sufficient so as to enable one to discern whether the opinion is affected by error – in other words, has the panel discharged its statutory function. That purpose is narrower, in our submission, than the purposes which have been attributed to reasons which courts are required to give.
KEANE J: Not just error, error of law, is it not?
MR WHEELAHAN: Yes, because of the nature of judicial review and so in our written submissions we have identified the types of issues that arise on judicial review. It is taking into account irrelevant considerations, failing to take account of relevant considerations, procedural fairness, fraud, jurisdictional error. But because there is no appeal by way of rehearing or even an appeal on a point of law, the content of the obligation to give reasons, in our submission, is not as broad as the obligations of a court or other body subject to appeal by way of rehearing.
FRENCH CJ: You have moved, of course, straight into grounds 2 and following of your appeal and do I take it that you are resting on your written submissions in relation to ground 1?
MR WHEELAHAN: No, we are very grateful for the Court’s note and I want to return to ground 1 and make some additional ‑ ‑ ‑
FRENCH CJ: All right, you will say something about that in due course?
MR WHEELAHAN: Yes, I will. We also submit that because the medical panel is giving an opinion, the provision of the opinion involves no legal standard and that is a point that was picked up by Justice McHugh in Soulemezis v Dudley Holdings at the bottom of page 280 top of 281 which we have referred to in our written submissions. There is no requirement that reasons given by a medical panel be cogent or persuasive. They only have to be sufficient to indicate that it has discharged its statutory function.
GAGELER J: Or putting it another way, sufficient to indicate whether or not it has discharged its statutory function.
MR WHEELAHAN: Yes, with respect, that is correct and more accurate, yes. Could I take the Court now to Masters v McCubbery which we have referred to in our list of authorities.
FRENCH CJ: Would one ever get to a situation where the reasons, perhaps for some internal inconsistency or discontinuity in the logic, would support a conclusion that what emerged from the medical panel was not an opinion for the purposes of the Act?
MR WHEELAHAN: Yes, because in that sense the reasons might disclose that there is jurisdictional error in that the medical panel has failed to discharge its function because it has not provided an opinion. Now, I wish to take the Court to Masters v McCubbery, which is the case on which we rely to provide a formulation for the content of the obligation to give reasons. I mentioned earlier this case was decided against the background of the Administrative Law Act so any observations of Justice Winneke, in particular, about the content should be read in light of subsection (8)(4) of the Administrative Law Act.
Now, could we take the Court, firstly, to page 645 of the reasons of Mr Justice Winneke? We draw the Court’s attention to the fact that on 645 commencing at line 15 Mr Justice Winneke makes some observations upon which we do not rely. The observations are to the effect that a medical panel is engaged in resolving disputes about competing medical opinions. Those propositions are in his Honour’s reasons from line 15 to line 21 on page 645.
FRENCH CJ: All right, so it is not a species of ADR?
MR WHEELAHAN: No.
FRENCH CJ: Alternative Dispute Resolution? It is integrated into the judicial process.
MR WHEELAHAN: Yes, it is not a species of ADR, nor, in our submission, is it a process of adjudication having regard to the text of the Act. Now, the observations of Mr Justice Winneke on this page, 645, were in response to a submission that the medical panel opinion was not a decision for the purposes of the Administrative Law Act. The Court of Appeal held that it was. Our submission is that Mr Justice Winneke’s observations should be viewed in a practical light and should not be adopted as correctly framing the task of the medical panel, which the text of the Act indicates is the provision of a medical opinion.
We take the Court next to page 647 from lines 10 to 14. Mr Justice Winneke makes some similar observations. His Honour refers at line 11 to the “power of resolving disputes”. Our submission is, again, correctly understood; the medical panel does not resolve disputes. It gives its own opinion.
CRENNAN J: It gives its opinion about a medical question.
MR WHEELAHAN: Yes.
FRENCH CJ: That is to say, a finding of fact which is then to be adopted as such by the court.
MR WHEELAHAN: Yes, the opinion must be adopted by the court under 68(4) and is, in our submission, necessarily a finding of fact.
GAGELER J: Under section 65(8) the panel is required to follow procedural fairness guidelines.
MR WHEELAHAN: Yes.
GAGELER J: Do the relevant guidelines bear on the nature of the process as to whether it is adversarial or adjudicative?
MR WHEELAHAN: They do because they make provision for parties making submissions to medical panels. Perhaps if I go back to the guidelines themselves which are annexed to the second respondent’s submissions? These are the 2008 guidelines; I said 2009 earlier and that was in error. Could I direct the Court’s attention to paragraph 29 of the 2008 guidelines, which is on page 8? Paragraph 29 contemplates that parties will provide documents to the medical panel, including submissions, and that frequently occurs, and it occurred in this case.
GAGELER J: Is the effect of that guideline to make material of that character a mandatory relevant consideration?
MR WHEELAHAN: Yes. Could I go back to Masters v McCubbery and take the Court to page 650. Just below point 5 on the page on page 650 is a passage commencing, “A medical panel is not required to do more than”. It is that formulation of the obligation on which we rely, but the Court will see that it is informed by the text of subsection 8(4) of the Administrative Law Act. To similar effect on page 651, commencing at line 10, Mr Justice Winneke indicates the reasons need not be elaborate:
they are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably -
Mr Justice Ormiston, line 41, agreed with both the President and Mr Justice Callaway. At page 653, commencing at line 10, Mr Justice Ormiston makes his own observations, that is lines 10 to 15, and lastly, Mr Justice Callaway, at page 661, which is the last page, lines 17 to 24, says:
In the present context, they are medical reasons in sufficient detail, and only in sufficient detail, to show the court and the worker that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on an appropriate application of the members’ medical knowledge and experience.
FRENCH CJ: I noticed Justice Ormiston at 653 does contemplate the possibility that medical panels might have to consider:
questions of law such as the proper interpretation of the Guides to the Evaluation of Permanent Impairment –
and the like.
MR WHEELAHAN: Yes, and it frequently happens that there are disputes as to the meaning of the AMA guides.
FRENCH CJ: In other words, their opinions might not be confined to issues of fact. There might be questions of mixed fact and law to the extent that they are applying a particular interpretation of the guide.
MR WHEELAHAN: My submission is at the very least the panel might either expressly or by necessary inference explain the interpretation which it has taken but the panel itself is not qualified and would not have the authority to determine a question of law.
FRENCH CJ: If it misconstrued a statutory instrument which it had to apply, I suppose there might be an issue whether that raised a question of jurisdictional error.
MR WHEELAHAN: Yes, it would and it frequently occurs. There are applications for judicial review on the ground that the medical panel has misinterpreted sections of the AMA guides and from time to time the court is called upon to construe the AMA guides.
Could we ask the Court next to look at a case in our learned friend’s list of authorities which is Moyston Court Fisheries Ltd v Malios which is an unreported decision of Justice J Forrest [2007] VSC 518. Could we direct the Court’s attention to paragraph 76 of the reasons. In paragraph 76, his Honour cites a decision of the Western Australian Court of Appeal in Re Croser; Ex parte Rutherford [2003] WASCA 8.
Could we indicate to the Court that there are two decisions of the Western Australian Court of Appeal titled Re Croser. There is an earlier decision which is reported as (2001) 25 WAR 170 which was referred to by the Court of Appeal in this case in footnote 31 at appeal book 504 and footnote 35 at appeal book 505. The decision to which Justice Forrest refers is a later chapter in the litigation involving the Western Australian Medical Assessment Panel. His Honour sets out three paragraphs from the reasons of the Western Australian Court of Appeal: (d), (e) and (f) and we wish to draw attention to (e) where it is said:
In those circumstances, one task for the panel is to determine which medical reports it accepts and which it does not. However, it is insufficient to simply make that statement.
That is then developed in paragraph (f), where it is suggested that the medical panel has to develop reasons referable to histories given to doctors and so forth. Now, a submission we make is that judicial formulations such as this are sensitive to the legislative scheme against which the case has been decided, and to support that submission, we wish to provide to the Court some extracts from the Western Australian Workers’ Compensation and Rehabilitation Act 1981. We have supplied to the Court the version ‑ ‑ ‑
FRENCH CJ: So the proposition is that these observations by the Western Australian Court of Appeal in Re Croser are to be understood in a particular statutory context?
MR WHEELAHAN: Yes, that is correct.
CRENNAN J: The primary judge dealt with this, did he not, in this matter?
MR WHEELAHAN: The primary judge referred to Re Croser ‑ ‑ ‑
CRENNAN J: And subsequent decisions of the Western Australian Court of Appeal?
MR WHEELAHAN: Yes, he did, but we want to make the point by reference to the text of the Western Australian legislation that the task undertaken by the medical assessment panel is slightly different to that contemplated in Victoria under the Accident Compensation Act. We would like to direct the Court firstly to section 84ZH which is on the page numbered 96 of the print. It was this legislation that was considered by this Court in Kuligowski v Metrobus, the issue estoppel case.
Section 84ZH enables a review officer to refer a question for determination by a medical assessment panel, but the governing words are “If permitted by section 145A”. In Re Croser, the reference was by a review officer, which is why we take the Court to this section. References may also be made by a compensation magistrate under other provisions, but it is not necessary to take the Court to those provisions. We take the Court next to section 145A, which appears on page 148 of this print. Provided:
Subject to subsection (2), a question may be referred for determination by a medical assessment panel . . . only if—
(a)there is a conflict of medical opinion on the question between—
(i)a medical practitioner engaged by the worker; and
(ii)a medical practitioner provided and paid by the employer –
and
(b) one of the parties wishes the proceedings to continue –
In Re Croser, there were three injuries. There was an injury to the shoulder, an injury to the back, and a psychological or ‑ ‑ ‑
FRENCH CJ: You say they are to put paragraph (e) of the statement in the judgment in context?
MR WHEELAHAN: Yes, and it is entirely understandable ‑ ‑ ‑
FRENCH CJ: Is there anything more in it than that?
MR WHEELAHAN: No.
FRENCH CJ: I am just not keen for us to spend a lot of time exploring the construction of statutes other than those which we have to look to.
MR WHEELAHAN: We make that submission because the Western Australian Court of Appeal authorities are authorities of an intermediate Court of Appeal and we wish to explain them.
FRENCH CJ: Yes, I understand.
KEANE J: And the question with which they are obliged to deal is actually the resolution of conflicting opinions, rather than expressing its own opinion, is that right?
MR WHEELAHAN: It is not necessary to go that far. The statute uses the word “determination” in the context of conflicting opinions and the determination might include a determination of a level of impairment, but the statutory context is the existence of conflicting opinions and it is readily understandable why it is necessary therefore to give reasons for resolving that conflict between opinions.
FRENCH CJ: The existence of conflicting opinions is the condition which enlivens the power to refer.
MR WHEELAHAN: Yes.
FRENCH CJ: Whether that means that they actually have to resolve the conflict or come up with their own – they have to come up with their own, have they not?
MR WHEELAHAN: They do have to come up with their own, but it is against the background of conflicting opinions, and if that is the statutory function it is readily understandable why there is an expectation that reasons for preferring one opinion over another, or indeed the panel’s own opinion, ought be furnished. But the short point is the legislative background is different to what it is in Victoria.
Could I come now to paragraph 9 of the speaking note, and we wish to make some submissions about Maurice Blackburn Cashman v Brown and Pope v Walker. Now, shortly stated, the issue in Maurice Blackburn Cashman v Brown was whether an opinion obtained for statutory compensation purposes was binding on a court hearing the trial of the common law damages proceeding. Now, there were two bases upon which it was argued that the opinion was binding on the trial hearing the damages proceeding: either by operation of section 68(4) of the Act, or under general law principles of issue estoppel.
Now, in Maurice Blackburn Cashman v Brown the opinion of the medical panel was obtained under section 104B(9) of the Act, to which I took the Court earlier, and that is concerned with disputes about impairment assessments. Now, in relation to the submission addressed to section 68(4), this Court determined in substance that 68(4) to be interpreted so that it applied only to questions or matters arising under or for the purposes of the Act. In relation to issue estoppel, the Court decided that the finality given by section 68(4) – sorry, section 68(4) in substance spoke to finality and that no further finality should be ascribed to the panel’s opinion.
Now, that resolution emerges from paragraphs 34 and 35 of the Court’s reasons in Maurice Blackburn Cashman v Brown. The issue which arose in this case is different. It is whether an opinion obtained for statutory compensation purposes, in this case, upon a reference by a magistrate hearing a dispute as to compensation, is binding on a court – not in a common law damages trial – but at the leave stage, that is, the application under section 135A(4) for leave to bring a damages proceeding. That issue invites attention to the Court of Appeal’s earlier decision in Pope v Walker (2006) 14 VR 435.
FRENCH CJ: That issue has significance because, inter alia, it goes to the utility of certiorari.
MR WHEELAHAN: Yes, it does.
FRENCH CJ: Which is where we find the common ground.
MR WHEELAHAN: Yes. It was also a feature of the case that informed the Court of Appeal’s approach to the content of the obligation to give reasons. Our submission will be that even if this Court were to determine that the reasoning in Pope v Walker does not apply to this case, the Court of Appeal’s approach to the content of the obligation to give reasons was, nonetheless, in error. So, in other words, the resolution of the Pope v Walker issue, in our submission, is not determinative of our submissions which go to the nature of the content of the obligation to give reasons.
Could I go immediately to Pope v Walker which is in our list of authorities? Pope v Walker concerned an application for leave under section 134AD(16)(b). So, in other words, it was an injury on or after 20 October 1999, that is after the “black hole” period. In Pope v Walker, a conciliation officer had referred some medical questions to a medical panel. The question was whether the terms of section 68(4) had the effect that the opinion of the medical panel was binding on the court hearing a leave application under 134AD(16).
The Court of Appeal’s decision was that on a proper construction of the relevant provisions, having regard to the history of the legislation, it did not. Justice Eames in his reasons sets out extensively the history of the legislation. There is extensive reference to second reading speeches and identification of the tension which would arise if opinions of medical panels, obtained at a very early stage, are held to be binding on a court governing the gateway to common law.
So, in a practical sense, the problem arises this way. One of the earliest disputes in a workers compensation claim might be the entitlement to weekly payments because the employer might decide that there is no injury – or the injury is not sufficiently connected with employment – and the employer might seek to terminate payments.
One of the first things that happens at that level in the dispute resolution process is there is a conciliation. The conciliator has power to refer questions to medical panels at that early stage. The medical panel might say no injury or it is not related in a relevant sense to employment. The consequence of holding that medical panel opinions obtained on reference by conciliators is that forever after a worker is bound, and the court is bound, more particularly, by such an opinion and it may be that common law rights are then foreclosed. Now, our submission ‑ ‑ ‑
CRENNAN J: Justice Eames deals with that, I think, in paragraph 33, page 443 of the reported decision in the last sentence.
MR WHEELAHAN: Yes. Now, in addition to the reasons of Mr Justice Eames, may we make the following submissions? Firstly, section 68(4) reflects the language of section 39 of the Accident Compensation Act, that being the provision conferring exclusive jurisdiction on the County Court. Section 39 is to be seen as being part of – or it is part of Part III of the Accident Compensation Act which is headed “Dispute Resolution”. Part III is concerned with the resolution of disputes relating to statutory compensation and not the adjudication of applications for leave to bring common law proceedings.
Next, only courts have power to determine a question or matter. Conciliators can make recommendations – that is referred to in section 57(1)(a) – and conciliators can give directions, and that is section 59(3), and there might be a direction, for instance, in relation to the continuation of weekly payments which binds the employer, at least on an interim basis, until there is a determination by the court. Medical panels give opinions on medical questions. Medical panels do not, in our submission, determine questions or matters. The court determines the question or matter upon receiving the medical panel opinion by which it is bound.
Now, we have noted in our short chronology at the start of the note that section 68(4) was inserted into the Act in 1997. Now, at that point section 134A was also inserted into the Act; that is the section which abrogated common law rights to damages for injuries on and after 12 November 1997.
FRENCH CJ: So 68(4) comes in at the beginning of what you call the “black hole” period?
MR WHEELAHAN: Yes. Now, the only capacity to bring a proceeding for common law damages from that point was under section 135A, but that had to relate to injuries before the “black hole” period, and as Justice Eames notes in his Honour’s reasons, there was then a “run‑off” of such claims. Justice Eames refers to that at page 438, paragraph 15.
Now, when 68(4) was inserted in 1997, it is our submission that the opening words of subsection (4) “For the purposes of determining any question or matter” referred to the determination of a question or matter by the courts under Part III of the Act. It did not refer to the adjudication of an application for leave to commence a proceeding under section 135A(4), which section is found in Part IV of the Act, and is not to be regarded as part of the exclusive jurisdiction conferred on the County Court by section 39 or as extended to the Magistrates Court by section 43.
GAGELER J: So what is the point of the subsequent reference in subsection (4) to a body or person?
MR WHEELAHAN: In our submission, the body or person includes the litigants before the court and extends to the Victorian WorkCover Authority which has statutory powers over the conduct of litigation. So one consequence of that is that it may not be open for the parties to ignore an opinion of the medical panel. The parties are bound by the medical panel opinion in the course of the dispute, just as much as the court is.
GAGELER J: But the parties do not determine the question or matter.
MR WHEELAHAN: No, they do not, but it is for the purposes of determining – and the parties are parties to a proceeding in which such questions are determined. The submission we make is that, seen in that light, in 1997 section 68(4) did not pick up applications for leave under 135A(4). In the year 2000 section 45(1A) was inserted. That was the provision which enabled courts hearing leave applications under 134AB(16) to refer questions to medical panels. The question arises, did the position change in 2000 when section 45(1A) was inserted.
If we just go back to section 45(1A) – although it commences with the words “This section extends to, and applies” we accept that it must be taken to be read with the administrative and machinery provisions relating to medical panels in sections 63 to 68. However, as we have noted earlier, 45(1A) does not extend to applications under section 135A(4). As a consequence of that, it is our submission that there is no reason to interpret the introduction of section 45(1A) as affecting the application of 68(4) to applications under 135A(4).
So, in other words, there is nothing about 45(1A) which ought to change the interpretation of 68(4) in that it did not apply, in our submission, to what we colloquially refer to as serious injury applications under 135. Now, on that premise, it would then be incongruous to give it such an operation in relation to 134AB applications. It would be incongruous that opinions obtained for statutory compensation purposes are binding on courts hearing leave applications in respect of injuries after the “black hole”, but not before the “black hole”.
Our submission is, therefore, that the meaning of section 68(4) must be adjusted, having regard to the principles essayed in Project Blue Sky, so that, firstly, in relation to opinions obtained for statutory compensation, for the purposes of determining any question or matter, that means a determination by the courts under Part III of the Act in the exercise of the jurisdiction conferred by sections 39 and 43. Secondly, in relation to opinions obtained upon referral by a court hearing a leave application under 134AB(16), the question or matter for the purposes of 68(4), is that within the jurisdiction of the court hearing the application under 134AB(16).
Now, the architecture of the Act is such that there is a clear distinction drawn between compensation proceedings, on the one hand, and common law proceedings on the other, and that interpretation is faithful to the structure, architecture, and we submit, true intent of the Act as found in the text. There is an additional point and it is this: there would be scope for inconsistency if a court, hearing a leave application under 134AB, could procure its own medical opinions, but there might be existing medical opinions, which might be many years old.
That inconsistency would not further the purposes of the Act or these provisions. In our submission, subsection (1A) of section 45, together with the amendments made to section 5, inserting paragraphs (h) and (i) indicate an intent that the court hearing the leave application procures its own medical opinions, and medical opinions obtained for other purposes are not to be binding on the court hearing that application.
CRENNAN J: Are you saying any more than the reasoning in Pope v Walker is just as applicable to 135A as it was to 134AB?
MR WHEELAHAN: Yes, but with the additional submission that the amendment to section 45 did not and could not affect the position in relation to 135A. We say, if that is the case, that should inform also the approach to 134AB. I wish to turn now to paragraph 12 of our note and our submission is that the medical panel ‑ ‑ ‑
FRENCH CJ: Sorry, how does the last submission feed into your reasons argument? Is it paragraph 11 of the note – the submission about Pope v Walker?
MR WHEELAHAN: The Court of Appeal commenced its consideration of the content of the obligation to give reasons, at about paragraph 47.
FRENCH CJ: A reference to the consequences?
MR WHEELAHAN: Yes. Now that, as a result of Maurice Blackburn v Brown, Pope v Walker is no longer good law. Medical panel opinions have these far‑reaching consequences in that they will affect common law rights and if they affect common law rights, then the content to give reasons must be greater.
CRENNAN J: So it was thought – I just want to get this straight because I want to be corrected if I am wrong. So it appears that they read Cashman v Brown as providing that a medical panel opinion sought, for example, for statutory compensation purposes, would be final and conclusive in a – say, for argument’s sake – section 135A context?
MR WHEELAHAN: Yes, they did. It is set out in our written submissions. That was not an issue before the Court in Maurice Blackburn v Brown.
FRENCH CJ: And that fed into the standard of the reasons are required.
MR WHEELAHAN: Yes, it did.
FRENCH CJ: Now, is there any other consequence for your argument of your first ground of appeal?
MR WHEELAHAN: There are just the two consequences – the utility and the way it informed the Court’s approach to the content of the obligation to give reasons. Could I take the Court to the medical panel’s certificate and reasons, commencing at page 355 of the appeal book?
FRENCH CJ: Is there any elaboration of the concept of “a medical question” apart from what you took us to in the McCubbery Case?
MR WHEELAHAN: There is likely to be a lot of folklore on that but I am not able to assist the Court at the present time.
FRENCH CJ: It has got to be relevant to an issue that is raised for the purposes of the statute, obviously – going to liability.
MR WHEELAHAN: One would expect that to be the case. The court, under section 45, has what might be described as a very narrow discretion to refuse to refer a question to a medical panel. One of the grounds on which the court might refuse to refer the question, is if it would be an abuse of process. So one would imagine that if a party proposes a question which does not properly relate to an issue dispute, the court might regard that as an abuse of process and decline to refer the question. It is subsection 45(1B).
FRENCH CJ: There is a definition of course, is there not, of “medical question”?
MR WHEELAHAN: Yes. So what section 45 contemplates is that parties might frame a medical question. The starting point is in particular circumstances referred to in section 45(1)(b). The court is then obliged to refer that medical question, but there is an exception in (1B):
if the Court is of the opinion that the referral would . . . constitute an abuse of process.
So, if a party put up a question that was irrelevant, that might be regarded as an abuse of process, and then in (1C) there is provision for the court to have some discretion as to the form in which the question is referred to a medical panel.
FRENCH CJ: So question 1 in the certificate to which you have taken us, reflects paragraph (a) of the definition of medical question of section 5?
MR WHEELAHAN: Yes, and our submission is that the questions that are picked up at paragraphs (ab) and (ca). So that the first question concerned a diagnosis of the plaintiff’s condition, and the medical panel answered that. The second question was concerned with whether employment was a significant contributing factor. Now, the panel has given a seven line answer to that question, but the answer could just as well have been no.
The answer itself furnishes some reasons for a negative answer to question 2, and question 3 and is answered directly by the medical panel. Now, it is necessary to note that questions 2 and 3 are not concerned with employment generally but concerned with employment on a day, that is, 16 October 1996.
Now, could we turn then to the panel’s reasons commencing at page 357. I just want to run through the reasons quickly to identify the approach of the panel in formulating its reasons. Firstly, in paragraph 3 it identified the documents to which it had reference. Enclosure A is at appeal book 363 to 4 and there are a number of medical opinions referred to in enclosure A, together with written submissions of the worker and the employers, which are listed as documents 2 and 3. In paragraph 4 the panel refers to “Agreed Facts” which were furnished to the panel. That paragraph 4 is very long.
Turning the page to 358, in the third paragraph on page 358, the panel refers to the clinical records of the employer’s “in‑house medical centre”. In the next four paragraphs, the panel refers to the fact that it took a history from the worker and identifies features of that history. From about point 7 on page 358, there is reference to opinions of other neurosurgeons, Mr Brazenor and Mr D’Urso.
On the top of page 359, there is reference to other medical records, including, in the second line, “letters from Campbellfield Physiotherapy”. In the second paragraph on page 359, there is further reference to information obtained from the worker given to the panel. In the penultimate paragraph on 359, there is reference to the worker’s medication.
Over the page, on page 360, commencing at about point 2 on page 360, the panel records that it conducted a physical examination, that the features the panel noted in the physical examination are recorded from about point 2 to point 6 on the page. At point 6 on the page until the foot of the page, the panel makes reference to the medical imaging, and then the paragraph on the bottom of page 360 records the panel’s diagnosis as to the worker’s current condition. Over the page, on page 361, top of the page:
The Panel considered the Plaintiff’s description of his employment duties –
In the next paragraph, at about point 2 on page 361, the panel notes the various medical reports prepared by the general practitioner. At about point 4 on page 361, the panel notes the “submissions of the Parties” and at about point 6 on page 361 we can see that the panel’s process of reasoning, the first step in the reasoning process in answering question 2 is identification of the injury, if any, which the worker had suffered on 16 October 1996.
FRENCH CJ: Everything up to this has really been a recital of the material before the panel, both documentary and what is observed during the examination and what was said to it during the clinical interview?
MR WHEELAHAN: Yes. Now, it is to be noted that a necessary step in the reasoning process, in our submission, is to identify what injury, if any, was suffered on 16 October 1996 and the starting point is that paragraph of the panel’s reasons commencing:
The Panel considered that the Plaintiff suffered a soft tissue injury –
The second point is the panel expresses its opinion about the materiality of radiological diagnoses. The third point is the panel expresses its opinion that the soft tissue injury has now resolved. The panel goes on to express the opinion that the soft tissue injury has not had any effect:
on the degenerative changes noted on various imaging studies -
In the last paragraph on 361, the panel expresses its view that it therefore concluded that employment on 16 October could not possibly have been and was in fact a significant contributing factor to a now resolved soft tissue injury – so it could –
possibly have been, and was in fact, a significant contributing factor to a, now resolved, soft tissue injury to the neck, but could not possibly have been, and was not in fact, a significant contributing factor to any claimed recurrence, aggravation ‑
and so forth. That is the nub of the panel’s reasons for, in substance, answering no to question 2 and the answer to question 3 necessarily followed from that reasoning. In the penultimate paragraph of the reasons on page 362, the panel explains in the third line:
the Panel, based on its clinical assessment, and the documents in the enclosures, concluded that the worker’s current medical condition . . . is not related to the now resolved soft tissue injury –
Our submission is that those reasons are sufficient to show that the medical panel discharged its statutory function. It had regard to relevant materials because it says so. It expressed its opinion and it set out the reasons for its opinion. It was no part, in our submission – or no necessary part of the panel’s role to adjudicate on differences of opinion which were present in the material. So, Mr Dooley, for instance, was of the opinion that the plaintiff’s condition was largely functional. There might be some support for the plaintiff’s case in the reports of Mr D’Urso or Mr Brazenor but it was not the medical panel’s function to resolve differences of opinion. Its statutory function was to express its own opinion.
FRENCH CJ: What is the role of other medical opinions before the panel? Should they be there at all?
MR WHEELAHAN: It is, in our submission, on the premise that the panel is obliged to accord procedural fairness to the relevant parties, it is part of the right of hearing so that the parties are able to bring forward not only the medical material that they have – histories, diagnostic imaging and so forth which might inform the panel’s own opinion – they are also entitled to bring forward submissions directing the panel’s attention to various features of the material. By having regard to that material, the panel accords the parties procedural fairness. Could we go then briefly to the Court of Appeal’s reasons, commencing at paragraph 47 on page 503 of the appeal book.
BELL J: I am sorry, what ‑ ‑ ‑
MR WHEELAHAN: Page 503, paragraph 47, which is at the foot of the page. The launching point here is a view that in Maurice Blackburn Cashman v Brown, this Court held that panel opinions are:
binding for the purposes of determining any question or matter arising under . . . the Act –
At the top of page 504 –
and consequently, as we see it, binding in serious injury application proceedings –
The conclusion the court draws is therefore –
the standard of reasons required of Medical Panels must surely be greater.
FRENCH CJ: Greater than what?
MR WHEELAHAN: Greater than previously understood.
CRENNAN J: Greater than, perhaps, line 3 in paragraph 46, that is, that not much was required when the medical panel opinions were “confined to . . . statutory benefits applications”.
MR WHEELAHAN: In fact, the Court of Appeal at one point refers to such decisions as “judicial legislation”. The reasoning of the Court of Appeal in paragraph 47 continues, if we go to about point 3 on the page. The court says:
Accordingly, just as judges who decide serious injury applications must give reasons sufficient to explain their path of reasoning – from the evidence to the facts and from the facts to their conclusions – so too we think must Medical Panels, on whose opinions the whole exercise may now rest. Further, if that is the standard to be required for some opinions, then consistency and convenience require that it be so for all of them.
In our submission, that passage indicates that the Court of Appeal regarded the appropriate standard as being one tantamount to a judicial standard.
KEANE J: And higher than that required in the Administrative Law Act, which requires only that the reasons be sufficient to identify any possible error of law.
MR WHEELAHAN: That is correct, albeit that the Administrative Law Act did not apply to this particular opinion, but we submit because of the legislative history the way section 68 picked up the obligation to give reasons should be seen as an obligation to give reasons of the same standard as were required under section 8(4) of the Administrative Law Act; in other words, not to introduce any different or higher standard. The court then develops this in paragraph 48, and at about point 6 on page 504 the court says:
Even so, in the way in which the use of Medical [Panels] has developed, these days a Medical Panel will more often than not be assailed with competing bodies of expert medical opinion and submissions as to matters of fact and law on behalf of competing parties. In such cases, of which this is one, we see no reason to accept that a Medical Panel’s reasons should not meet the standard required of any other statutory decision maker exercising a comparable quasi‑adjudicative/investigative function.
Now, just pausing there, our submission is that that misstates the statutory function. Then the court goes on to say –
In such cases, a Medical Panel’s reasons thus should include a statement of –
I want to emphasise the following words –
findings on material questions of fact –
Now, those words are found in section 25D of the Acts Interpretation Act (Cth) –
some sort of identification of the –
and I emphasise the following words –
evidence or other material upon which those [findings] are based –
Now, those words are also found in section 25D of the Acts Interpretation Act (Cth). The court goes on to say –
and an intelligible explanation of the process of reasoning that has led the Panel from the evidence to the findings and from the findings to the Panel’s ultimate conclusion.
Now, in our submission, that requirement is apt to a judicial function, not an expert opinion function.
FRENCH CJ: Would you accept that it is insufficient for the panel under the rubric of giving reasons to simply assert its conclusions?
MR WHEELAHAN: Yes.
FRENCH CJ: Despite the standard that is being set in the passages you were just taking us to, at 55 in the reasons of the Court of Appeal that seems to be how they are characterising what the panel did. I know they go on to talk about the obligation to deal with the other expert medical opinion and so forth, but just focus on that for a moment. You would cavil with that characterisation of the panel’s reasoning process, but you would accept the principle that it is enough to assert your bottom line?
MR WHEELAHAN: It is not enough to assert only the bottom line ‑ ‑ ‑
FRENCH CJ: To assert your opinion, yes.
MR WHEELAHAN: ‑ ‑ ‑ but what is required will vary from case to case. If the starting point is that the Act requires reasons to indicate that the statutory function has been discharged, that invites attention to identification of material to which the panel had recourse and to record what processes the panel undertook in order to reach its conclusion.
GAGELER J: What procedures it adopted, you mean?
MR WHEELAHAN: Well, the procedures such as examining the worker, or another procedure available to the panel is to seek the attendance of a treating medical practitioner. The reasons might record that those steps were taken by the panel in the discharge of its statutory function of forming its opinion.
GAGELER J: What does it have to do with the reasons for the opinion?
MR WHEELAHAN: Because the reasons, to take Mr Justice Winneke’s formulation, have to be sufficient to indicate that the statutory function has been discharged according to law.
FRENCH CJ: Well, you say then that it would be sufficient for the panel – I am simplifying, if you like, the nature of the reasoning process disclosed here - is it sufficient for the panel to say “We have looked at all the relevant documentary material listed. We have examined the plaintiff” and say what they looked at, “We have concluded that”.
MR WHEELAHAN: In an appropriate case, yes, because an opinion is a medical opinion, and there will be some cases where no further reasons are necessary.
FRENCH CJ: Well, are they reasons to say “I have looked at the evidence, and I conclude that”.
MR WHEELAHAN: Yes.
FRENCH CJ: That is a statement.
MR WHEELAHAN: That may be sufficient.
FRENCH CJ: That is conceptually a statement of reasons.
MR WHEELAHAN: Yes, bearing in mind that it is reasons for an opinion, not an adjudication.
KEANE J: Well, here the reasons show, “We have examined the claimant. We have considered his account of how he was injured. We have looked at the imaging. We have considered the two possibilities that have been put forward, one of which is that there was a bone injury involving some subsequent degeneration, and the other a possibility that it was a soft tissue injury that resolved. Having looked at that, the imaging, and considered the account of the medical records originally, we have concluded it was a soft tissue injury that was resolved.” Now, the hypotheses have been addressed, and a conclusion based on, perhaps matters of impression from that evidence. What is missing, and what the Court of Appeal seems to say is critical, is an explanation as to why the views supporting one hypothesis have been rejected, or the other hypothesis.
MR WHEELAHAN: The answer I give to that proposition lies in the text of the Act, that is, the panel gives reasons for its opinion, that is, unlike the Western Australian legislation, it is not concerned with making a determination and unlike a judge or an arbitrator, the panel is not concerned with choosing between different opinions and acting as an adjudicator. The medical panel has to bring its own skills to bear on the task and give its own opinion as an expert panel, and the requirement to give reasons has to be seen in that light. In our submission, no more was necessary than the steps which your Honour Justice Keane listed.
BELL J: If a medical specialist is confronted with an opinion which differs to the opinion provisionally formed by the medical specialist, in the ultimate opinion formed by the specialist bona fide, surely there must be consideration of how it comes about that two people in the same field of specialty have arrived at different conclusions and why a person, whose statutory task it is to deliver an opinion, remains satisfied that the provisional opinion first formed is the right one and not the opinion of a person appropriately qualified in the same specialty who has come to another view. Must that not be part of the process?
MR WHEELAHAN: In our submission, not, and, again, it turns on the text of the legislation and the task the panel is undertaking. The only express requirement is that it gives reasons for its opinion.
BELL J: I thought, a little earlier, you accepted that in discharge of this statutory function, conformably with the convenor’s guidelines the panel is to receive material, including submissions, documents, reports and the like, and to record the receipt of that material?
MR WHEELAHAN: Yes.
BELL J: What is the purpose served by that?
MR WHEELAHAN: Recording the receipt of it?
BELL J: No, extending the opportunity to the worker to provide material, including medical reports, then to note the fact that you have received that material – what is the purpose of that if there is no requirement to have regard to an opinion contained in a report that differs from the opinion provisionally formed by the ‑ ‑ ‑
MR WHEELAHAN: The receipt of the material, in our submission, is in furtherance of the panel’s obligation to accord procedural fairness, as I submitted earlier. The recording of the receipt of the material and the recording of the fact that the panel read the material form part of the reasons so as to show that the panel discharged its statutory function and had regard to relevant considerations.
BELL J: Well, I just want to understand how one has regard to the opinion of another specialist that proposes for the sake of this argument a different diagnosis. How does one have regard to that in accordance with the statutory obligation without taking it into account, in the sense of weighing it up, as against one’s own opinion and coming to a view about which is the correct opinion?
MR WHEELAHAN: A judge must take evidence into account and assess and weigh evidence. The obligation of the medical panel is simply to give its own opinion. It might read the opinions of others. It may not give them any weight at all. It may not have any regard to them if the panel itself has its own opinion.
CRENNAN J: So, you are saying, are you, it is sufficient, in terms of the sufficiency of reasons, for it simply to be implied that there is a difference of opinion in relation to Dr Brazenor, and Mr D’Urso, that is that it is not a requirement for sufficient and adequate reasons. There has to be a sentence or two in there which goes beyond saying, “Well, we have read them and give some reason for disagreeing with them”. Is that what you are saying?
MR WHEELAHAN: Yes, that is our submission because it is not part of the panel’s role to adjudicate on the correctness or not of other opinions. Its role is to give its own opinion.
BELL J: An opinion conscientiously formed, presumably, takes into account differing views expressed by people with expertise in the same field and then comes to a view, one way or the other, about whether to revise the opinion first formed, without the benefit of that material, surely?
MR WHEELAHAN: That is so but, in our submission, the reasons are sufficient if they record that the panel noted those medical opinions.
BELL J: That because, as Justice Crennan suggests, it is implicit that there has been consideration given to them and they have been rejected.
MR WHEELAHAN: Yes.
KEANE J: So the purpose of providing the other opinions is to sensitise the panel to various possible answers to the question?
MR WHEELAHAN: Yes, that is one purpose.
KEANE J: One purpose being that these other opinions sensitise them to the possibilities, they consider the possibilities and they choose one.
MR WHEELAHAN: They choose their own opinion.
KEANE J: Well, quite. They come to a view having been sensitised to the possibilities by looking at the others.
MR WHEELAHAN: Yes. Whereas a judge or an arbitrator does not express expert opinions on questions of fact but must choose between opinions which are given in evidence. This task, in our submission, is different. To give some content to this issue, may I direct the Court’s attention to page 300 of the appeal book? This is an opinion of Mr D’Urso of 18 May 2009 and in the second paragraph he refers to:
a chronology of . . . neck symptoms between October 1996 and May 2000. Particularly in 1996, it would appear that [the worker] did indeed present complaining of neck pain . . . He apparently relates this towards workplace activity . . . The symptoms would appear to be consistent with an injury to the cervical spine. This may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis.
CRENNAN J: There is a typo there, is there, in relation to October 1999 – should that read 1996? Midpoint of the main paragraph?
MR WHEELAHAN: Would the Court excuse me a moment? I would prefer to check a document before I answer that question. The point of taking the Court to this letter is it is not expressed in strong terms, it is expressed as possibilities. In our submission, it is not the sort of opinion which a medical panel is required to ‑ ‑ ‑
FRENCH CJ: Well, that is a slightly different issue from the one that was being put to you, I think, which was a somewhat higher level of generality.
MR WHEELAHAN: That is so. I just wanted to give some context to it.
FRENCH CJ: You are just saying this opinion really does not go very far.
MR WHEELAHAN: Yes. As a matter of principle, it is our submission that the panel is not required to explain away every opinion, or even the significant opinions, which are within the material provided to the medical panel.
FRENCH CJ: There was a lecture given many years ago by Sir Owen Dixon, I think, to the Medico Legal Society of Victoria about science in judicial proceedings and I have a recollection that in that lecture he drew a distinction between the function of the medical expert, as it were, carrying out a diagnostic process and giving evidence as an expert in court and how much more rigour is required there in terms of, as it were, if one has to justify an opinion by reference to reasons.
So the question is what the nature of the function of this panel is. Is it, essentially, a diagnostic function or is it somewhere further along the spectrum towards that of the sort of process that you would expect from an expert witness offering an opinion to the court?
MR WHEELAHAN: In our submission, it does not involve any function in the nature of an expert witness. If one looks at this Court’s decisions concerning section 79 of the Evidence Act, that the requirement ‑ including Dasreef ‑ for a witness to expose a path of reasoning is for the purpose of determining or, amongst other purposes, whether the evidence is admissible and to determine whether the conditions for admissibility in section 79 are engaged. That is not the case here. No question of admissibility arises because the opinion is binding.
FRENCH CJ: Yes. I am trying winkle out, as it were, the nature of the function which they are carrying out. In the end, it is a fact‑finding function by reference to the kinds of questions that are put to them as defined in section 5.
CRENNAN J: You reject the description of the medical panel as an expert?
MR WHEELAHAN: No, I do not. I accept that the medical panel ‑ ‑ ‑
CRENNAN J: Is an expert.
MR WHEELAHAN: ‑ ‑ ‑is an expert.
CRENNAN J: They are a statutory expert.
MR WHEELAHAN: Yes.
CRENNAN J: Sorry, I must have misunderstood something you said in response to the Chief Justice.
MR WHEELAHAN: So, it is a distinction drawn by some members of the Court in the case of Shoalhaven, which we have cited in our written submissions, between ‑ ‑ ‑
FRENCH CJ: Yes. It was an expert opinion under a building ‑ ‑ ‑
MR WHEELAHAN: Yes.
CRENNAN J: I think in the extrinsic materials quoted by Justice Eames in Pope v Walker that is clearly the conception Parliament had.
MR WHEELAHAN: Yes, and consistently with the idea that the determination will be speedy and economical and without formality, and so forth, consistent with that object which appears in the text of the Act.
FRENCH CJ: Well, speaking for myself, it would seem it is not intended in any sense to be judicialised in the sense of having curial standards imposed on the board either as to process or reasons, but the question is what is the minimum requirement of the reasons?
MR WHEELAHAN: Yes.
FRENCH CJ: They have to be reasons, not just assertions; recital of evidence then a quantum leap to “I therefore conclude that”.
MR WHEELAHAN: Well, in our submission, in some circumstances that may be sufficient because it is an opinion and the purpose of the giving of reasons under section ‑ ‑ ‑
FRENCH CJ: You say a matter of – as Justice Keane put – a matter of impression, sort of ‑ ‑ ‑
MR WHEELAHAN: Yes, that is an example.
FRENCH CJ: ‑ ‑ ‑ art and science that is involved in the diagnostic process, for example?
MR WHEELAHAN: Yes.
CRENNAN J: Is Dr Brazenor’s opinion similar to Mr D’Urso’s in the sense that you have said that Mr D’Urso was expressing the possibilities?
MR WHEELAHAN: Mr Brazenor’s opinion does not focus on a particular injury on 16 October 1996, but he expresses the opinion that there has been an accumulation of damage to the cervical spine; that is the substance of it, but could I perhaps direct the Court’s attention to appeal book 225? Mr Brazenor at page – I said 225 – could I refer the Court just below line 40 on the page to the heading “Conclusions”:
This man has significant wear‑and‑tear in cervical and lumbar spines . . . he has sustained injuries in 1995, 1995/96 and the year 2000.
Now, Mr Brazenor’s opinion is not inconsistent with the worker’s case but it is not focused, in our submission. There are other opinions Mr Brazenor gave to similar effect.
Could I come then to paragraph 13 of our note? Our submission is that on the assumption that the reasons were inadequate so that whatever implicit standard there is in the statute was not complied with, on that assumption certiorari should not have issued to quash the opinion. Now, the steps in that argument are as follows. Firstly, section 68(4), provides that it is the opinion that is binding, not the reasons, so the reasons themselves have no primary legal consequence. The written reasons are the evidence of the reasons and they form part of the record for the purposes of section – sorry, by operation of section 10 of the Administrative Law Act.
Inadequate reasons, in our submission, speak of error in the reasons and not error in the opinion. Now, the remedy that was sought in this case was directed to quashing the opinion and not the reasons. Our submission is that, by reference to the text of section 68, there is the temporal and conceptual distinction appearing in the section between the reasons and the opinion itself.
FRENCH CJ: Now, where does that appear? I am just looking at 68(2):
must give a certificate as to its opinion and a written statement of reasons for that opinion.
Well, that does not specify whether they are contemporaneous or separated in time. One then goes to (3), you have got the formation of the opinion and then seven days after that the giving of the “written opinion and a written statement of reasons”. How does the written opinion differ from a certificate as to its opinion?
MR WHEELAHAN: The opinion, in our submission, is the opinion referred to in subsection (1), that is, “A Medical Panel must form its opinion”. Subsection (3) is concerned with evidence of the opinion and the reasons for the opinion which then form part of the record, but the opinion itself is distinct from the certificate and the reasons.
GAGELER J: If you go to section 10 of the Administrative Law Act, for relevant purposes the decision, I take it, is the opinion?
MR WHEELAHAN: Yes, it is.
GAGELER J: So is not the effect of section 10 to make the statement of reasons form part of the opinion in the sense that it is part of the record of the decision?
MR WHEELAHAN: I acknowledge that that interpretation is open. Our submission is that it must, however, be read with the concluding words of section 10, and accordingly to be incorporated into the record ‑ ‑ ‑
GAGELER J: Of the decision, surely?
MR WHEELAHAN: Yes.
GAGELER J: So why does not an obviously inadequate statement of reasons disclose, first, an error of law, and secondly, an error of law on the face of the record understood as specified in section 10?
MR WHEELAHAN: In our submission, section 10 should be read as that the reasons form part of the decision in the sense that it is incorporated in the record of the decision. But, in our submission, conceptually it is difficult to say that reasons form part of a decision. In this case, reasons form part of the opinion. In the arbitration context, there are provisions that reasons form part of the award and that then engages various statutory rights of appeal, but our submission here is that section 10 does no more than have the effect that the reasons are incorporated in the record.
BELL J: To what end, if your submission is right?
MR WHEELAHAN: To what end is my ‑ ‑ ‑
BELL J: If your submission is right and the reasons are incorporated in the record, but not with effect that a plainly inadequate set of reasons is error in law and on the face of the record – I am just having difficulty understanding what this statutory scheme is, if your submission is right.
MR WHEELAHAN: Our submission in a nutshell is that if there are inadequate reasons, it does not have the consequence that the legal basis for the decision was in error. It indicates only that the reasons are inadequate, and our submission is that the remedy for inadequate reasons, if sought, is mandamus for the provision of further reasons and not the quashing of the decision.
CRENNAN J: Whereas quashing is appropriate for an unreasoned decision? You are making a distinction between no reasons and inadequate reasons for this purpose?
MR WHEELAHAN: No, I am not. I accept that there ought to be no difference between no reasons and inadequate reasons. In either case, there is a failure to comply with section 68.
BELL J: But you also accept that the statement of reasons under section 68 comes within section 10 of the Administrative Law Act.
MR WHEELAHAN: Yes, I do.
BELL J: One would think section 10 has a fairly obvious function.
MR WHEELAHAN: Yes.
GAGELER J: You acknowledge also that a failure to comply with section 68 is an error of law.
MR WHEELAHAN: Yes. There are two principal cases upon which we rely in support of this proposition ‑ ‑ ‑
FRENCH CJ: Sorry, incidentally, the scope of orders for review under the Administrative Law Act is that essentially defined in section 7, is that right, powers of the court. So it provides a procedural vehicle for all the prerogative remedies and so forth.
MR WHEELAHAN: Yes, it does when section 7 is engaged. In this case ‑ ‑ ‑
FRENCH CJ: Yes, I appreciate that. It is not creating a new statutory remedy? Well, I suppose it is. It is calling upon an order for review, but essentially that is the vessel for all the pre‑existing remedies and it is made procedurally simpler.
MR WHEELAHAN: Yes, but section 10 applies to any decision of a tribunal whether or not the remedy provisions of the Administrative Law Act are engaged. So in this case the first respondent invoked the court’s power under order 56 of the rules which is similar to section 69 of the Supreme Court Act (NSW). Now, we rely for this submission on some observations of Sir Gerard Brennan in Repatriation Commissioner v O’Brien which we have set out in our written submissions. In paragraph 51 on page 15 ‑ ‑ ‑
FRENCH CJ: This is (1985) 155 CLR 422.
MR WHEELAHAN: Yes. Sir Gerard dissented in this case. The issue in the case did not concern general law judicial review but rather a statutory appeal to the Federal Court under the AAT Act from a decision of the Administrative Appeals Tribunal. Now, that passage has provoked debate amongst the courts over the years mainly at first instance level as to whether inadequacy of reasons can found orders in the context of statutory judicial review or statutory appeal or in this case general law judicial review. Now, the submission we have put in the reply is that the cases can all be reconciled largely by directing attention to the relevant legislation.
FRENCH CJ: It is then a matter of statutory interpretation, you would say, as to whether the provision of reasons conditions the exercise of the power?
MR WHEELAHAN: Yes.
FRENCH CJ: The decision‑making power?
MR WHEELAHAN: Yes, and so Dornan v Riordan is an example of that where the Full Court of the Federal Court held that the decision‑making power could only be exercised with the giving of adequate reasons so the absence of adequate reasons might amount to a jurisdictional error in that sense. Alternatively, some cases can be explained on the basis that the giving of reasons might be regarded as a procedure relating to the making of the decision and thereby engaging a statutory power say, for instance, under the Administrative Decisions (Judicial Review) Act to make a remedial order because there is a failure to comply with the procedure. Now, some of the English cases can be explained on that basis. Can I take the Court ‑ ‑ ‑
FRENCH CJ: The question which arises, I suppose, is whether inadequacy in reasons discloses jurisdictional error affecting the decision‑making process ‑ ‑ ‑
MR WHEELAHAN: Yes.
FRENCH CJ: Or simply a failure to comply with a subsequent requirement to provide reasons.
MR WHEELAHAN: Yes, that is, in our respectful submission, a correct analysis. So the Court of Appeal’s decision in Sherlock v Lloyd – I am sorry, Justice Gageler.
GAGELER J: Why is it necessary, if the remedy sought is certiorari for error of law on the face of the record, to search for jurisdictional error?
MR WHEELAHAN: It is not necessary. But if, for instance, the exercise of the power is conditional upon the giving of adequate reasons and Dornan v Riordan might be an example of that. I was just making the submission that in an appropriate case that might be regarded as jurisdictional error.
GAGELER J: It would sufficient in itself for certiorari to issue.
MR WHEELAHAN: Yes.
GAGELER J: But, absent jurisdictional error, certiorari can still issue for error of law on the face of the record.
MR WHEELAHAN: Yes, it can.
GAGELER J: And there is no privative clause that is applicable to the decision – being the opinion – in the present case.
MR WHEELAHAN: No, there is not.
CRENNAN J: Another little twist might be that a failure to give reasons is a constructional failure to exercise jurisdiction.
MR WHEELAHAN: That is a possibility which I would admit. I mentioned Sherlock v Lloyd and I was doing so in response to an observation of your Honour the Chief Justice. That is an example of a case where the obligation to give reasons arose after the opinion was formed, because before section 68 was amended, the only obligation to give reasons was in response to a request under the Administrative LawAct. So if the request, for instance, is made after the decision is given, inadequate reasons could not speak of error in the decision itself because they are, in that case, conceptually distinct. Our submissions is‑ ‑ ‑
FRENCH CJ: But the point I put to you, I think, was that they might disclose – the inadequacy itself might disclose an error in the decision‑making process.
MR WHEELAHAN: Yes, yes. We accept that, too, because the failure ‑ ‑ ‑
FRENCH CJ: Some lacuna, for example.
MR WHEELAHAN: I beg your pardon, your Honour?
FRENCH CJ: Some lacuna.
MR WHEELAHAN: Yes, that may disclose failure to have regard to a relevant consideration. We have cited in our written submissions this Court’s decision in Palme, which turned in large part upon the provisions of the Migration Act 1958. I should give the citation for that. That is (2003) 216 CLR 212. Could I take the Court to page 216, paragraph 9? The case concerned a decision to cancel a visa and there was a statutory requirement in section 501G(1) to give written notice setting out the decision and setting out reasons. Turning the page to page 217, paragraph 10, their Honours note section 501G(4) as an important provision because it provided that:
“A failure to comply with this section . . . does not affect the validity of the decision.”
But our submission is, though, that although that was in important provision, the case did not necessarily turn on that point.
GAGELER J: The case turned, did it not, on the decision under section 501 being a privative clause decision, so it was necessary to find jurisdictional error ‑ ‑ ‑
MR WHEELAHAN: Yes, that is correct.
GAGELER J: ‑ ‑ ‑ to set it aside.
MR WHEELAHAN: So it is a jurisdictional error case, it is not an error of law on the fact of the record decision. Can I turn to paragraph 37, where their Honours refer again to section 501G(4), and state that it emphasises that the failure of the Minister to discharge that duty does not affect the validity of the decision. Then on page 225, commencing at paragraph 44, their Honours identify that the question is whether the step in giving reasons, which they say:
logically and temporally succeeds the making of a decision . . . is a condition precedent to that exercise.
And it would be necessary to read the whole of 44, 45 and 46, terminating with the sentence:
But failure in the notification . . . does not impeach the cancellation decision for jurisdictional error.
Then at paragraph 48, the court refers to the prospect of giving a remedy in the nature of mandamus for inadequate reasons, but they go onto say in the middle of 48, their Honours say:
But what is not provided for is for a prosecutor, in this case, to bypass that earlier step . . . and to impeach the visa cancellation decision –
BELL J: But all of this in the context of the requirement to establish jurisdictional error.
MR WHEELAHAN: Yes, that is correct. Now, we have cited also in our written submissions in footnote 69 the reasons of the Chief Justice, Mr Justice Gleeson and Justice McHugh in Samad v District Court (2002) 209 CLR 140 at 155 to 156, where – this is on the question of materiality. Our submission is that, in order to quash an administrative decision, the error must be a material error, and as their Honours put it, the decision must be based on the error. Now, in our submission, if reasons do not disclose any error other than their own insufficiency, that is not a material error or an error relevant to the decision itself.
GAGELER J: But the insufficiency is inadequacy of enabling a reader to determine whether or not the decision involves an error of law?
MR WHEELAHAN: That is so. That is, in essence, something this Court referred to in Westport Insurance as the justification for quashing an arbitral award on the ground of inadequate reasons, but our submission is that if the error is confined to inadequacy of the reasons, the remedy is to be directed to the reasons and the appropriate remedy is mandamus.
Now, there are authorities of intermediate courts of appeal which are directly against me and I will just mention what they are. Re Croser; Ex parte Rutherford (2001) 25 WAR 170, which I have mentioned earlier, where this very issue was considered in the context of reasons of a medical assessments panel in Western Australia and it was held that the inadequacy of reasons founded the court’s jurisdiction to quash the error of law on the face of the record and also Campbelltown City Council v Vegan (2006) 67 NSWLR 372 which was referred to by the Court of Appeal in this case at paragraph 72, appeal book 520.
We have also noted in our submissions in footnote 49 a decision of the English Court of Appeal in Northumberland Compensation Tribunal; Ex parte Shaw [1952] 1 KB 338 at 352 where Lord Justice Denning stated that a Court of King’s Bench when calling up the record, if it took the view that the record was incomplete, it could quash the record. If section 68 is construed as requiring adequate reasons as a condition of the medical panel’s function, then that is a departure from what the position was with the two‑stage process, that is the provision of the opinion under the Accident Compensation Act and then the capacity to request reasons under the Administrative Law Act in respect of which the only remedy was the
statutory remedy under section 8(4) if the reasons were inadequate. Unless there is anything else ‑ ‑ ‑
GAGELER J: Was there case law to that effect?
MR WHEELAHAN: Yes, Sherlock v Lloyd.
GAGELER J: Thank you.
FRENCH CJ: Yes, thank you, Mr Wheelahan. Yes, Mr Uren.
MR UREN: If the Court pleases. If I could say something first about the first point that my learned friend raised, that is the effect of Maurice Blackburn Cashman v Brown on Pope v Walker and the proper application then of the appropriate section of the Accident Compensation Act. Section 68(4) of the Act which our learned friends have given the Court is expressed very widely as was indicated in Maurice Blackburn Cashman. It is expressed widely in two respects. One is that when it says:
any court, body or person and must be accepted as final and conclusive by any court, body or person –
it leaves open the question of what court, body or person it is referring to and it also leaves open the question of what proceeding or matter the opinion can be produced in respect of.
And to give a silly example, if a medical panel had for instance said that somebody was incapable of working, you would not be able to produce the opinion of the medical panel in a divorce application where custody or maintenance was in issue on the point about whether the person who is the subject of the opinion was or was not capable of earning any money, and therefore that would have an effect on the question of maintenance.
So you have to read down the courts, the bodies and the persons and the type of thing in which the opinion can be produced in some way, and that was recognised in Maurice Blackburn Cashman, a case which was not concerned with this particular point with which we are concerned today, but concerned only with the broader point of whether there should be a reading down. The Court said there should be a reading down, and they read it down – you can read down in various levels. The Justices in Maurice Blackburn Cashman read the provision down so far as was necessary for the purposes of that case, but that case is not this case, and so the point is should it be read down any further, or should it not?
In our submission, for the reasons that my learned friend has given, it should be read down to not apply the binding effect of the opinion to proceedings with which the opinion of the medical panel was not concerned when it was given. If one accepts the proposition, as appears to be clear, that there must be a reading down, then it is possible – and in our submission, proper – to look at the consequences of reading down to a particular level or stopping at a particular stage in order to determine whether the ‑ ‑ ‑
FRENCH CJ: I am not sure whether “reading down” is the right expression, is it? It is a matter of construction within the scope and purposes of the statute.
MR UREN: Yes, your Honour, on that, as your Honour states it, but the word “any” has to be given some reduction. Unless “any” is not clear, and it is clearly not intended to mean “all of any”, so the point is where does “any” stop? That could be said to be reading down, or alternatively it could be said, as your Honour the Chief Justice has indicated, to give a particular meaning to that word in the context of the section. But it is difficult to give the word a meaning because “any” has just got the meaning it has. But you can legitimately ask what courts and what proceedings was the statute intending when the section was passed?
For that purpose, you can look at its history and you can also look at the consequences of the alternative, and it is legitimate perhaps to ask whether Parliament when it passed the original section intended that it apply to the sorts of matters with which the Act was then dealing. The answer to that must of course be yes because that was all there was. There were no common law rights at that particular time, but then you have to ask when the common law rights were restored, was it the intention of Parliament that that section which up to that time only applied where it could, that is to say to compensation proceedings, had a wider application.
There are two reasons for thinking it was not intended to have a wider application. One is, as my learned friend has mentioned, the provisions of section 134A which provides a specific mention of the obtaining of opinions of medical panels in that particular context. Also there is the portion of the second reading speech when common law entitlements were restored which we have referred to in our submissions. We have the whole of the second reading speech here I think if the Court wishes to see it, but if I could take the Court to our submission on page 4 where a portion of the second reading speech is – perhaps if I took the Court to page 3 for the sake of completeness, the relevant Minister said:
“The common‑law pre‑litigation process will only commence once the degree of impairment has been assessed and will be modified to dovetail with the new process.
“An essential aspect of these changes”, is said at the top:
Medical panels are currently responsible for providing opinions on a range of medical questions in relation to statutory benefits. It is proposed to extend the role of medical panels to provide opinions on medical questions associated with the narrative serious injury test.
The narrative test, as I understand it, is not the percentage one; it is the various ingredients which go up to make the concept of serious injury. So what was thought at the time at which the Act was roughly in its present form is that the medical panels were able to decide medical questions in relation to statutory benefits, and there was an extension of that to provide for opinions to be obtained in questions associated with common law proceedings.
So it would seem, in our respectful submission, very likely that it was not intended that section 68(4) going to the common law proceedings which were at that particular stage being restored. Indeed, it would be incongruous if an opinion which did not apply to the common law proceeding itself once commenced in fact was something which applied at the gateway when one was going to ask for leave to take a proceeding and that incongruity could be removed by the interpretation which we have suggested.
Also there is the unlikely – sorry, it is unlikely that the following impracticality was intended and that you could have a medical power’s opinion given five years, let us say, before one wished to take common law proceedings. The decision could then be that there was no injury, but it may well be that the injury was latent and that it was perfectly apparent five years later that the injury was there.
So one would have to ask would a rational Parliament have produced a result which bound the worker to a decision made in different circumstances many years before and, in our respectful submission, the answer to that would appear to be no. It must also be remembered that the purpose of the Act is to provide for the provision of proper entitlements to compensation and also to damages. There are restrictions on those entitlements which the Act provides but, nonetheless, the purpose of the Act is not to prevent people from getting what benefits they are entitled, whether at common law or otherwise, but to provide a regime by which those benefits can be obtained. But a regime that has the effect of providing that a decision given many years before in other circumstances stands forever in a different sort of case is the one which, in our respectful submission, goes beyond sensible restrictions.
Now, it has been said in other cases that the Accident Compensation Act is not a model of draftsmanship and it has a number of anomalies attached to it. It may be that they have in part been reduced as a result of recent tidying‑up, but we think the real problem is that the residue of the anomalies remains in certain places. There is, on one view, an anomaly here but, given a sensible interpretation of section 68(4), there is, in our submission, no anomaly because the section could be read down a little further than was read down in Maurice Blackburn Cashman v Brown, so the opinion which was obtained is only binding on tribunals which are deciding matters in relation to statutory compensation. That, in our submission, is where it was at the time section 68(4) was enacted. So that is all we have to say about that particular point.
So that is all we wanted to say about that particular point. We can say something next about the issue estoppel point. We provided a very brief submission on that because, in our submission, the point is a very brief one. The foundation of issue estoppel is the decision by a court of an issue for the purposes of it coming to a judgment. The judgment provides the res judicata. Those matters which were essential for the decision when decided by the court provide the issue estoppel.
It would seem perfectly clear from what was said by the Court of Appeal in Masters v McCubbery that the medical panel does decide things. If I could ask the Court to look at Masters v McCubbery for a moment and, without taking the Court to all the relevant portions of it which exemplify this concept, could we ask the Court to look at pages 642 and 643 in the judgment of the President, or the then President. At page 643 at about line 16, his Honour said:
These ultimate conclusions expressed by the panel as “opinions” dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them in money terms. The conclusions by virtue of the Act become binding on the court. Thus the effect which the Act gives to the panel’s “opinion” is apt to demonstrate how clearly the powers invested in the panel are capable of interfering with the rights of the individual. By virtue of those opinions the appellant’s claims that he was entitled to compensation as a person who had suffered a “serious injury” and/or was “totally incapacitated for work” were conclusively determined against him.
Further down, at about line 40, his Honour said:
In my view it can be seen that the legislature did intend to create the medical panels as an alternative method of dispute resolution to the court.
At page 644, at the top, at about line 5 or 6, his Honour said:
It is an obvious incident of that intention that the medical panels have the power to make conclusive decisions affecting the rights of the parties -
In our submission, it is clear that that case is right because it is the foundation of much law in Victoria with respect to the operation of the provisions of the Accident Compensation Act and also the Wrongs Act with respect to medical panels. Secondly, if it is correct to say that the medical panel decides the particular issue which is the subject of its opinion, then what the court does is adopt and apply, accept as final and conclusive what the medical panel says and if that is what the court does then the court is not deciding the issue which the medical panel decided. The court is merely applying what was found by the panel, or decided by the panel.
So you really have a bipartite type of proceeding. The proceedings which the Act appears to have constructed are ones in which there is a twofold function: one function is given to the court; the other function is given to the medical panel. The court, when the medical panel exercised its function, which is one of decision, then the court does its function. So the court’s function is not to decide anything which the medical panel decides.
FRENCH CJ: Do you accept the proposition at 642, about halfway down, that:
the panel is being called upon to decide matters of mixed law and fact ‑ ‑ ‑
MR UREN: We do, and that also appears at page 653 in the judgment of Justice Ormiston.
FRENCH CJ: Yes, which I was discussing earlier.
CRENNAN J: You accept the descriptions of the requirements in relation to reasons?
MR UREN: We do, yes.
CRENNAN J: Which Mr Wheelahan relies on at page 650, point 7, and 651, point 3.
MR UREN: Yes, well, there are a number of places where the nature of the statement which we provided is referred to in general terms. We refer in that context to 650, 651 and 652, but this was a case where there were no reasons given and the court was deciding whether the medical panel was a tribunal for the purposes of the Administrative Law Act and was a tribunal if it had to give natural justice or it was obliged to comply with the rule of natural justice, and it had to comply with the rule of natural justice because of the nature of its decision making or, at least, the effect of its decision making.
For that purpose the court was concerned to provide a comprehensive description of the nature of what the medical panel was doing, but when they were referring to the sorts of statements which ought to be produced by way of reasons, in this case under the Administrative Law Act, not under the Accident Compensation Act, they were providing statements of generality which have been fleshed out by subsequent decisions of the Supreme Court of Victoria with respect to the appropriate content of reasons in particular cases.
FRENCH CJ: At that point, Mr Uren, we might adjourn for lunch.
MR UREN: If the Court pleases.
FRENCH CJ: Adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.14 PM:
FRENCH CJ: Yes, Mr Uren.
MR UREN: If the Court pleases. If I could now move on to the reasons points. It appeared to us, looking at the appellant’s reply and the lack of substantial disagreement in it with the propositions which we have asserted in our outline of submissions, that basically there is no disagreement, we would think, that the propositions which we have asserted are correctly founded on the authorities which are referred to in them because we have not heard any argument which is based on the proposition that any of the cases we have referred to do not stand for those things which they have been said to stand for.
What has rather been done, we think, is an attempt to so categorise the function of the medical panel as to take it out of the ambit of the cases that we have referred to, and also to, in one instance, provide a restriction on the grant of relief by way of certiorari on a theoretical basis which has no foundation in the authorities. There is, it seems to us, no need to go through each of the propositions that we are putting in our submission and address the various cases for which we submit supports those propositions.
But could we say generally in respect of that consideration that there is nothing that we have put which in our view is not already contained in reputable textbooks on administrative law. The points that we have made are basically fairly standard administrative law considerations, and they really all appear, if the Court reads the passages from “De Smith’s Judicial Review” that we have referred to in De Smith as well as in other places.
It will be recalled that the English authorities with respect to the granting of certiorari for error of law on the face of the record constituted by inadequate reasons, comes or at least starts with a statute which is of general application, that is the Tribunals and Inquiries Act 1992. That statute is referred to in De Smith at paragraph 7‑098, and at 7‑094 the authors refer to the important effects which the Franks report had on the provisions of the law relating to the giving of reasons.
But the point we make is that the English experience does not come from a statute in which jurisdiction is given to a particular tribunal and the reasons are provided for in the tribunal statute. It comes from a statute which applies generally across the board to all sorts of tribunals and inquiries of the sort referred to in it which are quite numerous, and whilst discussing the requirements of reasons, observations are made in De Smith which find a mirror in the submissions that we have made with respect to what is expected of the content of reasons.
This will be found in De Smith at paragraphs 7‑104, 7‑105 and 7‑109. If I could take the Court to them very briefly, it will be seen that a lot of what is said there mirrors the submissions that we have made here and give no support to the proposition that the reasons required of a tribunal, which exercises an important function, should be read down in some way so as to provide a lesser type of content than the provision of reasons which tell people why the decision which was made was made, is adequate and intelligible, lets them know why they won or lost, and what considerations were taken into account when deciding their case both for and against. If I could take the Court very quickly to paragraph 7‑104 at page 432 of the volume, the authors say:
It remains difficult to state precisely the standard of reasoning the court will demand. Much depends upon the particular circumstances –
that is very true –
and the statutory context in which the duty to give reasons arises. It is clear that reasons given must be intelligible and must adequately meet the substance of the arguments advanced.
Now, could I stop there and say, of course, certain words have to be altered to meet the circumstances of the present case. In the present case, one does not advance arguments as such but, nonetheless, you do advance considerations through the medical opinions which are provided for and against a particular point of view. The authors go on to say:
It will not suffice to recite a general formula or restate a statutorily‑prescribed conclusion. It is also preferable if the reasons demonstrate that a systematic analysis has been undertaken by the decision‑maker.
and so forth, and 7‑105 starts off with observations about general guidance which, in part, read:
Thus, reasons should be sufficiently detailed as to make quite clear to the parties – and especially the losing party – why the decision‑maker decided as it did, and to avoid the impression that the decision was based upon extraneous considerations, rather than the matters raised at the hearing. Reasons must be sufficient to reveal whether the tribunal made any error or law. Reasons must also enable the court to which an appeal lies to discharge its appellate function . . . The reasons should refer to the main issues in the dispute, but need not necessarily deal with every material consideration. Brevity is an administrative virtue, and elliptical reasons may be perfectly comprehensible when considered against the background of the arguments –
and then there is a reference at 107 to the importance of not allowing “the duty to give reasons to atrophy”. We would submit by reduction of the appropriate standards.
But what is said in De Smith, in the cases which it refers to, find an echo in what the Court of Appeal said in this particular case, and also an echo in our own submissions. There are two things which it might be convenient to mention in this regard. One is that the duty is to give the panel’s reasons. The panel’s reasons must be its reasons. They are not less than what its reasons were. Its reasons must truly be all of its reasons.
So the statutory injunction is to give the reasons why it came to particular conclusions. It seems to us that the arguments which are put for the appellant seem to perhaps require less than the reasons which were actually the reasons of the Tribunal to be given on the basis that it may be too difficult or too onerous for them to do so, or that there are some considerations which the Accident Compensation Act refers to which require reasons to be less than all of them, but surely when the statute says that the reasons for a particular conclusion must be given, there is no basis for stopping short of all of the reasons. This may be another ‑ ‑ ‑
KEANE J: Is there any significance in the circumstance that the statute speaks of giving their opinion rather than giving their conclusion, or giving their determination?
MR UREN: No, we think there is not. I think there are a number of statutes – two statutes, anyhow – which refer to the decisions of medical panels. You have to go to a medical panel under the Wrongs Act to access common law entitlements, and you have to go to a medical panel under this statute to access compensation entitlements and to go through the gateway to common law, in the case of workers.
I think the Wrongs Act refers to the word “determination”, if memory serves me right. This Act refers to the word “opinion”, but there is no difference, we would think, between opinion, decision and determination. None was perceived in Masters v McCubbery because something was made there of the fact that the word “opinion” was used, but the court said that that was not a word which enabled one to disguise what was really happening. What was really happening is the decision on an issue and that ‑ ‑ ‑
KEANE J: In a way that is different from a decision from an expert under a contract, as in Shoalhaven.
MR UREN: Decision‑makers are decision‑makers. Decision‑makers make decisions, and this is a word which describes the particular decision. It may be the word “opinion” was used because it is about doctors who commonly give opinions. You might say the same about a lawyer. The operative factor is the nature and effect of what is done, and if the effect of what is done is to provide what is, in fact, a decision on a particular issue which is relevant to let us say a court case, in the present case, then the word which is used to describe the end product does not determine what the process is which produces the end product. The fact that it is their opinion really means that it is what they think the situation is or should be, but nothing rests on the choice of word to describe the end product.
KEANE J: Well, it is a bit different from the usual decision made by a decision‑maker in the sense that conventionally, at least for the purposes of what the Court of Appeal described as reasons jurisprudence, one is dealing with a tribunal which determines the better view between competing views, the tribunal itself not having a view either way, but it decides on what is the better view.
MR UREN: There are expert tribunals which have their own expertise to put into the product.
KEANE J: Quite.
MR UREN: The panel here is no different than someone who comes to a view at the end of the day, having no particular view at the beginning of the day, but coming to a particular view as to a question put on the basis of giving natural justice to those persons who have got an interest in the result. It seems to us that a lot of what is said by the other side would perhaps detract from the tribunal‑like nature of the medical panel, but the panel is – as Masters v McCubbery decided – a tribunal because of the effect of what it actually does, and there is no doubt that it was decided in Masters v McCubbery that the panel when giving an opinion and producing a certificate in fact made a decision as to the matter on which the opinion was sought and the fact that it is described as an opinion is not a matter of any importance. The importance is what it does and the effect of what it does.
But, to go back to the proposition which we are advancing, whether the opinion is merely an opinion or whether it is a decision, or whichever word you give to describe it – if you have to say your reasons for coming to it, then, surely, it must be all of the reasons. There may be then an argument about the form in which the reasons should be expressed. So you might have a view about whether any particular degree of brevity is satisfactory or not. But, nonetheless, the reasons surely must disclose why it was you came to a particular conclusion.
GAGELER J: Does that extend to explaining why you did not come to a different conclusion?
MR UREN: Yes, it does, because every case has a pro and a con and your reasons for the conclusion must surely, in the present case, include a reason for not accepting the views of the doctors whose opinions were proffered for the worker. So if the panel had no opinion as to the accuracy of what they said, then it is difficult to see how they could have come to their conclusion. They must have had ‑ ‑ ‑
CRENNAN J: What if what they said struck the panel as being tentative or ‑ ‑ ‑
MR UREN: The panel did not say what it thought of it.
CRENNAN J: ‑ ‑ ‑merely raising possibilities. I am just raising this with you in the context of Justice Gageler’s question – is it necessary to say why they did not come to an opinion?
MR UREN: Yes, because ‑ ‑ ‑
CRENNAN J: In the context of other possibilities floating around.
MR UREN: Yes. Well, because there are two possibilities. If I could take the Court to the panel’s opinion and illustrate what I am about to say by looking at the opinion – the portions which appear at page 361 of the appeal book and also, in that context, ask the Court to have regard to page 216. The panel has expressed, so far as we can see, no actual reasoning process in the pages prior to 361. Now, they start off by referring to medical reports of Dr Baglar in the second complete paragraph down from the top of page 361, and they refer there to something which Mr Baglar was supposed to have said. The passage that they refer to is clearly from 216 of the appeal book.
Now, there are two things to observe about the passages at 216. Firstly, Dr Baglar was not tentative about the connection between the neck and the accident. So whatever one may or may not say about Mr D’Urso – and we will refer to him shortly – it is certainly the case that Dr Baglar was not tentative in the expression of his view that there was a causal connection between the neck condition and his employment.
BELL J: Is there a particular passage on page 216 that you are referring to?
MR UREN: Yes, there are two passages. Now, if I could digress slightly and take your Honour to the passage at the very top of the page; this is in the context, as appears from the previous page, of what was apparently a considerable decay in Mr Kocak’s symptoms. The doctor was shocked when he learned he was:
urgently admitted to Epworth Hospital for a dramatic presentation of a neck condition. I was informed about this admission by his wife on the phone, during the last days of March 2009. I was not aware of a neck condition, –
now these are the operative words here –
severe enough to warrant an admission to hospital. The best I can remember about his neck condition is that on a couple of occasions [I] mentioned about his neck pain, in passing when other health conditions were discussed. I do not remember one single consultation when his neck pain was the main problem.
Now, that is transmuted in the panel’s reasoning in the last part of, or at least in the second paragraph on page 361 to:
“Despite my close professional relationship with him, I was shocked when I learned that he was urgently admitted to Epworth Hospital for a dramatic presentation –
et cetera –
I was not aware of a neck condition, severe enough to warrant an admission to hospital. The best I can remember about his neck condition is that on a couple of occasions (the Plaintiff) mentioned about his neck pain, in passing when other health conditions were discussed. I do not remember one single consultation when his neck pain was discussed.”
Now, that of course is not what Dr Baglar said. He said:
I do not remember one single consultation when the neck pain was the main problem.
but that it had been discussed on other occasions, so the panel has in fact got it wrong what Dr Baglar actually said. But what the panel also leaves out from its reasons is the portions in 216 in the first complete paragraph from the top and the third paragraph down, I think, where it is perfectly clear that Dr Baglar is expressing a distinct and definite view that there was more than enough to prove the connection between his current neck condition and his employment, looking here at about line 20:
I can’t understand the logic of denying liability for his neck condition, in the presence of such clear documentation.
Then he makes a reference to:
The entries in his medical records not only prove the connection between his employment and his neck condition but also prove the negligence by his employer –
So Dr Baglar’s view was distinctly in favour of the causal connection between the two conditions and he did say that the neck pain had been discussed with him on previous occasions. But the Panel notes none of that, of course, and ‑ ‑ ‑
FRENCH CJ: I think Justice Gageler might have had a question for you.
GAGELER J: I was just going to ask, is there something disclosed by way of reasoning in Dr Baglar’s report that is not taken into account by the panel? He asserts a conclusion.
MR UREN: Yes, he said he “scrupulously scrutinised the medical records” in the second paragraph down, in the first complete one from the top; he then refers to each of his presentations for medical help, and the medical entries referring to the shift on the night of October 1996. He thinks that “this is more than enough to prove the connection”. He “can’t understand the logic of denying” the connection when the medical records prove the particular connection. There is also the continuum of deterioration in the spine which is shown by the radiological records which – the first one I think was in November 1996 which shows a minimal condition, but over the years it gets worse and over the years his pain got worse.
So the situation which is clearly open to be considered by any doctor is that there was an accident in October 1996. The accident produced a soft tissue injury, but it was also sufficient to either commence the onset of, or alternatively aggravate, a pre‑existing degenerative condition of the neck. This was the view of his doctors, which became symptomatic as time went on and eventually resulted in the condition from which he was complaining, which the panel agreed he had.
CRENNAN J: Where is that explained in Dr Baglar’s document? I understand entirely that he has expressed some conclusions, but just the way you put that now, where is the reasoning in relation to that proposition?
MR UREN: That is not, I think, contained in the Dr Baglar’s report. Dr Baglar sees the connection between the accident and the current condition in the complaints which had been made about pain in his neck at an early stage and which were continuing and eventually gave rise to the condition from which he was then suffering. So I do not think he attributes – he uses in the reasoning processes the radiological material, but nonetheless the panel is not judging the case on the basis of what doctors’ reports appear better than other doctors’ reports.
The panel is giving its own opinion and it is fairly clear from what the panel regarded as relevant that the radiological condition was relevant and that there was an option available which the plaintiff’s doctors, or at least Mr Kocak’s doctors had considered was the correct one, that with the early - with the accident and the evidence of the deteriorating condition of the spine, plus the onset of the symptoms that are getting worse as time went on, that this was perfectly consistent with the accident having either caused his problem or alternatively exacerbated his pre‑existing problem and resulted in the end in his current condition.
Now, Mr D’Urso I think has said that pretty well at the report of his at page 300, where he refers to the fact that his:
symptoms would appear to be consistent with an injury of the cervical spine. This may have resulted in intervertebral disc prolapse or an aggravation of an underlying cervical spondylosis.
KEANE J: Is he discussing the 1996 ‑ ‑ ‑
MR UREN: Yes, he is.
KEANE J: Where do we see that from?
MR UREN: He said there:
has been a chronology of Eyup’s neck symptoms between October 1996 and May 2000.
This is at the beginning of the second paragraph:
Particularly in 1996, it would appear that Eyup did indeed present complaining of neck pain and radicular arm pain.
KEANE J: Sorry, what ‑ ‑ ‑
MR UREN: Page 300, your Honour. He sees a connection between the event and the injury either by way of “prolapse or an aggravation of underlying cervical spondylosis”, so these are available medical considerations.
CRENNAN J: Is that a possible typing error, Mr Uren, at about the midpoint of the major paragraph, October 1999?
MR UREN: Yes, I think it must have been 1996.
CRENNAN J: 1996.
MR UREN: I think that is all it could be, because if memory serves me rightly, his only other injury was the lumbar spine one in 2000.
CRENNAN J: 2000, yes.
MR UREN: The Court of Appeal took the view, which we submitted, which is that the panel clearly considered, or did not discount, the fact that what the doctor said could be true. In other words, that it was an available medical conclusion that, in fact, the accident could have resulted in the present condition from which it found that Mr Kocak was suffering.
But what the panel did about it is to agree, looking at page 361 about two‑thirds down from the top of the page, they “considered that the Plaintiff suffered a soft tissue injury”. That, of course, was not the question they were asked, I think, but nonetheless it is a matter which is irrelevant to the present case. They further noted:
that the underlying degeneration in the cervical spine is . . . radiological –
In other words, what that means is it showed up on a diagnosis which would seem to be quite a valid way of looking at things –
is often constitutional, and notes from the published medical literature that such degenerative changes may or may not cause symptoms, and that such degenerative changes on imaging studies, including MRI scanning, can commonly be seen in asymptomatic people.
Now, of course, that could be perfectly true. It may be that you can have degenerative changes of the sort which Mr Kocak had without an accident. But on the other hand, his doctors considered, as medical practitioners, that the contrary can be the case as well. Indeed, it would seem what the panel said is that they accepted that the contrary could be true as well. They said it is often constitutional but this means that it may not be constitutional, and it may or may not cause symptoms, and the degenerative changes can commonly be seen in asymptomatic people. That may be true as well, or it may be untrue. It depends on the person.
The point we make here is that that observation allows the possibility that the plaintiff’s doctors were wrong but if they were wrong then there must be a reason for saying that they are wrong because to say that the problem can arise naturally does not mean that it did not arise naturally in the plaintiff’s particular case.
FRENCH CJ: Page 362, the last sentence is, in effect, the opinion, is it not?
MR UREN: Yes.
FRENCH CJ: Going back, what underpins that opinion is a finding that there was a soft tissue injury, the soft tissue injury has now resolved and the soft tissue injury has not been involved in the ‑ ‑ ‑
MR UREN: We can put that to one side because the soft tissue injury is not what he is complaining of but what he has had since the accident ‑ ‑ ‑
FRENCH CJ: No, I understand that – I am just trying to work out how the panel gets to its conclusion of non – no causal connection.
MR UREN: Well, the trouble is you – it cannot be worked out, it cannot be worked out, that is the basic complaint the Court of Appeal made.
CRENNAN J: In the penultimate paragraph there ‑ ‑ ‑
MR UREN: They “therefore concluded”. So they expressed a conclusion therefore, which presumably means based on the previous material.
CRENNAN J: Or based on their clinical assessment.
MR UREN: Well, based on what they have said.
CRENNAN J: And the documents.
MR UREN: Yes, but there must be a reason for – in other words, it is because ‑ ‑ ‑
FRENCH CJ: He does not presently suffer – does not currently suffer from a significant medical condition of a neck/cervical spine – sorry, does currently suffer but concluded that the current medical condition is not related to the “now resolved, soft tissue injury” of 16 October 1996. So the sequence of argument is that was a soft tissue injury then, that has gone away, this is something else.
MR UREN: Well, it is something else.
FRENCH CJ: Yes, well, that is right.
MR UREN: But the point is what – was it caused by the same thing that has caused the soft tissue injury?
CRENNAN J: This is all directed to question 2, is it not?
MR UREN: Well, yes, but the point is where is the “because”? We can see where the conclusions are. The conclusion is in “The Panel conceded that” and also in “The Panel therefore concluded” but the “because” is missing. There are two “becauses” missing. One “because” is - what is the “because” for the reason the panel thought what it concluded and what is the “because” for saying that Mr Kocak’s doctors were not correct. There is no “because”. In other words, there is no reason. The reason – if they put “because” they would then express a reasoning but we do not see any place for a “because” and we do not see any place where a reason is expressed.
GAGELER J: Does it not come down to the weight that is accorded to the radiological diagnosis?
MR UREN: No, with respect, because the radiological diagnosis is confirmatory of his present condition. It, in fact, shows his condition getting worse as time went on but the point is one of cause. So it is not whether he suffers his present condition and it is not whether his present condition can be seen to get progressively worse on the radiological material from October/November 1996 onwards. The point is why did it start getting worse? Now, it can, as the panel said, start getting worse because it can happen naturally but the plaintiff’s doctor said it was getting worse because of the trauma of the accident.
KEANE J: Well, one certainly does not see that from Mr D’Urso’s report at page 300. One sees the identification of a possibility.
MR UREN: Yes, it is possible.
KEANE J: There is not an expression of opinion that the condition of which the claimant presently complains is a progression from an injury sustained in October 1996.
MR UREN: I agree with what your Honour says, with respect, there. His opinion does not express that view but ‑ ‑ ‑
KEANE J: It seems a hard thing to say that the panel have to attribute to Mr D’Urso a view that Mr D’Urso has not expressed and then say it was wrong. I mean, Mr D’Urso says there is a possibility this might have happened.
MR UREN: This is the last, I think, of Mr D’Urso’s opinions. Mr D’Urso has, on his previous opinions, referred to the progression of the deteriorating condition of the cervical spine as shown by the radiological material. So what he says in his report of 18 May 2009 is not just a bolt in the blue without reference to other things. In his previous reports, which go for some period, he has referred to the deteriorating condition of the spine as shown by the radiological material.
But what he has done in his report of 18 May is express a view about cause with respect to the workplace accident. He said his symptoms are “consistent with an injury to the cervical spine”. The reason why it is consistent is that it may have done one of two things. The word “may” is addressed to a possibility of either of two events. One is, an “intervertebral disc prolapse” and the other one is “an aggravation of underlying cervical spondylosis”.
So the word “may” illustrates a choice between one of those two things but not a denial of the view which he had expressed that the symptoms were consistent with an injury to the cervical spine. If they were consistent with an injury to the cervical spine, somebody who says that that was not the case must have a reason for it. There must be a reason.
Could I digress slightly and say that the panel is asked to give an opinion on the question which is put to it. If it could not answer the opinion, then it could not – sorry, if it did not come to a conclusion, then it would not be able to answer the question. There is no question of onus here. Also, there is no question of the panel being required to come to some view – plus or minus based on the fact that somebody has not proved something.
FRENCH CJ: Mr Uren, sorry, could I just interrupt you - going back to something I put to you before - I just want to make sure that I understand your position. Is it right to say that if one is looking for a logical pathway in the panel’s reasoning – there is a pathway – you may say it is insufficient – but the pathway being, there was a finding that what happened in 1996 caused a soft tissue injury?
MR UREN: Yes.
FRENCH CJ: A finding that that soft tissue injury subsequently resolved.
MR UREN: Yes.
FRENCH CJ: A conclusion that that soft tissue injury now resolved and, therefore, the injury suffered in 1996 is not connected to the current condition.
MR UREN: The first part of your Honour’s last sentence but not the second. In other words, it is true the soft tissue injury was resolved and that, therefore, there is nothing about the soft tissue injury which is of further concern, so that could be put to one side. But looking at the fact that the soft tissue injury was resolved says nothing about whether the other injury, that is to say the present condition of his spine, was caused or not caused by what happened at the workplace.
FRENCH CJ: That may be a critique. I am just looking at what their logic is.
MR UREN: Well, the difficulty is to – you see, they have accepted that there is a progression of degenerative changes noted on the various imaging studies.
FRENCH CJ: Yes, that is the current problem.
MR UREN: Yes. So when we look at the degenerative changes shown in the reports of the imaging people it certainly shows a progression from very little in November 1996 getting worse as time goes on, so that is what the panel had in mind.
FRENCH CJ: So you say they have not excluded or addressed the absence of – sorry, they have not addressed their finding that there is no causal connection between the injury and the progression of that?
MR UREN: Yes, they have not addressed ‑ ‑ ‑
FRENCH CJ: It is not enough to say it was only a soft tissue injury now resolved and therefore ‑ ‑ ‑
MR UREN: No, because you have got to have a reason for saying it was only a soft tissue injury. This takes it back one step further.
FRENCH CJ: Well, is that the real complaint, that they have not adequately justified that exhaustive finding?
MR UREN: No, the complaint is that they have not said why they have concluded that the progression of the degenerative changes noted in the various imaging studies and the present condition was not the result of the accident at the workplace in October 1996. You do not prove that that was not the case by saying that it can be caused by natural causes; that just is one possibility ‑ ‑ ‑
FRENCH CJ: I understand that.
MR UREN: ‑ ‑ ‑ but you have got to have a reason for saying that this is what happened to the plaintiff. In other words, if they wanted to say, look, it is often caused by natural causes and we think that is the case with the plaintiff because, so you then have a reason. If they said, we note that his doctors have said that they think it is caused by the accident, we do not agree because, but the “because” must be addressed to what they think themselves, not to just looking at the opinions that doctors dash off over the years relating to a particular condition.
Try as one might, in our submission, you cannot get from the fact that his condition may have resulted from natural causes, the positive conclusion that his condition did result from natural causes without there being some reason for that conclusion expressed if the other alternative is open. Now, if it was the case that his condition could not have been caused by the workplace injury and, indeed, they seem to have said that it could not possibly have been so caused despite the fact that the other doctors said it could, you would expect there again to be a “because” in respect of that.
But there is no connecting point, it seems to us, between the material which they have considered, the fact that they have said the condition can be caused by natural causes, and then their conclusion that it was not – the condition was not caused by the workplace incident. There is no connecting link. If there was a connecting link, you would be able to see it. But there is a lack of reason for choosing, as they seem to have done, the natural causes cause over the trauma cause, because it seems they do not deny what appears to be the basis of the opinion of the doctors for Mr Kocak that his condition could have been caused by the workplace accident and nobody has said that this was an unlikely cause.
It is consistent according to Mr D’Urso and the considered view of the other doctors who are relied on by Mr Kocak is to the same effect. So if that is a medical possibility, and indeed in their view a medical conclusion, then in order to come to a conclusion which denies its correctness, you must have a reason.
GAGELER J: Can I just understand, is there some affirmative reason for the existence of a causal link that appears in the medical reports before the panel that the panel, you say, failed to consider?
MR UREN: The connection is, or appears by implication at any event to be, that trauma can cause injury to the neck and Mr D’Urso has indeed said the trauma may have given - may have caused a disc prolapse or an aggravation of an underlying cervical spondylosis.
BELL J: What page is that?
MR UREN: This is on page 300 in about the middle of the second paragraph:
This may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis.
It does not strain credibility to accept the proposition that a trauma to the spine can cause injury to a disc or ‑ ‑ ‑
GAGELER J: Is there anything more to it than that?
MR UREN: No, I think there is not. That then is the starting point of what is later shown by the continuing deteriorating condition of the spine which is shown by the radiological material.
KEANE J: When you say that – well, originally when it was said that what made these reasons inadequate was a failure to explain why the Tribunal took a view different from that taken by the treating doctors, when one looks at Mr D’Urso’s report, that is just not right, is it? It is the panel plainly appreciate that there is this possibility.
MR UREN: Yes.
KEANE J: But they are not dealing with - they are not concerned to contradict or to disprove a diagnosis. They say, yes, there is that possibility, but in our opinion we reject it.
MR UREN: Yes, but why do they reject it?
KEANE J: Because they say that there is some radiological evidence that may have been asymptomatic. Nothing in Mr D’Urso’s report actually points out any reason to think that there was this bony – to conclude, rather than just to speculate on the possibility, that there was a bony injury to the cervical spine in October 1996 and the absence, as Mr D’Urso says:
Eyup has not specifically mentioned this incident as being a cause of neck symptoms.
So the absence of complaint about it, or much complaint about it, over the succeeding 13 or so years does look like something rather obvious.
MR UREN: But that then is to, with respect, construct a view for the panel which they have not expressed.
KEANE J: Well, no, they have actually referred to the fact that there have been all these years where those treating him have not recorded, or at least Dr Baglar has not recorded a complaint about the neck being a problem since October 1996.
MR UREN: Except that that was wrong, because he did not say that at all.
KEANE J: Well, he did not say “discussed”. He said “major point of complaint” or something.
MR UREN: It is quite logical to take the view that if a spinal condition gets progressively worse then it may be asymptomatic at the beginning and symptoms may occur later because, as the panel indicated, it can be asymptomatic all the time. There is nothing unusual about the fact that what was asymptomatic at the beginning – or less symptomatic than it now is because there was certainly evidence of complaint – but what was not asymptomatic as it now is became progressively worse with degenerative changes, which means a change which gets worse. That is a perfectly logical way of thinking.
If the panel had had a medical reason for considering that the condition which Mr Kocak is suffering from was naturally caused, but not caused by trauma, when they seemed to accept that it could be caused by trauma but also that it could be naturally caused, there must be a criteria for distinguishing between the two apart from saying “It is just what I think”, because that is the hallmark of not a decision at all, but just a stab in the dark. But what we would expect to see is ‑ ‑ ‑
GAGELER J: Does it not really come down to the panel not accepting as a probability what everyone accepted to be a possibility?
MR UREN: If they did not accept it then they have to say why they did not accept it. It is perfectly true that they have come to a positive conclusion against the proposition advanced by the plaintiff’s doctors. Nobody can say that is not so.
CRENNAN J: But if they take the view that the injury at the time, October 1996, was a soft tissue injury, implicitly they do not accept that it was a bony injury.
MR UREN: They accept a progression of degenerative changes and, of course, the degenerative changes – where you have a progression of degenerative changes you have them starting off less and getting worse. The radiological material shows them starting off less and getting worse and this situation arises, it starts off at about the same time as the accident. They accept a progression of degenerative changes. They do not deny the assertions that trauma could be the cause of the degeneration and yet they come to a conclusion that it was not.
We can accept that the conclusion might be legitimately come to on a proper basis of reasoning but it is not a proper basis of reasoning to come to that conclusion that it might have happened normally. Now, we assume that the panel had a reason for considering that it might have – that it did happen normally. In other words, a reason for converting the “might” which was referred to in the third paragraph up from the bottom of page 361 into a “does” because it has to be a “does” for the purpose of the opinion - the opinion has to express a positive view.
FRENCH CJ: Are they not saying there in the third paragraph up from the bottom at 361 - sorry, are they saying anything more than that the evidence of degeneration, such as it is, is not sufficient to support an opinion of a causal connection?
MR UREN: No, because they have not said that. Indeed, you see the ‑ ‑ ‑
FRENCH CJ: They seem to be saying it is rather equivocal – “radiological diagnosis only”, “often constitutional”, “may or may not cause symptoms”, et cetera.
MR UREN: All those things could be true but you have to come – you have to say why this is the case in the plaintiff’s case. The fact that it is often constitutional does not mean that in the plaintiff’s case it is and the fact that the degenerative changes may not cause symptoms is completely irrelevant. The fact that degenerative changes on imaging studies can commonly be seen in asymptomatic people is again completely irrelevant because he has been symptomatic and the degenerative changes on his case – sorry, go back a square, it seems to us irrelevant that degenerative changes may or may not cause symptoms in a man who has become progressively symptomatic and it is also irrelevant to say that degenerative changes in imaging studies can commonly be seen in asymptomatic people when he is a symptomatic person. Those are irrelevant to someone who has, in fact, got the symptoms. What is the point of saying well, it may not cause symptoms but you would then say, “But I have got the symptoms”.
So they accept that degenerative changes may cause symptoms, so they accept that they may cause Mr Kocak’s symptoms. There is no point in saying asymptomatic people, you do not necessarily have to have the symptoms because you can have this condition without symptoms when he says, “But I have got the symptoms”. So there he is with the symptoms – that they may or may not cause symptoms is indeed in his favour because it accepts that such degenerative changes - that means the one he has got - may, in fact, cause his symptoms.
You have then got to go back to the cause of the degenerative changes. They have come to the conclusion about the cause of the degenerative changes, but you do not deny the causal connection, or you are not able to come to a positive conclusion about no causal connection with saying that in other people it is often constitutional. It may well be true, but that leaves open the fact that in some people it is not constitutional, that it is trauma caused.
BELL J: When you say “trauma caused”, are you drawing a distinction between the injury to the cervical spine that Mr D’Urso considered a possibility in his report at appeal book 300 and the soft tissue injury?
MR UREN: The trauma was the physical thing which happened to his neck. Now, that can cause - see, if you have an accident, now let us say a motor car, for instance, you could have both a soft tissue injury and whiplash back.
BELL J: I am just seeking to understand, Mr Uren, if you are drawing a distinction in these submissions. It is not clear to me from reading the final paragraph at appeal book 361 in the panel’s reasons that they are not saying, having expressed a conclusion that the injury in 1996 was a soft tissue injury, that a soft tissue injury would not cause the sort of mechanical dysfunction and background of degeneration that forms their answer to question 1. Now, that may bring us back to “have they given reasons to explain their conclusion respecting a soft tissue injury”, but it just was not clear to me in the way you were putting the matter whether you were drawing ‑ ‑ ‑
MR UREN: I wonder if I could put it this way. We are not fussed about the soft tissue injury. It is a perfectly possible situation that a traumatic event can cause a soft tissue injury to ligaments and muscles and so forth and also cause an injury to the spine, so ‑ ‑ ‑
BELL J: But, Mr Uren, the panel has come to a conclusion that what was caused was a soft tissue injury and then they seem to reason from that that a soft tissue injury in 1996 would not be causally connected to the mechanical and degenerative changes that they describe in their answer to the question 1. Now, it may be that there is an inadequate account of why they were satisfied that the injury was adequately described as a soft tissue injury, but there is other material in their reasons that may reflect on that, including the account given by the respondent respecting that injury.
I think the trouble is the soft tissue injury is getting in the way of the spine from the point of view of the reasons. It may be accepted that the plaintiff suffered a soft tissue injury on 16 October 1996. If we look at the portions in the material relating to the soft tissue injury – extract that – in other words, regard it as extracted and just look at the spine, the point, perhaps, becomes clear. So, if we forget about, for instance, the panel considered the plaintiff has suffered soft tissue injury in the course of his normal work duties because the soft tissue injury is not the one complained of. The next paragraph clearly refers to the spinal injury situation. When we get down to the next paragraph:
The Panel considered that the soft tissue injury has now resolved –
So we will get rid of that:
it has not had any effect upon the progression on the degenerative changes –
We could certainly accept that a soft tissue injury does not have any effect on the progression of degenerative changes because what has the injury to a ligament got to do with the progression of degenerative changes to the spine. So we can accept that:
and that the Plaintiff’s current symptoms are not related to the soft tissue injury –
We can accept that. The soft tissue injury has not caused his spinal degeneration. Then the next paragraph:
The Panel therefore concluded –
All relates to the soft tissue. So we can get rid of that. At page 362:
Whilst the Panel acknowledges that the Plaintiff does currently suffer from a significant medical condition of the neck/cervical spine as noted above . . . concluded that the worker’s current medical condition of the neck/cervical spine is not related to the now resolved soft tissue injury –
So, what they seem to have said is his spinal condition is not caused by or related to the soft tissue injury.
FRENCH CJ: The premise of that is that the soft tissue injury is all that happened to him in 1996. Surely, that must be the premise of their logic, must it not?
MR UREN: It is very hard to say because ‑ ‑ ‑
FRENCH CJ: Well, everything flows from that. They say he suffered soft tissue injury. That is resolved and it has not contributed to the degeneration.
MR UREN: Yes.
FRENCH CJ: You might complain that they have not looked at the possibility of the degenerative process being initiated in some other way in 1996, but the premise of their logic is that it is a soft tissue injury and only the soft tissue injury that he suffered at that time, is it not?
MR UREN: Yes, but you then have to say, why is that?
BELL J: I suppose you could go back then to page 357, paragraph 4, where the panel commences its reasons and gives an account of the circumstances of the 1996 injury, noting that medical records show that the respondent had been treated conservatively, including by physiotherapy, and that he had returned to normal duties on 13 January.
MR UREN: Yes, but that is because nothing much had happened degeneration‑wise because the degeneration was minimal at the beginning – not got worse as time had gone on which is what his doctors thought. It may be the structure of their reasons has caused the problem because they seem to have devoted a lot of time to the soft tissue injury. Now, it is true, as your Honour the Chief Justice said, they must have come to the conclusion from a causal basis that the trauma of October 1996 did not have any effect on the degenerative condition of the spine, but what we see is the reason for that – and it is not a reason – it is a reason that he only suffered a soft tissue injury if you also say but he did not have – but that event did not have any effect on his degenerative spine as it now appears.
If you are going to say that, there must be a reason for it. It seemed to us that if you extract the soft tissue injury bits which, in our submission, are really irrelevant, and come to – and just look at the bits that relate to the spine, all that will be seen is that they are saying the soft tissue injury did not cause the spinal problem. The spinal problem was certainly there. It was not the result of the accident but if you were to ask why it is not the result of the accident no reason appears. If there is a reason, no doubt it could be pointed to, but in their reasons there is no reason.
Now, we have assumed in their favour that this is not just a case of illogical reasoning, but that they do have a reason for thinking that it is not the case that the symptoms were consistent with an injury to the cervical spine, and it is not the case that that consistency is actual on – when looking at a short compass of reasoning, but where they disagree with the doctor’s – Mr Kocak’s doctor’s medical views is not apparent, and why they disagree is not apparent.
If it was suggested that the only reason why they disagreed was that the soft tissue injury cannot cause a progression of degenerative changes, then the remark might have a different case, but we have assumed in their favour and no one suggested that they did not have a valid medical reason for considering that this was the other alternative, that is to say, the onset of natural causes.
BELL J: Mr Uren, when you referred to disagreement in that last submission, was that a reference to the expression of opinion of Mr D’Urso in the report of 18 May 2009 at 300?
MR UREN: In part, but not entirely.
BELL J: Well, could you perhaps identify the other?
MR UREN: Yes. The Court of Appeal has referred to a number of other doctors. There is Mr Brazenor, for instance, who saw the plaintiff basically for a lumbar spine injury in 2000. Now, his reports appear at 227 to 237 of the appeal book. Now, he was of ‑ ‑ ‑
BELL J: Is there some particular passage that you identify in support of the contention that there was disagreement relevantly between the opinion of the panel ‑ ‑ ‑
MR UREN: Well, Mr Brazenor considered that there was ‑ ‑ ‑
CRENNAN J: Page 225, is it?
MR UREN: Now, he has not limited his consideration to what happened in 1996. He has looked at his work history from 1995 to 1996 and 2000 and considered that there was significant wear and tear which has given rise to the injury which he currently suffers from. Now, this is true ‑ ‑ ‑
BELL J: The question with which we are concerned for the present is a question on which the panel was required to form an opinion, being question 2, which is in specific terms.
MR UREN: The doctors are not asked the questions, so you do not find in the doctor’s reports which are being referred to any reference to the questions which are being put to the medical panel. What they do, however, express is a view with respect to the effect of workplace activities – in some cases generally, and in other cases particularly related to October 1996 – on the degenerative condition of the spine. Their views really are relating to work trauma giving rise to a degenerative condition, and they have all said that that is what they think. Mr Brazenor has said it in the parts that we have referred to. Dr Baglar has said it in the portion that we have referred the Court to previously. Mr D’Urso has said it in the portion that we have referred to, so there is a ‑ ‑ ‑
FRENCH CJ: I do not want to oversimplify your complaint, but I do want to try and encapsulate it. Is it right to say that there was material before them which opened the possibility of a causal connection otherwise than through the soft tissue mechanism between the trauma of 1996 and the degenerative condition which he suffered at the time that they were asked to form their opinion, and that they failed to explain in their reasons why they did not find that such a causal connection existed?
MR UREN: In part, yes. The other part, which is the reverse of what your Honour just said, is they have not explained why they considered that that was not the case, and they have not explained why they considered that natural causes was the case, because there are only two alternatives.
FRENCH CJ: Well, they were going down the soft tissue path, so they were looking at the causal connection between that and degenerative condition. They did not even address, you would say, the other path.
MR UREN: Nobody has ever said that soft tissue injury could give rise to these degenerative changes.
FRENCH CJ: No, I am just looking at the logic that they have got and what you are saying that they did not address and did not explain.
MR UREN: They did not address the reasons why they considered that the degenerative changes were not caused by the workplace trauma, and they did not express reasons why they considered that the degenerative changes were the result of natural causes. All they said in that context is that they could have been. They may, I believe, also said they often can be, but that is not a consideration which is addressed to the present case, in other words, to the individual’s case.
KEANE J: Mr Uren, if, at the beginning of the last paragraph on 361, the panel had commenced by saying having regard to the possibilities canvassed in the medical reports which we have looked at, in our professional opinion, it is more probable than not that the plaintiff’s employment could possibly have been, and was in fact, a significant contributing factor to a now resolved soft tissue injury, but could not be and was not a contributing factor to the problems of bony injury that they then refer to, that would not be a sufficient statement of their reasons.
MR UREN: In our submission, probably not, because to say “in my professional opinion” is merely to express a conclusion.
KEANE J: It is to identify the possibilities that the professional opinion has thrown up and then to say that, amongst those various possibilities which other professionals entertain, in our professional opinion we come to this judgment.
MR UREN: Well, if I could put it this way. If somebody, let us say myself, went to a doctor, and said, “I have got a bad back – I twisted my back when I had a motor car accident five years ago, or something, and here are all these radiological reports which show that my back has got worse pretty well from then”, and the doctor says, “Well, it can commonly be caused by just underlying degeneration, and it can be often constitutional, and degenerative changes may or may not cause symptoms, and therefore I put you in that category, I think the probabilities are, in my professional judgment, that this was not caused by the accident, but there you are, you have got a bad back”.
The doctor’s conclusion about what may often be the case leaves open the fact that in your case that may not be the case, but what is the reason for saying that you, the person with the back injury, or me, as the case may be, that it was not caused by the car? We assume that there is a medical reason for the conclusion that what is commonly the case is operative in the case of the instant person. You cannot just say, “I think, on the basis that it is often the case” - you have to have a reason. I assume they have got a reason.
GAGELER J: The underlying proposition, which I thought was accepted by everyone, was that trauma can cause an injury of this nature, not that in the majority of cases or on the balance of probabilities it will.
MR UREN: Well, it can but the material that we have got does not show what degree of probability there is, except you might think that the onset, getting worse from about that time, is a reasonable indicator on the basis of propinquity if nothing else. I mean, everybody has degenerative conditions at a certain age, but he has got significantly worse from about the time of the accident, and that is something which would tell in his favour. But to go back to a point which we mentioned before, if the doctors cannot distinguish between yes or no, then they cannot answer the question, and so, we are left without an answer – they do not have to give an answer.
GAGELER J: All I am suggesting is that there is a difference between needing to give a reason for excluding what is simply a possibility and needing to give a reason for not accepting a probability.
MR UREN: If we accept that the possibility may always be there, you cannot just reject somebody who may have the condition on the basis that a lot of other people do not have the condition. There must be a reason in his case for saying no, apart from the fact that he might be one in a hundred, or one in 50 or something of that sort because these questions are not to be determined on what you might call a mathematical basis. It is not determined on probabilities of occurrence, unless perhaps in a very rare condition where there might be other alternatives, but nobody said this is a very, very rare thing and, indeed, common knowledge is that trauma does give rise to degenerative conditions of the spine, and either by way of cause or by way of aggravation or slipped discs, prolapsed discs, things like that.
There is nothing surprising about what is being proposed by Mr Kocak’s doctors. It is not a rare and exotic condition of which he is complaining and I think that the discussion really shows, we would submit, that there is an attempt to give reasonable logic to what has not been actually expressed, which is one thing the Court of Appeal said should not be done. In other words the ‑ we would submit the same, that it is not for the parties to try and work out what the panel’s reason was or what particular view it might have taken amongst a number of views about reasons for doing something.
If they wanted to say, look, he is a normal person who has degenerative changes and not a person whose condition is the result of trauma, then it would be perfectly simple for them to have said why that was so, but I must say that our submission is that look as one may, one cannot find a because for the ultimate conclusion which, indeed, seems to be wrapped up with the soft tissue injury for some reason which is not entirely clear.
I wonder if, when I have concluded, if Mr Ingram could refer the Court to a number of passages from the clinical notes of the workplace doctors which relate to ‑ ‑ ‑
FRENCH CJ: To what end? To what proposition?
MR UREN: Well it relates to the fact that there were early complaints of matters which went beyond soft tissue injury. That is the reason but I am not sort of ‑ ‑ ‑
FRENCH CJ: Is this in your written submissions?
MR UREN: No, I do not think so.
CRENNAN J: Getting into matters of fact?
MR UREN: Well, perhaps we could leave the matter as it is.
FRENCH CJ: If there are some particular references to which you wish to draw our attention, perhaps you can give us a note of them, if they are just factual references.
MR UREN: If the Court pleases.
BELL J: These are in the clinical notes that were before the panel?
MR UREN: Yes, that is right, yes. Now, looking at the notes, our learned friend’s speaking notes, it seems that the points of distinction between our submissions and theirs are really in paragraph 8, paragraph 11, paragraph 12 and paragraph 13. Paragraph 8, in our submission, is too limited with respect to the reasons which the panel is required to give. Although from one point of view to show that you ‑ ‑ ‑
FRENCH CJ: Well, it begs the question about its statutory functions, does it not?
MR UREN: Well, that is right, from one point of view it can cover a multitude of things which would include the sorts of things that we are referring to because the statutory functions require reasoning processes to be undertaken, and it is those reasoning processes which have to be exposed, or at least not so much the processes but the content of the reasons which has to be disclosed for the purpose of getting reasons. In paragraph 11, it is wrong, in our submission, to say that the Court of Appeal formulated a standard of reasons which are tantamount to a judicial standard and I think at ‑ ‑ ‑
FRENCH CJ: In any event, you do not put it that high, you put it on the basis of exposing the reasons why or, as you put it, the “because” underlying their conclusion.
MR UREN: Also, the Court of Appeal did not say that either because our learned friend’s submissions stop at 47 and 48, but if memory serves me right at 50, they said that is not the case, you can be reasonably brief and you do not have to go as far as judges would. Paragraph 12, I think, we have perhaps already referred to. Paragraph 13 is not a matter which has any authority in favour of it and there is a lot of authority against it, as mentioned in the Catholic Bishops Conference Case, I think, by Justice McHugh.
What certiorari does is examine the record for error of law and if there is an error of law then the decision is quashed. We can accept the distinction between a decision and the reasons for the decision but ever since, for instance, the decision in Poyser and Mills’ Arbitration, it seems to have been accepted by major authorities, not just some but major authorities, that the inadequacy of reasons which were required by law to be given where the reasons are part of the record, is an error of law on the face of the record and the remedy for which is certiorari, not mandamus.
In this context, could we mention something which seems to us to be analogous and that is the case of judicial reasons which are inadequate. If judicial reasons are inadequate then what happens is there is a ground of appeal and if the appeal is allowed the order below is quashed and the matter is sent back to be heard again by somebody else. The judge is not given the option of rephrasing his reasons in order to make them adequate.
One might say that, bearing in mind the state and the decision‑making hierarchy of judges as compared with that of medical panels, if a judge does not get to all the parties in the case in which the judge’s reasons are inadequate and, thus, give rise to an error of law, do not have the option of having them sent back to the judge to do them again for very good public interest reasons ‑ ‑ ‑
FRENCH CJ: Well, analogy is not necessary in this case, on your submissions, anyway. You just say it is error on the face of the record and that is enough.
MR UREN: Yes, yes.
FRENCH CJ: That gets you to certiorari – subject to discretionary considerations.
MR UREN: Yes, that is certainly the case. I think there are a number of peripheral matters that my learned friend mentioned during the course of submissions with which we would not agree, for instance, the effect of Sherlock v Lloyd and a number of other considerations but they do not appear to us to go to the gravamen of the case. We do not accept, for instance, the limitation which our learned friends have seen on the granting of relief under the Administrative Law Act because of section 8(4). The basis of that – the effect of that subsection, in our submission, is not to provide that the standard of reasons under the Administrative Law Act is only to meet the purpose set out in section 8(4). It would be surprising if it was so, bearing in mind that the Administrative Law Act was passed in order to make things easier and give better relief to people than was previously the case.
There are number of other considerations of that sort which, we think, are, perhaps, peripheral to the main issues which we have addressed in the course of our argument. Without going through everything in the summary or, at least, in our outline of reasons, we think perhaps that we have dealt with the arguments put in sufficiently for the purpose of the deciding of the present case.
FRENCH CJ: Thank you, Mr Uren.
MR UREN: If the Court pleases.
FRENCH CJ: Mr Wheelahan.
MR WHEELAHAN: Your Honours, I think counsel for the second and third respondents may wish to address ‑ ‑ ‑
FRENCH CJ: Well, I do not think I will hear what - Mr Pillay had indicated in his outline that there was to be no substantive argument and they submit to any order the Court should make save as to costs. Did you have something to say, Mr Pillay?
MR PILLAY: Only on a very short factual point.
FRENCH CJ: Yes.
MR PILLAY: Your Honour, it arises from a question that his Honour Justice Gageler directed to my friend, Mr Wheelahan, during his argument. The question was does section 65(8) affect the obligation to accord procedural fairness to the parties and his Honour then referred to guidelines issued under the Act. If I could just take the Court to section 65? Section 65(7) provides that the convenor of the medical panel might give directions and section 65(8) provides that the Minister might give guidelines.
Can I just confirm for the Court that there are no guidelines that have been issued by the Minister here to govern the operation for medical panels and in fact the document which is attached to our submissions is in fact a copy of directions issued by the convener. If the Court pleases.
FRENCH CJ: Yes, thank you. Yes, Mr Wheelahan.
MR WHEELAHAN: Your Honours, in reply to our learned friend Mr Uren’s submissions on the topic of issue estoppel, we rely upon what this Court said in Kuligowski v Metrobus (2004) 220 CLR 363 at 378 in paragraph 34. That case concerned a decision of a review officer under the Western Australian compensation legislation. The Court held that a decision of a review officer was capable of being a final judicial decision for the purposes of the doctrine of issue estoppel. In paragraph 34 at the top of page 378, the Court addressed the status of the opinion of the medical assessment panel, and the Court stated in the last sentence of paragraph 34 in relation to that opinion:
But it established no significant difference between a panel’s determination and the review officer’s decisions and orders: any
determination of a panel would itself have been an element in those decisions and orders.
So, in our submission, the decision, which is relevant for the purposes of issue estoppel in the present case, is the orders of the Magistrates Court, as informed by the opinion of the medical panel which was adopted. The second point, by way of reply, is our learned friend made a submission that because we had not challenged, in substance, because we had not challenged our learned friends’ submissions about the content of the obligation to give reasons in our written reply, there may have been no issue.
Just for the avoidance of doubt, the submissions we made in our written submissions in paragraphs 40 and 42 are different to the submissions which our learned friend made in paragraph 17 of his written submissions, and we saw no need to repeat our submissions in our reply. If the Court pleases.
FRENCH CJ: Yes, thank you, Mr Wheelahan. The Court will reserve its decision. The Court adjourns until 9.30 on Friday in Melbourne, and 9.30 on Friday in Sydney.
AT 3.46 PM THE MATTER WAS ADJOURNED
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