Counsel for Mr Davidson submitted that I should refer the medical questions back to the Convenor of medical panels for determination by a differently constituted panel in accordance with a practice that may have developed in this jurisdiction. A frequently cited authority for that course is the decision of Ormiston J in Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (No. 2) where his Honour said, in relation to reasons which were held partly to be defective, that an order compelling the delivery of further and better reasons "would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether."
This dicta has been followed in a number of cases over 20 years although it is important that his Honour's dicta should not be taken out of context. His Honour did not suggest that a body charged with a statutory duty would not, or could not, be relied upon to discharge its duty to give reasons for a decision. The "unreality" referred to by his Honour is that necessarily implicit in an exercise of requiring a decision maker to give reasons in circumstances where it was found, or was likely, that its decision had not taken into account a matter. In those circumstances it would be unreal to require reasons about something which was likely not to have been operative in the decision: it is unreal to ask a decision maker to explain a decision by reference to something which the decision maker had not taken into account. The "patch up" his Honour warned against was the undesirable exercise, in that context, of seeking to have a decision maker explain how its conclusion might be reached by taking into account a matter which, on the hypothesis of the example, is supposed to have been entirely "overlooked". In other words, that it is undesirable for the Court to order the giving of reasons for a decision where it is likely that some matter had not been taken into account: in that case justice requires that the matter be looked at afresh. In this case I have no reason to assume that the medical panel would "patch up" something shown to be defective or that the same panel would do anything other than diligently exercise its statutory duty according to law.
His Honour in Stirling Properties distinguished cases where "reasons are partly defective, in the sense that not all issues have been dealt with", from those cases where "no reasons at all are given by a tribunal required to state reasons". It was in the former class of case that his Honour expressed the view that an order compelling the delivery of further and better reasons would "have an air of unreality about it", whilst in "the case of total absence of reasons," the object of an obligation to give reasons "is better served by compelling the delivery of reasons rather than by the outright quashing of the decision". In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal Davies and Foster JJ dealt with the appropriate orders to be made when remitting a decision for rehearing and said:
If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that tribunal ordinarily allocates to the rehearing a different member of the tribunal. There are, of course, cases where it is convenient for the tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the tribunal as previously constituted to consider the matter again.
These observations were, of course, made in respect of a decision set aside for error and remitted for "rehearing" rather than a decision set aside for failure to give adequate reasons. The situation considered in that case was different from the setting aside of a decision on the ground that the reasons were defective in the sense considered by Ormiston J, and different again from the situation where the relevant order be one that reasons be provided where none had been given. The observations, however, do point to the general desirability of fresh minds being brought to bear in decision making where possible.
The relief that is appropriate in any particular case must "depend on all the circumstances of the case" and I do not think it desirable for any fixed rule to be developed in substitution for a careful evaluation of all the facts of each case. It is easy to conceive of situations where an error identified in an opinion by a medical panel is of such a kind that it would be entirely appropriate, and in the interests of fairness and justice, that it be referred to the same medical panel, just as it may be easy to identify cases where the error, or other circumstances, be such that fairness would best be served by the matter being remitted to a differently constituted panel.
Orders by the Court about the composition of a medical panel to which the questions may be remitted should also bear in mind that there may be administrative, technical or logistical difficulties caused by an order to exclude some members from the composition of any newly constituted panel. Panels are constituted at the discretion of the Convenor of the medical panels under s 63(4) of the Act. The Convenor constitutes panels of not more than five members on a case by case basis after considering, presumably, administrative needs, availability, urgency and the expertise required and relevant to each particular case. The members are chosen from a list of members appointed by the Governor-in-Council under s 63(2) of the Act. In this case the medical panel which made the decision which is the subject of this proceeding was made up of five members including an occupational physician, an orthopaedic surgeon, a rheumatologist, a psychiatrist and a gastroenterologist. The earlier panel was composed of three different members being an occupational physician, an orthopaedic surgeon and a gastroenterologist. It is the Convenor who has the statutory power to convene a panel, but he was not a party to this proceeding and neither set of counsel before me were able to inform me about the number of people on the lists, the category of people on the lists, or the administrative or practical consequences of an order which might exclude the panel members who had sat on this medical panel from reconsidering the opinion remitted back to the convenor. This case was not brought on the basis of actual or apprehended bias nor was there any suggestion that the panel members, if required to give reasons, would do anything other than act in accordance with the law in reaching the correct decision and expressing their reasons accurately when doing so. [10] (footnotes omitted)