Applicant v Fourth Respondent

1 Pursuant to s.3 of the Administrative Law Act 1978 ("the ALA"), the applicant, David James Cladingboel, seeks judicial review of "a decision of a tribunal", namely, a certificate of opinion by a Medical Panel dated 9 June 2006. The Medical Panel also gave written reasons for its opinion on the same date. Pursuant to s.10 of the ALA, those reasons "form part of the decision" and are "incorporated in the record".

2 The applicant obtained, ex parte, an order for review from a Master of this Court on 12 July 2006. The grounds for review set out in that order were as follows:

(a) the Medical Panel did not take into account adequately, or at all, relevant considerations, being the diagnosis made by the applicant's treating medical practitioner of the sequelae to the applicant's back injury and the applicant's subjective complaints to the Medical Panel of same;

(b) specifically, the Medical Panel did not take into account adequately, or at all, the applicant's bladder dysfunction, erectile dysfunction, elevated blood pressure, diabetes and scarring, consequent upon the Applicant's back injury.

3 The first respondent, Newcrest Mining Limited, was the employer of the applicant at the time he suffered his back injury. The second respondent, Dr Paul Nisselle, is the Convenor of the Medical Panels appointed pursuant to s.63 of the Accident Compensation Act 1985 ("the Act"). The third respondent is the Medical Panel constituted by Dr David Barton, an occupational physician; Mr Keith Elsner, an orthopaedic surgeon; Dr Richard Travers, a rheumatologist; and Dr Nathan Serry, a psychiatrist. The fourth respondent, Cambridge Integrated Services Victoria Pty Ltd, is the authorised agent of the Victorian Workcover Authority.

4 By a letter dated 18 September 2006, the solicitors for the third and fourth respondents advised that, in accordance with the comments made in The Queen v The Australian Broadcasting Tribunal; Ex parte Hardiman,[1] their clients would not appear or be represented at the trial but would submit to such orders as the Court might make.

5 By a summons dated 30 April 2007, the applicant sought to add the following further three grounds for review:

(ba) the Medical Panel did not give any, or any adequate, reasons explaining why it did not take into account the matters referred to in grounds (a) and (b) in assessing the degree of impairment;

(bb) the Medical Panel did not take into account adequately, or at all, a relevant consideration, being the impairing effect of the "substance abuse disorder" that the Medical Panel found was "relevant to the claimed back injury"; and

(bc) the Medical Panel did not give any, or any adequate, reasons explaining what account it took of the "substance abuse disorder" and, in particular, why the "substance abuse disorder" did not give rise to a degree of impairment in relation to the applicant's condition.

6 On 2 May 2007, at a hearing at which all four respondents were represented, the summons was referred by a Master to the trial judge. Before me, the addition of the three grounds was not opposed by Mr Solomon of counsel, who appeared on behalf of the first and fourth respondents. Accordingly, I gave the applicant leave to amend his grounds for review.

7 The relevant factual background, which was not disputed, can be stated quite shortly. On 28 August 1988, the applicant, who was then 32 years of age, suffered an injury to his back when he tripped and fell down some stairs when working as a mill operator for the first respondent. After some weeks he began to notice pain and numbness in the left leg and lower back. He consulted his doctor for the first time in November 1988. The applicant underwent spinal surgery on several occasions, including a lumbar laminectomy in December 1988; a further procedure in July 1989; a spinal fusion in December 1990; a second spinal fusion in July 1992; and a removal of orthopaedic hardware in November 1994. The applicant has continued to suffer pain and disability and has not worked since November 1988.

8 The applicant's claim for weekly payments of compensation under the Act was accepted. Until 4 February 2005, the applicant received such payments upon the footing that he had a "serious injury". It was common ground that, for the purposes of this case, the expression "serious injury" has the meaning found in s.93B(5) of the Act:

"serious injury", in relation to a worker, means an injury which entitles the worker to compensation under this Act and in respect of which the worker's degree of impairment, if assessed by the Authority or self-insurer in accordance with section 91, would be 30 per cent or more.

In the applicant's case, that assessment was to be made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Second Edition) ("the Guides").[2]

9 By a letter dated 5 January 2005, the fourth respondent advised the applicant that it had decided that, as from 4 February 2005, his weekly payments would be reduced from 90% of his pre-injury average weekly earnings[3] to 70% of that figure.[4] The ground for this change was that his medical impairment had been assessed at less than 30% according to the Guides and he did not have a serious injury. It was also said that he had no current work capacity and was likely to continue, indefinitely, to have no current work capacity[5] and was therefore totally incapacitated, as defined by the Act prior to 12 November 1997.

10 By a notice dated 31 January 2006, the applicant disputed the decision to reduce his weekly payments, maintaining that his "whole person" impairment was at least 30%. The dispute was referred to the Accident Compensation Conciliation Service for conciliation. On 21 April 2006, pursuant to s.56(6) of the Act, a conciliation officer referred four medical questions to a Medical Panel for opinion. The conciliation officer subsequently deleted two of those questions from the reference.

11 On 26 May 2006, the applicant attended before the Medical Panel, pursuant to s.65 of the Act and gave an oral history. He was examined jointly by Dr Barton, Mr Elsner and Dr Travers and separately by Dr Serry. There was also written material before the Medical Panel, being the medical reports and other material listed in a "Schedule of Attachments", which was Enclosure A to the Medical Panel's reasons for opinion.

12 In those reasons, the Medical Panel stated that it had formed its opinion by reference to:

(a) the documents and information referred to in Enclosure A; and

(b) the history provided by the worker and the examination findings elicited by the Panel at the above mentioned examinations of the worker.

Also, in Enclosure A, Dr Barton, the presiding member of the Panel, confirmed that the Panel took the listed documents "into consideration in forming the opinion".

13 In its certificate of opinion dated 9 June 2006, the Medical Panel gave the following answers to the medical questions referred to it:

1. What is the nature of the worker's medical condition (including any sequelae) relevant to the claimed injury?

In the Panel's opinion the worker is suffering from residual dysfunction of the lumbosacral spine following an L4/5 disc protrusion treated surgically and a mild chronic Adjustment disorder, with anxious features and a substance abuse disorder, relevant to the claimed back injury.

1. What is the worker's degree of impairment in relation to the condition/s, when assessed in accordance with S.91?

In the Panel's opinion the worker has a 26% whole person impairment when assessed in accordance with Section 91 of the Act.

14 Medical Panels are constituted under the provisions of Division 3 of Part III of the Act, for the purposes of the Act, and some provisions of the Wrongs Act 1958.[6] As the name suggests, Medical Panels are constituted by a number of members chosen by the Convenor from a list of medical practitioners appointed by the Governor in Council.[7] The procedures and powers of a Medical Panel are set out in s.65 of the Act. Relevantly they include that:

(a) a Medical Panel is "not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit" (s.65(1));

(b) a Medical Panel "must act informally, without regard to technicalities or legal forms..." (s.65(2)); and

(c) a Medical Panel may ask a worker "to meet with the Panel and answer questions", to supply copies of all relevant documents and to submit to a medical examination (s.65(5)).

15 Section 67(1) of the Act provides that the function of a medical panel is "to give its opinion on any medical question" referred to it. A "medical question" is widely defined in s.5(1) of the Act. Importantly, s.68(4) of the Act provides that:

For the purposes of determining any question or matter, 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.

16 In Masters v McCubbery,[8] the Court of Appeal held that a Medical Panel was a "tribunal" within the meaning of the ALA. Thus, although there was no right of appeal from a decision of a Medical Panel, it was subject to review on the grounds of "jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and 'error of law on the face of the record'."[9] [Footnotes omitted]

17 Before turning to consider the competing submissions, it is necessary to deal with one preliminary issue. At the time the ex parte application for an order for review was made to the Master, there were two affidavits constituting the file, one by the applicant sworn on 5 July 2006 and one by his instructing solicitor, John Gerard McPherson, sworn on 6 July 2006. The order, however, referred only to Mr McPherson's affidavit and ordered service only of that affidavit. There was no explanation as to why the order made no mention of the applicant's affidavit.

18 By a letter dated 20 July 2006, the applicant's solicitor forwarded to the second respondent a copy of the, as yet, unauthenticated order, and copies of his affidavit and the applicant's affidavit. The applicant's affidavit was not served at that time on the first, third or fourth respondent. That omission came to light on 3 May 2007, and was rectified as far as the first and fourth respondents were concerned, when the outline of submissions by the applicant's counsel, which contained a reference to the applicant's affidavit, was served. No point was taken by counsel for the first and fourth respondents concerning the late service of that affidavit.

19 Mr Solomon did, however, object to the applicant relying on the absence of any answering affidavit from any member of the Medical Panel, given the above circumstances and the uncertain status of the applicant's affidavit. He submitted that it may not have been appreciated by the second or third respondents that the applicant would be seeking to rely on his affidavit and, therefore, that they should respond to it.

20 In my opinion, there is merit in this submission. Thus, although I am prepared to permit the applicant to rely on his affidavit, given the lack of opposition from the first and fourth respondents, I do not propose to draw any inference from the fact that there is no affidavit from a member of the Medical Panel disputing or disagreeing with what the applicant said about the examinations of him by the Panel.

21 The five grounds for review essentially fall into two groups - the three grounds ((a), (b) and (bb)) which alleged a failure to take into account a relevant consideration (the applicant's bladder instability, erectile dysfunction, elevated blood pressure, diabetes and scarring and his substance abuse disorder), and the two grounds ((ba) and (bc)) which complained about the adequacy of the reasons in explaining how the Medical Panel dealt with each of the above considerations.

22 What the applicant said in his affidavit sworn on 5 July 2006 was as follows:

1. When I saw the three doctors together, they asked me whether I had trouble with my bowel and stomach, to which I answered that I did not, except immediately after some of my surgeries. In relation to my bladder, I said that I had trouble urinating, and in particular had trouble starting a flow, maintaining a flow, and stopping. I was asked by the doctors whether I ever totally lose control of my bladder, to which I said I did not.
2. I was not asked by the three doctors that examined me together about my erectile dysfunction at all, nor was I given the opportunity to raise it. It was difficult to say what I wanted during the consultation with these doctors, as often when I was saying something or about to say something, the doctors would cut me off by asking me a further question.
3. I told the three doctors who examined me together that I was on blood pressure tablets. I was asked what they were. I said that I was on Coversyl, Noten, Adalat and Dapatabs. They did not ask me any further questions about my blood pressure.
4. I volunteered that I had developed diabetes, and this was controlled by diet. They did not ask me anything about my diabetes at all.
5. The psychiatrist, Dr Serry, whom I saw after I saw the three doctors together, asked me about my sex life and a number of other things.

23 The Medical Panel also had before it a medical report dated 7 May 2006 from the applicant's treating doctor, Dr Luscombe, in which he said that:

Mr Cladingboel suffers from chronic post surgical back pain for which he takes regular intramuscular analgesia. On recent examination he had a heavily scarred back with global marked reduction of mobility in his lumbar spine. It is my understanding that his activities of daily living are severely curtailed by his pain and that as a consequence he leads a mainly sedentary life. Physical activity, eg. light gardening or using a ride on mower are curtailed to 5-10 minutes a time. Mr Cladingboel also reports bladder instability and erectile dysfunction from the time of his multiple surgical interventions. More recently he has developed elevated blood pressure and diabetes which can be ascribed at least in part to his enforced sedentary lifestyle.

Given the longevity of Mr Cladingboel's symptoms and lack of improvement over this time, I would consider there is virtually no prospect of recovery in the foreseeable future.

24 The first submission made on behalf of the applicant arose out of the fact that in its reasons for opinion the medical panel stated, in its summary of what it was told by the worker about his current symptoms, that "there were no symptoms of bladder or bowel dysfunction". Thus, there was a conflict between what the applicant said he told the Panel about his bladder and what the Panel recorded it was told. What the applicant said he told the Panel about his bladder was consistent with the symptoms his treating doctor reported to the Medical Panel. I see no reason not to accept what the applicant said in his affidavit on this point.

25 Mr O'Loghlen QC, who appeared with Mr Purcell of counsel for the applicant, submitted that where, as here, the Medical Panel had acted on an erroneous basis as to what it had been told by the applicant, the procedure that allowed the error to happen was manifestly unfair to the applicant. He submitted that the error deprived him of a fair hearing. Mr O'Loghlen submitted that in those circumstances, the Medical Panel's exercise of power was materially affected, because the Medical Panel had relied upon what (in error) it took to be the worker's oral "history". Therefore, he submitted, the course taken by the Medical Panel caused it to fall into error. It had taken "some extraneous reason into consideration or exclude[d] from consideration some factor which should affect ... [its] determination."[10]

26 Mr O'Loghlen further submitted that, looked at in another way, the Medical Panel's misconception operated to preclude it from exercising its decision-making power according to law. Those circumstances gave rise to relevant error. In Re Patterson ex parte Taylor,[11] under the heading "Jurisdictional Error", Gummow and Hayne JJ said:

There will have been a constructive failure to exercise the power reposed in the respondent by s.501(3) or, as Gibbs J put it in Sinclair v Maryborough Mining Warden, a "purported but not a real exercise of [her] functions", if the respondent precluded herself from exercising the power according to law; she will have done so if she misconceived what in law was involved in the exercise of that power. [Footnote omitted]

27 Thus, Mr O'Loghlen submitted, applying those principles to this case, the Medical Panel precluded itself from exercising its decision-making power according to law, by relying upon the worker's alleged oral "history" without a lawful basis for doing so. By relying upon it, the Medical Panel had misdirected itself as to its powers, that is, had proceeded upon an erroneous footing, and moreover had not accorded procedural fairness to the applicant. Acting upon that footing, the Medical Panel had taken into account material that should not have been included and had failed to take account of relevant material. Mr O'Loghlen submitted that this error materially affected the decision that was given.

28 Counsel for the applicant then turned to other relevant considerations which, it was said, the Medical Panel had failed to take into account. Dr Luscombe had stated in his report that the applicant "has developed elevated blood pressure and diabetes which can be ascribed at least in part to his enforced sedentary lifestyle". These matters were also referred to in the history taken from the applicant. Mr O'Loghlen submitted that this evidence, if accepted by the Medical Panel, must have affected its assessment of the applicant's degree of whole person impairment. However, the Panel did not refer at all to these considerations in its reasons for opinion.

29 Mr O'Loghlen emphasised that it was not as if Dr Luscombe's report stood alone. There was other evidence of elevated blood pressure, diabetes, and the sedentary lifestyle. For example, Mr Weaver, an orthopaedic surgeon, stated in a report dated 10 December 2003 that the applicant required "to take medications for control of hypertension", that he was "very much out of condition" and "grossly overweight" and appeared to lead "a very sedentary lifestyle". Another orthopaedic surgeon, Mr Perera, said in a report dated 16 December 2005 that the applicant had "just been diagnosed with diabetes" and that he was "also treated for hypertension, with Noten, Adalat, Coversyl and Dapa tabs" and that one would have to assume that the hypertension was "quite significant, considering the multiplicity of [necessary] treatment". Mr Phillips, a surgeon, said in a report dated 17 March 2006 that the applicant had "gained a great deal of weight" and that he has "numerous treatments for blood pressure, taking Adalat, Lotin and Coversyl."

30 In those circumstances, Mr O'Loghlen submitted, the Medical Panel's decision was not properly formed. Rather, the assessment of the applicant's degree of impairment was incomplete, in that the assessment took no account of the impairing effects of elevated blood pressure or diabetes. Accordingly, he submitted, the Medical Panel's assessment of the degree of impairment was based upon something less than what the statute required. It had not done what it was appointed to do.

31 Mr O'Loghlen submitted that the course taken by the Medical Panel in this respect gave rise to a jurisdictional error. He referred to the well-known passage from the judgment in Craig v South Australia[12] that:

if ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

Mr O'Loghlen also referred to the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Cultural Affairs v Yusuf[13] where, after referring to Craig, their Honours continued:

What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. ...

In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.

32 Mr O'Loghlen further submitted that it was enough that, but for the error, the decision might have been different, referring to what Mason CJ said in Australian Broadcasting Tribunal v Bond:[14]

A decision does not "involve" an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.

33 Although very little was said in the submissions put on behalf of the applicant about erectile dysfunction and scarring of the back, they were both mentioned by Dr Luscombe in his report, which was before the Medical Panel. As I understand the applicant's position, they were also relied on as further examples of relevant considerations which the Panel had allegedly failed to take into account.

34 The Medical Panel's finding that the applicant was suffering from "a substance abuse disorder, relevant to the claimed back injury" was the final example of the alleged failure to take into account a relevant consideration. Mr O'Loghlen submitted that, in the Medical Panel's reasons, the only indication of what constituted that substance abuse disorder was the reference to the applicant telling the Panel that he was "having regular injections for pain". In the medical reports before the Medical Panel, this had been described in some detail. In a report dated 28 July 1999, Mr Hayes, an orthopaedic surgeon, said that for the past three years the applicant had been seeing Dr Luscombe every month for a prescription for a self-administered 100 ml of Pethidine, eight a month as prescribed by another doctor, and otherwise had been taking Panadeine Forte, four to eight a day. Mr Hayes said that the applicant consumed a good deal of Pethidine which was "a notorious narcotic drug of addition". Mr Weaver, in a report dated 11 October 2004, said that the applicant continued to self-inject Pethidine on a very regular basis, and that he was obliged to use up to eight scripts per month in this regard. Mr Weaver stated that long term use of Pethidine could clearly be expected to have "some addictive effects" for the applicant. Mr Perera, in a report dated 16 December 2005, said that the applicant's medication consisted of Pethidine, for which he usually had about eight scripts per month, depending on his pain. The applicant usually had two doses of 300 mgs at a time and also used Normison. Finally, Mr Phillips, in a report dated 17 March 2006, said that the applicant had forty Pethidine injections a month. Sometimes he was given them and sometimes he injected himself. On some days, he had no injections but on other days, it could be two or three. Mr Phillips stated that the applicant had become "dependent on Pethidine, one might say addicted".

35 Mr O'Loghlen submitted that since the relevant "substance abuse disorder" was found by the Medical Panel to be "relevant to the claimed back injury", the impairing effects of the substance abuse disorder, including the addiction to Pethidine, had to be taken into account. But there was no indication in the reasons that any account was taken of it. Again, therefore, the assessment of the applicant's degree of impairment was incomplete, and the assessment was based upon something less than the statute required, so that the Medical Panel had not done what it was appointed to do.

36 Turning to the grounds for review based on the alleged inadequacy of the Medical Panel's reasons, Mr O'Loghlen said that the applicant accepted that the Medical Panel was entitled to accept or reject the various pieces of evidence before it, and to accept or reject Dr Luscombe's views. But, it was submitted, the Medical Panel was obliged to explain why it rejected Dr Luscombe's views, if that was what the Medical Panel did. Mr O'Loghlen submitted that it was impossible to know, from the Medical Panel's reasons, what the Panel did or did not do, in this respect. He submitted that the Panel's failure to explain itself made it impossible to understand its reasoning process, and that failure amounted to an error of law.

37 Mr O'Loghlen referred to the Court of Appeal judgments in Masters v McCubbery[15] as illustrating what was required from the Medical Panel by way of reasons. Early in his judgment, Winneke P said:

Section 8 was no doubt introduced because it was seen to be a necessary incident of the function of a tribunal which owed an obligation to accord procedural fairness to provide reasons for its decision. It is only by setting out its reasons in sufficient detail to demonstrate whether it has acted on proper principles that the court will be in a position to effectively review its decision: ...[16]

A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions. This, after all, is the limit of the obligation imposed by the ALA upon any "tribunal" which is required to accord natural justice in arriving at its "decision": see s 8(4) of the ALA.[17]

If I am correct in coming to the view which I have that medical panels are required to accord natural justice, they are not obliged to overwhelm themselves with the provision of elaborate reasons. As I have already pointed out 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: ...[18]

38 Mr O'Loghlen also relied on what was said by the other two members of the Court. Ormiston JA said:

It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.[19]

Callaway JA referred to "the kind of reasons that s.8 requires", saying:

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. There is nothing in the nature even of the simplest medical question that is incompatible with the furnishing of reasons. For example one doctor could sensibly ask another the "reasons" for his or her diagnosis of a patient's illness.[20]

39 Thus, Mr O'Loghlen submitted that the decision of the Medical Panel could be reviewed because it had failed to explain why it disagreed with the diagnosis made by the applicant's treating medical practitioner, Dr Luscombe, of the sequelae to the applicant's back injury, such as bladder dysfunction, erectile dysfunction, elevated blood pressure, diabetes and scarring, if that was the view it had reached, or if not why those matters were not relevant considerations to take into account in assessing the applicant's degree of impairment.

40 Further, Mr O'Loghlen submitted that the decision of the Medical Panel could be reviewed because it had failed to explain whether the impairing effects of the "substance abuse disorder", which it had found to be "relevant to the claimed back injury", were taken into account in assessing the applicant's degree of impairment, and why they were not taken into account if that were the case.

41 On behalf of the first and fourth respondents, Mr Solomon set out what he submitted were the relevant principles governing the conduct of supervisory jurisdiction now being exercised by this Court. He referred to the same passage from the judgment in Craig v South Australia,[21] which has already been quoted. He then drew attention to the emphasis given by Phillips JA in RSL v Liquor Licensing Commission,[22] to the critical expression "and the tribunal's exercise or purported exercise of power is thereby affected" in the relevant part of the judgment in Craig. His Honour continued:

Thus, to ask a wrong question, to ignore relevant material and so on, is jurisdictional error if - but only if - "the tribunal's exercise or purported exercise of power is thereby affected". One may imagine readily enough a case in which that will be so, but again, there will be many cases - and perhaps more commonly - where it is not so. Ultimately, at all events when what is in question is error in the course of decision-making (as was the case here), the task for the court from which certiorari is sought must be to distinguish between, on the one hand, those matters which the tribunal is given the jurisdiction to decide, and even to decide wrongly (so that error does not go to jurisdiction), and on the other hand those in respect of which, while it may have the power to inquire into them, it does not have the jurisdiction to decide wrongly (so that error does go to jurisdiction).

42 Mr Solomon also referred to the following conclusion by Phillips JA:

Accordingly, in a case like the present the essential search must be for the task which is confided to the body whose decisions are under attack; for only if that body strays beyond that task will there be a want or excess of jurisdiction.

43 Mr Solomon also referred to other authorities, old and new, which stressed that in cases such as this, the Court should keep in mind that it was not hearing an appeal.[23] It was concerned with the decision-making process, not the merits of the decision.[24]

44 Reliance was also placed on what was said by Kirby J in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission:[25]

The remedies of judicial review invoked in this case are only available to require the correction of a category of legal mistake that goes beyond an "error within jurisdiction" and amounts (relevantly) to a "jurisdictional error".

Distinguishing cases where the officer or authority has simply made a factual or legal error in the course of reaching a decision from cases where that error is classified as a constructive failure to exercise jurisdiction is not at all easy. What is ordinarily involved in the latter is a misapprehension on the part of the decision-maker of the nature of the powers and functions which the decision-maker is called upon to exercise or of the essential conditions by reference to which that exercise must occur. The misapprehension must be such that, in truth, it can be said that a purported exercise is not a performance of the powers and functions entrusted to the decision-maker at all. It is a pretended or assumed discharge. But in the eye of the law, the powers and functions have never been lawfully performed.

45 Mr Solomon then submitted that, in order to test whether the powers and functions entrusted to the Medical Panel were lawfully performed (on the one hand), or whether instead there was only a pretended or assumed discharge (on the other), it was necessary to turn to the statutory scheme within which Medical Panels were constituted, and pursuant to which powers and functions were conferred on such Panels. He referred to provisions of the Act relating to Medical Panels, which I have set out above. Mr Solomon emphasised that s.68(4) provided that the opinion of the panel "must be accepted as final and conclusive". He submitted that it was this characteristic of the Panel's deliberations, and of its decision making functions and powers, which was central to the question of the jurisdictional capacity to "go wrong" in evaluating the factual matrix in medical questions brought before it.

46 Further, Mr Solomon emphasised that the two questions referred to the Medical Panel for its determination were medical questions. He pointed out that under s.91 of the Act, the degree of impairment to be assessed must be "made in accordance with" the Guides, and submitted that this seemed the sort of question singularly suited to a Medical Panel with medical expertise. Mr Solomon further submitted that all of the issues raised by the applicant involved medical issues which this Court was in no position to assess.

47 In respect of the complaints made concerning bladder instability and erectile dysfunction, Mr Solomon submitted that the applicant's submission that the Panel failed to have regard to a complaint of his concerning bladder instability and erectile dysfunction plainly fell outside the supervisory jurisdiction of this Court. He submitted that the legislation granted to the Panel powers and functions enabling it to answer a medical question referred to it concerning degree of impairment. The Medical Panel did not pretend to answer that question, it did answer that question and in its reasons, it said that it had formed its opinion by reference to the documents and information referred to and the history provided by the worker, and examination findings elicited by the Panel. Mr Solomon submitted that this complaint, concerning what was described as a misconception, was a paradigm example of an applicant impermissibly utilising supervisory jurisdiction of the Court as if the jurisdiction were a statutory appeal.

48 Mr Solomon also referred to the applicant's attempt to argue that the procedure of the Tribunal which allowed the misconception to occur was "manifestly unfair" to him. First, he submitted that the complaint as to procedure was not one of the five grounds for review. Secondly, he submitted that, in any event, the evidence of the applicant was expressed so generally and vaguely that it simply could not be countenanced that evidence of that type would, without more, operate to vitiate the decision of a panel entrusted to determine medical questions as it saw fit, acting informally and not bound by rules or practices as to evidence. It was not suggested that the Panel acted in bad faith. He submitted that simply because a worker felt that the Panel, asking questions for its purpose to assist it to determine the degree of permanent impairment, had not canvassed one matter on which the worker placed store, such a circumstance could not constitute a denial of procedural fairness so as to vitiate the decision of the Panel.

49 Mr Solomon then turned to the Panel's failure to refer to the applicant's elevated blood pressure, diabetes or scarring. He again noted that the medical question referred to the Panel concerned an assessment of a degree of impairment pursuant to s.91 of the Act. Mr Solomon submitted that the contention that the lack of reference, in terms, in the reasons of the Panel, to elevated blood pressure, or diabetes, or what was described as "sedentary lifestyle", evidenced a jurisdictional error in the determination of the degree of permanent impairment, could not be accepted. The contention did not have regard to relevant principles concerning jurisdictional error, nor did it address the conclusive power conferred on the Panel, and nor did it address the statutory function being performed by the Panel in this case (essentially a medical issue ― the determination of degree of impairment). Mr Solomon submitted that no warrant for exercising supervisory jurisdiction could be grounded in the circumstance that one aspect of the condition of the applicant, on which the applicant would place reliance, was not in terms referred to in the reasons for opinion.

50 In respect of the matter of "substance abuse disorder", Mr Solomon submitted that, for the same reasons as outlined above, none of the matters contended for by the applicant would constitute a jurisdictional error. He submitted that the real complaint of the applicant appeared to concern the adequacy of the reasons on this particular issue.

51 Finally, Mr Solomon dealt with the grounds for review based on the inadequacy of the reasons argument. He accepted that the relevant principles were set out in the passages from the judgment of the Court of Appeal in Masters v McCubbery set out above. He also referred to Brambles Industries Limited v Nisselle,[26] where Bongiorno J said that:

The mere failure of a body charged with making an administrative decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respect, to exercise its powers according to law and that inference is drawn by the Court.

Mr Solomon also referred to another passage from the judgment of Bongiorno J in Brambles where his Honour said that:

The fact that the panel did not refer specifically to the material provided to it which put a contrary version of the facts does not lead to an inference that it did not consider that material in reaching the decision which it expressed.[27]

52 Mr Solomon also drew attention to what was said by Gillard J in George v Nisselle:[28]

As I remarked in submissions, a ground alleging inadequacy of reasons is sometimes the refuge of the desperate - if nothing else can be established, allege that the reasons are inadequate. In my opinion, the wording of the ground is offensive. To assert that nobody else could understand the reasoning of the Panel in coming to its opinion is nonsense. The reasons must be read in context, taking into account the background and all the documentation, bearing in mind what were the real issues were [sic] for determination and, as understood by a person having some familiarity with the Act and a claim for compensation.

53 Mr Solomon again noted that the Medical Panel formed its opinion by reference to both documents and information provided to it, and a history of the worker and its examination findings. This identification was perfectly adequate.[29] He submitted that, having regard to the real issue for determination, the reasons for opinion of the Panel in this matter did not warrant the inference that the Panel had failed to exercise its powers in accordance with its statutory charter. The grounds of review relevant to adequacy of reasons each involved particular facts on which the applicant would now place specific emphasis. But, Mr Solomon submitted, there were, often enough, dozens of facts relevant, or at least arguably relevant, to a determination of impairment. He argued that Medical Panel decisions are not quashed - on inadequacy of reasons grounds - merely because a few selective facts are not referred to in terms in the reasons.

54 In my opinion, Mr Solomon was correct in his argument that jurisdictional error was not shown simply by referring to matters, such as erectile dysfunction, elevated blood pressure or diabetes, which one or other doctors had referred to in their reports but which had not been mentioned by the Medical Panel in its reasons for opinion. The medical question had been given to the Panel to decide, and given that it stated that it had taken into account the material provided to it, there was no basis, in my opinion, for concluding that failing to refer to such matters meant that a relevant consideration had not been taken into account. The members of the Panel may simply have decided that in their expert opinion these matters were not relevant.[30] Whether they were right or wrong on that issue is not to the point. It is not error which goes to jurisdiction.

55 I consider, however, that the bladder instability points falls into a different category. Here, the Medical Panel has wrongly stated what Mr Cladingboel told it. It is clear, in my opinion, that an accurate summary of the history given by the applicant to the Panel would state that he did have some symptoms of bladder dysfunction, whereas in its reasons the Panel said that he did not have any. This statement was also contrary to what the applicant's treating doctor had reported to the Panel. Thus, this situation is similar to that in Tralongo v Malios,[31] where Williams J held as follows:

By forming its view, having had regard to a history which was not given, the medical panel has, in my opinion, ignored the relevant consideration of the account of events actually given by Mr Tralongo when he had been provided with the opportunity to tell his story. I consider that it was bound to take that history into account in reaching its decision. The medical panel has also relied upon irrelevant material, being the contents of a history which he did not provide. In my view, it was bound to ignore that material. The medical panel has, in each case, fallen into jurisdictional error. [Footnote omitted]

56 The distinguishing feature between the two categories, in my opinion, is that in the former there is no basis for this Court to conclude that the Panel did not take into account medical problems such as erectile dysfunction, or elevated blood pressure, or diabetes in reaching his decision on the degree of impairment of the applicant, or, even if the Court could be satisfied that the Panel did not take those medical problems into account, that the Court could decide that they were relevant considerations for the Panel to take into account in performing the task assigned to it. On the other hand, in the latter situation, the Panel has made it clear that the question of whether there was any bladder dysfunction or not was relevant to its consideration by referring to it as part of the applicant's history. The Panel had not taken this relevant consideration into account because it had misconceived or ignored what the applicant, and his treating doctor, had said about this issue.

57 Both the Act (s.65(5)) and the Guides make it clear that the history of the injured person is something which the Panel should take into account. In those circumstances, in my opinion, the Medical Panel made a jurisdictional error when it acted on an erroneous view of the applicant's history in respect of a relevant consideration. This means that the decision of the Medical Panel should be quashed on grounds (a) and (b).

58 This conclusion means that it is strictly not necessary to refer to the other submissions advanced on behalf of the applicant. I will, however, deal briefly with them. Ground (ba) raised the issue of the adequacy of the Medical Panel's reasons for not taking into account the matters referred to in grounds (a) and (b).

59 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[32] it was said by Brennan CJ, Toohey, McHugh and Gummow JJ that:

[T]he reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

Bearing this admonition in mind and taking into account the context, the background of the case, the documents provided and the issues to be determined by the Medical Panel,[33] I consider that the reasons of the Medical Panel on this point do "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."[34] It seems to me to be clear that the Panel were of the opinion that matters such as erectile dysfunction, elevated blood pressure or diabetes were not relevant to their assessment of the applicant's degree of impairment, even though they did not specifically say so.[35]

60 Ground (bb) raised the issue of the alleged failure by the Medical Panel to take into account another relevant consideration, namely the impairing effect of the applicant's "substance abuse disorder". Ground (bc) raised the issue of the adequacy of the Medical Panel's reasons in respect of the "substance abuse disorder". Given that the Medical Panel referred, in its answer, to the first medical question to "a substance abuse disorder, relevant to the claimed back injury", but that there was no further reference to the "substance abuse disorder" in the Panel's reasons, which explain how it reached the figure of 26%, I consider that it is difficult to resist the conclusion that the Panel has failed to take the "substance abuse disorder" into account when assessing the applicant's degree of impairment. On the Panel's own finding, the "substance abuse disorder" was a relevant consideration, and yet it was not taken into account. In my opinion, this was also a jurisdictional error as the Panel has not performed the task it was required to do.

61 If I am wrong in my conclusion that ground (bb) has been made out, then I consider that ground (bc) is clearly established. The Panel's reasons are inadequate, in my opinion, because they do not explain how the Medical Panel dealt with the impairing effects of the "substance abuse disorder".

62 There was some debate before me about what form of relief should be granted, if the applicant were successful, in particular whether the Panel's decision on both or only one of the questions should be quashed and whether the matter should be referred back to the existing Medical Panel or to a differently constituted Panel.[36] It seems to me that, in the light of the conclusions I have reached, the appropriate orders are that:

(a) the decision of the Medical Panel made on 9 June 2006 be quashed, and

(b) the medical questions be referred back to the Convenor of the Medical Panel for determination by a differently constituted Medical Panel.

[1] [1980] HCA 13; (1980) 144 CLR 13 at 3536 per Gibbs, Stephen, Mason, Aickin and Wilson JJ.

[8] [1995] VICSC 209; [1996] 1 VR 635.

[9] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-176 per Brennan, Deane Toohey, Gaudron and McHugh JJ.

[10] See Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 per Dixon J.

[11] [2001] HCA 51; (2001) 207 CLR 391 at [189].

[12] [1995] HCA 58; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[13] (2002) 206 CLR 323 at [82] and [83].

[14] [1990] HCA 33; (1990) 170 CLR 321 at 353.

[15] [1995] VICSC 209; [1996] 1 VR 635.

[16] [1995] VICSC 209; [1996] 1 VR 635 at 640.

[17] [1995] VICSC 209; [1996] 1 VR 635 at 650.

[18] [1995] VICSC 209; [1996] 1 VR 635 at 651.

[19] [1995] VICSC 209; [1996] 1 VR 635 at 653.

[20] [1995] VICSC 209; [1996] 1 VR 635 at 661.

[21] [1995] HCA 58; (1995) 184 CLR 163 at 179.

[22] [1999] VSCA 37; [1999] 2 VR 203 at [16]. Charles and Buchanan JJA agreed with Phillips JA.

[23] R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 655 per Windeyer J.

[24] TXU Electricity Limited v Office of the Regulator-General [2001] VSC 153 at [71] per Gillard J.

[25] [2000] HCA 47; (2000) 203 CLR 194 at [81] and [82].

[26] [2005] VSC 82 at [21].

[27] [2005] VSC 82 at [22].

[28] [2005] VSC 177 at [56].

[29] Kamener v Griffin [2004] VSC 235.

[30] Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; [1973] VR 1 at 11 per Stephen J.

[31] [2007] VSC 239 at [75].

[32] [1996] HCA 6; (1996) 185 CLR 259 at 272.

[33] George v Niselle [2005] VSC 177 at [50].

[34] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 at 650 per Winneke P.

[35] Brambles Industries Limited v Niselle [2005] VSC 82 at [22] per Bongiorno J.

[36] See Body Corporate Strata Plan No. 4166 v Stirling Properties Limited (No. 2) [1984] VicRp 73; [1984] VR 903 at 912 per Ormiston J.