Applicant v Respondents

Supreme Court of Victoria|2005-05-27|Before: GILLARD, J.

Worker's compensation claim under ss.98C and 98E of Accident Compensation Act 1985 - Opinion of Medical Panel - Order for review under Administrative Law Act 1985 - Alleged grounds of jurisdictional error and inadequate reasons - Read opinion and reasons together and in light of issues - No error demonstrated - Order nisi discharged.

2 The applicant, Danny George ("the applicant") who was born on 2 December 1974 was employed by SBA Foods Pty Ltd at Altona North as a labourer in the roller room at its abattoirs during a period of approximately two years to 24 January 2000. He asserted that he suffered an injury to his right arm in May 1999 when lifting lamb carcasses up on to hooks at his employment. He developed pain in the right elbow, wrist and hand resulting in disability in the right hand.

3 The first respondent, Dr Paul Nisselle, is the Convenor under the Act who was appointed by the Minister from a list of members who are medical practitioners and who were appointed by the Governor-in-Council.[1] He has a number of functions to perform under the Act, one of which is that he selects the medical persons to constitute a Medical Panel[2] to carry out a particular function conferred on the Panel by the Act.[3] I doubt whether he was a necessary party to this proceeding. All he did was appoint the Panel. There is no suggestion in this proceeding that he did anything contrary to the law. In those circumstances I doubt he is "interested in maintaining the decision" as specified in s.3 of the Administrative Law Act 1978 ("ALA"). I raised these doubts with counsel for the parties but in the absence of any submissions from or on behalf of Dr Nisselle I do not propose to say anything more about it.

4 The second and third respondents, Dr Victor Wilk and Mr Keith Elsner, are specialist medical practitioners. They constituted the Panel which gave its opinion as required under the Act and furnished reasons for that opinion. Dr Wilk is a musculoskeletal physician and Mr Elsner is an orthopaedic surgeon. In accordance with the usual practice their solicitors have informed the Court that they will not take part in the proceeding and will abide any orders made. I will collectively refer to them hereafter as the Panel. They clearly have an interest in maintaining the decision and "to show cause why the same should not be reviewed."[4]

5 The fourth respondent, SBA Foods ("SBA Foods"), was at the relevant time the employer of the applicant. It conducted an abattoir at Altona. It was incorrectly named in the proceeding and by the consent of the parties I ordered that its name be amended to read SBA Foods Pty Ltd.

6 The fifth respondent, CGU Worker's Compensation (Vic) Limited ("Agent"), is an insurer and the authorised agent of Victorian WorkCover Authority appointed pursuant to s.23 of the Act.

7 For approximately one year prior to 6 May 1999 the applicant was employed by SBA Foods at its abattoirs. He was employed lifting lamb carcasses, weighing in excess of 30 kilograms, onto hooks and using a knife to cut the shanks off the carcasses. He developed pain in his right wrist and the base of his right thumb that shot up his right forearm to his elbow in early May 1999. He was diagnosed with an ulnar nerve lesion in the right elbow, commonly known as epicondylitis or tennis elbow. Thereafter the pain became more severe. He was tried on alternative duties, eventually put off work in January 2000, and then in July 2000 the abattoirs were closed down.

8 In February 2000, the applicant made a claim for compensation. It was accepted.

10 On 22 August 2003 a claim was made by the applicant's solicitors for permanent impairment under s.98C and s.98E of the Act. By reason of s.98C(1), a worker who suffers injury resulting in permanent impairment is entitled to compensation for non-economic loss calculated in accordance with s.98C. Whether or not the worker has permanent impairment is to be assessed in accordance with s.91. The assessment must be made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th ed.) ("AMA Guides"). Section 98E enables a worker who suffers permanent impairment to obtain a sum specified in the Table to that section if the table sum is greater than the amount of compensation calculated under s.98C. Section 104B deals with claims for compensation under s.98C which of course includes the provisions of s.98E. The claim made on behalf of the applicant was for compensation for permanent impairment. The claim was forwarded to the Agent on 22 August 2003.

11 By letter dated 3 November 2003, the Agent informed the applicant that it was accepted that the injury of epicondylitis to the right arm was sustained in circumstances to satisfy the requirements of the Act and liability was accepted under s.104B(2). The letter stated:

"The amount of compensation you will be entitled to, if any, will be determined in accordance with s.98C of the Act."

12 It was then noted that his entitlement was subject to an assessment that he had suffered permanent impairment in accordance with s.91 of the Act, that the degree of permanent physical impairment was not less than 10% when assessed in accordance with the AMA Guides, and that his impairment was to be determined by an independent medical practitioner approved by the Minister under s.91.

13 The purpose of the examination was to obtain an assessment in accordance with s.91 and to determine whether the injury was a "total loss" pursuant to s.98E of the Act. Following on from that examination it was the function of the Agent to calculate his entitlement to compensation on the basis of the medical examiner's assessment.

14 By letter dated 23 December 2003, the Agent required the applicant to be medically examined by an independent medical examiner pursuant to s.104B(4). The purpose of the independent examination is set out in s.104B(5). The examination was to determine the degree of permanent impairment, if any, and whether the worker had an injury which was a total loss mentioned in the Table to s.98E(1). The independent examiner was Mr David Wallace, a neurosurgeon.

15 Mr Wallace, on 25 March 2004, reported to the Agent. He stated that he saw the applicant and took a history. He examined the applicant. It was his opinion that the applicant had developed pain and numbness in his right hand consistent with an ulnar nerve lesion of the right elbow. He stated the injury had produced a significant disability. Whilst noting an EMG study by another medical practitioner which negatived carpal tunnel syndrome, nevertheless he opined it did not exclude the possibility of ulnar nerve lesion of the right elbow. Mr Wallace was of the view that the applicant should avoid heavy physical work. He enclosed an impairment assessment according to the AMA guides and he determined under Table 16 the following:

"Entrapped ulnar nerve at elbow (mild) - 10% of upper extremity impairment = whole person impairment of 6%."

16 The report was forwarded to the applicant. The Agent sought clarification from Mr Wallace who on 4 May 2004, by letter, stated that the applicant's injury had stabilised and his impairment was unlikely to change without surgical help. He noted there was a potential for full recovery with decompression of the nerve at the elbow. Without that intervention he believed the current disability would persist and he stated that he regarded the applicant as sustaining a total loss under s.98E of the Act. He opined that the applicant required appropriate treatment and without it the current disability was likely to be permanent. On 20 May 2004 the Agent sought further clarification.

17 The Agent's letter seeking clarification was in these terms:

"We understand that without surgical intervention his current disability will persist and that it is regarded that he has sustained a total loss under s.98E of the Accident Compensation Act 1985. A copy of the table under s.98E is attached for ease of reference. In considering whether or not such total loss exists, it is necessary to consider whether there is a 'total loss as mentioned in the table' under s.98E(1). Furthermore for the purposes of that table, as stated in s.98E(2) a total loss is deemed to include 'permanent total loss of use'.

We would be pleased to receive your confirmation, with consideration given to s.98E(1), 98E(2) and the attached No Disadvantage Compensation Table, as whether the worker has suffered such a Total Loss."

18 Mr Wallace responded on 25 May 2004 in these terms:

"In reply to your letter of 20.05.2004, this man does have a total loss as mentioned in the table, under s.98E No. 1, having total loss of the right hand or of five fingers of the right hand from a functional point of view, as a consequence of his weakness and sensory loss by his ulnar nerve lesion."

19 The Agent was not bound to accept the opinion of the independent medical practitioner[5] and by letter dated 23 August 2004 informed the applicant that he had not suffered an injury which entitled him to compensation for total loss pursuant to s.98E. The Agent stated that it had calculated his entitlement in accordance with s.98C and/or s.98E and had "determined that you are not entitled to compensation for non-economic loss". The letter set out the process of reasoning which led to that conclusion. By letter dated 24 August 2004 the applicant's solicitors disagreed with the assessment, drawing attention to the medical report of Mr Wallace. A request was made to address the issue. On 27 September 2004 the applicant's solicitors forwarded to the Agent the response form signed by the applicant. The form stated that the applicant disputed the assessment and required it to be referred to a Medical Panel.

20 As required by s.104B(9) the Agent referred the medical questions as to the degree of permanent impairment to a Medical Panel. The Agent completed the referral form which had attached to it a list of documents which were relevant.

21 The Convenor of Medical Panels, Dr Nisselle, by letter dated 4 October 2004, informed the applicant that he had constituted a Panel comprising Dr Wilk and Mr Elsner. The convenor arranged for the examination of the applicant by the Panel to take place on 26 October 2004. On 15 October 2004 the applicant's solicitors forwarded to Dr Nisselle as Convenor a letter in which a number of submissions were made on behalf of the applicant with a request that the letter be delivered to the Panel. Paragraphs 4 to 7 provided:

"4. Dr Wallace in his report dated 4 May 2004 indicates that the worker sustained a total loss under s.98E of the Act in particular 98E(1), having suffered a total loss of the right hand or five fingers of the right hand from a functional point of view. He formed this view taking into account the consequence of the ulnar nerve lesion at the right elbow causing weakness and sensory loss.

5. Dr Wallace diagnosed the worker was suffering from an entrapped ulnar nerve at the right elbow. He notes that there was concise ulnar nerve sensory loss on the palmer aspect of the upper limbs when he examined the worker. Dr Wallace further indicates that the worker's injury had stabilised and his permanent impairment was unlikely to change without surgical help.
6. We have not received any explanation from the insurer as to why they say the worker has not suffered a total loss as indicated by Dr Wallace. They have not presented any medical evidence that would suggest otherwise.
7. The worker therefore contends that Dr Wallace's assessment as to total loss is a reasonable view and should be accepted by the Medical Panel."

22 The Panel saw and examined the applicant on 26 October 2004. On 4 November 2004 the Convenor sent to the applicant's solicitors an undated list of documents which were forwarded to the Panel and which included the letter sent by the applicant's solicitors containing the submissions referred to above.

23 On 24 November 2004 the Panel signed a Certificate of Opinion pursuant to s.68(2) and attached thereto its reasons for the opinion.

24 The Certificate of Opinion contained the following questions and answers:

What is the degree of impairment resulting from the accepted injury/s assessed in accordance with s.91, and is the impairment permanent?

In the Panel's opinion the worker has a 6% whole person impairment resulting from the accepted epicondylitis of the right arm injury when assessed in accordance with s.91 of the Act. The degree of impairment is permanent.

Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the Table in s.98E(1)?

25 `On 29 November 2004 a copy of the opinion and reasons of the Panel were sent to the applicant.

26 On 14 December 2004 application was made to Master Wheeler for an order calling on the members of the Panel to show cause why their decision should not be reviewed. On 15 December 2004, Master Wheeler made an order calling upon the five respondents to show cause why the decision should not be reviewed.

27 In Van Phuc Diep v Appeal Costs Board[6] I discussed the order for review procedure and jurisdiction under the ALA. It is unnecessary for me to repeat what I said. Nevertheless, there are a number of matters I wish to emphasise in relation to the jurisdiction which this Court is exercising after the order for review is made.

• Although the object of the ALA was to overcome some of the technical aspects of the prerogative writ jurisdiction, the Act did not alter the jurisdiction which the Court has at common law to supervise the decision making process of an administrative body.

• The Court is concerned with the legality of what was done by the particular body which made the decision and is not concerned with the merits of the decision.

• In Craig v South Australia[7] the High Court identified the grounds to review an administrative decision. They are jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud, or an error of law on the face of the record.

The jurisdiction is available to ensure that members of the Panel acted within jurisdiction and that in performing the decision making process the members of the Panel complied with the law.

28 There is no doubt that the Panel was properly constituted under the Act, and there is no suggestion that, in answering the questions referred to it, the Panel was not acting within its jurisdiction. The procedures and powers of a Panel are found in s.65. There is no suggestion that the Panel failed to comply in any way with the statutory procedures or exceeded their powers. The function of the Medical Panel, as set out in s.67(1), was to give its opinion on the medical questions which were referred to it by the Agent. By reason of s.68 of the Act, the Panel was required to form its opinion on the medical questions and was required to give a certificate as to its opinion. The decision of the Panel is final and no appeal lies to any court or tribunal from an opinion as to whether a worker has suffered a total loss injury mentioned in the Table to section 98E(1).[8]

29 Despite the fact that there is no right of appeal, the common law supervisory jurisdiction of this Court can be invoked where it is alleged that the Panel has failed to carry out its functions in accordance with the law. That is the contention made by the applicant on the return of the order for review.

30 The applicant's counsel makes two general complaints. First, that the Panel did not consider a relevant important issue in its determination so that in performing its statutory function, it did not perform it in accordance with the law. The important issue was whether the applicant had suffered a total impairment of his right hand or fingers and it is contended that the Panel failed to consider the opinion of Mr Wallace when making its determination.

31 In Craig v South Australia, supra, the High Court said:[9]

"If such 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."

32 Hence if it is established that the Panel failed to consider relevant material or asked itself the wrong question, jurisdictional error results and its decision is quashed.

33 The second general complaint was that the Panel failed to give adequate reasons for its opinion.

34 At the hearing of the order for review the applicant placed before the Court all documents which were before the Panel together with the Panel's Certificate of Opinion and reasons.

35 The order of Master Wheeler identified four grounds upon which it was sought to review the decision. The first ground asserts that the Medical Panel failed to take into account all relevant matters. The alleged "relevant matters" were not identified. The ground is meaningless. However, Mr Fehring in his submissions stated what his complaint was and this took into account the first three grounds. In those circumstances it is unnecessary for me to set out the grounds. On proper analysis of the first three grounds, the applicant makes two complaints. First, the Panel failed to address the issue whether the applicant worker had suffered a total loss of his right hand or of five fingers of the right hand. It was submitted it was an essential issue which the Panel had to consider and determine and which it failed to do. Secondly, the Panel was bound to consider Mr Wallace's opinion and failed to do so. It was submitted, looking at the Panel's reasons, particularly the last paragraph and the failure to advert to or deal with Mr Wallace's opinion, that the Panel failed to exercise its decision making process in accordance with the law.

36 In his report to the Agent Mr Wallace expressed his opinion that the applicant had lost the use of his right hand or five fingers of his right hand.

37 To understand the complaints it is necessary first of all to refer to the Table appended to s.98E(1). The Table has a column headed "Injury" and another column headed "Total Losses". The "Injury" column describes the injury and the other column refers to the amount of compensation. One category of injury is defined as "Total loss of the right arm or of the greater part of the right arm" ("first category") and another category is described as "total loss of the right hand or of five fingers of the right hand, or of the lower part of the right arm" ("second category").

38 It is noted under s.98E(2) that for the purposes of the Table the total loss of a hand or finger shall be deemed to include the permanent total loss of the use of such hand or finger.

39 In its reasons, the Panel made no mention of the opinion of Mr Wallace and why it rejected his opinion. The final paragraph of the reasons was in these terms:

"The Panel assessed the accepted right arm injury in accordance with s.98E of the Act. The Panel acknowledged that the worker has some loss of use of the right arm, the Panel considers the loss is not severe enough to be regarded as effectively a total loss or a total loss of use of use (sic) of the right arm or greater part of the right arm. The Panel therefore concluded that there is no total loss or total loss of use injury when assessed pursuant to s.98E of the Act."

40 Mr Fehring submitted that on the face of the reasons the Panel did not consider the question whether, instead of having a total loss of the right arm or greater part of it, and this would include the hand, the applicant had suffered a total loss of the right hand or of the five fingers of the right hand. Mr Fehring submitted that the last paragraph of the reasons leads to the conclusion that the Panel failed to consider the matter, and accordingly did not decide it and that the omission to refer to Mr Wallace's opinion in its reasons or the certificate reinforces the view that it overlooked that important issue. It was submitted that the Panel was bound to consider Mr Wallace's opinion as part of the evidence and failed to do so.

41 Counsel for SBA Foods and the Agent submitted that the reasons must not be read in a vacuum, and that when considered in the setting and taking into account the documents the Panel had, its certificate and reasons, it is obvious that it considered the issue, rejected Mr Wallace's opinion and concluded that the applicant did not suffer a total loss injury mentioned in the Table appended to s.98E(1). The Certificate of Opinion which I have set out above, on the face of it, makes clear the Panel was of the opinion that the applicant had not suffered a total loss injury under the Table to s.98E(1).[10]

42 Section 68(1) obliged the Medical Panel to form its opinion on the medical question or questions referred to it. It was bound to do so within a 60 day period after the reference or for such longer period as was agreed. The Panel was required to consider all relevant matters in answering the question or questions put to it. It was not bound by the rules or practices as to evidence.[11] It is apparent from the material placed before this Court that the Panel had before it the various claims made, the reports of Mr Wallace, a medical statement from Dr Chris Yeaman, medical reports from Professor Stephen Davis and Mr Simon Bell, and a submission from the applicant's lawyers. The questions asked of the Panel are set out in the Certificate of Opinion and were answered.

43 It was submitted the Panel did not perform its function as required by law by failing to consider and determine whether the applicant had suffered total loss to the right hand or five fingers, ie the second category in the Table.

44 It is convenient to first determine the second complaint, namely, that the Panel failed to consider Mr Wallace's opinion. The Panel was obliged to consider all relevant evidence, to weigh it carefully and to give such weight as it thought appropriate to it, and arrive at its decision. It was not bound to give any particular weight to any piece of evidence and the weight that it attached was a matter for its judgment. The Panel was not sitting on an appeal from the Agent's decision, nor was it sitting on appeal from Mr Wallace's opinion. The Panel made its decision on the evidence before it.

45 In my opinion, the answer to the second question in the Certificate of Opinion demonstrated that the Panel rejected the opinion of Mr Wallace. Mr Wallace's reports were before the Panel, and the basis for the referral to the Panel was because the applicant did not accept the determination of the Agent. The applicant relied on the fact that Mr Wallace had given the opinion that there was a total loss of the right hand. The submissions put forward on his behalf by his solicitors also highlighted that fact. The issue on any view could not have been overlooked. But more importantly the Panel's reasons reveal that the Panel considered the documents described in the list, which include Mr Wallace's reports, and formed its opinion, inter alia, after considering the documents and the information contained therein. I am satisfied that the Panel did consider the reports of Mr Wallace and rejected his opinion that the applicant had suffered a total loss of his right hand or five fingers.

46 But Mr Fehring said, concentrating on the last paragraph of the reasons, it is a proper inference to draw that the Panel confined the question concerning s.98E and the Table to one category when it should have considered both categories of total loss. This is the first ground of complaint.

47 Reference to the Panel's reasons reveals what was before it and what it considered.

48 The applicant has the burden of persuading the Court that the Medical Panel failed to discharge its duties and functions in accordance with the law and made a jurisdictional error.

49 Mr Fehring submitted that it was apparent on the face of the reasons that the Medical Panel failed to discharge its duty in accordance with law. He submitted it failed to give consideration to the second category of total loss set out in the Table to s.98E(1), and this was reinforced by the fact that the Panel did not refer to Mr Wallace's opinion. He accepted that it was clear from the result that the Panel did not accept his opinion and therefore must have rejected it. Counsel for the employer and Agent submitted that the whole of the documentation must be considered, in particular the Certificate of Opinion and reasons. There is no doubt that the opinion of Mr Wallace formed part of the evidence before the Panel.

50 Mr Wallace's opinion raised the important issue for the Panel's determination. The contents of the reports themselves and the letter written by the applicant's solicitors, which highlighted that the determination by the Agent was contrary to Mr Wallace's expert opinion, amply demonstrate the issue. The members of the Panel saw the applicant, took a history from him, and examined him. The Panel had to make some assessment of the applicant's credibility in respect to the use of his right hand. His evidence of the problems he had encountered, the pain and difficulties he suffered when using his right hand were all important matters, as were the results of the grip strength tests. The reasons show that the Panel considered these matters.

51 Going to the Panel's opinion, it is noted that the Panel considered the documents described in Enclosure A. Enclosure A listed all the documents before the Panel, including the letter from the applicant's lawyers. Included in the documents were the three reports of Mr Wallace and reports of other medical practitioners. The next matter that is noted is that the worker was examined by the Panel members on 26 October 2004. The third matter noted is that the Panel formed its opinion by reference to the documents, the information referred to in the documents and importantly, the history provided by the worker and the examination findings made by the Panel. After taking a history of the applicant's work duties, the Panel noted the worker's current problems. It was stated that he had ongoing pain over the inner aspect of the right elbow extending into the flexor aspect of the forearm which, it was said, he complained was tight and there was "a sharp pain at the base of the right thumb and at times he feels a cracking sensation on rotation movements of the wrist. He says he cannot put a lot of pressure using his right thumb and there was numbness affecting the little finger and half of the ring finger of the right hand." It was observed that the condition had not improved but the applicant stated he avoided "using the right hand". The Panel recorded the activities the applicant found difficult when using his hands.

52 On physical examination the Panel observed that the applicant was generally protective of his right arm and hand but noted there was no visible wasting of the muscles, which was consistent with him being right-handed and "consistent with normal use". It was further observed there was a full range of movement of the right wrist and a full range of movement of the thumb and joints at the base of the thumb. However, there was some pain in the end range extension of the thumb. The Panel members then wrote:

"Examination of the hands revealed equal skin thickness and toughness of the palms of both hands consistent with normal use. Grip strength of the right hand using a Jamar Dynamometer revealed mildly weak test results compared with the left hand, but the Panel considered the test results to be unreliable and inconsistent."

53 It was the Panel's opinion that the applicant was suffering from "a mild ulnar neuritis of the right elbow relevant to the accepted epicondylitis of the right arm injury". The Panel assessed his total whole person impairment at 6% and noted the degree of impairment was permanent.

54 In my opinion it has not been demonstrated that the Panel failed to discharge its duty by failing to consider whether there was a total loss of the right hand or of five fingers of the right hand. The issue was obvious, the Panel referred to all the documents to arrive at its opinion, and the members had the advantage of seeing the applicant, obtaining a history from him and more importantly, carrying out an examination. The reasons show the Panel concentrated on the applicant's ability to use his right hand. The Panel emphasised that there was objective evidence of normal use, namely, no visible wasting, skin thickness and toughness of the palms. The Panel's answer to the question whether he had a total loss injury mentioned in the Table in s.98E(1), shows that the members of the Panel rejected Mr Wallace's opinion. As has been said on many occasions by appellate courts, the fact that the decision maker did not advert to a particular matter does not mean it was not considered. In my opinion, the Panel did perform its task and accordingly the applicant has failed to prove that the Panel performed its decision making contrary to law.

55 The final ground is expressed, again, in a very general way. The ground was:

"The Medical Panel have failed to provide adequate reasons to enable the applicant, or anyone else, to understand the reasoning that was adopted by the Medical Panel in coming to its opinion. In particular, it is not possible to understand how the Medical Panel formed the conclusion that the applicant did not suffer a total loss or a total loss of use injury when assessed pursuant to section 98E of the Act."

56 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 for determination and, as understood by a person having some familiarity with the Act and a claim for compensation.

57 Speaking for myself, I have no difficulty whatsoever in understanding the reasoning. The Panel considered the documentation, saw the applicant, took a history and examined him, and then formed an expert opinion as to whether or not he had suffered a total loss under the Table appended to s.98E. In particular, the Panel investigated the use of the right hand by the applicant. The Panel reached the conclusion that he did not suffer any total loss relating to his right arm which included the hand and fingers in the Table appended to s.98E(1). This ground must fail. It is obvious how the Panel reached that conclusion. Insofar as Mr Wallace's opinion was concerned, the Panel did not agree with it and rejected it. Nevertheless, it is clear from the submissions put by Mr Fehring on behalf of the applicant that the real complaint was that the Panel did not refer to Mr Wallace's opinion in its reasons and therefore the applicant did not know what effect, if any, Mr Wallace's opinion had upon the Panel.

58 As I have stated, the Panel was required to consider Mr Wallace's report, and placed what weight it thought appropriate on his opinion. As against his opinion the Panel had to form its own opinion based upon all the documents before it, seeing the applicant, taking a history and examining the applicant. The Panel rejected Mr Wallace's opinion. No other conclusion is open.

59 The purpose of giving reasons is to apprise the parties of the thinking process which led to the determination, and to enable a court on appeal to determine whether the decision maker erred. A consequence which may flow from inadequate reasons is that the court may draw the conclusion that the decision maker failed to properly consider the issues or took into account irrelevant matters, or failed to take into account all relevant matters. But that is a question of fact and not surmise.[12]

" ... The 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."

61 The Medical Panel was obliged to provide a medical opinion and to give reasons for that opinion sufficient to enable the parties to know that the issues were properly considered in accordance with the law.

62 In my opinion, the reasons are not inadequate. They must be viewed in a context. The parties would have no difficulty understanding that the Panel rejected Mr Wallace's opinion. The Panel preferred its own opinion. That is obvious. It was an issue in the Medical Panel's determination. The Panel found against the applicant.

63 In my opinion, the applicant has failed to establish any error on the part of the Medical Panel and the order for review must be discharged.

64 Subject to submissions by counsel I propose to make the following orders:

(i) That the order for review dated 15 December 2004 be discharged.

(ii) That the applicant pay the respondents' costs including reserved costs.

[1] See s.63(2) and (3)(a).
[2] See s.63(4).
[3] See s.63(1).
[4] See s.3 of ALA.
[5] See Victorian WorkCover Authority and anor v Ronald Wilson [2004] VSCA 161.
[6] [2003] VSC 386.
[7] [1995] HCA 58; (1995) 184 CLR 163.
[8] See s.104B(12).
[9] At 179.
[10] Para 24.
[11] See s.65(1).
[12] See Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675 at 679-80 and 684.

Administrative Law Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (86 paragraphs)

Parties

Legislation Cited (7)

Cases Cited (2)