[74] This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law . They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts." (Emphasis added)
(ii) Whether reliance on the medical records and reports of Dr Tomasevic was taking into account an irrelevant consideration
43 Ms Graovac's counsel submitted that it was evidence that the Review Panel relied on the contemporaneous clinical notes of Dr Tomasevic as evidence of the pre-existence of the post traumatic stress disorder. Dr Tomasevic's clinical notes record that at each consultations that took place on 19 June 2006, 17 July 2006, 18 August 2006, 2 November 2006, 8 November 2006, 17 November 2006 and 30 January 2007 than the symptoms complained of by the Ms Graovac were "insomnia, difficulty concentrating, not suicidal".
44 On 21 January 2006 (more than two years before to the motor vehicle accident) Ms Graovac first consulted Dr Sokolovic, a forensic psychiatrist. Dr Sokolovic (report dated 18/5/2009) identified that he had been treating Ms Graovac prior to the motor vehicle accident for a somatic impairment which led to adjustment problems and the development of anxiety and mild depression. Dr Sokolovic had diagnosed the disorders from which Ms Graovac was suffering pre-accident as dysthymic disorder, compounded with musculoskeletal pain, and a mild form of reactive anxiety and depression, compounded with adjustment disorder. I accept that Dr Sokolovic in his report made no mention that Ms Graovac was suffering from post traumatic stress disorder prior to the accident. But his clinical notes were not made available so the Review Panel was unable to refer to the source material to verify whether or not Dr Solokovic had diagnosed post traumatic stress disorder prior to the motor vehicle accident.
45 However, a copy of the Centrelink file was before the Review Panel. Dr Tomasevic, the general practitioner, completed a treating doctor's report for Centrelink on 18 August 2006 (that being eight months prior to the motor vehicle accident). Dr Tomasevic relevantly answered the question "Does the patient have any other medical conditions which are generally well managed and cause minimal or limited impact on ability to function?" and answered "Yes" and identified that Ms Graovac suffered from post traumatic stress disorder. Dr Tomasevic noted that she was receiving psychiatric therapy from Dr Sokolovic and that no significant improvement was expected (see Bundle p 66).
46 Counsel for Ms Graovac says that these matters give rise to two complaints. The first complaint is that the Act and Guidelines place importance on "suitably qualified persons to be medical assessors for the purposes of this Part" (see s 59(1) of the Act) and Dr Tomasevic is a general practitioner, not a trained or qualified psychiatrist. Therefore, according Ms Graovac, Dr Tomasevic's diagnosis as to the condition suffered by her prior to the accident is not a relevant consideration under the Act. Ms Graovac's second complaint is that the Review Panel's reliance upon Dr Tomasevic's putative diagnosis for the purposes of a Centrelink application is within the context and framework of the Act an irrelevant consideration.
47 Counsel for the NRMS submitted that Ms Graovac is inviting the court to review the evidence before the Review Panel and thereafter to substitute its own decision for that of the Review Panel. In effect, the NRMA says that Ms Graovac is criticising the determination of the Review Panel when she elected not to provide to the Review Panel the contemporaneous clinical notes of Dr Sokolovic and gave no explanation for the failure to provide those notes.
48 In the absence of Dr Sokolovic's contemporaneous notes the Review Panel's had to take into account the material that was before it and the history given by Ms Graovac. The material included the contemporaneous clinical notes of Ms Graovac's general practitioner Dr Tomasevic and as the Centrelink form completed by Dr Tomasevic. The clinical notes of Dr Tomasevic provided history as supplied by Ms Graovac over the course of those consultations.
49 If Ms Graovac elected not to provide Dr Sokolovic's clinical notes as requested, she is in a difficult position to argue that in the absence of these documents the Review Panel took into account an irrelevant consideration. Those other records being the contemporaneous records that filled in the gaps of Dr Sokolovic's report, the Centrelink form completed by Dr Tomasevic and that of her general practitioner dated 18 August 2006 and Dr Tomasevic's notes in the Centrelink document. Dr Tomasevic identified the source of the diagnosis, the post traumatic stress disorder, as emanating from Ms Graovac's psychiatrist Dr Sokolovic.
50 In my view, any diagnosis of a pre-existing psychiatric disorder is a relevant consideration. In addition to the Centrelink form diagnosis, a specific file note by Dr Tomasevic dated 5 June 2006 referred to clinical notes from Dr Talic that indicated that Ms Graovac was suffering from headache, depression and post traumatic stress disorder.
51 The Review Panel comprising of three psychiatrists was entitled, in the exercise of their clinical judgment, to consider all of this evidence, afford what weight it considered appropriate and make an appropriate determination. In my view the Review Panel did not take into account an irrelevant consideration. This ground seeking judicial review fails.
(iii) Whether possibility of the resolution of the Post Traumatic Stress Disorder, failure to take into account a relevant consideration
52 In DSM 4, at p 466, under the discussion relevant to post traumatic stress disorder it is stated, relevant to the duration of the disorder, that the:
"… duration of the symptoms varies, with complete recovery occurring within 3 months in approximately half the cases, with many others having persisting symptoms for longer than 12 months after the trauma. In some cases, the course is characterised by a waxing and waning of symptoms. Symptom reactivation may occur in response to reminders of the original trauma, life stresses or new traumatic events."
53 As previously mentioned, the Review Panel when considering whether or not there had been a resolution of her previous post traumatic stress disorder, stated that the Panel considers that her prior disorders of post traumatic stress disorder and adjustment disorder with depressed mood had not resolved as her general practitioner's progress notes do not show a change in her symptoms after the date at which she claims to have improved.
54 Ms Graovac emphasised a sentence in the report of Dr Sokolovic dated 18 May 2009 where he stated that on or about 9 November 2006 when Ms Graovac withdrew from his care "she appeared optimistic and intended to withdraw from the assistance of her carer and of her pension. She was reducing her medication with the intention significantly to curtail it".
55 Ms Graovac submitted that while the Review Panel did mention the absence of any contemporaneous clinical notes from the psychiatrist as the reason for relying on the notes of Dr Tomasevic, she says that no real consideration was given to the possibility that the her pre-existing condition may have resolved itself apart from a scant mention as to the record of improvement of her symptoms as at November 2006. Ms Graovac also says that there is also a remarkable incongruity between the Review Panel's reliance on the records of Dr Tomasevic and its own record of the plaintiff's reported symptoms prior to the accident where it recorded relevantly that prior to the accident:
"… She thinks she largely had mood problems because of her back. She said she continued to take the prescribed tablets (lovan and diazepam) a few times per month or if she had any symptoms. She said she no longer had nightmares or mood problems.