84 To confine a lay panel, even though this one is chaired by an Arbitrator, to the narrow confines of an appeal which is more suitable for a court of law, would be contrary to the intent of the Act, or to the objective of dealing with the claims efficiently and effectively, and in a timely way (see ss 3 and 367 of the WIMWC Act). As a consequence, the Plaintiff's assertion that there was an error of law, in relation to the incorrect criteria argument, must fail."
15 In my opinion, in accordance with the well established principles of judicial comity, I should adopt and follow the reasoning of Wood CJ at CL. Accordingly, I hold that the Panel was bound to hold a completely fresh hearing, that is a hearing de novo and that it was not obliged to confine its attention to a determination as to whether any of the four grounds in s327 (3) had been established.
16 The summons before the court seeks to attract the jurisdiction referred to in s69 of the Supreme Court Act. The jurisdiction is dependant upon an error of law that appears on the face of the record of proceedings, which record includes the reasons expressed by the relevant court or tribunal. In my opinion, the Panel is a tribunal within the meaning of s69 of the Supreme Court Act.
17 Mr Jackson, counsel for the Plaintiff, submitted that on the face of the record, the Panel did not approach the matter before it as a hearing de novo, but rather, in effect, as an exercise to determine whether there was an apparent error by Dr Korbel. He submitted that the statement in paragraph 23 of its reasons, revealed that the Panel focussed its whole attention upon the reasons given by Dr Korbel as opposed to its proper task of determining the matter afresh on the material before it. In Mr Jackson's submission, the Panel's refusal of the Plaintiff's request of a further examination, reinforced his contention that the Panel concerned itself only with the question whether there was demonstrable error by Dr Korbel.
18 Principles which I regard as relevant to this matter were discussed by the Full Court of the Federal Court of Australia in Drake v Minister for Immigration and Ethnic Affairs 24 ALR 577. That was a case in which the Full Court was considering whether the Administrative Appeals Tribunal had erred in law in its consideration of an appeal from the decision of the Minister for Immigration and Ethnic Affairs, pursuant to s12 of the Migration Act. At page 589 Bowen CJ and Deane J under the heading "The Tribunal attached such importance to a policy statement of a Minister on the question of considerations relating to the deterrence of others as to result in a failure by the learned Deputy President of the Tribunal to exercise an independent judgment", said:
"The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.
The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists (Water Conservation & Irrigation Commission v Browning (1974) 74 CLR 492 at 496,498, 499-504), that regard must be had to the relevant considerations, and that matters "absolutely apart from the matters which by law ought to be taken into consideration" must be ignored: R v Cotham (1898) 1QB 802 at 806; Randall v North Corp (1910) 11 CLR 100 at 109-110; Shrimpton v Commonwealth (1945) 69 CLR 613 AT 620; r V Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR at 189; (1965) ALR 1067 at 1071."
19 The problem raised in this appeal is finely balanced. On the one hand Mr Jackson submits that on the face of the record the Panel did not adequately exercise its jurisdiction. On the other hand, Mr Nock submitted that on a fair reading of the Panel's reasons, it did, in truth, form its own assessment upon the material before it. He referred to the last sentence of paragraph 23 of the Panel's reasons for determination, "Whether that assessment be described as compared to a most extreme case or the loss of efficient use, we find the result is the same".
20 Although to an extent the matter may depend upon an exercise in semantics, it is relevant, in my opinion, to take into account the fact that the Panel was exercising jurisdiction under Chapter 7 of the Act which severely circumscribes the right of parties to a dispute to have recourse to the ordinary courts of the State. In that situation it behoves tribunals such as the Panel to exercise and manifestly exercise its powers with great care, in a way which demonstrates that it has understood the jurisdiction conferred upon it and acted in accordance with that jurisdiction. In saying that, I am not seeking to be critical of the Panel, which published its reasons well before the decision in Vegan.
21 In my opinion, the reasons for determination, on a fair reading, fall short of demonstrating that the Panel properly understood and exercised the jurisdiction conferred upon it by the Act, in light of what was said by Wood CJ at CL in Vegan. It is well open, in my view, to conclude that the Panel confined itself to the question whether error was demonstrated on the part of Dr Korbel and failed to consider what conclusion it would reach upon the material before it. Although unnecessary to my decision, it may also be that its reasons were deficient in their failure to explain why the assessment of 5% was selected as opposed to higher assessments available to be preferred. In my opinion, the matter should be referred back for re-determination by a differently constituted panel, according to law. Costs should follow the event.
22 I make these orders: