Disposition
41It is worthwhile setting out in full 351[82] of Yusuf:
It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v. South Australia, if an administrative tribunal (like the 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".
"Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. 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. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
42The failure to take into account a relevant consideration is, of course, a ground of judicial review for jurisdictional error. As McHugh, Gummow and Hayne JJ pointed out in Yusuf p. 348 [74], by reference to Attorney -General (NSW) v. Quin (1990) 170 CLR 1 at 35 - 36 per Brennan J, the ground is essentially concerned with whether the decision maker has properly applied the law, and not ... with the process of making the particular findings of fact upon which the decision-maker acts. As Mr. Robinson pointed out in argument by reference to Minister for Aboriginal Affairs & Anor. v. Peko-Wallsend Limited & Ors. (1986) 162 CLR 24 at 39 - 42 per Mason J, the ground is only made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision (emphasis in the original). Doubtless this is why the plurality in Yusuf laid emphasis on the question of whether the law had properly been applied.
43I am certainly persuaded that the Review Panel failed to take into account material that was relevant in determining the connection between the condition of the plaintiff's low back and the motor accident. Although the Review Panel acknowledged receiving Exhibit B, Mr. Owen's statement, (page 5, Exhibit A) no reference was made to it. I infer from pages 7 and 8 of Exhibit A that the contents of Exhibit B were not taken into account by the Review Panel in making its decision about the lumbar spine-disc injury: Yusuf at 338[34] - [37] per Gaudron J; 346[69] per McHugh, Gummow and Hayne JJ.
44The contents of the statement in Ex B were material and therefore relevant, especially page 2[16] - [23]. For example, at [21] - [22], the plaintiff said:
[21] Immediately after the accident, I felt pain in my neck, mid back and to a lesser extent my low back and left shoulder. The pain was most severe in my neck and upper back and radiated into my shoulders and I had some arm pain. The point of the left shoulder was also painful. I did have low back pain from the time of the accident and pain to my left hip. I had pain mainly down the whole of the left side of my body.
[22] The initial treatment was to my neck and upper back as this is where I was experiencing the most pain and the doctors seemed much more concerned my neck injury rather than my low back or left shoulder injury. I was told by a doctor at Goulburn Hospital that they were more concerned about neck injury as this could leave me a quadriplegic. I did however also have low back pain and left shoulder pain which gradually worsened and became more prominent once my neck pain improved slightly.
45Further, the Panel did not make any reference to the following:
(a)Exhibit F is the clinical notes of Lorna Vallely, physiotherapist who treated the plaintiff following the accident. From 3 April 2001 her clinical notes refer to an aggravation of an injury to the lumbar spine region and low back pain, which by inference she relates to the motor accident. From about this time the focus of the record of complaints relate to low back pain or lumbar spine;
(b)Exhibit K comprises physiotherapy plans prepared by Ms. Vallely related to the plaintiff's claim for workers' compensation arising out of the motor accident. On the plan dated 15 June 2001, she refers, inter alia, to a lumbar spine injury consisting of an aggravation of existing L/S problem.
(c)Exhibit G is a report of Dr. K.N. Chandran, Neurosurgeon, dated 22 June 2001. On that date, that specialist received complaints, inter alia, of back pain since the accident down the left leg and numbness in the toes. An MRI scan of the lumbar spine showed dehydration of the L4/5 disc and a possible need for lumbar fusion or disc replacement was propounded. Mr. Owen was referred to the specialist by his GP, Dr. Thangavelu. It should be acknowledged that reference to this report appears on p4 of Exhibit "A" (see [21] hereof).
(d)Exhibit J is a report prepared for WorkCover by Mr. Gordon Stewart, Consultant Neurosurgeon, dated 13 June 2001. He received a past history of lower back injury and also the onset of low back pain within five minutes of the motor accident. The specialist reviewed radiological investigations pre-dating and post-dating the motor accident. He diagnosed musculo-skeletal soft tissue injury. He did not mention where, but in context the diagnosis extended to the low back. He said:
I considered the contribution to be entirely due to the accident.
46The Review Panel failed to consider any of this material which supported the inference that the condition of the plaintiff's low back was caused or materially contributed to by the motor accident. From the heading to that part of their decision which deals with the lumbar spine, it seems that the Review Panel identified as an issue the possibility of a back injury consisting of aggravation of pre-existing degenerative disease. The material referred to at the top of page 8 suggests the same thing.
47Whether the Review Panel was bound to consider the material I have referred to depends in the end upon a construction of the relevant sections of the Act which I have set out above. The function and purpose of medical assessment is to resolve disagreements or disputes about medical assessment matters including, as in this case, a matter that governs the entitlement of a claimant to damages for non-economic loss. One would conclude a duty to act judicially and a corresponding obligation to consider all relevant evidence and arguments advanced by the parties in making its decision.
48However that may be, one needs to bear in mind the observation of Tate JA in Easwaralingam v. Director of Public Prosecutions (Vic) [2010] VSCA 353 at [25]:
...an application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior Court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked.
This statement reflects what was said in Craig [181], discussed in Kirk at 577[83] - 578[87].
49Even if the decision maker is not bound to take the relevant material into account, the failure to do so may evince jurisdictional error of the kind discussed in the passage cited above from Yusuf. As it was put by the plurality, the different kinds of error may well overlap. In my judgment, that phenomenon has occurred here. It seems to me that the Review Panel's treatment of the issue concerning the low back injury demonstrates that it asked itself the wrong question or identified the wrong issue. Moreover the overlapping errors fall into both categories of jurisdictional error and error on the face of the record.
50The statement of the Review Panel that the material before it had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident is only explicable on the basis that the panel misdirected itself as to law. As the extract from Clause 1.9 of the MAA Guidelines set out at page 8 of Exhibit A makes clear - albeit in the context of the left shoulder - in general terms (subject to 5D Civil Liability Act 2002) it is sufficient if the injury ... was caused or materially contributed to by the motor accident. The motor accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible. The absence of a reference by the Review Panel to this important matter suggests that in relation to the back, it did not direct itself as to the law as required. This impression is reinforced by the emphasis the Panel placed upon the construct as a result of the injury caused by the motor accident at the top of page 8. The emphasised language suggests to me that the panel of experts, as legal laymen, looked to a more direct or proximate relationship than that mandated by the relevant legal principles.
51This impression is reinforced by the consideration that the Panel, in concluding that there was no evidence to support the relevant causal relationship, took into account, and apparently only, the absence of any reference to a lumbar spine injury in contemporaneous medical records, within about a month of the motor accident.
52Moreover, the juxtaposition between the statement that the material provided by the parties had not provided any evidence to indicate that the claimed lumbar spine injury was causally related to the subject accident with the following analysis of contemporaneous documentation persuades me that the Review Panel identified a wrong issue, namely, did treatment providers in the first month or so following the motor accident make a record of complaints of symptoms in the lumbar spine? Undoubtedly, it was relevant to consider that material in the process of determining the right question, but it was wrong to treat this consideration as decisive, not least because [e]xperience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury: Davis v. Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]). The medical histories were taken in furtherance of a purpose which is not identical with the purpose of resolving the medical assessment matter before the Review Panel: Container Terminals Australia v. Huseyin [2008] NSWCA 320 at [8]; Mason v. Demasi [2009] NSWCA 227 at [2] and Gulic v. O'Neill [2011] NSWCA 361 at [24]. These statements were made in the context of the exercise by the Court of Appeal of its powers of rehearing pursuant to s.75A Supreme Court Act 1970. But they are apposite to the exercise by the Review Panel of its powers under s.63 of the Act, especially subs. (3A). In my judgment the identification of this wrong issue was jurisdictional error.
53Another point raised in argument concerned the Review Panel giving primacy to the contents of the contemporaneous documentation. As I have said, in his statement and in other material before the Review Panel, the plaintiff, whilst acknowledging the pre-existing problems with his back, said he injured it again in the motor accident. If the Review Panel used the material to contradict or discredit him, he ought to have been given the opportunity to explain it: Mastronardi v. State of New South Wales [2009] NSWSCA 270 at [87]; King v. Collins [2007] NSWCA 122 at [35]. Again, although these observations were made in the context of an appeal by way of rehearing from a court of ordinary jurisdiction, this same aspect of the principles of natural justice may apply, with contextual variation, to the Review Panel. Although there is no hearing as such, nor even a need for the Review Panel to examine the claimant again, its core function, in a sense, is adversarial. It is called on, as I have said, to settle disagreements or disputes about medical assessment matters between a claimant and an insurer. From page 4 of Exhibit A, it is clear that the Review Panel indicated to the parties, including the plaintiff, that it was inclined to the view that the available evidence failed to confirm that injuries to the lumbo-sacral spine and left shoulder were causally related to the subject accident and to invite them to make submissions in this regard. There is no suggestion in the reasons that the Review Panel "disbelieved" the plaintiff. What occurred probably sufficed: Commissioner for Australian Capital Territory Revenue v. Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. No jurisdictional error occurred on this ground.
54To recapitulate, the Review Panel said: that the documentation ... had not provided any evidence of a connection between the lumbar spine injury and the motor accident. The question [w]hether there was no evidence to support a factual finding is a question of law, not a question of fact: Kostas v. HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418[91]. The Plurality went on:
A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law.
55For what it is worth, although this argument was put as an error of law on the face of the record, if it is made good it will clearly constitute jurisdictional error of a type that can be established by use of other evidence. But can the point be made good? The Review Panel did not make a finding, rather it declined to make a finding of causal relationship. In other words, by reference to the limited material it considered relevant, the Review Panel simply was not persuaded that a causal relationship had been established: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th ed. (2009) at p210[4.115] and 260[4.380]. No relevant error has been shown.
56In relation to the left shoulder issue, the reasons for which are set out on pages 8 - 9 of Exhibit A, in my judgment, the same jurisdictional error of identifying a wrong issue and asking a wrong question is established. The Review Panel took the same approach of looking for references to a left shoulder injury in what it regarded as contemporaneous documentation, and treating the absence of any reference as decisive, rather than simply as - perhaps important - countervailing material. In the case of the left shoulder, the Review Panel expressly referred to the extended idea of causation set out in clause 1.9 of the MAA Guidelines. However, it concluded that a single contemporaneous reference to "left shoulder tenderness" did not constitute evidence of an injury to the left shoulder that was "more than negligible".
57To my mind, additionally, this falls into Glass J.A.'s third category of error in Azzopardi v. Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 157. That is, the Review Panel have erroneously held that the test laid down in the guideline is not satisfied as a matter of law, because no other application is reasonably open. (See also Hope v. Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co. v. Valuer General (1940) 40 SR (NSW) 126 at 138).
58In my judgment there has been no failure on the part of the Review Panel to provide adequate reasons. As Mr. Robinson correctly argued, the Review Panel had an explicit statutory obligation to provide reasons: s.61(9); clause 16.24 of the Medical Assessment Guidelines. Accordingly, an analysis of the type undertaken in Campbelltown City Council v. Vegan (2006) 67 NSWLR 372, urged upon the Court by the plaintiff, was not called for.
59Further, as Mr. Robinson argued, the obligation to give reasons is not coextensive with those required of a court of ordinary jurisdiction, subject to an appeal by way of rehearing to the Court of Appeal. Although the statutory context is different, the observations in Yusuf at page 346[68] are equally apposite. Section 61(9) requires no more than the certificate set out the reasons for any finding that the Review Panel did make and this, the Review Panel clearly did. The reasons actually expressed are clear: Allianz Australia Insurance Limited v. Sprod [2011] NSWSC 1157 at [58]. As Mr. Robinson argues, in any event, other problems may arise in relation to the reasons ground:
(a)It is not clear that the failure to provide reasons is always an error of law: VAW (Kurri Kurri) Pty Ltd v. Scientific Committee (2003) 58 NSWLR 631 at [94] - [116] per Beazley JA;
(b)There may be an important distinction between reasons on the one hand, and the reviewable decision on the other: Kennedy v. Australian Fisheries Management Authority (2009) 182 FCR 411 at [55] - [65]. That case, however, was in the Federal jurisdiction. Given that reasons form part of the record for the purpose of s.69(3), (4) Supreme Court Act 1970 the same approach does not obviously apply in State jurisdiction: Vegan at 399 [130];
(c)In any event, the natural remedy for the failure to observe a statutory obligation to provide reasons is an order in the nature of mandamus, not certiorari, and such relief was not sought: Re. Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [57] per Kirby J and [41] per Gleeson CJ, Gummow and Heydon JJ.
60If successful, the plaintiff sought remitter to a differently constituted Review Panel. The second defendant, in that event, seeks remitter to the same Review Panel. I do not consider it appropriate to make any order as to the constitution of the Review Panel who will determine the review according to law. It is appropriate rather to leave this to the ordinary administrative arrangements operating within the Motor Accidents Medical Assessment Service.
61My orders are:
1.Set aside the certificate issued by the Review Panel in matter no. 2010/04/3466 dated 1 November 2011; and
2.Remit the matter to the Motor Accidents Medical Assessment Service for referral by the proper officer to a review panel constituted under s.63 Motor Accidents Compensation Act 1999 for determination according to law.
3.The second defendant to pay the plaintiff's costs of the proceedings.