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[2007] VSC 341
Supreme Court of Victoria
2007-09-18
FORREST J
Original judgment source is linked above.
Administrative Law Act 1978 - adequacy of reasons - Review of decision of Medical Panel - questions referred to Medical Panel under s 45 Accident Compensation Act 1985.
DR PAUL NISSELLE (as Convenor of Medical Panel pursuant to of the
MEDICAL PANEL (constituted by DR MICHAEL EPSTEIN, DR DAVID FISH and DR LOUISE SEWARD)
1 This proceeding concerns judicial review[1] of a decision of a Medical Panel convened pursuant to Division 3 of Part III of the Accident Compensation Act 1985 ("the Act") given on the 30th of June 2006. The Panel's decision related to a claim for incapacity made by the plaintiff Kenneth Clarke.
2 The proceeding commenced by the plaintiff obtaining an order for review from Senior Master Mahony on the 20th of September 2006. That order contained six grounds for review of the decision namely:
"(a) the Medical Panel failed to give any or adequate reasons or alternatively to state the symptoms, evidence or other material which established that prior to September or October 1994 the Applicant was suffering from a paranoid personality disorder;
(b) the Medical Panel failed to give any or adequate reasons or alternatively to state this basis upon which it determined as at 30 June 2006 that prior to September or October 1994 the Applicant was suffering from a paranoid personality disorder;
(c) the Medical panel has failed to give any or adequate reasons or alternatively to state the basis upon which it was determined that the effects of the temporary exacerbation of the Applicant's pre-existing paranoid personality disorder had resolved by early 1995;
(d) the Medical panel failed to take any or adequate account of the symptoms found and/or the diagnosis made by the Applicant's treating psychiatrist Dr Cooper in or about December 1995;
(e) the Medical panel failed to provide any or any adequate explanation for rejecting the diagnosis made upon examination by the Applicant's treating psychiatrist Dr Cooper in or about December 1995;
(f) to the extent that the Applicant did suffer from a paranoid personality disorder the Medical Panel failed to give any or adequate reasons for finding a cessation of any exacerbation of such condition by early 1995."
3 The plaintiff was employed by the first defendant National Mutual Life Insurance Limited ("National Mutual") in a division known as Nexis from the 2nd of April 1986 to the 3rd of November 1994. From the 4th of November 1994 to the 1st of April 1996, the plaintiff was employed by the second defendant Suncorp Metway Staff Proprietary Limited and/or Nexis Pty Ltd [2] (jointly referred to as "Suncorp Metway").
4 The fourth defendant Dr Paul Nisselle is the Convenor of Medical Panels under the Act who was appointed by the Minister from a list of members who are medical practitioners and who are appointed by the Governor-in-Council.[3]
5 The fifth defendant are the members of the Medical Panel namely Dr Michael Epstein, psychiatrist, Dr David Fish, occupational physician and Dr Louise Seward, psychiatrist.
6 The fourth and fifth defendants by letter of the 17th of October 2006 and in accordance with the principles set out in The Queen v The Australian Broadcasting Tribunal & Ors; Ex parte Hardiman & Ors[4] took no part in the hearing and have indicated that they will submit to such orders as the Court might make.
7 The sixth defendant is the Victorian WorkCover Authority.
8 The plaintiff was born on 13 February 1953 in the United Kingdom. At the time of his transfer from National Mutual to Suncorp Metway, he was 41 years of age.
9 In September/October 1994 the Nexis business operated by National Mutual was the subject of a sale to Suncorp Metway. The plaintiff asserted that he lost a number of financial benefits as a result of the transfer of his employment to Suncorp Metway.
10 In April of 1995 he saw his general practitioner, Dr McColl who noted that the change of circumstances in his employment
"... resulted in Mr Clarke loosing (sic) several of his financial benefits with National Mutual and being unable to negotiate a higher salary with his new employer. As a result of those changes Mr Clarke became depressed and anxious. He was unable to sleep and was drinking copious amounts of coffee to keep awake. He saw me in April 1995 and I gave him three days off work to help him relax. Things did not improve at work ..."
11 Dr McColl saw the plaintiff again in October 1995 when the plaintiff
"... complained of severe insomnia, lethargy, lack of enjoyment and irritability. He was drinking more alcohol than usual and felt frustrated with his circumstances at work. He blamed National Mutual who believed forced him into a unsatisfactory role with his new employer Suncorp and with the subsidiary Nexis Pty Ltd."[5]
12 On the 4th of December 1995, Dr Cooper a psychiatrist saw the plaintiff at the request of Dr McColl. He reported as follows:
"I feel that Ken was suffering from an adjustment disorder with depressed mood secondary to major stress he has experienced in relation to his work. His specific complaint was of insomnia that had been bothering for several months. He related his difficulties getting off to sleep to frustrations and uncertainties in relation to his employment. Ken also suffered from lethargy, anhedonia, reduced libido and ruminative thinking. He also described irritability and felt that he was not attending to his family life as he should. He had no appetite or weight disturbance, no suicidal ideation or significant anxiety.
Ken has no past psychiatric history ... Ken has no formal family history of mental illness ... mental state examination revealed him to be rather pensive and passive man whose affect was slightly lowered. He conveyed considerable anger towards his employer and some confusion about his future options. He had no active suicidal ideation or homicidal intent."[6]
13 Dr Cooper did not provide any psychotropic medication but gave advice as to options to solve the problems that were facing the plaintiff.
14 The plaintiff did not see Dr Cooper again until 9 January 2001.
"Mr Clarke continued to work for Nexis Pty Ltd under Suncorp control until April 1996 when he qualified for long service leave and left. He continued to sleep poorly, feel lethargic and apathetic and to drink more alcohol than usual. This had a bad effect on his marriage and his relationship with his children. He resented very much being forced by National Mutual to stay in a job for 18 months that he disliked just to get long service leave and its subsequent benefits."[7]
16 Thereafter the plaintiff worked for several organisations both in Australia and the UK. He did not work between November and June of 2001. In mid 2001 he took up contract work in the UK which only lasted a short time and expired on 23rd of November 2001. He returned with his family to Melbourne in February 2002.
17 From 2000 onwards his anger and resentment towards National Mutual was such that he entertained violent thoughts about injuring or killing National Mutual employees or customers. His psychological state reached its most florid when in February 2002, he was involved in a domestic violence incident which resulted in him being voluntarily admitted to the acute psychiatric unit at the Austin Hospital from the 27th of February to the 12th of March 2002.[8] He remains under the care of Drs McColl and Cooper.
18 Since that time his marriage has disintegrated, he lives alone and he has been unable to work.
19 A raft of medical opinions were provided to the Panel as well as a large number of photocopied records from Dr McColl's file and from Dr Cooper's file.
20 Given the conclusion reached by the Panel that the plaintiff suffered from a paranoid personality disorder, it is necessary to say something about the various medical opinions provided to the Panel.
21 Dr Cooper, the treating psychiatrist from December 1995 onwards initially diagnosed "an adjustment disorder with depressed mood secondary to major stress he has experienced in relation to his work".[9] Although he acknowledged other possibilities such as querulous paranoia,[10] he ultimately concluded:
"Currently and using the DSM-IV nomenclature, I consider that the diagnosis that most appropriately conveys the elements of his atypical condition is chronic adjustment disorder with mixed disturbance of emotions and conduct. To varying degrees, Mr Clarke's homicidal thoughts and feelings had been present since 1995 and have always been related to and seemingly arising from the events that occurred during his employment with National Mutual."[11]
22 The treating general practitioner, Dr McColl concluded in June 2005:
"Mr Clarke's employment was the causative factor relating to the onset of his condition. Mr Clarke suffers from dysthymic disorder (low grade chronic depression) which relates to the actions of his former employers."[12]
23 Other treating medical practitioners and medico-legal practitioners expressed a variety of different views as to the nature of the plaintiff's condition and its relationship to work. For example:
• Professor Mullen, psychiatrist, believed that the plaintiff's condition fell within "the now little used category of querulous paranoia".[13]
• Dr Neill, psychiatrist, accepted Professor Mullen's diagnosis of a querulous personality disorder.[14]
• The discharge summary apparently prepared by Dr Bosanac, a psychiatrist at the Austin Hospital identified dysthymic disorder/depression/homicidal fantasy.[15]
• Dr Garland, psychiatrist, believed the plaintiff was suffering from mild depression and anxiety.[16]
24 No psychiatrist (treating or medico-legal) made a DSM-IV diagnosis of paranoid personality disorder, although some diagnosed a personality disorder per se.
25 It was common ground between the parties that the Panel's diagnosis of paranoid personality disorder was derived from the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM-IV). I was provided with a copy of an extract from that manual as it defines personality disorders.
26 The general diagnostic criteria for personality disorder is set out as follows:
"A. An enduring pattern of inner experience and behaviour that deviates markedly from the expectations of the individual's culture. This pattern is manifested in two (or more) of the following areas:
(1) cognition (i.e., ways of perceiving and interpreting self, other people, and events)
(2) affectivity (i.e., the range, intensity, lability, and appropriateness of emotional response)
27 Paranoid personality disorder is defined, in effect, as a sub-set of general personality disorder. The diagnostic features are described in the following terms:
"The essential features of paranoid personality disorder is a pattern of pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent. This pattern begins by early adulthood and is present in a variety of contexts." (my emphasis)
"A. A pervasive distrust and suspiciousness of others such that their motives are interpreted as malevolent, beginning by early adulthood and present in a variety of contexts, as indicated by four (or more) of the following:
(1) suspects, without sufficient basis, that others are exploiting, harming, or deceiving him or her
(2) is preoccupied with unjustified doubts about the loyalty or trustworthiness of friends or associates
(3) is reluctant to confide in others because of unwarranted fear that the information will be used maliciously against him or her
(4) reads hidden demeaning or threatening meanings into benign remarks or events
(5) persistently bears grudges, i.e., is unforgiving of insults, injuries, or slights
(6) perceives attacks on his or her character or reputation that are not apparent to others and is quick to react angrily or to counterattack
(7) has recurrent suspicions, without justification, regarding fidelity of spouse or sexual partner
Claims for Compensation and the County Court proceeding
29 On the 16th of August 2000 the plaintiff lodged a claim for compensation in respect of his National Mutual employment alleging psychological and psychiatric injury between June 1994 and April 1996.
30 This was the first of a number of claims for compensation against both National Mutual and Suncorp Metway - all of which alleged psychiatric consequences as a result of his employment with the particular organisation.
31 Each of the plaintiff's claims against his employers for weekly payments and medical expenses were rejected. The plaintiff then issued proceedings in the County Court against the employers.
32 In that proceeding the plaintiff alleged that "throughout the course of the plaintiff's employment with the first, second and fourth defendants[17] he was exposed to psycho-social stressors, the effect of which caused the plaintiff to suffer injury". He alleged that he sustained the following injuries:
"(a) Chronic Adjustment Disorder with mixed disturbances emotions and anxiety.
(b) Anxiety and depression and/or in the alternative;
(c) Recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in
(i) chronic adjustment disorder with mixed disturbance emotions and conduct and/or
33 The plaintiff in the County Court proceeding sought weekly payments from 1 November 2000 until 15 June 2001 and from 2 February 2002 onwards, as well as reasonable medical and like expenses.
34 On the 2nd of May 2006 the plaintiff's claim came on for hearing before his Honour Judge Hicks. Pursuant to s 45(1)(b) of the Act, the plaintiff sought a referral to a Medical Panel[18] of a number of medical questions.
35 The Court, pursuant to s 45(1) of the Act, referred the questions to the Medical Panel.
36 Four questions with a series of sub-questions were referred to the Panel. Accompanying the questions were the following documents:
(b) The plaintiff's submissions and submissions by the employers.
(c) A large body of medical reports and compensation documentation.[19]
37 On the 19th of June 2006 the Panel members (Drs Epstein, Fish and Seward) examined the plaintiff. Drs Epstein and Seward are psychiatrists. Dr Fish is an occupational physician.
38 On the 30th of June 2006 the Panel provided a certificate of opinion with accompanying reasons for opinion.
39 The certificate of opinion sets out the questions and answers and I set it out below in full:
"Question 1: What is the nature of the Plaintiff's medical condition, relevant to the Plaintiff's mental state (sic) being:
Recurrence, aggravation, acceleration, exacerbation and/or deterioration of a pre-existing psychological ailment resulting in
Answer: It is the opinion of the Panel that the Plaintiff is not suffering from an Adjustment Disorder with mixed disturbances of emotion and conduct and he is not suffering from anxiety and depression, relevant to any alleged injury.
(a) with the First Defendant (National Mutual Life Insurance Ltd) up until 3 November 1994 ('the first period of employment') in fact, a significant contributing factor to a:
of a pre-existing psychological ailment resulting in:
(x) chronic adjustment disorder with mixed disturbance of emotions and conduct and/or
(b) with the second and/or fourth defendants (Suncorp Metway Propriety Limited and Nexis Propriety Limited now known as Kaz Business Services Australia Propriety Limited) between 4 November 1994 and April 1996 ('the second period of employment') in fact, a significant contributing factor to a:
of a pre-existing psychological ailment resulting in:
mixed disturbance of emotions and conduct and/or
Answer: (a) The Panel is of the opinion that the Plaintiff's employment with National Mutual Life Insurance Ltd prior to 4 November 1994 was in fact a significant contributing factor to a temporary exacerbation of a pre-existing psychological ailment resulting in a temporary period of anxiety and depression, which has resolved.
Question 3: (a) Does the Plaintiff have a current work capacity?
(b) If not to part (a) hereof, is the Plaintiff likely to continue indefinitely to have no current work capacity?
Question 4: If the answer to question 3(a) is 'no':
(a) does the Plaintiff's incapacity for work result from, or is it materially contributed top by, the injuries, and if so which of the injuries, identified any answers to:
40 It is the adequacy of the reasons underlying this opinion which are now challenged by the plaintiff.
41 The Panel set out its reasons in some detail. The salient parts are as follows:
"The Panel considers the worker has a mild Paranoid Personality Disorder, but this condition is not relevant to any alleged injury and it does not prevent him from performing his usual work as an analyst/computer programmer. In particular, the Panel considers the worker is not suffering from an adjustment disorder with mixed disturbances of emotions and conduct and he is not suffering from anxiety and depression.
Based on the history of symptoms and events in the workplace, the Panel considers the worker probably suffered a temporary exacerbation of his pre-existing Paranoia Personality Disorder in September/October 1994 whilst in the employ of National Mutual resulting in a temporary period of anxiety and depression. The Panel considers the effects of this temporary exacerbation had resolved by early 1995.
However the Panel considers the events in his employment with Suncorp Metway did not result in any psychiatric injury and that his symptoms during this employment and since then, are a manifestation of his paranoid personality disorder.
The Panel therefore concluded that the worker's employment with National Mutual prior to 4 November 1994 was in fact a significant contributing factor to a temporary exacerbation of a pre-existing psychological ailment resulting in a temporary period of anxiety and depression, which has resolved." (my emphasis)
(a) Explain in terms why it had reached the diagnosis of "mild paranoid personality disorder".
(b) Explain in terms why the effects of the temporary exacerbation of that disorder had resolved by early 1995.
(c) Explain why it did not accept the diagnosis made by the treating psychiatrist, Dr Cooper, at the time the plaintiff was initially suffering from symptoms, of adjustment disorder with depressed moods secondary to major stresses at work at that time.
(d) Explain why it rejected the opinion, expressed in the final report of Dr Cooper that the plaintiff was at that time suffering from symptoms of adjustment disorder.
(e) Take a history from the plaintiff that he had experienced any symptoms consistent with the condition of paranoid personality disorder before 1994 - which is meant to be present as a "pattern" by early adulthood.
43 The principles relevant to an application for review such as this have been stated on a number of occasions in this Court and in the Court of Appeal. They can be summarised as follows.
44 Mr Ingram who appeared on behalf of the plaintiff, abandoned any reliance upon Ground (d) and confined his argument to attacking the reasons provided by the Panel. He argued that the diagnosis of mild paranoid personality disorder with a temporary exacerbation ceasing in early 1995 was not adequately explained by the Panel. He contended that the Panel had not addressed the diagnostic criteria of DSM-IV and there was no explanation as to how the Panel had arrived at a conclusion that there was a temporary exacerbation ceasing in early 1995. He contended that the Panel was obliged in its reasons to explain why it had not considered either the history or the opinions provided by the two treating practitioners in 1995, Dr McColl and Dr Cooper particularly if it was to adopt a diagnosis which effectively discounted the diagnosis made by those practitioners made contemporaneously with the plaintiff experiencing symptoms. He argued that once it was established that the reasons were inadequate, that was sufficient to make out an error of law which required that the decision be quashed and remitted to another Medical Panel for determination.
45 Dr Hanscombe of senior counsel, who appeared with Mr Wischusen for National Mutual, Suncorp Metway and the Victorian WorkCover Authority emphasised the nature of the exercise which the Court is required to carry out. It is not to rehear or treat the application as an appeal. In the context of a challenge as to the adequacy of reasons, she argued, the reasons should be sufficient to show that the decision maker has addressed itself to relevant matters and acted reasonably. She emphasised the need to view the reasons in the light of the questions posed, particularly given that Question 1 enquired solely as to the nature of the plaintiff's current condition and that Question 2 was a question relating to the nature of an injury in the past and was directed to a particular type of "injury" (ie recurrence, aggravation, acceleration, exacerbation or deterioration). She emphasised that the Panel's answers to the question did not put the plaintiff out of Court as he could, at the very least, argue in the County Court that the temporary exacerbation was productive of subsequent incapacity. Although not conceding that the finding as to temporary exacerbation was not adequately explained, she said that even if I found that it was not justified by the reasons, such a finding led nowhere given the length of time between the temporary exacerbation and the alleged periods of incapacity (2001 - and then from 2002 onwards). She argued further that even if the reasons were inadequate, the reasoning of Brennan J (as he then was) in Repatriation Commission v O'Brien[31] and Barwick CJ in Kentucky Fried Chicken v Gantidis [32] meant, in effect, that I would need to conclude that the reasons amounted to an egregious error (and therefore an error in law) before interfering with the decision of the Panel.
46 The members of a Medical Panel have a difficult task. They are generally experienced medical practitioners, without any formal legal training. In addition to examining a worker, they are often supplied with a voluminous amount of material, on many occasions in excess of 500 pages, including a large number of medical reports from treating doctors and medico-legal consultants engaged by both the worker and the employer. The questions framed for the Panel by the Court can, especially for the non-legally trained, be difficult to understand, although in this case, I perceive there was no such difficulty.
47 The Panel then brings to bear its medical expertise in assessing the competing claims of the parties and is required to prepare not only an opinion but reasons which will convey the thrust of the determination reached by the Panel in answering the questions posed by the Court pursuant to s 45(1) of the Act.
48 Whilst the task of providing such reasons may, at times, be difficult, it is nevertheless one that Masters v McCubbery dictates must be engaged in by the Panel.
49 In Masters Callaway JA said in relation to satisfying the requirements of s 8 of the Administrative Law Act 1978 in relation to a Panel decision:
"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."[33] (my emphasis)
50 Subsequently in Kamener v Griffin No 2 [34] Ashley J (as he then was) said:
"It is no doubt of critical importance that the Panel's reasons sufficiently explain why it reached the conclusions that it did. It is not for me to validate those reasons by an exercise of my own."
51 In my view, central to the answers given in the certificate of opinion is the implicit rejection by the Panel of the diagnosis of adjustment disorder (or chronic adjustment disorder). This was necessarily based upon its conclusion that the plaintiff suffered from a paranoid personality disorder, which was present in 1994/1995. Moreover, the Panel took the view that work had exacerbated that disorder but only for a short period of time ceasing in early 1995.
52 In my view the reasons given by the Panel which underpinned its answers to questions 1 and 2 are inadequate. I set out my reasoning as follows.
53 First, the Panel did not explain, either in terms nor can it be inferred implicitly, how it reached the diagnosis that the plaintiff suffered from a paranoid personality disorder in 1994/1995. Given the diagnostic criteria set out in DSM-IV, I think that the diagnosis of this disorder required the Panel to set out the basis for reaching such a conclusion. This is particularly so given the gap in time between the onset of symptoms and the Panel assessing the plaintiff. To make the diagnosis the Panel needed to be satisfied that the plaintiff's symptoms fitted the DSM-IV criteria. Nowhere in the reasons is there reference to the criteria. Moreover there are certain elements of the criteria for this diagnosis which, on a review of the material, do not appear to have been present in the plaintiff. In particular a key element of this condition, as I understand it, is a pervasive distrust and suspiciousness of others. This condition is meant to have its onset (according to the DSM-IV guidelines) in early adulthood; indeed this seems to be a hallmark of the condition as explained by DSM-IV. Nowhere does the Panel refer to any material which supports this proposition. Moreover the treating psychiatrist's history taken in 1995 when the plaintiff was symptomatic was that there was no psychiatric history.[35]
54 Nor can the diagnosis be explained by reference to other medical opinions provided to the Panel. Whilst a number of the psychiatrists referred to particular types of personality disorder, none referred to "paranoid personality disorder" as such. The first time that this diagnosis was arrived at was by the Panel, some 11 years after the event. This in my view emphasises the need for the Panel to have explained why it reached the diagnosis.
55 Further no submission was put by or on behalf of the employers to the Panel that identified this particular condition. Whilst there was reference to a "personality disorder" in generic terms, it was never suggested that the plaintiff was suffering from a paranoid personality disorder in 1994/1995, nor that the disorder could have been the subject of a minor exacerbation in 1994/1995.
56 Simply put the reasons do not enable me to determine how it was that the Panel arrived at this diagnosis.
57 Second, the Panel determined that there was a temporary exacerbation of the plaintiff's underlying paranoid personality disorder. It concluded that such an exacerbation ceased in early 1995. No reasons are provided for it reaching this conclusion. It is simply stated as a matter of fact. In certain circumstances, of itself, that would not constitute a failure to provide adequate reasons assuming there was other material available to the Panel and one could infer that it had used such material in reaching its conclusion. There is however, no such material. The submissions filed with the Panel on behalf of the employers did not suggest such a scenario. Nor is there anything to be found in any of the reports (be it from the treating medical practitioners or the medico-legal consultants) to suggest that there was such an exacerbation of this type of personality disorder at this time.
58 Indeed the perusal of the contemporaneous medical reports provided by the two treating doctors[36] demonstrates a continuing pattern of symptoms at least into 1996, if not further, rather than a temporary exacerbation at the end of 1995. Whilst I draw no inference from the letter written by the employers' solicitors to the solicitor for the Panel, it is not surprising, in my view, that the Panel was asked whether it had mistakenly referred to 1995 rather than 1996. In my view the finding of a temporary exacerbation amounts to a further inadequacy in the reasoning of the Panel: there is no explanation as to why the Panel prefers this period as a relevant period of exacerbation as opposed to a period up to, say, 2002 or 2005.
59 Third, is the Panel's failure to deal with the opinions of either the treating general practitioner Dr McColl or, perhaps more significantly, Dr Cooper the treating psychiatrist. More often than not the reasons provided by a Medical Panel will be sufficient to imply that contrary opinions to that reached by the Panel have been considered and rejected. There is no necessity for a Medical Panel to deal with each of the medical opinions provided, nor with a particular theme that might underlie some of the medical opinions in the usual case. But this was not a typical case: the events which gave rise to the plaintiff's alleged psychological impairment occurred 11 years before the Panel was convened. There can be no doubt that the Panel was aware of the contemporaneous opinions of the treating psychiatrist and the treating general practitioner. Both opinions were expressed at or about the time when the plaintiff was first manifesting symptoms allegedly related to the change of ownership and his employment thereafter. In my view, in a case in which the Panel some 11 years later was prepared to reject both the treating psychiatrist's opinion and that of the general practitioner, expressed contemporaneously, with the initial proliferation of symptoms it was incumbent upon the Panel to at least in summary form provide an explanation as to why both opinions were to be rejected.[37] This was all the more so when the Panel had reached a totally different diagnosis and left its reasons unstated.
60 I reject the submissions made on behalf of the employers that in some way the rationale for the diagnosis and the certificate of opinion can be separated. Whilst it is true that Question 1 related to a determination of the plaintiff's present condition, that necessarily turned upon the diagnosis of his condition in 1994/1995 and whether there was any exacerbation, recurrence, deterioration etc. Similarly, I reject the proposition that the unexplained finding of temporary exacerbation in 1995 can simply be ignored. I repeat my view that central to the answer to the questions was the diagnosis of the plaintiff's condition. The reasons did not adequately address this issue nor the other two issues I have identified.
61 In summary the reasons of the Panel are inadequate. In reaching this conclusion, I have taken into account the fact that the Panel is comprised of non lawyers who are applying specialist medical knowledge; I have also taken into account the warnings of the High Court in relation to over-zealous examination of the reasons provided by Tribunals as opposed to those provided by a judicial body. Nevertheless I take the view that the plaintiff has satisfied me that the reasons of the Panel are inadequate.
The result of a failure to provide adequate reasons
62 Dr Hanscombe contended that even if I was satisfied that the Panel had failed to provide adequate reasons, that did not necessarily mean that the decision should be set aside.
63 Rather, she argued, it was necessary for the plaintiff to demonstrate that the Panel had failed to exercise its powers according to law. This proposition was said to rely upon the dissenting judgment of Brennan J in Repatriation Commission v O'Brien[38] and the decision of the High Court in Kentucky Fried Chicken v Gantidis. In Kentucky Fried Chicken Barwick CJ said as follows:
"Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some circumstances it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal."[39] (my emphasis)
64 Judges of this Court have on a number of occasions expressed the view that once a relevant inadequacy of a significant nature in the reasons of a Tribunal is demonstrated then that finding itself constitutes an error of law upon which the Court may act.
65 In State Electricity Commission v Commissioner for Equal Opportunity & Ors[40] Gobbo J said:
"In the final analysis, the reasons must set out the process of reasoning that led to the decision. The reasons here fail to do this, largely because it is not possible to separate narrative, observations of the present commissioner, expressions of opinion that may be those of the present commissioner or of the previous commissioner, and findings that may be those of the present or previous commissioner.
In my view, if these are the reasons, then they are plainly defective and show error of law on the face of the record. They do so because they fail to show a process of reasoning of decision maker leading to the decision." (my emphasis)
66 Insofar as the reasons provided by Medical Panels are concerned, Ashley J (as he then was) in Kamener v Griffin (No 2) said:
"...the broad principles which guide the necessary content of reasons of a medical panel are described in Masters v McCubbery."[41]
"... 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."
68 Whilst there may still be some theoretical scope for the plaintiff to argue that the certificate of opinion permits the Court to entertain a limited claim for incapacity, central to the resolution of the questions was the diagnosis of the plaintiff's psychiatric condition. I take the view that once it is established that there has been, as I find that there has been in this case, a compendious failure to provide adequate reasons then that constitutes an error of law.
69 In any event, I would, on the basis of the test laid down by Barwick CJ in Kentucky Fried Chicken be of the view that the failure to set out how it was that the Panel arrived at its diagnosis, allied with the other factors I have referred to, constituted a material error of the kind described by his Honour. This is particularly so when the answer to the questions framed for the consideration of the Panel necessarily depended upon the diagnosis made by the Panel of the plaintiff's psychiatric condition.
70 The principle stated by Ormiston J in Body Corporate Strata Plan (No 4166) & Ors v Stirling Properties Limited[46] is oft referred to where a Court is faced with a decision as to whether to remit the matter back to the original panel or to send it to a differently constituted panel. In essence the principle is as follows: where no reasons are provided then it may be appropriate to refer the matter back to the original panel for delivery of adequate reasons, however where the reasons are partly defective in the sense that "not all issues have been dealt with" an order compelling delivery of further or better reasons has an "air of unreality". Such an order would merely give a tribunal an opportunity to "patch up" reasons which have been shown to be defective.
71 In this case given my views as to the inadequacies of the reasons, I think that it is appropriate that these questions be determined by another Medical Panel.
(a) That the decision of the Medical Panel made 30th of June 2006 be quashed.
(b) That the questions be referred back to the Convenor of Medical Panels for determination by a differently constituted panel.
73 I will determine the question of costs upon application by the parties.
[1] Pursuant to s 3 of the Administrative Law Act 1978.
[2] Nothing turns on the distinction between the two - it was agreed that he was employed by one or other.
[3] See the comments of Gillard J in George v Nisselle & Ors (2005) VSC 177.
[4] [1980] HCA 13; (1980) 144 CLR 13 at p.35.
[5] Dr McColl's report 30 November 2000.
[6] Dr Cooper's letter to Dr McColl of 29 January 1996.
[7] Report of Dr McColl dated 30 November 2000.
[8] Report of Dr McColl 25th February 2004.
[9] Report of Dr Cooper to Dr McColl 29th January 1996.
[10] Report of Dr Cooper of 20th of June 2005.
[11] Report of 21st of January 2006 to the plaintiff's solicitor.
[12] Report of Dr McColl of 21st June 2005.
[13] Report of Professor Mullen of 12 June 2001.
[14] Report of Dr Neill of 25 October 2005.
[15] Report of Austin and Repatriation Hospital March 2002.
[16] Report of Dr Garland of 11 December 2000.
[19] The documents are individually detailed in the schedule of attachments attached to the Medical Panel's reasons.
[20] Dr Cooper whose reports were tendered at the hearing before me.
[22] Masters v McCubbery & Ors [1995] VICSC 209; [1996] 1 VR 635 at 650; Administrative Law Act 1978 s 8(1) and (4).
[23] Masters at p.661 per Callaway JA.
[24] Spurling v Development Underwriting (Vic) Pty Ltd [1973] VicRp 1; (1973) VR 1 at 11.
[25] C/f Hunter v TAC [2005] VSCA 1 at [21] - [22] in which the judicial obligation is spelt out.
[26] George v Niselle & Ors [2005] VSC 177 at [56], [61] and [62]
[27] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.
[29] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, at 679-680.
[30] Lianos v Inner and Eastern Health Care Network [2001] VSCA 53; (2001) 3 VR 136.
[33] Masters v McCubbery supra at p 661.
[35] Neither counsel identified any history of pre-1994 psychiatric symptoms nor evidence of such symptoms.
[37] Although Dr Cooper did, in a report of June 2005 concede the possibility of "problems consistent with a personality disorder with paranoid and schizoid features" his final diagnosis in 2006 was of chronic adjustment disorder.
[38] [1985] HCA 10; (1985) 155 CLR 422 at 445-446.
[39] [1979] HCA 20; (1979) 140 CLR 675 at 680. See also Stephen J at 684 and Brambles Industries Limited v Nisselle & Ors [2005] VSC 82 at [21]- [22].
[40] [1992] VicRp 6; [1992] 1 VR 79 at 88.
[46] [1984] VicRp 73; [1984] VR 903 at 912.
Clarke
National Mutual Life Insurance Ltd & Ors [2007] VSC 341
(1980) 144 CLR 13
(1996) 185 CLR 259
(1979) 140 CLR 675
(2001) 3 VR 136
(1985) 155 CLR 422