Plaintiff v Defendants

1 On 9 May 1999, Mrs Maree Treacy, the plaintiff, suffered injury in the course of her employment with Wilson Parking Australia 1992 Pty Ltd, the fifth defendant, when she fell whilst stepping out of a caravan kitchen at Melbourne Airport. Subsequently, Mrs Treacy made a claim for compensation pursuant to the Accident Compensation Act 1985 ("the Act"). That claim was accepted. On 3 July 2005, the plaintiff's entitlement to weekly payments of compensation under the Act was terminated[1] on the basis that she had received such payments for more than 104 weeks and had a current work capacity.[2] Eventually, proceedings were issued by Mrs Treacy in the Magistrates' Court of Victoria against Wilson Parking seeking an order for weekly payments pursuant to s 93 of the Act "from 3 July 2005 and ongoing in accordance with law". During the course of those proceedings, Wilson Parking requested certain medical questions[3] to be referred by the Magistrates' Court to a medical panel pursuant to s 45(1)(b) of the Act.

2 A medical panel comprising the first to fourth defendants was convened to answer the referred medical questions. On 4 December 2006, the Medical Panel answered the referred medical questions as follows:

Question 1. What is the nature of the Plaintiff's medical condition relevant to the following alleged injuries:

(a) injury to the left knee resulting in a left total knee replacement;

(b) production, aggravation and acceleration of osteoarthritis of the left knee;

(d) injury to the back including broad based disc bulge with annular disruption at L4/5;

(e) resultant referred pain to the right hip and right leg; and

Answer 1: In the Panel's opinion the Plaintiff suffers from an aggravation of a constitutional osteo-arthritis of the left knee (surgically treated), relevant to the alleged injury to the left knee resulting in a left total knee replacement and alleged production, aggravation and acceleration of osteoarthritis of the left knee.

The Panel is also of the opinion that the Plaintiff is suffering from a now largely resolved exacerbation of a constitutional, multi-level degenerative disc disease of the lumbar spine without radiculopathy relevant to the alleged injury to the back, including broad based disc bulge with annular disruption at L4/5, and resultant referred pain to the right hip and leg.

The Panel is also of the opinion that the Plaintiff is now suffering from no physical medical condition of the left ankle relevant to any alleged injury.

The Panel is also of the opinion that the Plaintiff is suffering from an Adjustment Disorder with depressed mood, relevant to the alleged resultant anxiety and depression injury.

Question 2: Does the Plaintiff have a current work capacity?

Answer 2: In the Panel's opinion the Plaintiff has a current work capacity.

Question 3: If your answer to question 2 is no, is the Plaintiff likely to continue indefinitely to have no current work capacity?

3 On 17 January 2007, the plaintiff sought reasons from the Medical Panel. On 22 January 2007, the Medical Panel provided its reasons.[4] The reasons are dated 4 December 2006. In this proceeding, the plaintiff seeks:

(1) An order in the nature of certiorari quashing the opinion of the Medical Panel.

(2) An order remitting the medical questions to a differently constituted medical panel to be reconsidered in accordance with law.

The plaintiff seeks these orders on the basis that:

(a) The Medical Panel fell into jurisdictional error and/or committed an error of law on the face of the record by failing to take into account considerations it was bound in law to consider when determining its opinion; and

(b) The Medical Panel committed error of law on the face of the record by providing reasons which were inadequate.[5]

4 For the reasons given below, the plaintiff's application succeeds and the medical questions will be referred back to the Convenor of Medical Panels for determination by a differently constituted medical panel.

5 Whilst the plaintiff's claim was resisted by Wilson Parking, the Medical Panel took no part in the proceeding advising the Court that it would submit to such orders as the Court might make in the proceeding in accordance with what was said by the High Court in R v The Australian Broadcasting Tribunal & Ors; ex parte Hardiman & Ors.[6]

6 Originally, there was an issue as to whether this proceeding was issued in time. However, that issue was resolved by an order of the Court made by Osborn J on 4 June 2007 extending time for the commencement of this proceeding insofar as the same was necessary pursuant to rule 56.02(1).

7 The relevant principles in applications of this kind have been stated and summarised on a number of occasions.[7] It is convenient to restate them here:

(a) First, it is not enough for a plaintiff to show that the medical panel's reasons for its decision are so expressed as to suggest the possibility that the panel proceeded upon a wrong view of the law. The Court is not entitled to interfere with the decision unless it is satisfied that there was in fact a vitiating error of law.

(b) Secondly, a medical panel's reasons should enable a Court and the parties to understand that the question referred to the panel has been properly considered according to law and that the opinion furnished is founded on the appropriate application of the panel members' medical knowledge and expertise.

(c) Thirdly, the medical panel is an expert tribunal, whose members are chosen for their experience and its findings need to be viewed in that light.

(d) Fourthly, a medical panel's reasons are those of a tribunal, not that of a judicial body, and must be viewed from that perspective.

(e) Fifthly, the reasons of a medical panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.

(f) Sixthly, the reasons of a medical panel are meant to inform, and over-zealous judicial review is to be eschewed.

(g) Seventhly, the reasons of the medical panel do not need to advert in detail to those matters it has taken into account.

(h) Eighthly, the reasons should give sufficient explanation so as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.

(i) Ninthly, although the medical panel's task is to determine questions of a medical nature, it does not follow that it cannot, or should not, provide the reasons for its determination. Even the most simple of medical questions determined by the panel will nonetheless be based on a process of reasoning and hence enable it to provide reasons.[8] As was said by Callaway JA in Masters v McCubbery:[9]

"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."

8 During the course of argument, counsel for Wilson Parking exposed what he said was a possible difference of approach in the significance of a failure by a medical panel to give adequate reasons. He submitted that the correct approach was that taken by Bongiorno J in Brambles Industries Limited v Nisselle.[10] At paragraph [21], Bongiorno J said:[11]

"The mere failure of a body charged with making an administrative decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respect, to exercise its powers according to law and that inference is drawn by the Court. If the Court draws such an inference, then it may act upon it and proceed to review the administrative decision but the invalidity invoked as a justification for such review is not a mere failure to give reasons but is the inference drawn by the Court from such failure. See Repatriation Commission v O'Brien; Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW); Sullivan v Department of Transport and Kentucky Fried Chicken Pty Ltd v Gantidis. A Medical Panel's decision is not a judgment of a Court. It may leave unexpressed its rejection of any particular evidence if such rejection is a reasonable inference from the acceptance of a contrary version."

9 Forrest J dealt with this issue in Clarke v National Mutual Life Insurance Limited.[12] In that case, Forrest J said, at paragraphs [67] to [69]:[13]

"On a number of occasions judges of this Court have taken the view that significant inadequacies in reasons provided by a Medical Panel constitute an error of law: Pyle v Nisselle, Kamener v Griffin, Calleja v Franet and Taylor v Mountain Pine Furniture.

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.

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."

10 Counsel for Wilson Parking submitted that, to the extent that Forrest J's decision in Clarke (supra) disclosed a different approach from the approach taken by Bongiorno J in Brambles Industries (supra), the approach of Bongiorno J should be preferred. The judgment in Brambles Industries was based primarily upon the dissenting judgment of Brennan J in Repatriation Commission v O'Brien.[14] In that case, his Honour said:[15]

"It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside. In such a case the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law ..."

That decision concerned an obligation to give reasons for a decision cast upon the AAT by s 43(2) of the Administrative Appeals Tribunal Act 1975 (Cth). Despite Brennan J's view and the fact that the other High Court Judges did not consider the issue, there is subsequent authority that a failure to comply with an obligation to give reasons constitutes an error of law which may, in appropriate circumstances, justify the setting aside of the decision.[16]

11 The decision in Clarke was based upon a consideration of a number of decisions that all dealt specifically with the obligations of medical panels to give reasons and the consequences of such panels giving inadequate reasons. One of those decisions was Pyle v Nisselle.[17] In that case, Smith J said:[18]

"The test for the adequacy of reasons was discussed in the context of Medical Panels in the case of Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635. Winneke P said (at 651)

'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: see Iveagh (Earl of) v Minister of Housing and Local Government [1964] 1 QB 395 at 410.' (See also Ormiston JA at 653 and Callaway JA at 661.)"

In my view the reasons provided fail to satisfy this test. The Panel was required to explain why it reached its opinion. If it had rejected the opinions of the experts provided to it on behalf of the applicant, it should have explained why this was so. The rejection of those opinions is the most likely explanation for the decision reached. If, on the other hand, they did not reject these opinions, then the reasons should indicate why they were satisfied that the employment was not and could not possibly be a significant contributing factor in causing the applicant's disabilities. In my view there is a significant gap in the Panel's reasons.

If the Panel had come down in favour of the applicant and in its reasons offered no more information than was contained in the present reasons, it seems to me that the fourth and fifth respondents also would have had legitimate grounds to complain about the lack of reasons. In particular, they would be entitled to know why the Panel rejected the expert opinions of their experts."

"If the reasons are inadequate then in my view that amounts to an error of law (see for example Sun Alliance ... [1969] VR 8]). The Act itself makes the reasons part of the record and so there exists an error of law on the face of the record. Gobbo, J.[20] applied a similar analysis when dealing with the alternative submission in the case before him which was that the reasons were not adequate. His Honour commented:

'In the final analysis, the reasons must set out the process of reasoning that led to the decision. The reasons here failed 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 the decision maker leading to the decision. . . .'."

12 On one view, the approach taken in the medical panel cases[21] is not easy to reconcile[22] with the cases referred to by Bongiorno J at paragraph [21] of Brambles Industries. However, it is to be remembered that in Clarke, Forrest J referred to "significant" inadequacies in reasons which would constitute an error of law. Depending upon what content is given to the word "significant", there may be no difference in the ultimate outcome in many cases whether one takes the Brambles Industries approach on the one hand or the Clarke approach on the other hand. In the end, I have determined that, to the extent there is a difference in approach between the two cases, I should prefer Clarke as it and the cases upon which it is based deal specifically with medical panels and the same legislative provisions as are called into play here - whereas the authorities referred to in Brambles Industries do not deal specifically with medical panels and deal with different legislative provisions. Further, this approach accords with decisions of this Court since Clarke.[23]

Failure to take account of relevant considerations

13 In Craig v South Australia,[24] the High Court[25] said:[26]

"If ... 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."

14 When seeking to challenge the decision of a tribunal on the basis that it has failed to take into account a relevant consideration, it must first be established that the so-called relevant consideration is one which the tribunal was "bound to take into account in making that decision".[27] Further, the factors which must be taken into account can only be determined by reference to the relevant statute. Additionally, a failure to take into account a particular consideration will not necessarily result in a setting aside of the decision - a factor might be so insignificant that the failure to take it into account could not have materially affected the decision.[28] As Forrest J pointed out in Moyston Court Fisheries Limited v Mallios,[29] the starting point in any analysis is the terms of the statute. Whilst the Act is silent as to the considerations to be taken into account by a medical panel answering a medical question, I agree with Forrest J that the statutory framework established by the Act in respect of medical questions leads to it being impliedly necessary for a medical panel to take into account the following considerations:

(a) Its own examination of the worker (including any history provided and evidence as to any investigations, tests, studies or the like) and its opinion.

(b) The document required under s 65(6A) of the Act identifying the alleged injury and the agreed facts and disputed facts.

(c) The material provided by the referring body or person, including the documents relating to the medical question as provided: s 65(6B).

15 The plaintiff's real complaint in this case concerns the Medical Panel's answer to question two. In answer to question two, the Panel concluded that the plaintiff has a "current work capacity". "Current work capacity" is defined in s 5(1) of the Act to mean "in relation to a worker, ... a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment". The expression "suitable employment" is defined in s 5(1) of the Act as follows:

"suitable employment, in relation to a worker, means employment in work for which the worker is currently suited (whether or not that work is available), having regard to the following-

(a) the nature of the worker's incapacity and pre-injury employment;

(b) the worker's age, education, skills and work experience;

(d) the details given in medical information including the medical certificate supplied by the worker;

(f) if any occupational rehabilitation services are being provided to or for the worker."

16 The plaintiff's counsel submit that in answering question two, the Medical Panel found that there was work for which the plaintiff is suited and that in making that finding, the Panel failed to take into account the following matters:

(a) The plaintiff reported to the Medical Panel that she could only stand, walk or sit for short periods.

(b) The vocational assessor who conducted the assessment on the plaintiff on 16 March 2005 believed that the plaintiff's limited sitting tolerance may make it difficult for her to maintain sedentary work.

(c) Dr Brown indicated that in any sedentary job, the plaintiff would need to take regular stretching breaks every hour or so.

(d) The vocational assessor who conducted the assessment on the plaintiff on 16 March 2005 believed that the plaintiff's poor computer and typing skills may need to be upgraded for many of the jobs identified as potentially suitable in that report.

(e) The plaintiff's treating general practitioner considered that she was unfit for all work.

(f) How the combined effects of the plaintiff's accepted left knee, back and psychiatric injuries, as found by the Panel, impacted upon her current capacity for work.

(g) What restrictions for work the plaintiff had as a result of her accepted left knee, back and psychiatric injuries, as found by the Panel.

(h) What restrictions for work the plaintiff had as a result of the current levels of medication she was taking.

(i) What employment currently constituted suitable employment for the plaintiff, given her current restrictions, current medication and current skills.

(j) Certain radiology that was disclosed in the material. Specifically, the Panel are said not to have looked at the report of an MRI scan performed on 29 March 2006 which showed annular tears in two of the plaintiff's low lumbar sacral discs.

17 In addition to the above matters, it was put by counsel for the plaintiff that the Medical Panel failed to take into account a consideration it was bound in law to consider when it stated that it considered there was work for which the plaintiff is suited, rather than (as they submit) correctly stating, as required by s 5(1) of the Act, whether or not there was work for which the plaintiff was currently suited. I reject this argument. Whilst the definition of "suitable employment" refers to work for which a worker is "currently suited", the failure by the Medical Panel to use the word "currently" in the last paragraph of its reasons does not detract from its obvious conclusion that it considered that the plaintiff was currently suited for various employments. The conclusion of the Medical Panel that there is employment for which the plaintiff "is suited" must be read as a conclusion that there is employment for which she is "currently suited". Any other analysis would contravene the principles I have referred to in paragraph 7(e) and (f) above.

18 In order to deal with the complaints I have summarised in paragraph 16 above, it is necessary to give a description of the Medical Panel's reasons. The reasons are five pages in length, together with a two page schedule headed "Enclosure A". Enclosure A lists various documents and information provided to the Panel. In its reasons, the Panel states that it formed its opinion by reference to:

(a) The documents and information referred to in Enclosure A;

(c) The examination findings elicited by the Panel at examinations of the plaintiff conducted on 3 November 2006.

19 On pages 1 to 3 of the reasons, there is a relatively detailed history of the plaintiff set out. On p.3 of the reasons, the Panel sets out its findings on physical examination. The Panel then records that it viewed medical imaging which consisted of various plain X-rays, a CT scan and MRI scans. The Panel then records its conclusions in relation to the plaintiff's left knee and spinal injuries. Following these conclusions, the Panel records its conclusions with respect to the plaintiff's psychiatric and mental state examinations.

20 The Panel's conclusions concerning the plaintiff's injuries were as follows:

(a) "The plaintiff is suffering from an aggravation of a constitutional osteoarthritis of the left knee (surgically treated), relevant to the alleged injuries to the left knee".

(b) "The plaintiff is suffering from a now largely resolved exacerbation of a constitutional, multi-level degenerative disc disease of the lumbar spine without radiculopathy and ... there is no intrinsic medical condition of the right hip or right leg relevant to the alleged back and resultant referred pain to the right hip and leg injury".

(c) "The plaintiff had suffered a soft tissue injury of the left ankle. Despite the plaintiff's complaint of persistent 'pins and needles' in the left foot since the fall in July 1999, ... this condition has now resolved and the plaintiff now suffers from no physical medical condition of the left ankle relevant to any alleged injury".

(d) "The plaintiff is suffering from an Adjustment Disorder with depressed mood, relevant to the alleged resultant anxiety and depression injury".

21 Having made these findings, the Panel concluded "that the plaintiff is not presently capable of performing her pre-injury duties of employment". The Panel then concluded its reasons as follows:

"The Panel considered all aspects of the definition of 'suitable employment' contained in the Act and in particular noted that the Plaintiff is aged 55, has completed secondary schooling to the year 12 level and completed a business course (including shorthand and typing), and has worked as a receptionist/telephonist/typist, worked in sales and merchandising, worked as a customer service representative for various employers and also worked as a dining room attendant. She holds a driver's licence (although the Panel noted that the worker says she is limited in the distance she can travel), has good literacy, numeracy and keyboard skills and some computer skills and lives in suburban Melbourne.

The Panel also considered the Plaintiff's other medical conditions including her spinal conditions, ischaemic heart disease and her use of walking aids at times.

The Panel also took into account the vocational assessment report, including employment options. The Panel noted the submissions made in regard the (sic) vocational assessment report on behalf of the Plaintiff.

The Panel considered that the Plaintiff has transferable skills and that there is employment for which she is suited and could perform on a consistent basis. The Panel therefore concluded that the worker has a current work capacity."

22 Whilst it is true that a number of the matters referred to in paragraph 16 above were disclosed in the documents referred to in Enclosure A (matters (b) to (e) and (j)) and whilst those matters have not been specifically adverted to in the reasons, I am not satisfied that, merely because the matters have not been specifically referred to and merely because the Panel's conclusion is adverse to the plaintiff, the Panel failed to take into account the identified matters. I have no reason to doubt that the Panel considered the documents which were described in Enclosure A. Indeed, in its reasons the Panel stated that it formed its opinion by reference to, inter alia, those documents. Further, the Enclosure A documents are not so voluminous as to make it unlikely that they were not read in full by the Panel. The amount of documentation provided was readily digestible by the Panel and I am not prepared to conclude that it did not perform its function in this regard.

23 As to the complaint that the Panel failed to take into account the reporting by the plaintiff to the Panel that she could only stand, walk or sit for short periods, this matter is specifically recorded in the history section of the Panel's reasons. There is no basis for thinking that the Panel did not take this matter into account. Again, merely because the Panel reached a conclusion that was adverse to the plaintiff does not demonstrate that the Panel failed to take into account the matter referred to.

24 As to matters (f) to (i) referred to in paragraph 16 above, these matters relate more properly to a complaint concerning inadequacy of reasons. None of these matters disclose the existence of a relevant consideration which the plaintiff has satisfied me the Panel failed to take into account. The Panel took a detailed history from the plaintiff, it conducted appropriate physical and psychiatric examinations, it reviewed the radiology, it reached conclusions and it answered the medical questions referred to it. The plaintiff has not satisfied me that it failed to take into account any relevant matter. Clearly, its conclusions show that it did not accept all of the matters which the plaintiff would have had it accept. However, this does not equate with failing to take into account relevant considerations. The plaintiff's first ground that the Panel failed to take into account considerations it was bound in law to consider when determining its opinion therefore fails.

25 In its reasons, the Panel records that it "concluded that the plaintiff is not presently capable of performing her pre-injury duties of employment". The plaintiff's pre-injury employment was that of a part-time car-park customer service officer. More details of the plaintiff's pre-injury employment duties are set out in the vocational assessment report which the Panel states that it "also took into account". In the vocational assessment report, the plaintiff is recorded as stating that her pre-injury job "entailed teaching people how to use the car-park ticketing system" and "assisting customers with ticket machines in airport car-parks, directing traffic in and out of car-parks at busy times, operating cashier booths, assisting customers to locate their vehicles, operation of a two-way radio". Having then taken into account and considered the various matters referred to at the foot of p.4 and the top of p.5 of its reasons (which matters I have extracted above[30]), the Panel then states that it "considered that the plaintiff has transferable skills and that there is employment for which she is suited and could perform on a consistent basis". The path of reasoning from the conclusion that the plaintiff is not presently capable of performing her pre-injury duties of employment to the conclusion that there is employment for which she is suited and could perform on a consistent basis is not disclosed. On one view, the two conclusions are inconsistent. If the plaintiff is not presently capable of performing the duties of a part-time car-park customer service officer, then it is not readily apparent why it is said that there is employment for which she is suited and could perform on a consistent basis. If these two conclusions can be reconciled, then more needs to be said by way of explanation. Further, if the two conclusions are capable of being reconciled, then the Panel had a duty to disclose the path of reasoning by which this could be done. This, it did not do. For this reason alone, the Panel's reasons are inadequate.

26 There are other inadequacies in the Panel's reasons. The Panel stated that it "also considered the plaintiff's other medical conditions, including her spinal conditions, ischaemic heart disease and her use of walking aids at times". The reasons do not disclose how these matters were considered. Whilst there may be matters from time to time which medical panels can refer to by simply stating that they have considered them, this is not such a matter. A reader of the reasons would be left wondering in what way and to what extent the plaintiff's other medical conditions were taken into account. Similar criticisms can be made in respect of the statements in the reasons that the Panel "also took into account the vocational assessment report". Whilst I am conscious of the principles set out in paragraphs 7(e) and (f) above, a mere recitation that a medical panel took into account a particular document or submission without stating whether it accepted or rejected the document or submission or how it took it into account does not inform so far as a medical panel's reasons are concerned.

27 Whilst I rejected the plaintiff's complaints concerning the Medical Panel's alleged failure to take into account matters (f) to (i) set out in paragraph 16 above, the questions raised in those sub-paragraphs (and in particular (f), (g) and (i)) are questions that one would expect would be dealt with in the reasons given for the Panel's answer to question two. The failure to deal with these matters specifically again highlights the inadequacy of the Panel's reasons. If the plaintiff is not presently capable of performing her pre-injury duties (as found by the Panel), then the question arises as to what employment is the plaintiff currently suited (as again concluded by the Panel). The reasons are silent in this regard. This issue being central to the Medical Panel's function, the absence of a finding as to what employment the plaintiff was suited for and the absence of a path of reasoning leading to such a conclusion demonstrates the inadequacy of the reasons.

28 In Vegco Pty Ltd v Gibbons,[31] Kyrou J questioned whether an alleged inadequacy of a medical panel's reasons for opinion could be a separate ground of review where the reasons were provided by the panel voluntarily, rather than pursuant to a request under s 8 of the Administrative Law Act.[32] Having determined to quash the medical panel's decision in that case on two separate grounds of review, his Honour did not consider it either necessary or appropriate to decide whether inadequacy of reasons could constitute a separate ground of review where the reasons were provided voluntarily. In the present case, the Medical Panel's decision was given on 4 December 2006. Reasons were requested on 17 January 2007 and on 22 January 2007, the Medical Panel provided its reasons - which reasons were dated 4 December 2006. The letter of 17 January 2007, which sought reasons, did not refer to the provisions of the Administrative Law Act. Specifically, it did not refer to s 8. Whilst it is possible that the Panel always intended to provide reasons with its decision in December 2006 and that it simply omitted to include them with its determination (the reasons bearing the same date), I conclude that it is more probable than not that the reasons were delivered pursuant to the request made by the letter of 17 January 2007 - that letter being a request within the meaning of s 8(1) of the Administrative Law Act. Thus, the issue raised in Vegco as to whether an inadequacy of reasons can be separate ground of review where the reasons were provided voluntarily does not arise in this case.

29 There being significant inadequacies in the reasons, it follows that I uphold this ground of review.

30 It is only the reasons in respect of the Medical Panel's answer to question 2 that were defective. Two courses are now open: First, remitting the matter to the Medical Panel to provide further reasons in respect of its answer to question 2; and secondly, referring the questions back to the Convenor of Medical Panels for determination by a differently constituted medical panel. In Clarke,[33] Forrest J stated:[34]

"The principle stated by Ormiston J in Body Corporate Strata Plan (No 4166) & Ors v Stirling Properties Limited[35] 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."

31 In my view, there would be an "air of unreality" and the risk of a "patch up" response if I was to remit question 2 (or all three questions) back to the Medical Panel. Given my findings as to the inadequacies of the reasons, it is appropriate that question 2 be dealt with by a differently constituted medical panel. Further, the new medical panel should not be fettered by the conclusions of the old Medical Panel in its answer to question 1. In arriving at an answer to question 2, it will be necessary for the new medical panel to conduct medical examinations of the plaintiff. There is a risk that the new medical panel's task might be made unworkable if it is asked only to answer question 2 on the basis that the current answer to question 1 is correct. The appropriate course is for all three questions to be considered afresh by a differently constituted medical panel.

32 Subject to hearing the parties, I propose to make the following orders:

(1) The decision of the Medical Panel made on 4 December 2006 be quashed.

(2) The questions be referred back to the Convenor of Medical Panels for determination by a differently constituted panel.

33 I will hear the parties on the question of costs.

[1] Pursuant to s 114(2)(b), and in reliance upon s 93CC(1), of the Act

[2] The expression "current work capacity" is defined in s 5 of the Act

[3] The expression "medical question" is defined in s 5 of the Act

[4] The reasons are Exhibit "JT9" to the affidavit of John Typaldos sworn 23 March 2007

[5] See paragraphs 11 and 12 of the amended originating motion herein

[6] [1980] HCA 13; (1980) 144 CLR 13

[7] See in particular the judgment of Forrest J in Dixon v Hacker [2007] VSC 342 at paragraphs [40] - [44]. See also Davidson v Fish [2008] VSC 32; Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36; Bluescope v Nisselle & Ors [2008] VSC 72; and Robert Bosch (Australia) Pty Ltd v Barton [2008] VSC 227. See further Portland Properties Pty Ltd v MMBW (1971) 38 LGRA 6 at 18 and Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488 at paragraph [9]

[8] See Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 at 661 per Callaway JA

[10] [2005] VSC 82

[12] [2007] VSC 341

[14] [1985] HCA 10; (1985) 155 CLR 422

[16] See for example Dornan v Riordan (1990) 24 FCR 564; (1990) 95 ALR 451. See also the reference to Dornan v Riordan in the judgment of Olsson AUJ (with whom Steytler J agreed) in Re an application for writ of certiorari against Croser (member of a medical assessment panel); ex parte Rutherford [2001] WASCA 422 at paragraph [63] and the cases referred to therein. See further the reference to the judgment of Brennan J in Repatriation Commission at paragraph [62].

[17] [2000] VSC 398

[20] [In State Electricity Commission v Commissioner for Equal Opportunity [1992] VicRp 6; [1992] 1 VR 79 - an Administrative Law Act case]

[22] See generally Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Palme [2003] HCA 56; (2003) 216 CLR 212; Kymar Nominees Pty Ltd v Sinclair [2006] VSC 488 at paragraph [9]; and Vegco Pty Ltd v Gibbons [2008] VSC 363

[23] See for example Davidson v Fish [2008] VSC 32 at paragraphs [12] and [13]; Bluescope Steel Limited v Nisselle [2008] VSC 72 at paragraphs [70] - [77]; and Robert Bosch Pty Ltd v Barton [2008] VSC 227 at paragraphs [24] - [32]

[24] [1995] HCA 58; (1995) 184 CLR 163

[25] In a joint judgment of Brennan, Dean, Toohey, Gaudron and McHugh JJ

[27] Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 39

[29] [2007] VSC 518

[31] [2008] VSC 363

[32] See paragraph [29] of the judgment of Kyrou J

[35] [1984] VicRp 73; [1984] VR 903 at 912.