Plaintiff v Defendants

Plaintiff v Defendants - [2009] VSC 303 - VSC 2009 case summary — Zoe

[110]

"Keely and Fitzgerald JJ. perceived a further ground for setting aside the AAT's decision to affirm the Commission's refusal to grant the respondent's claim, though their Honours would have remitted the matter to the Tribunal if this had been the only error of law that they had perceived. Their Honours thought that the AAT had failed "to expose a satisfactory process of reasoning which led to the rejection of (Mr O'Brien's) claim" and that the Court "should regard a failure to comply adequately with the obligation to give reasons as itself constituting error of law, at least when a claim to a pension is rejected". 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: see Denver Chemical Manufacturing Co. v. Commissioner of Taxation (N.S.W.) (1949) 79 C.L.R.296, at p.313; Sullivan v. Department of Transport (1978) 20 A.L.R.323, at pp.348,349,352. An obligation to give oral or written reasons for a decision is cast on the AAT by s.43(2) of the AAT Act, but the remedy for a failure to fulfil that obligation adequately is a mandatory order by the Court to do so.[25] An AAT decision, if it is made in accordance with the statutory provisions that govern the exercise of its power, is not invalidated by a mere failure to expose fully the reasons for making it. In my opinion the reasons given by the AAT in this case do not warrant an inference that it failed to review the Commission's decisions according to law."

[178]

"39. After the Medical Panel has formed its opinion on each medical question, the presiding member should prepare, and circulate to any other Panel members, a draft certificate of opinion and draft written reasons, in the form similar to that set out in SCHEDULE 1 and SCHEDULE 2[54] respectively, for settling. Once so settled by the Panel, the Certificate of Opinion and Reasons for Opinion are to be forwarded to the Convenor for sending to the referrer. The Panel should also forward to the Convenor copies of any relevant documents obtained or received by the Panel additional to those provided to it by the Convenor.

40. The Convenor will ensure that the Certificate of Opinion and the Reasons for Opinion are in the appropriate form and that the medical questions have been answered. In performance of this task, the Convenor will commonly seek advice from the advisers or legal advisers he has appointed for the Panel's assistance.

41. If the Convenor believes there is any deficiency in relation to the form of the answers to the Medical Questions on the face of the Certificate of Opinion or the Reasons for Opinion are not clear then he will communicate his concerns to the presiding member of the Medical Panel.

42. On receiving details of the concerns of the Convenor, the presiding member will communicate with the other Panel members with a view to deciding whether or not to take any further action in relation to the opinion and the reasons, and to redrafting Certificate of Opinion and/or Reasons for Opinion.

43. After the Panel resolves the concerns over the form of the Certificate of Opinion and/or the clarity of the Reasons for Opinion, the presiding member will forward the final signed documents to the Convenor.

44. On receiving the final signed Certificate of Opinion and final signed Reasons for Opinion from a Medical Panel, the Convenor will forward the Certificate of Opinion to the referrer. Where the referral was received from the Victorian WorkCover Authority, a WorkCover Agent or a Self-Insurer, a copy of the Certificate of Opinion will also be forwarded to the worker.

45. On written request from a relevant party made within the timeframe set out in the Administrative Law Act 1978, the Convenor will also provide a copy of the written Reasons for Opinion."

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Judgment (221 paragraphs)

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Cases Cited (15)