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[2010] VSC 630
Supreme Court of Victoria
2010-12-24
MACAULAY J
Original judgment source is linked above.
ACCIDENT COMPENSATION - Review of decision of medical panel - Extension of time - Rule 56.02 Supreme Court (General Civil Procedure) Rules 2005 - When grounds for relief or remedy arise - Whether special circumstances exist - Jurisdictional error - Whether a failure to ignore irrelevant matter - Whether a failure to accord procedural fairness - Whether a failure to give adequate reasons.
1 The fifth defendant ('Jury') brought a claim in the County Court for damages against the plaintiff, his former employer ('Wurth'), for injuries allegedly caused by an infectious disease he contracted when visiting Germany for employment reasons in 1993.
2 Those injuries include the development of Lyme disease, severe cardiac dysfunction, cerebrovascular accident (stroke) consequent upon cardiac dysfunction, severe and extensive skin lesions and the development of epilepsy.
3 In August 1997 Jury underwent heart transplant surgery as a result of his cardiac dysfunction.
4 The controversy in this case is not whether Jury contracted Lyme disease when visiting Germany in connection with his employment. Rather, it is whether his cardiac dysfunction, stroke and epilepsy can be related to that disease.
5 Six medical questions were referred by the County Court to a medical panel ('the panel') convened under Division 3, Part III of the Accident Compensation Act 1985 (Vic) ('the Act').
6 In answering the medical questions by certificate of opinion dated 21 April 2010 ('the opinion') the panel expressed the view that the cardiac dysfunction, stroke, epilepsy and skin lesions all resulted from the alleged Lyme disease.
7 The panel was also of the view that Jury had no current work capacity and that such incapacity was the result of the Lyme disease and its consequences.
8 Wurth seeks judicial review of the panel's opinion on the grounds that:
9 But first, Wurth seeks leave, pursuant to r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules') (if it is required), to extend the time for the issuing of its originating motion. I will turn to that application in a little more detail shortly.
10 Wurth employed Jury as a marketing/customer service manager in March 1992. In October 1993 Jury attended a conference in Germany for reasons associated with his employment by Wurth. Whilst in Germany he visited the Black Forest on several occasions. On some occasions he walked into the forest to take photographs.
11 Jury did not recall any particular incident at the time but it now appears likely that he was bitten by a tick whilst in the forest. That tick bite has led to dramatic and adverse medical consequences for Jury. The extent of those consequences is in issue in this proceeding (and in the County Court proceeding from which the medical panel questions were referred).
12 In mid March 1996, whilst at home, Jury suffered a stroke, fell down, and could not speak. He suffered paralysis down his right side. He was taken to hospital where it was diagnosed he had suffered an embolic stroke arising from an apical mural thrombus in an enlarged heart.
13 In November 1996 he suffered an epileptic seizure. Thereafter he was treated for epilepsy by medication. He suffered a second convulsion in November 1998 and his medication was changed. His epilepsy has been better controlled since that change.
14 In August 1997 he underwent a heart transplant at the Alfred Hospital. His transplant surgery followed a process of treatment, examination and diagnosis since his stroke in 1996. The diagnosed condition which led to his heart transplant surgery was a hypertrophic myopathic process (thickened and swollen heart muscle) with marked reduction in left ventricular systolic function and apical mural thrombus. A cardiac biopsy did not show any infiltrative or inflammatory process. Only hypertrophy (enlargement) was evident. His treating cardiologist at the time, Dr Brian Wood, noted in April 1996 that the exact genesis of his condition was indeterminable at that point. Studies of the heart removed from Jury in August 1997 confirmed findings of extensive left ventricular fibrosis and myocardial fibre hypertrophy.
15 Jury said that he developed some scattered pimples over his back in 1998 following his transplant surgery although they resolved with antibiotics. More significantly, in 2004 he developed a skin condition over his right flank and right arm pit. Various biopsies were taken. In September 2005 Dr Sarah Swain of the Anatomical Pathology Department at the Alfred Hospital noted that a 'punch biopsy of the skin shows features of dermatoborreliosis (late stage Lyme disease)'.
16 Lyme disease is an infectious disease caused by a number of species of bacteria belonging to the genus Borrelia, one of which, Borrelia Burgdorferi, was observed to be present in the biopsies taken from Jury's skin. Being bitten by a tick from the Black Forest in Germany is a known source of infection of Lyme disease.
17 The hypothesis which connects Jury's employment with his cardiac episode in 1996, heart transplant in 1997 and subsequent disability, is as follows: he was bitten by a tick in the Black Forest whilst travelling for employment purposes; as a result he was infected with the Borrelia bacteria and contracted Lyme disease; not only did Lyme disease manifest itself in skin lesions but it also infected his heart muscle; the infection of his heart muscle resulted in hypertrophic cardiomyopathy which, in turn, led to his heart transplant in 1997.
18 The real debate in this case - and the substance of the medical questions referred to the medical panel - is whether or not Jury's stroke and subsequent heart transplant can be attributed to the Lyme disease infection, in which case those injuries are employment related, or whether they must be attributed to some other unknown cause such that no relationship with employment can be established.
Jury's claim under the Accident Compensation Act
19 Jury has not worked since suffering his stroke in March 1996. He was then 32 years of age.
20 On 6 February 2007 he made a claim pursuant to s 93 of the Act for weekly payments of compensation, and for the payment of medical and like services expenses, in respect of the Lyme disease injury and its alleged sequelae. His claim form was accompanied by a letter from his solicitors, Garden & Green, which set out the circumstances of Jury being bitten by a tick whilst in Germany, unknowingly carrying the Borrelia virus until he suffered a stroke (whilst in other employment) and then having a heart transplant. The letter asserted that Professor Kaye and Dr Fuller, both at the Alfred Hospital, were convinced that the most likely cause of Jury's stroke and heart transplant was the Borrelia infection sustained whilst Jury was employed with Wurth.
21 Wurth rejected the claim on two bases: first, that it did not arise out of or in the course of employment; secondly, that Jury's employment was not a significant contributing factor to the claimed injury. The second of the two grounds was relevant because of the provisions of ss 82(2B) and (2C) of the Act.
22 In July 2007, after a conciliation conference failed to resolve the dispute, Jury issued a proceeding in the County Court against Wurth claiming the payment of weekly payments of compensation for a total incapacity from 1995 to date and continuing, the payment of reasonable medical and like expenses, and lump sum compensation pursuant to ss 98 and 98A of the Act.
23 Critically for present purposes, Wurth, as defendant to the County Court proceeding, denied the allegations that Jury was exposed to a tick bite in the course of his employment as a result of which he suffered the development of Lyme disease, severe cardiac dysfunction, cerebrovascular accident consequent upon that dysfunction (with consequent epilepsy), skin lesions and other injuries.
24 On 5 November 2009, as required by s 45(1)(b) of the Act upon Wurth requesting it to do so, the County Court referred six medical questions for the opinion of a medical panel. Those questions appear below.
25 A medical panel was convened. The panel was composed of Dr Francis Gallichio, a general practitioner, Dr Jeffrey Lefkovits, a cardiologist, Dr Peter Berger, a dermatologist and Dr Mark Faragher, a neurologist. The panel also appointed Adjunct Professor Mary O'Reilly, infectious diseases physician, as a consultant to the panel. Jury was examined by Drs Gallichio, Lefkovits and Berger on 4 December 2009 and jointly by Drs Gallichio and Faragher on 31 March 2010. Adjunct Professor O'Reilly examined Jury on 3 December 2009.
26 By certificate of opinion dated 21 April 2010 the medical panel answered the medical questions referred to it in the following terms:
"(1) What is the nature of the plaintiff's medical condition relevant to Lyme disease alleged by the plaintiff?
Answer: In the panel's opinion the plaintiff is suffering from the sequelae of Lyme carditis with hypertrophic ventricular cardiomyopathy, residual neurological dysfunction following thrombo embolism of the left middle cerebral artery, post/epilepsy, cardiac transplantation, and Lyme induced acrodermatitis atrophica chronica with scarring, relevant to the alleged Lyme Disease injury.
(2) What is the extent to which the following medical conditions of the plaintiff resulted from or were materially contributed by Lyme disease:
(a) Cardiac dysfunction?
(b) Cerebrovascular accident?
(c) Epilepsy?
(d) Skin lesions (acrodermatitis chronica atrophicins)?
Answer: In the panel's opinion the plaintiff's (a) cardiac dysfunction (b) Cerebrovascular accident, (c) epilepsy; and (d) skin lesions (acrodermatitis chronica atrophicins)
all result from the alleged Lyme Disease injury.
(3) Does the plaintiff have an incapacity for work?
Answer: Yes.
(4) If yes to question 3, does the plaintiff have a current work capacity or no current work capacity?
Answer: In the panel's opinion the plaintiff has no current work capacity.
(5) If the worker has no current work capacity is this likely to continue indefinitely?
Answer: Yes.
(6) Does the incapacity for work result from or is it materially contributed by the claimed injury and medical conditions and which of them?
Answer: In the panel's opinion the plaintiff's incapacity for work results from the alleged Lyme Disease injury and its consequences of cardiac dysfunction and cardiac transplantation, cerebrovascular accident with neurological dysfunction, and epilepsy."
27 Thus, in respect of the debate identified earlier, the medical panel formed an opinion favourable to Jury and adverse to the position taken by Wurth.
28 The reasons for opinion of the medical tribunal, also dated 21 April 2010, run to some eleven pages. Because of an amendment to the Act, effective 5 April 2010 and applicable to the opinion in this case, the panel was obliged by s 68(2) to give a written statement of its reasons for its opinion. Hitherto medical panels have adopted the practice of giving written reasons but for a different reason. More will be said about this later when I turn to consider Wurth's ground for relief based upon alleged inadequacy of reasons.
29 The documents considered by the panel, referred to it by the County Court, included the pleadings, an affidavit of Jury sworn 1 August 2008, written submissions by both sides and a number of medical reports and pathology records. Those medical reports included reports from Jury's treating doctors from 1996 onwards, and medical opinions obtained for medico legal purposes in more recent times.
30 One report of the latter kind was from Associate Professor Damon Eisen, dated 16 March 2009, a report obtained by Wurth. Associate Professor Eisen is a consultant infectious diseases physician. Further reports obtained by Wurth from Dr Peter Stanley, a consultant infectious diseases physician, were also included amongst the documents referred to and considered by the medical panel.
31 The medical panel's certificate of opinion and reasons for decision were not received by Wurth until 3 May 2010, having been posted on 29 April 2010 directly to Wurth's solicitors.
32 For the purposes of determining any question or matter, the opinion of a medical panel on a medical question referred to it under the Act is to be adopted and applied by any court and must be accepted as final and conclusive: s 68(4) of the Act. There is no right of appeal from the medical panel's opinion on the merits of that opinion.
33 The decision of a medical panel, however, is amenable to judicial review for relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto. The procedure now for obtaining that relief in this Court is set out in Order 56 of the Rules. Rule 56.02 provides:
(1) A proceeding under this Order shall be commenced within sixty days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2) Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances. [Underlining added]
34 Wurth filed its originating motion in this Court seeking judicial review of the medical panel's opinion on 29 June 2010. That date was sixty-eight days after the date of the certificate of opinion but was exactly sixty days after the receipt of the certificate (and accompanying reasons) by Wurth. Two issues arise as a consequence. First, whether the time within which a party must file an originating motion commences from the date of the medical panel's opinion, or from the date it is received by the party that wishes to challenge it. Secondly, if it is the latter and thus Wurth is out of time, whether there are special circumstances justifying the grant of an extension of time for the filing of the originating motion.
35 On the first question of when the time begins to run, Osborn J in Treacy v Newlands[1] canvassed competing views as to whether, in applying r 56.02(1), grounds for the grant of relief or remedy first arise upon the date of a medical panel's certificate or the receipt of the certificate, or more particularly the reasons for opinion. His Honour expressed the view:
It seems to me that, at least in cases where reasons are taken to be necessary to the completion of the Courts', function, it is difficult to say that the Courts' function is completed on the date that it is pronounced without reasons.[2]
36 His Honour observed that the general proposition may not assist in the case of an administrative decision where it is clear that a valid opinion may be expressed without the giving of reasons. In my view his Honour was not expressing a concluded view on the issue. He went on to analyse whether, if leave was required, special circumstances had been demonstrated and, in the result, concluded that they had not.
37 In Sodexho Australia Pty Ltd[3] Williams J was faced with an application for extension of time under the same rule, again in respect of the decision of a medical panel. The facts were not very dissimilar in some respects to those in the present case. The medical panel had made a decision adverse to the employer on 4 July 2008, posted the opinion and its reasons on 11 July 2008 and they were received at the solicitors' office on 15 July 2008.
38 In Sodexho the solicitor deposed to having sought and obtained senior and junior counsel's opinion on the question of whether time began to run for r 56.02(1). The solicitor received advice, based upon an interpretation of Osborn J's decision in Treacy v Newlands, to the effect that the time began to run on the receipt of the opinion and the panel's reasons. The proceeding had been commenced within sixty days of the receipt of the reasons.
39 It was noted by Williams J that, in an earlier appearance by the parties before Pagone J, his Honour had ruled that the proceeding had been commenced out of time thus necessitating the application for an extension of time. Pagone J had held that, in the exercise of its power under s 68 of the Act, the medical panel had formed its opinion on the medical questions on the date of its certificate (4 July 2008) and time ran from that day. His Honour did not regard Osborn J as having decided Treacy v Newlands on the basis of a concluded view about when time began to run.
40 In my opinion the better view is that time runs from the date of the medical panel's certificate. Any lapse in the delivery of its opinion, and its reasons therefor, may well constitute a factor to take into account in weighing 'special circumstances'. Nevertheless, in the usual case, it is the formation of an allegedly erroneous opinion, regardless of when that opinion is communicated, that gives rise to the grounds for relief or remedy.
41 In any event, that was the view upon which Sodexho was decided in 2008. The solicitors in question were the same firm of solicitors as those representing Wurth in these proceedings. Indeed, the solicitor who had the conduct of the matter for the employer in Sodexho is the supervising partner with the conduct of the matter for Wurth in the present proceeding.
42 It follows that in my view there is a need to consider whether special circumstances do exist.
43 In Mann v Medical Practitioners Board of Victoria,[4] Hansen AJA (with whose relevant reasons Nettle JA and Chernov JA agreed) discussed the meaning of 'special circumstances' in r 56.02(3) in the following terms:
The phrase "special circumstances" has a long history of usage and many cases can be found in which its application has been considered. The cases referred to in Prencipe constitute a sufficient reference for present purposes. In addition, by way of a couple of examples, see Holpitt Pty Ltd v Vorimu Pty Ltd, and Springfield Nominees Pty Ltd v Bridgelands Securities Ltd. The cases indicate that what is special is that which is not general in character, as it was simply stated in Lines v Hersom. One of the cases cited in Prencipe was In re Norman, where the question before the Court of Appeal was whether special circumstances existed which had warranted the judge referring a bill of costs to taxation despite the passage of 12 months since its delivery to the client. Lopes L.J. said (at 677):
"The statute uses the words "special circumstances". Those are wide, comprehensive, and flexible words, and I think that the legislature intended them to be so, and that no Court can or ought to lay down any exhaustive definition of them. Charges which in one case would be special circumstances, in another would not be such. It is for the discretion of the judge to say what are special circumstances in a particular case. I cannot express my meaning better than by adopting the words of Bowen LJ in In re Boycott when he said: "Special circumstances, I think, are those which appear to the judge so special and exceptional as to justify taxation. I think no Court has a right to limit the discretion of another Court, though it may lay down principles which are useful as a guide in the exercise of its own discretion. It seems to me to be the true view of the statute, that there must be special circumstances making the payment differ from an ordinary payment, and that the judge thereupon has a discretion as to whether they are sufficient to authorize taxation". That is entirely in accordance with my view, and expresses what I desire to convey.
In Holpitt Burchett J considered whether special circumstances existed to warrant leave being given to use in a proceeding documents which had been obtained on discovery in another proceeding. At 578 he said of the expression "special circumstances" that:
" ... it is an expression which is liable to be misunderstood unless care is taken to ask and answer the question, special in relation to what? 'Special' is one of those words which derive almost all their meaning from the context".
Thus understood, resort to the dictionary for the meaning of "special" is hardly necessary, and carries the risk of diverting one from the general and well understood sense of the phrase, and the flexibility inherent in it. Nevertheless it may be seen that the understood sense accords with the first meaning of the word special, as an adjective, in the Oxford Dictionary, namely "Of such a kind as to exceed or excel in some way that which is usual or common; exceptional in character, quality, or degree". Of course, it is important that such reference to the dictionary not be for the purpose of, or result in, placing a gloss upon the generality of the phrase "special circumstances", indeed that would be inadmissible, and that I think is what his Honour warned against together with the risk of being diverted from the accepted meaning of the phrase by emphasis upon a meaning or two in the dictionary definition. But the meaning I have set out accords with the ordinary meaning of the phrase as one would understand it, and as it has been understood. [Citations omitted and underlining added]. [5]
44 Wurth relies upon a number of matters which, in combination, it says amount to 'special circumstances'. Those matters are as follows:
(a) The delay in commencing the proceeding, being only eight days, is very short;
(b) That eight day delay equates to the eight day delay on the part of the panel in bringing the certificate of opinion to the notice of Wurth;
(c) Far from sitting on its rights of review following receipt of the opinion, Wurth promptly requested further reasons from the panel pursuant to s 8 of the Administrative Law Act 1978 (Vic) (as it was entitled to do) and it was not until 17 June 2010 that a response was received from the panel refusing to provide such further reasons;
(d) Wurth's solicitor was under a genuine, but perhaps mistaken, belief that time commenced from the date of receipt of the opinion rather than the date of the opinion; and
(e) There is no prejudice to Jury (or indeed any of the other defendants) should an extension of time be granted.
45 Whilst eight days may be a relatively short period of time by which to miss the mark, it was not merely missed by a day or so. Subject to the discretion to relieve from its operation, the nature of a time limit is that it happens to be absolute. To simply have regard to the fact that the date was only missed by a certain number of days tends to undermine the purpose of having time limits at all.
46 Next, it was said that the delay in issuing the proceeding matched the period of delay in the medical panel sending out its certificate of opinion and reasons. I have already mentioned that in some circumstances a lapse between the date of the opinion, and the communication of it, might constitute an ingredient in considering special circumstances. But to grant an extension because, or substantially because, a plaintiff managed to commence its proceeding with only the same delay as the period of delay in it receiving the certificate would amount to attributing the date of receipt as the date when time begins to run for r 56.02(1). As I have said, that is not the appropriate date.
47 Next it is said that the solicitor made a genuine mistake believing that time ran from the receipt of the opinion, perhaps confusing the time limit provisions in the Administrative Law Act 1978 (Vic) and those contained in r 56.
48 First it must be said that the evidence does not disclose any more than that the solicitor for Wurth had calculated that time would expire 60 days after receipt of the opinion and reasons, that expiry date being 2 July 2010. It is not said that the solicitor gave any thought to the question of when time began to run, nor that she researched any authority on the issue or consulted with any other person. She does not say that she made an assumption based upon the regime under the Administrative Law Act.
49 All that can be said is that she made an erroneous assumption.
50 That does not seem to me to amount to a special circumstance. There was not the same foundation for legal uncertainty that may have existed prior to Sodexho. There was not the same conscious and diligent consideration given to the issue as there was in the Sodexho matter. And, as I have mentioned, the firm in which she was employed was the very same firm that had formed the view, held to be erroneous, in the Sodexho case.
51 For those reasons I do not consider that the error made by the legal advisers of Wurth, in this case, has the same potency as a special circumstance as it may have had in the Sodexho case.
52 The next argument was that Wurth was awaiting the medical panel's answer to its request for further and better reasons for its opinion. It is also argued that no adequate explanation has been given by the medical panel for its delay in responding to that request.
53 Once again, the evidence relied upon by Wurth does not, in terms, show that the failure by the medical panel to respond to the request for further reasons was the reason for Wurth failing to issue its proceeding on time. The assumption by the solicitor that Wurth had until 2 July seems to be the real explanation. Possibly the reason why Wurth does not specifically advance the medical panel's delay as the cause of its own failure to issue on time is that, as the facts demonstrate, it was perfectly capable of commencing the proceeding in the absence of the medical panel providing any further reasons. In other words, Wurth did not need further and better reasons to issue the proceeding as its conduct has now shown. It could and should have been aware of the time limit and been ready to go with its proceeding regardless of whether or not the medical panel responded.
54 Associate Professor Eisen's opinion of 18 May 2010 to the effect that the medical panel had relied upon 'unreferenced evidence' was received by Wurth some 40 days or so before the time limit expired. Essentially, Wurth's complaint in this proceeding is based on that very ground - that is, that the medical panel relied upon unreferenced evidence.
55 If, pursuant to Wurth's request, the medical panel had provided satisfactory references that may have made a proceeding unnecessary. But so long as the request remained outstanding Wurth had its ground for review, such as it is. Seen in this way, the failure of the medical panel to respond to Wurth's request in a timely fashion was not causative of the delay. Moreover, the failure (if that is what it is) of the medical panel to provide an 'adequate' explanation for its delay does not seem to me to be relevant one way or the other to Wurth's conduct.
56 For all of the above reasons I reject the argument that special circumstances exist so as to justify an extension of time. Accordingly, I would dismiss the proceeding on that basis alone.
57 In case my discretion in this matter has miscarried, I will nevertheless proceed to deal with the merits of the application.
Did the medical panel commit a jurisdictional error?
58 The test for jurisdictional error was authoritatively stated in Craig v South Australia[6]:
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 any 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.[7]
59 A medical panel convened to form its opinion as to medical questions referred to it under the Act is also bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by the discharge of that function.[8] In that regard Kyrou J summarised applicable authorities in Vegco Pty Ltd & Victorian WorkCover Authority v Dr Gibbons[9]:
A medical panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions. The medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during the examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker and a matter within the panel's own expertise and does not prior to reaching the final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[10] (Citations omitted).
60 The precise content of the obligation to accord natural justice will vary in each case. In Kioa v West[11] Mason J said:
The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? ... in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.[12]
61 In this case Wurth ultimately relied upon four bases for asserting jurisdictional error. They are as follows:
(1) The medical panel denied the plaintiff natural justice or procedural fairness in failing to advise the plaintiff that it had considered the following matters ('the factors'):
(a) medical studies which confirmed that 10 per cent of persons suffering from Lyme Disease are seronegative and only 25 per cent or less of Lyme Disease affected persons remember a tick bite or the initial rash of erythema migrans from the tick bite;
(b) rare cases of dilated cardiomyopathy, in Europe, based upon the isolation of B.burgdorferi from heart tissue;
(c) serological studies of patients with cardiomyopathy;
(d) hypotheses that the inability to detect B.burgdorferi in more persons with chronic heart disease could be due to infection in remote (rather than recent) past;
(e) evidence from the United States regarding Lyme Disease associated cardiomyopathy ;
(f) autopsy findings in unique cases of an enlarged heart with biventricular hypertrophy and an organising fibrinous pericarditis;
(g) that an analogy could be drawn between non-inflammatory cardiac histology in the fifth defendant's case and advanced phases of viral myocarditis showing no signs of inflammation.
(2) The medical panel denied the plaintiff natural justice or procedural fairness in failing to provide the plaintiff an opportunity to provide material to the medical panel as to the relevance, strength and weight to be accorded to the factors in the course of answering the medical questions.
(3) The medical panel fell into jurisdictional error by taking into account matters it was bound to have no regard to, namely, 'a small number of cases histologically proven Lyme related cardiomyopathy [having] been reported', which was mistaken and/or inaccurate and hence irrelevant.
(4) Failing to provide adequate or proper reasons.
62 I will discuss each of these matters in the order that the plaintiff argued them: taking into account irrelevant considerations; procedural unfairness; and inadequate reasons.
63 Before coming to them I will set out the medical debate that existed prior to the medical panel giving its opinion, the issues that were exposed by that debate and the way in which the medical panel dealt with those issues.
64 Dr Brian Wood, cardiologist, expressed the view in a report 9 April 1996:
Echocardiography showed hypertrophic myopathic process with marked reduction in left ventricular systolic function and apical mural thrombus ...
... Cardiac biopsy did not show an infiltrative or inflammatory process with only hypertrophy being evident.
...
The exact genesis of his myopathy is indeterminable at this point and if he transpires to have a hypertrophic myopathy then a review of the family situation and indeed even genetic assessments may be appropriate.
As you may be aware he recently presently (sic) with an embolic stroke as the first manifestation of a cardiomyopathy. The mechanism of the latter is unclear with really quite spectacular left and right ventricular wall thickening on echocardiography along with dilatation with marked systolic dysfunction.
66 Dr Andrew Fuller, an infectious diseases physician at the Alfred Hospital, said in a report dated 23 November 2006:
Lyme disease is a bacterial infection that occurs only in Europe and USA from a tick bite ... it is known that this disease can cause repercussions later and in particular that bacteria Borrelia can cause disease in skin, joint, brain and heart.
67 In respect of Jury's skin lesions developed in 2005 Dr Fuller said this:
This particular condition is known to be a late complication of Lyme disease, and Dr Sarah Swain (an anatomical pathologist at the Alfred Hospital) has seen the Lyme bacteria in the skin lesions ... Dr Swain is absolutely convinced that these are Borrelia organisms. Dr Swain looked at the myocardial tissue taken from a small piece of his explanted (removed heart) in 1997 but could not confidently see Borrelia in the old heart. Tissue samples from skin and heart were sent to Austria for PCR which is a DNA detection technique to detect Borrelia. This week the result came back as negative but this does not rule out Lyme disease.
At present we are one hundred percent sure that Darren has Lyme disease affecting his skin ... I believe the Borrelia has also damaged his heart leading to heart failure and necessitated his heart transplantation. Unfortunately we cannot prove this beyond doubt. Clinically it is highly likely however.
...
Darren's is a most extraordinary case and of note, on testing many times his serology for Lyme disease is negative, including on blood taken in 1997 prior to his heart transplantation. This is a little surprising but not unheard of as up to 10 percent of cases can be antibody negative.
68 Another infectious diseases physician Dr Peter Stanley provided a report dated 22 November 2007 in which he said as follows:
Involvement of the heart is most commonly associated with electrical disorders but rarely may result in infection of the heart muscle leading to a poorly functioning heart pump, a condition generally known as cardiomyopathy. Borrelia organisms have been reported as being isolated from the heart muscle of a patient who had a long standing cardiomyopathy. If one accepts that Mr Jury has a late skin manifestation of infection with Borrelia and in an earlier time the patient suffered from a cardiomyopathy for which no cause was found then, in retrospect I think it is reasonable to assume that the cardiomyopathy is very likely to be related to infection with the Borrelia bacteria. Embolic stroke is a very common complication of cardiomyopathy and may be the original presentation.
69 Dr Stanley was asked directly to comment on the likelihood that a person who has tested negative for Lyme disease on many occasions could still be suffering from the condition. He said:
Especially early in the clinical disease the blood tests may be negative but with the late skin disorder as described here with Mr Jury one would normally expect the test to be positive. However, as I have mentioned above, I think that the majority of the evidence suggests this infection and the negative test does not exclude the possibility. It should be noted that Mr Jury would differ to most patients with this late skin condition in that he has required a heart transplantation which necessitates the use of significant immunosuppressive drugs which he continues to the present time. It is not unreasonable to believe that such treatment may suppress his capacity to produce a variety of antibodies that are usually detected in the test for Lyme disease.
70 On 24 October 2007 Dr Angus Hamer, a cardiologist and electro physiologist, expressed a contrary view. He said:
Hypertrophic cardiomyopathy may be secondary to pressure effects on the heart, such as from severe systemic hypertension or valvular disease ... There is no evidence in Darren Jury's case for either of those mechanisms. "Idiopathic" hypertrophic cardiomyopathy can otherwise be caused by genetic abnormalities ie. one of a multitude of genetic defects that control the growth of cardiac muscle. This is the most likely reason for the hypertrophic cardiomyopathy in Darren's case.
Infectious disease experts have given their opinion that Lyme disease could affect the heart by causing a myocarditis and given that Mr Jury's skin lesions indicated late stage Lyme disease, it would be expected that studies of the heart would reveal evidence of myocarditis with direct evidence of the causative organism in the heart itself. Specifically there was no evidence for myocarditis or the presence of the causative organism in the heart biopsy study.
Thus my conclusion would be that Darren Jury had hypertrophic cardiomyopathy that cannot be related to the late stage Lyme disease causing his skin lesion.
71 It was in these circumstances, and with the benefit of these opinions, that Associate Professor Eisen, another infectious diseases physician, expressed his views in a report dated 16 March 2009. He had available to him the opinions of Dr Wood, Dr Fuller and Dr Stanley.
72 He first concluded it was probable that Jury had late stage Lyme disease following his brief exposure in the Lyme endemic area in the Black Forest in 1993. He then went on to say:
The evidence supporting Lyme disease at (sic) a cause of hypertrophic cardiomyopathy is limited to the presence of acrodermatitis chronica atrophicans as a late stage of the disease. I believe that it is improbable that Lyme disease was the cause of the cardiomyopathy.
Carditis caused by Lyme disease is a rare entity but it is clear that it causes myocarditis rather than hypertrophic cardiomyopathy. ... There was no evidence of myocarditis in the biopsy of Mr Jury's heart taken prior to heart transplantation as would be expected. Additionally, while as has been stated in reports from Dr Fuller and Dr Stanley, Lyme, serology is insensitive in the early stages of Lyme disease, patients with late stage Lyme disease such as Lyme carditis are universally seropositive for Lyme disease.
On the balance of probabilities, I believe that Mr Jury did have chronic Lyme disease with characteristic skin involvement. I do not believe that cardiomyopathy was related to Lyme disease because as above, the characteristic inflammatory myocarditis was absent, no Borrelia organisms were seen in the endomyocardial biopsy, PCR of the endomyocardial biopsy for Lyme disease was negative and the patient was seronegative on Elisa and Western Blot for antibodies to Lyme disease prior to immunosuppression.
The medical reports indicate that the cardiomyopathy was hypertrophic and this indicates a non-infective process was the likely cause of cardiomyopathy. It is beyond my specialist experience to suggest the non-infective basis for this hypertrophic cardiomyopathy.
74 Accordingly, before the medical panel gave its opinion, a debate was identified in the medical reports to which I have just referred. Relevantly, the debate can be summarised as follows:
(a) Jury's heart condition was diagnosed as cardiomyopathy, or featuring a myopathic process, meaning that the tissue in the heart demonstrated muscle weakness and wasting.
(b) Investigations showed that the myopathy was hypertrophic - meaning that it was associated with thickening and swelling of the cells in the heart.
(c) Although no infective process was observed in the heart tissue, or revealed in any biopsy or blood tests, some doctors nevertheless believed that an infective process caused by the Borrelia organism was the most plausible explanation for the cardiomyopathy and thought that the absence of observations of any infective process, whilst normally to be expected, could be explained.
(d) Other doctors, including Professor Eisen, considered the absence of observation of any infective process to be determinative against the likelihood that the Borrelia organism was involved in the cardiomyopathy, leaving only hypertrophy (and thus some other, unidentified underlying cause) to be the explanation of the heart dysfunction.
75 It was against the background of those reports, and the medical divide that I have identified, that the medical panel expressed its opinion. It is worth setting out in full the relevant parts of the opinion having regard to the assertion that the panel took into account irrelevant material, did not accord Wurth a chance to address new evidence and did not adequately give reasons for its opinion.[14]
[2] The Panel noted that Professor Eisen also expressed reservations about the underlying myocardial disease and also said in the same report of 16 March 2009, "Carditis caused by Lyme disease is a rare entity but it is clear that it causes myocarditis rather than hypertrophic cardiomyopathy".
[3] The Panel also noted that Professor Eisen opined that "Mr Jury did have Lyme disease with characteristic skin involvement". He added "I do not believe that the cardiomyopathy was related to Lyme disease because ... the characteristic inflammatory mycoarditis was absent, no Borrelia organisms were seen in the endomyocardial biopsy [performed in June 1997 and which showed no significant increase in inflammatory infiltration in the interstitium], and the report also opined that PCR of the endomyocardial biopsy for Lyme disease was negative and the plaintiff was seronegative on Elisa and Western Blot for antibodies to Lyme disease prior to immunosuppression".
[4] The Panel considered this statement in the context of the documented findings of various studies, about which the Panel informed itself, confirming that 10% of persons suffering from Lyme Disease are seronegative and only 25% or less of Lyme affected persons remember a tick bite or the initial rash of erythema migrans from the tick bite.
[5] The Panel also noted the opinion of Dr Brian Wood, Consultant Cardiologist who attended the plaintiff at the time of his stroke and identified the plaintiff's cardiomegaly, and who stated in his letter dated 9 April 1996, that the echocardiography performed at the Mornington Peninsula Hospital showed a "hypertrophic myopathic process" and the "Cardiac biopsy did not show any infiltrative or inflammatory process ... ".
[6] The Panel noted that all the referral documents contain ample evidence confirming the diagnosis of late stage Lyme disease of the skin with histological and clinical evidence for the diagnosis based on the development of acrodermatitis atrophica chronica and anetodermia, and other essential indicators of the epidemiological circumstances for making the diagnosis of dermatological Borreliosis, but the same examiners express significant reservations about the plaintiff's cardiac involvement in the disease process.
[7] The Panel also considered the relationship between the plaintiff's condition of hypertrophic cardiomyopathy and his subsequent cardiac transplant and whether or not his cardiac condition resulted from chronic Borreliosis affecting the plaintiff's heart muscle.
[8] The Panel noted, as previously indicated, that some emphasis was placed by some medico-legal reporters on the absence of signs of inflammatory disease in the extirpated heart's myocardial tissues, and focussed only on the hypertrophy of the plaintiff's myocardium. The Panel also noted that there is some conjecture, by the medico-legal examiners in their reports, that signs of an inflammatory process would be expected in any infective or inflammatory disease, and that no such signs were evident in any of the histological studies of the plaintiff's heart, apart from hypertrophy. By implication, the medico-legal examiners surmise that the hypertrophic cardiomyopathy possibly did not result from an infective process in the tissues of the heart caused by Borrellia spirochaetes, because no spirochaetes were discovered by histological examination and PCR and Elisa studies of tissues taken from the extirpated heart were inconclusive. The Panel considered all of these opinions and considered that it is acceptable that in Lyme Disease, organisms may not be identified and any identifiable changes in the heart may be considered analogous to post viral cardiomyopathy where myocarditis may be seen initially but not in the advanced phases of viral disease of the myocardium.
[9] The Panel has made extensive enquiry and informed itself of rare cases of dilated cardiomyopathy, in Europe, based upon the isolation of B.burgdorferi from heart tissue and upon serological study of patients with cardiomyopathy. It has been postulated that the inability to detect B.burggdorferi in more persons with chronic heart disease could be due to infection in the remote (rather than recent) past (consistent with the history in this case). In this hypothesis, cardiomyopathy results from residual scarring and fibrosis as opposed to continued active infection. The Panel is aware that this process has yet to be confirmed in the experimental animal model.
[10] The Panel considers that evidence for the existence of Lyme associated cardiomyopathy in the US is less compelling. The association between Lyme disease and cardiomyopathy is not certain for the vast majority of persons in whom the diagnosis of Lyme carditis was based on laboratory tests other than culture. Autopsy findings in unique cases have been reported to reveal an enlarged heart with biventricular hypertrophy and an organizing fibrinous pericarditis.
[11] The Panel is aware that there have been reported cases of concentric hypertrophic myocardiopathy diagnosed by echocardiography in some cases of Lyme carditis, one with a 12 year history of evolving Lyme disease.
[12] The Panel concluded, after very careful consideration of all aspects of the claimed injury, that there is evidence that cardiac abnormalities, in addition to conduction defects and rhythm disorders, including hypertrophic cardiomyopathy can occur, though rarely, as a late complication of infection of the heart with Borrelia burgdorferi.
[13] The Panel reviewed the epidemiology of Lyme Disease in Europe and noted that acrodermatitis atrophica chronica was a well established dermatological entity prior to the recognition of dermal disease caused by spirochaetal infection by the Borrelia organism. It occurred chiefly in older persons under the title of "diffuse idiopathic atrophy of the skin", and was encountered in middle, eastern and northern sections of Europe. It was considered, even then, that due to its limited geographic distribution, and the beneficial effect of antibiotics, that a vector borne infection was a provable cause of the skin condition. The incidence of acrodermatitis atrophica chronica and its geographical distribution matches the distribution of Lyme disease in endemic areas of tick borne disease in Europe.
[14] The Panel considered all these factors, and concluded that the plaintiff has suffered from Lyme disease with its initial manifestations as a stroke resulting from cerebral thromboembolism arising from a left mural thrombus secondary to hypertrophic cardiomyopathy.
[15] The Panel considers that hypertrophic cardiomyopathy can result, though infrequently, from chronic myocardial infection due to late stage Lyme Disease, and notes that a small number of cases of histologically proven Lyme related cardiomyopathy has been reported.
[16] The Panel carefully considered the possible alternative causes of hypertrophic cardiomyopathy and identified no other risk factor, including hypertension, viral myocarditis, ischaemic heart disease, metabolic disorder or congenital factor, or any personal or family history of heart disease. The Panel considered that there is no reason to search for comorbid conditions of any other nature to explain the evolution of hypertrophic cardiomyopathy in this case, when there is documented evidence of late stage Lyme disease resulting in hypertrophic cardiomyopathy.
[17] The Panel considered the known clinical features of Lyme Disease, its causation, the circumstances of actual exposure to the risk of infection in an endemic area, and the known natural history of chronic infection due to Borrelia sp. The Panel considers that there is satisfactory histological evidence of myocardial infection by the Borrelia organism in the plaintiff's case.
[18] The Panel therefore concluded that the plaintiff's employment affected the plaintiff such that he contracted Lyme disease as a result of a tick bite whilst in Germany in the course of his employment and has suffered consequential medical conditions.
76 The reasoning of the medical panel, as set out in the extract above, may be summarised in the following terms:[15]
77 Following receipt of the medical panel's opinion Wurth sent it to Professor Eisen for his further views. In a report dated 18 May 2010 Professor Eisen said as follows:
The Medical Panel put forward unreferenced evidence of "autopsy findings in unique cases ... (of) enlarged heart with biventricular hypertrophy". The panel also proposes an analogy between Lyme disease and post viral cardiomyopathy where myocarditis may be seen initially but not in the advanced phases of viral disease. I have found one case in PubMed of a case of scintigraphically diagnosed myocarditis in a patient with serological evidence of Lyme disease and hypertrophic cardiac changes. No cardiac histology was available to support the diagnosis of Lyme carditis. This is the only case I can find on searching PubMed but acknowledge there may be others in case series (sic)".
78 Professor Eisen went on to state his difficulty in accepting the conclusion of the medical panel that Jury was suffering from the sequelae of Lyme carditis, essentially repeating his previous arguments as considered by the panel.
79 Two important things are to be noted about Professor Eisen's opinion in response to the medical panel: first, the only "unreferenced evidence" to which he drew attention was the underlined passage in paragraph [10] of the panel's reasons extracted above. He did not appear concerned with or troubled by any of the other references to which the panel had recourse and about which Wurth now complains.
80 The second point is that, even in respect of the reference to "autopsy findings in unique cases", Professor Eisen appears to acknowledge the existence of one supporting reference and further to concede that there may be others, explaining that he had not made an exhaustive search of all case series.
Did the panel take into account irrelevant matter?
81 In my view this ground can be disposed of succinctly.
82 The so called irrelevant matter is the 'small number of cases of histologically proven Lyme related cardiomyopathy [having] been reported'.[16]
83 It is not asserted that the information is irrelevant; rather it is said that it is mistaken. If the panel were to take into account a matter that was demonstrably wrong, by doing so it may well fall into jurisdictional error.[17] But here there is no such case of error. All that Wurth can say is that, whereas the panel referred to 'a small number of cases', Professor Eisen's admittedly limited research (in PubMed) only uncovered one such case.
84 No mistake or reliance upon inaccurate factual material is demonstrated. Accordingly I reject that ground of jurisdictional error.
Did the panel fail to accord Wurth a fair opportunity to be heard (ie fail to accord procedural fairness)?
85 In respect of this argument Wurth complains about the failure on the part of the panel to advise Wurth of the five sources of information highlighted in the extract of the panel's reasons set out above.[18]
86 I have already noted that Professor Eisen himself did not appear to remark upon any unreferenced evidence other than the 'autopsy findings'.[19] In other words, there is no explicit suggestion from Professor Eisen that he did not consider himself denied the chance to address the critical issue before the panel by reason of not being apprised of the sources of information relied upon by the panel. Although drawing attention to the autopsy findings as 'unreferenced evidence' his subsequent remarks seem primarily to address the 'analogy' which the panel drew with post viral cardiomyopathy[20]. He responded to that argument, and possibly to the "small number of histological cases" reference, by conceding that he had found (only) one supporting case in PubMed. It may well be that the case that he found in the PubMed database was also germane to the "autopsy findings" issue as well.
87 Other than referring to the PubMed case, which appears to be supportive of rather than contrary to the panel's view, Professor Eisen merely rehearses his earlier arguments.
88 Accordingly I find little support in Professor Eisen's report subsequent to the medical panel's opinion for an argument that Wurth was unfairly denied an opportunity to be heard on the critical issues that were before the panel.
89 I accept that a panel may, in certain circumstances, fail to accord natural justice by having regard to new evidence or information, not seen previously by the parties, if it fails to permit the parties a reasonable opportunity to address such new evidence or information.[21] But, as already mentioned, the precise content of what the duty to act fairly requires emerges from the particular circumstances of each case.
90 In my view, in the present case there has been no failure to accord Wurth a reasonable opportunity to be heard on the issue of whether Lyme disease can cause hypertrophic cardiomyopathy, or whether the clinical observations with respect to Jury do or do not fit within a reasonable hypothesis of any such causal connection.
91 The debate was well identified in the medical reports supplied to the panel. The panel addressed the ingredients of that debate and did not stray into some different debate. It considered carefully the arguments raised by Professor Eisen, those arguments no doubt informed by his own research, and came to a different view aided by its own research and reasoning process.
92 The panel is an expert panel. It is expected to apply its collective clinical experience and to undertake appropriate research of medical literature in order to form its opinion. That is what experts do. If it engages in wider research than did some of the experts called by a particular party, a judgment is to be made as to whether such research raises truly new matter, such that it would render it unfair to the parties not to have a chance to address it, or whether the research is merely more extensive but was otherwise available to the parties.
93 I am not persuaded that the so called unreferenced material relied upon a panel was 'new' in the sense I have described. I am fortified in this conclusion by the absence of any apparent complaint or surprise expressed by Professor Eisen in his subsequent report.
94 But it is also apparent from a careful analysis of what was in issue, what had been addressed by the competing experts prior to the panel's opinion, the nature of the 'unreferenced' information to which the panel refers, and the use which the panel makes of that information in the context of those issues, that recourse to that research was simply the proper exercise of the panel's own expertise in the process of forming an opinion about a debated matter which Wurth had been accorded a reasonable opportunity to address.
95 For those reasons I reject the submission that Wurth was denied procedural fairness.
96 A medical panel is obliged to give reasons which would:
97 Specifically addressing applicable principles in relation to medical panels, Forrest J said in Clarke v National Mutual Life Insurance Ltd & Ors:[25]
98 It was contended on behalf of Wurth that because the reasons in this case were given after the recent amendment to s 68(2) of the Act, imposing a statutory obligation to give written reasons in support of every certified opinion, the reasons in this matter are not governed by the decision in Sherlock v Lloyd & Ors.[27] In that decision, in which a medical panel had been requested under s 8(1) of the Administrative Law Act 1978 (Vic) to provide a statement of reasons for its opinion, the Court of Appeal held that mere inadequacy of reasons is not, by itself, an error of law.
99 Wurth points out that prior to the amendment medical panels had no statutory obligation under the Act to give reasons for their opinions. Sherlock was a pre-amendment case. Wurth therefore distinguishes a panel's obligation in that situation from its new statutory obligation which, it argues, attracts the reasoning in Campbelltown City Council v Vegan.[28] In that case it was held, in respect of an approved medical specialist who was obliged to give reasons, that mere inadequacy of the reasons could constitute an error of law.
100 I find it unnecessary to resolve that issue because, on any view, I consider that the reasons given by the panel were adequate for all of the purposes outlined above. I have extracted at length the reasons given by the panel and I have articulated what, in my view, are the logical steps that emerge from the panel's reasoning process. In my view those reasons plainly enable the Court and the parties to understand that the question referred to the panel has been properly considered, and they provide sufficient explanation as to why the panel reached the conclusion that it did.
101 Wurth's argument that the panel failed to give sufficient reasons in substance relies upon the same complaint it has made in respect of failure to accord procedural fairness: that is, that the reasons fail to sufficiently identify, particularise or disclose the research sources upon which the panel relied in coming to its conclusion. In my view that does not denote a failure to explain its reasoning process nor does it preclude the parties seeing how its conclusion was reached.
102 Wurth's argument on this point more closely resembles an attempt to engage in a merits review of the decision. Seen in that way the asserted error does not amount to a jurisdictional error.
103 For those reasons I also reject the final ground for review.
104 For the foregoing reasons I find that the originating motion was filed out of time, thus necessitating an order extending to time under r 56.02(3) in order to commence the proceeding. I do not, however, consider that special circumstances exist so as to warrant the grant of an extension of time, and I refuse the application for such extension. It follows that the proceeding has not been validly commenced and should be dismissed on that ground.
105 If I am wrong the plaintiff has failed to demonstrate that the panel has committed any jurisdictional error so as to warrant its opinion being quashed.
[2] Treacy v Newlands [2007] VSC 224, [9].
[5] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68]-[71]
[7] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179.
[8] Masters v McCubbery (No 2) [1995] VICSC 209; [1996] 1 VR 635.
[10] Vegco Pty Ltd & Victorian WorkCover Authority v Dr Gibbons [2008] VSC 363, [23].
[12] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.
[13] Emphasis has been added in some of the extracted opinions below.
[14] The underlined passages in the following extract are the passages to which Wurth points as constituting factors regarding which it was deprived of the opportunity to address. Numbers have been assigned to the paragraphs to assist in later references.
[15] Paragraph numbers are references to the paragraphs in the extract of the panel's opinion set out above.
[16] See paragraph [15] of the panel's reasons extracted above.
[17] Tralongo v Malios [2007] VSC 239; Cladingboel v Newcrest Milling [2007] VSC 345; Ripper v Kotzman [2008] VSC 448; Jasky v Dr Cooney & Ors [2009] VSC 51; Smith v Commonwealth of Australia [2009] VSC 419.
[18] See paragraphs [4], [9], [10], [11] and [15] of the panel's reasons set out above.
[19] Referred to in paragraph [10] of the panel's reasons set out above.
[20] Referred to in paragraph [8] of the panel's reasons set out above.
[21] Vegco Pty Ltd & Victorian WorkCover Authority v Dr Gibbons [2008] VSC 363, referred to in paragraph 59 above.
[22] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 650 (Winneke CJ); Kamener v Griffin (No 2) [2005] VSC 202, [61] (Ashley J); Davidson v Fish & Ors [2008] VSC 32, [9] (Pagone J).
[23] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635, 653 (Ormiston JA).
[24] Sherlock v Lloyd & Ors [2008] VSC 450, [43] (Kyrou J).
[26] Clarke v National Mutual Life Insurance Ltd & Ors [2007] VSC 341, [43].
Wurth Australia Pty Ltd
Gallichio & Ors [2010] VSC 630
(1995) 184 CLR 163
(1985) 159 CLR 550