Plaintiff v First Defendant

2 In broad summary, the plaintiff raises the following points in his challenge to the Panel's opinion. He says:

(a) that the Panel was obliged in law to ask itself whether, having regard to all of the plaintiff's relevant personal circumstances, the plaintiff was, as from April 2018, able to find or obtain employment of the kinds in question, not merely whether he would be able to perform the physical tasks involved;

(b) that the Panel did not ask itself this;

(c) that the Panel was also required by applicable legal principles to give 'proper genuine and realistic consideration' to the question whether the plaintiff had 'no current work capacity', and that this involved a requirement to consider closely and in depth whether there was a 'match' between the plaintiff's abilities and circumstances, on the one hand, and the requirements of particular jobs, on the other hand;

(d) that the Panel did not do that;

(e) that there was no evidence before the Panel to support its finding that the plaintiff could be employed as a warehouse administrator or product assembler;

(f) that the Panel failed to take into account evidence that the plaintiff lacked relevant skills;

(g) that the Panel failed to take into account the plaintiff's residual impairment from the compensable injury;

(h) that the Panel wrongly took into account, or gave too much weight to, the plaintiff's experience as a warehouse manager, his experience as a process worker and his own views about his work capacity;

(i) that, in corresponding respects, the Panel's statement of reasons for its opinion was legally inadequate.

3 The plaintiff gives most emphasis to points (a)-(d) and (i). This translates into three main grounds of challenge, comprising what might be called the 'employability' ground (points (a) and (b)), the proper consideration ground (points (c) and (d)) and the inadequate statement of reasons ground (point (i)). The plaintiff relies on the same or similar arguments to support each of his three main grounds. In particular, he relies heavily on the 2016 judgment of the Court of Appeal in Richter v Driscoll ('Richter v Driscoll').[2] In certain respects, he relies also on a judgment of my own given in 2019, Lang v Spendless Shoes Pty Ltd ('Lang'),[3] in which I considered Richter v Driscoll and applied aspects of it. He cites a large number of other cases too.

4 In relation to all of the plaintiff's grounds, and particularly in relation to the 'employability' ground (points (a) and (b)), it is my opinion, as will be seen, that it is at least doubtful whether the Panel was required, either by Richter v Driscoll (as that case now falls to be read) or otherwise, to form a view as to whether the plaintiff, in his relevant personal circumstances, would be able to find or obtain employment. In any event, I am far from satisfied that the Medical Panel did not in fact ask itself whether the plaintiff would be able to do so. Indeed, I consider that the Panel did ask itself that question, and, further, that the Panel answered it, albeit unfavourably to the plaintiff.

5 In relation to the proper consideration ground (points (c) and (d)), the plaintiff has not shown, in my opinion, that the Panel did not give due consideration to the question whether he had 'no current work capacity'. He fails on this ground for largely the same reasons as he fails on the 'employability' ground. The plaintiff's reliance on Richter v Driscoll in this regard also fails to take into account the vast differences of factual context as between that case and this one. Likewise his reliance on Lang. As a related matter, more recent authorities tend increasingly to confirm that the words used in Richter v Driscoll about the way in which Medical Panels might address questions of work capacity should not be applied in a fashion that would directly or indirectly lead to review on the merits of Panel opinions.[4] And, contrary to a tentative suggestion I raised during the hearing, the Panel was not, in all the circumstances, obliged to make any further inquiries about the reason why the plaintiff was not engaged in employment during certain periods prior to the Panel's decision.[5]

6 On any view, the plaintiff's points (e)-(h) are devoid of merit.

7 As to the inadequate statement of reasons ground (point (i)), I can see no legal inadequacy in the Panel's statement of reasons. This conclusion is fortified by the more recent authorities referred to above.[6]

8 Hence, the plaintiff has not shown any error of law or any jurisdictional error.

9 The proceeding falls to be dismissed accordingly.

The plaintiff and his pre-injury work history, in brief summary[7]

10 The plaintiff, Peter Jordan, was born in 1971. He left school after completing Year 9, in about 1987. Then, for about 30 years, he was in regular employment, at least for most of the time. He worked mainly as a forklift driver/storeman for various companies. At one stage, for several years, he worked as a warehouse manager supervising three others. He joined the fourth defendant, Programmed Skilled Workforce Ltd ('Skilled'), which is a labour hire company, in 2012 as a store person. By 2015 Skilled had placed Mr Jordan with a beverage company as a casual warehouse worker. Prior to being injured, Mr Jordan was averaging about 30 hours per week, driving forklifts, stacking crates and handling pallets at the beverage company. In due course I will refer in more detail to the plaintiff's pre-injury work history and its significance for the task of the Medical Panel.

11 In June 2015, Mr Jordan became aware of progressive lower back soreness over the course of a week in relation to his physical duties at the beverage company. The symptoms persisted and he ceased attending the beverage company. On 2 July 2015 he claimed statutory compensation against Skilled under Part 5 of the Act in relation to his back condition (only). The claim was accepted, with an accepted injury date of 26 June 2015.

Weekly payments and the plaintiff's post-injury employment

12 Under the Act,[8] Mr Jordan became entitled, at least for a time, to receive weekly payments of compensation for incapacity for work resulting from or materially contributed to by the injury. However, from time to time between the second half of 2015 and Easter 2017, Mr Jordan engaged in part time or full time employment with three separate employers for varying periods. Payments of weekly compensation during those periods of employment would presumably have been suspended or adjusted in accordance with the applicable provisions of the Act.[9] Those periods of employment were also highly relevant (in ways to which I will refer in due course) to the task of the Medical Panel that was later convened.

The expiry of the plaintiff's initial entitlements to weekly payments

13 By about the end of 2017 Mr Jordan was facing the expiry of the period that the Act calls the 'second entitlement period'.[10] Broadly speaking, that period expires at the end of 130 weeks from the date of the injury. So far as relevant, s 163(1) of the Act provides that, subject to s 165,[11] a worker's entitlement to compensation in the form of weekly payments under Part 5 ceases upon the expiry of the second entitlement period unless the worker is assessed by the Victorian Workcover Authority ('VWA') or, where applicable, by the relevant self-insurer as having 'no current work capacity and likely to continue indefinitely to have no current work capacity'.

14 The expression 'no current work capacity' is defined in the Act to mean 'a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment'.[12] The expression 'suitable employment', in turn, is also defined in the Act. The definition is elaborate and I will come back to it.

15 By notice dated 22 January 2018, the VWA, by its agent EML VIC Pty Ltd, notified Mr Jordan that his entitlement to weekly payments of compensation would be terminated on and from 28 April 2018 on the basis that he had a 'current work capacity for suitable employment' or alternatively on the basis that if he had no current work capacity this was not likely to continue indefinitely.[13]

The proceedings in the Magistrates' Court and the referral of medical questions to a Medical Panel

16 Mr Jordan challenged the VWA's termination decision in the Magistrates' Court.[14] In that proceeding Mr Jordan also applied under s 273 of the Act for leave to include a dispute arising from the rejection by the VWA of a request that Mr Jordan had previously made, namely a request that an alleged consequential psychiatric condition be accepted as a further injury within the underlying claim.[15] Then, pursuant to s 274 of the Act,[16] the employer requested a Magistrate to refer six stated questions to a Medical Panel. The Magistrate did so. A Panel was convened. The Panel was composed of three members - a psychiatrist, a rheumatologist and a neurosurgeon.[17] The referral from the Magistrates' Court was received by the Medical Panel on 16 October 2019.[18] It is common ground that the six referred questions were valid 'medical questions' within the meaning of the Act.

17 On 10 January 2020, pursuant to s 313 of the Act, the Medical Panel provided its certified written opinion on the medical questions (together with a written statement of reasons for its opinion).

18 Omitting formal parts, the Medical Panel's certified opinion reads as follows:

Question 1

What is the nature of the Plaintiff's medical condition (including any sequelae) relevant to the following injuries, as alleged in paragraph 4 of the Statement of Claim:

a) production, aggravation, exacerbation and/or acceleration of degenerative changes in the lumbar spine;

b) disc bulge at L4/5;

c) disc protrusion at L5/S1 with fissuring and narrowing to the lateral recesses, particularly on the right side, abutting the right S1 nerve root;

d) right sided sciatica;

e) consequential psychological injury?

Answer: The Panel is of the opinion that the Plaintiff is suffering from an aggravation of pre-existing but previously asymptomatic lumbar spondylosis without radiculopathy relevant to each of the injuries listed in 1a), 1b), 1c, and 1d).

The Panel is of the opinion that the Plaintiff is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood relevant to the injury listed in 1e.

Question 2

Was there caused to the Plaintiff an injury or injuries as a result of any injury suffered by the Plaintiff on 26 June 2015, namely consequential psychological injury?

Answer: Yes.

Question 3

If yes to the preceding question, as at the date of the Medical Panel's examination, does the Plaintiff continue to suffer from a consequential psychological injury?

Answer: Yes.

Question 4

In any, and if so what, period from 28 April 2018 up to and including the date of the Medical Panel examination, did the Plaintiff have 'no current work capacity'?

Answer: The Panel is of the opinion that the Plaintiff did not have 'no current work capacity' from 28 April 2018 up to and including the date of the Medical Panel examination.

Question 5

If yes to the preceding question, then in respect of each such period identified, did the Plaintiff's incapacity result from, or was it materially contributed to by any, and if so what, injury as alleged in paragraph 4 of the Statement of Claim?

Answer: Not applicable.

Question 6

If yes to question 4, is the Plaintiff's no current work capacity likely to continue indefinitely?

Answer: Not applicable.

The extent of the plaintiff's challenge to the certified opinion

19 The plaintiff does not allege that the Panel erred in any way in answering questions 1, 2 or 3. His attack is directed principally to the Panel's answer to question 4, which he alleges should be quashed. He would presumably seek to have the Panel's consequential answers to questions 5 and 6 (ie the 'not applicable' answers) quashed also. Alternatively, he seeks to have the entire opinion quashed.[19]

20 The members of the Panel (the first, second and third defendants) have agreed to abide the outcome of this proceeding in the usual way.[20] The matter is defended by the employer, Skilled (the fourth defendant).

The originating motion and the sequence of the parties' written and oral submissions

21 The plaintiff filed an originating motion for judicial review on 6 March 2020. He filed a lengthy written outline of submissions on 29 July 2020. Skilled filed a detailed responsive outline on 28 September 2020. The plaintiff filed written submissions in reply on 4 November 2020. There were two days of oral hearing by audio-visual means on 5 and 22 March 2021. Subsequently, on 30 March 2021, the plaintiff's solicitors wrote to the Court forwarding a copy of the judgment of Quigley J in Yildirim v A & L Windows Pty Ltd ('Yildirim')[21] that had been published on 25 March 2021. Like the present case, Yildirim was a case involving judicial review of a Medical Panel's opinion on questions relating to a 'no current work capacity' issue. The solicitors for Mr Jordan described Yildirim as 'a relevant decision'. On 12 May 2021, the solicitors for Skilled wrote to the Court to advise that the decision in Yildirim was under appeal. On 2 April 2022 the solicitors for Skilled wrote again to the Court, advising that the Court of Appeal had handed down its decision in A & L Windows Pty Ltd v Yildirim ('Yildirim Appeal')[22] on 1 April 2022 and enclosing a copy of that decision. In Yildirim Appeal, the Court of Appeal referred to, among other cases, Sidiqi v Kotsios ('Sidiqi v Kotsios'),[23] a judgment of the Court of Appeal that had been given on 25 June 2021.[24] Sidiqi v Kotsios was also about a Medical Panel opinion in a 'no current work capacity' matter. It was a detailed, elaborate judgment in which numerous cases were cited. Senior counsel for Mr Jordan in the present matter, Mr Uren QC, appeared in Yildirim, the Yildirim Appeal and Sidiqi v Kotsios. In the present case, since the reservation of judgment, neither side has sought to be heard, except by way of the messages just mentioned, on Sidiqi v Kotsios, Yildirim, Yildirim Appeal or any other case or matter. In all the circumstances, I do not consider it to be necessary, as a matter of procedural fairness or otherwise, to re-list the present case for further argument.

22 Section 3 of the Act contains, in alphabetical order, the following relevant definitions or relevant parts of definitions:

current work capacity, in relation to a worker, means 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;

...

incapacity includes -

(a) a disfigurement that is sufficient to affect the earning capacity of a worker or a worker's opportunities for employment;

...

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment;

...

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited -

(a) having regard to the following -

(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;

(ii) the nature of the worker's pre-injury employment;

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

(iv) the worker's place of residence;

(v) any plan or document prepared as part of the return to work planning process;

(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;

(b) regardless of whether -

(i) the work or the employment is available; or

(ii) the work or the employment is of a type or nature that is generally available in the employment market;

...

and, for the purposes of Part 4,[25] includes -

(c) employment in respect of which the number of hours employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and

(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and

(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;

The plaintiff's grounds and arguments generally

23 In paragraphs 2 and 3 above I summarised the plaintiff's case in broad terms, noting an emphasis by the plaintiff on points (a)-(d) and (i). At the outset of the oral hearing, Mr Uren QC said that his points could be divided into two categories or portions: first, inadequate reasons or failure to perform the statutory task; and, second, the matter of 'employability', regarded mainly as a question of statutory construction.[26] However, Mr Uren QC later went on to say that the plaintiff continued to rely on everything in his written submissions (including the written reply).[27] Those written submissions, in turn, had included material purporting to support each and every one of the grounds of review that had been pleaded in the originating motion, in corresponding order. Accordingly, I must in due course deal with each of those pleaded grounds. The effect will be to require me to deal with all of the points referred to in paragraph 2 above.

24 When I come to address the plaintiff's specific challenges to the Panel's opinion, I will adhere generally to the order in which the written submissions dealt with the pleaded grounds. However, there was a tendency in the plaintiff's submissions, both written and oral,[28] to run together attacks on the quality of the Panel's reasoning with attacks on the adequacy of the Panel's statement of its reasons. As I have said previously,[29] those concepts are not the same (though in some cases a particular matter may be relevant to both) and they should not be confused with each other. Gillard J once said, in a Medical Panel case, that 'a ground alleging inadequacy of reasons is sometimes the refuge of the desperate - if nothing else can be established, allege that the reasons are inadequate'.[30] That comment was referred to with apparent approval by J Forrest J in two Medical Panel cases decided in 2016.[31] Very recently, in Hatzigiakov v Cooney,[32] O'Meara J cited the judgment of the Court of Appeal in Karabinis v Bendrups[33] for the proposition that '[t]he care which must be exercised in respect of arguments directed to the allegedly "legally inadequate reasoning" of medical panels is well established'. However these things may be, it is generally preferable for the Court to consider, first, whether the challenging party has made out any substantive challenge to the Panel's reasoning before turning to any attack on the adequacy of the Panel's statement of its reasons. That is the path I will follow in due course in this matter.

Common ground as to 'beneficial construction' of a Medical Panel's reasons

25 At the hearing,[34] there was quite some discussion of the proposition often advanced that the stated reasons of an administrative tribunal or body (such as a Medical Panel) are entitled to a 'beneficial construction'.[35] The proposition is frequently traced to the judgment of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang ('Wu Shan Liang').[36] However, the parties are agreed,[37] and I accept, that the expression 'beneficial construction' was used in Wu Shan Liang in a specific, somewhat limited sense, and that that sense should be adhered to. In that regard, Mr Uren QC aptly cited what McKerracher J said in AHX 15 v Minister for Immigration and Border Protection and Refugee Review Tribunal,[38] as follows:

The appellant accepts, as he must, that the Court must avoid going through the Tribunal's reasons with an eye keenly attuned to finding error: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630. On the other hand, it is important not to contort what the Tribunal actually said in order to uphold the Tribunal's decision. As noted by Allsop J (as the Chief Justice then was) in Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 (at [14]-[15]), while a beneficial construction should be given to the way tribunals express themselves and a common sense and realistic approach should be taken to understanding the reasons as a whole to see what the Tribunal was saying, it does not follow that a beneficial construction should or could result in a situation where words are construed as meaning something other than what they, in a plain and common sense way, must be intended to mean. Rather, it is the 'combing through of the reasons with a finely attuned antenna for error that is impermissible'. Justice Stone also observed in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (at [26]):

The Minister urged a 'beneficial' construction of the Tribunal's reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, in particular at 271-272. The phrase 'beneficial construction', as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal's reasons be resolved in the Tribunal's favour. Rather, the construction of the Tribunal's reasons should be beneficial in the sense that the Tribunal's reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a 'beneficial' approach to the Tribunal's reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal's comments suggest that the issue was overlooked.

As Mr Uren QC also pointed out, similar observations were made by Katzmann J in FKM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[39] As already mentioned, this is not a controversial matter. Indeed, Mr Fleming QC (senior counsel for Skilled) correctly observed at the hearing[40] that the same point had been made, in effect, by the Victorian Court of Appeal in the very context of Medical Panels. I understand Mr Fleming QC to have been referring to the judgment of the Court of Appeal in 2014 in Gruma Oceania Pty Ltd v Bakar ('Gruma'),[41] in which the Court (Neave, Santamaria and Kyrou JJA) had said:[42]

As a medical panel is an administrative tribunal whose members are not lawyers, its reasons are entitled to a 'beneficial construction' in the sense that they should 'not ... be scrutinised ... over-zealous[ly] ... by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.'[43]

In December 2019, the relevant principle was summarised by the Victorian Court of Appeal in Maimonis v Bourke ('Maimonis')[44] as follows:

A medical panel is an expert tribunal and not a judicial body. Its findings need to be viewed in that light. A medical panel's reasons are meant to inform. Overzealous judicial review is to be eschewed.

In the same month, in Dundar v Bas ('Dundar'),[45] the Court of Appeal likewise said:

Fifth, a panel's reasons must be read fairly, as a whole and in context, and should not be subjected to overly zealous judicial review.[46]

That last observation was referred to with approval by the Court of Appeal in 2021 in Sidiqi v Kotsios.[47] In each of Gruma, Dundar and Sidiqi v Kotsios, the relevant observation of the Court of Appeal was made in the context of dealing with an attack on the adequacy of a Medical Panel's statement of reasons, as distinct from an attack on the quality of the Medical Panel's reasoning. However, in Maimonis, the context was not only a complaint about the adequacy of the statement of reasons, but also complaints of misinterpretation of the Act and of failing to take into account a relevant matter.[48] Accordingly, it is clear that a Medical Panel's statement of reasons is entitled to a 'beneficial construction' (albeit in the specific and somewhat limited sense referred to above) for all purposes.

26 I have referred in some detail to the 'beneficial construction' point in deference to the detailed submissions on it made by Mr Uren QC, and notwithstanding that the point is not contested. However, in my view, as will be further seen, the point is of no real significance in this case because there is no relevant ambiguity or other relevant deficiency, nor any other proper cause for concern, in the Panel's statement of reasons.

Principles for judicial review of Medical Panel opinions more generally

27 The leading case on the judicial review of opinions of Victorian Medical Panels is Wingfoot Australia Partners Pty Ltd v Kocak ('Wingfoot'),[49] decided by the High Court in 2013.[50] Basing itself mainly on Wingfoot, the Victorian Court of Appeal (Ferguson CJ, Beach and Ashley JJA) said in Maimonis:[51]

When considering each of Mr Maimonis' grounds of appeal, it is necessary to bear in mind the following principles, which were referred to specifically by the primary judge:

(1) The function of a medical panel is neither arbitral nor adjudicative. Its function in every case is to form and give its own opinion on the medical questions referred to it by applying its own medical experience and its own medical expertise. It is not its role to make up its mind by reference to competing contentions or competing medical opinions, but to form its own opinion.[52]

(2) It is not enough for a party challenging a medical panel's opinion to show that the panel's reasons for its decision are so expressed as to suggest the possibility that it preceded [sic] upon a wrong view of the law. A court is not entitled to interfere with a medical panel's decisions unless it is satisfied that there was in fact a vitiating error of law.[53]

(3) A medical panel is an expert tribunal and not a judicial body. Its findings need to be viewed in that light. A medical panel's reasons are meant to inform. Overzealous judicial review is to be eschewed.[54]

(4) A medical panel's statement of reasons must explain the actual path of reasoning by which it arrived at the opinion it in fact formed on the medical questions referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. A medical panel is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.[55]

28 Principle (1) as expressed in Maimonis calls for no further comment here.

29 Principle (2) as expressed in Maimonis (namely, that the challenging party must show that there was in fact a vitiating error of law) was derived by the Court of Appeal from authorities other than Wingfoot. However, the principle is well established.[56] Further, although principle (2) was expressed in terms of proceeding 'upon a wrong view of the law', and in terms of 'error of law', the principle extends to every kind of error, (including jurisdictional error generally and including failure to give an adequate statement of reasons) that might be alleged against an administrative body in a proceeding for judicial review. That appears in part from Maimonis itself, in that, as mentioned above, Mr Maimonis had advanced three grounds of appeal to the Court of Appeal, being alleged misinterpretation of the Act, alleged failure to take into account a relevant consideration and alleged failure to give an adequate statement of reasons,[57] and the Court of Appeal said expressly that the four stated principles were to be considered in relation to each of Mr Maimonis' three grounds.[58] The same appears also from the cases cited by the Court of Appeal in Maimonis for principle (2)[59] and from numerous other cases.[60]

30 So far as Maimonis principle (3) is concerned, I refer to and repeat what I have set out above under the heading 'Common ground as to "beneficial construction" of a Medical Panel's reasons'.

31 In relation to Maimonis principle (4), it was common ground at the hearing, and I accept, that a statement of reasons of a Medical Panel will not comply with s 313 of the Act if the Court is left in 'real doubt' as to whether the Panel has correctly exercised its statutory functions.[61] Subject to the abovementioned requirement to give the statement of reasons a 'beneficial construction' (in the sense mentioned), and subject to any considerations of materiality,[62] or discretion,[63] such non-compliance will generally lead to certiorari becoming available for error of law on the face of the record.[64] On the other hand, as already mentioned and as I will further explain, that is not this case.

Asking the wrong question or identifying the wrong issue: grounds, originating motion paragraph 8

32 I turn to the first of the plaintiff's three (interrelated) main grounds of review.

33 The plaintiff submits that, on the true construction of the Act, a conclusion that a worker does not have 'no current work capacity' requires not only a finding that the worker, despite his or her injury-caused symptoms and functional restrictions, has physical capacity to perform relevant work, but also a finding that the worker, despite the same, would be able to find or obtain employment in a relevant occupation.[65] The plaintiff submits that the Panel did not ask itself whether this second finding should be made, and thus committed error of law.[66]

34 I should observe that this submission of the plaintiff appears to involve a tacit assumption that, even after the expiry of the second entitlement period, weekly payments are not to be terminated without an actual finding - by the VWA or the self-insurer, as the case may be, at first instance, or by a court (affected or not, as the case may be, by a certified opinion of a Medical Panel) - that the worker has 'no current work capacity' and is likely to continue indefinitely to have 'no current work capacity'. However, any such assumption would not be in accordance with the provisions of the Act. Under s 163, the default position is that the entitlement to weekly payments ceases upon the expiry of the second entitlement period unless an assessment in favour of the worker (of 'no current work capacity' etc) is made. Hence the onus of satisfaction, or the risk of non-persuasion, at every level, falls on the worker. On the other hand, Skilled has no need to resort to that proposition in this case.

35 One other preliminary observation should be made. At the oral hearing, in answer to questions from me, the fourth defendant contended that, for an entitlement to weekly payments to continue after the expiry of the second entitlement period, the worker must not have, and must be likely to continue indefinitely not to have, a capacity even for part-time employment or a capacity even for casual employment.[67] In response, senior counsel for the plaintiff accepted, at least provisionally, that a capacity for regular part-time work was disqualifying, subject only to the operation of the 'top-up' provisions of s 165 in relation to cases where a capacity for part-time work is actually exercised.[68] This matter had not been the subject of written submissions on either side. Presumably both sides had taken the view that the Medical Panel had concluded that Mr Jordan possessed not merely a capacity for part-time or casual employment but rather a capacity for full-time, regular employment. Having regard to the terms of the Panel's certified opinion and of its statement of reasons, and taking into account that the vocational assessment material that was before the Panel (and which the Panel expressly mentioned)[69] referred mainly to full-time, regular positions (including for warehouse administrators[70] and product assemblers[71]) rather than to casual or part-time positions, I would agree with the parties' presumed understanding of the Panel's conclusion. On the other hand, it may not have been necessary, as a matter of law, for the Panel to have gone so far as to consider whether Mr Jordan had a capacity for full-time, regular employment.[72] I need not say more about that because any error in this regard could only have favoured the plaintiff.

36 For the proposition that a question directed to the matter of 'employability' must always be asked in a context like the present, the plaintiff relies principally on Richter v Driscoll,[73] as indicated above. The proposition is one about which I made some obiter remarks in Lang.[74] I did not express a firm view on it. From the perspective of worker-claimants, the 'high points' of Richter v Driscoll in this regard were, perhaps, the following:

(a) the statements or indications by Ashley and Kaye JJ that:

(i) the worker's capacity to 'obtain' employment (or re-employment) needs to be evaluated;[75]

(ii) it is not appropriate to say that a Medical Panel dealing with a matter of this kind should not be required to assess a worker's 'employability';[76]

(iii) a Panel must take into account a worker's capacity to be accepted back into the workforce;[77]

(iv) to say that a Panel is not required to determine whether an injured worker would be successful in obtaining employment is true so far as it is a statement only directed to inability to obtain employment by reason of the state of the labour market. Such a statement could not be carried further. In particular, it would not be correct if it meant that a Panel is not required to consider whether the entirety of an injured worker's personal circumstances - including the worker's injury-caused incapacity and other relevant personal circumstances - meant that the worker 'would likely be unsuccessful in obtaining employment because [the worker] had nothing "merchantable" to sell';[78]

(b) the following statements of Osborn JA:[79]

Ability to return to work in employment is not simply dependent upon capacity to physically undertake particular tasks. The concept of return to work in employment necessarily engages the question of the worker's employability having regard to both his or her personal characteristics and the present and continuing effects of the injury. Unless this concept is given its full dimension, the object of providing just and adequate compensation to workers will be defeated. The object of containment of cost is not intended to prevent this from being achieved.

A worker may have no ability to return to work if the combination of his or her personal characteristics (eg age, lack of qualifications, and lack of employment experience) together with his or her physical limitations render him or her in reality unable to obtain employment.

This is not to equate 'able to return to work' with 'able to obtain work' or 'able to find work' as the respondent submits, but simply to acknowledge that ability to return to work in employment must be addressed holistically.

37 Since Lang was decided, Mr Uren QC, has advanced the 'employability' proposition, or variations of it, on behalf of workers in several other cases.[80] It is fair to say that the proposition has not been accepted, to the full extent sought, in any of those cases. Notably, Gorton J considered it in some detail in Bainbridge v Westside Meats Pty Ltd ('Bainbridge').[81] The most relevant section of his Honour's judgment reads as follows:[82]

C. Did the Panel err in law by limiting its consideration to an ability to perform employment tasks and by not considering whether Mr Bainbridge could obtain employment or whether he could work as a settled or established member of the workforce?

C.1. Mr Bainbridge's submissions

1. Mr Bainbridge contended that the Panel:

(a) was required to decide whether he was 'likely to find employment' in the identified occupations before that employment could be 'suitable employment', or before it could be concluded that he was able to 'return to work' in suitable employment; and

(b) was required not just to consider, but to state in its reasons, explicitly, whether he was able to work 'as a settled or established member of the workforce', and that the failure to use those words was sufficient to establish jurisdictional error.

C.2. The legal requirements - before definitions were introduced

1. The concept of partial or total incapacity for work resulting from injury attracting compensation has a long history in workers' compensation legislation.[83] The term 'incapacity' was not defined in the Victorian legislation until 1992.[84] Total incapacity was interpreted to mean a condition where the injury has made a worker's labour 'unsaleable in any market reasonably accessible to him', and partial incapacity was interpreted to mean a condition where the injury has made the worker's labour 'saleable for less than it would otherwise fetch'.[85] Whether or not this was so was a question of fact for the finder of fact.[86] A worker was entitled to lead evidence that he or she had applied for jobs but not been awarded them, and the finder of fact was permitted, within reasonable limits, to use his or her own common sense and knowledge of labour conditions.[87]
2. As the phrase 'unsaleable in any market reasonably accessible to him' makes clear, the place where the worker lives has always been relevant. Employment had to be available within 'reasonable access' of the district where the worker lives.[88] This was, again, a question of fact.
3. The concept of an 'odd lot',[89] or 'nondescript',[90] came into use to describe a worker 'so injured that he is only able to do certain very special jobs, depending on finding a very special employer who, either from compassion or because he has a special job, is able to give him employment, but any ordinary class of work he is not able to do'.[91] If a worker were categorised as an 'odd lot', then there was an onus on the employer to identify work that the worker could obtain and perform.[92]
4. However, if the medical condition of a worker allowed him or her to perform a category of work - such as, for example, 'light labour' - then that could be sufficient to establish a capacity for employment without any particular jobs having to be identified or without there having to be proved a capacity to actually 'get employment'.[93]
5. Further, the only incapacity that attracted compensation was incapacity that was due to the injury; no compensation was payable in the event that incapacity to earn was due to slackness of work or the state of the labour market.[94]
6. These distinctions are often not easy to apply. An inability to obtain work may be due to the fact that an injury has made a worker less desirable to an employer than other applicants for a job such that the others would be preferred, but it cannot be said that the worker does not have something merchantable to sell; it may be a situation where a worker's labour is 'saleable' but he or she has 'failed to find a purchaser'.[95] Or the point may be reached where the undesirability amounts to a situation where the worker, in truth, has nothing merchantable to sell. Which side of the line any particular worker falls in a particular case is a question of fact to be decided by the finder of fact in that case.
7. In summary, it was always the position that:

(a) The mere ability to perform work duties was insufficient to establish a work capacity. Rather, there was a requirement that someone's labour be merchantable in the employment marketplace;

(b) Any inability to obtain employment had to result from the compensable injury, and an inability to obtain employment that was due to the state of the labour market was not compensable. Accordingly, the mere inability to obtain employment did not of itself establish incapacity;

(c) In ordinary circumstances, establishing a capacity to engage in a category of employment was sufficient to establish work capacity without having to establish a capacity to perform a particular job;

(d) Establishing that someone was by reason of his or her injury unable to perform any employment of a type known to be ordinarily available established incapacity, unless a special job that the person could do was identified; and

(e) The question of work capacity was, ultimately, a question of fact for the trier of fact, and, at least to some extent, the trier of fact could use its own understanding of the work environment.

1. It should be noted that, in determining whether a worker's labour was saleable in the market, consideration had to be given to what sort of work that person might be expected to be able to perform. This led naturally to the concept of identifying whether there was 'suitable employment' for him or her, and the phrase 'suitable employment' was in common use long before it became a defined term. For example, in the Accident Compensation Act 1986 as originally enacted, 'incapacity' was defined, for the purposes of industrial deafness, to include 'inability to engage in the worker's own or other suitable employment', but 'suitable employment' remained undefined (as did the terms 'total incapacity' and 'partial incapacity').

C.3. The legal requirements - in light of the current definitions

Capacity

1. It was in the above context that definitions of 'total incapacity', 'partial incapacity' and 'suitable employment' were introduced into the Victorian legislation by the Accident Compensation (WorkCover) Act 1992. 'Total incapacity' was initially defined as an inability arising from injury such that the worker is unable to return to work, either in pre-injury employment or in suitable employment. 'Partial incapacity' was defined to be an inability arising from an injury such that the worker is not able to return to pre-injury employment but is able to return to work in suitable employment.
2. These terms have since been modified, with 'current work capacity' taking the place of 'partial incapacity', and 'no current work capacity' taking the place of 'total incapacity'. The definitions themselves have also been altered so that they read in terms of 'capacity', rather than 'incapacity'. I do not see this change in nomenclature as significant. The definition of 'suitable employment' was expanded. Presently:

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

(b) 'no current work capacity' is defined to mean:

a present inability arising from an injury such that the worker is not able to return to work, either in the worker's pre-injury employment or in suitable employment.

1. As their Honours made clear in Richter v Driscoll,[96] the fact that both these definitions embrace the concept of returning to work in employment conveys an intention to maintain the established notion that the mere fact that a worker is able to perform work duties does not mean that they have a work capacity. Rather, the issue is whether they have the capacity to return to work, in the sense of having something to sell in the market for labour.
2. However, a capacity to perform work duties will, in many circumstances, correspond with a capacity to return to work in employment. There would have to be some feature of the individual worker arising from the relevant injury that justifies the distinction being drawn. One example is a worker being disfigured, such that they are not able to sell their labour in certain areas of work where disfigurement is in reality a disqualification from employment, notwithstanding an ability to perform the actual work duties.[97] Another example would be a worker who has a variable medical condition, such as a worker with a back injury, who would be able to perform work duties for the most part, but who suffers from periodic exacerbations that would prevent him or her from attending work with sufficient regularity to be able to obtain or maintain employment. Another might be a person who has developed a psychiatric reaction that, for practical purposes, would make that person unable to attend job interviews, or cause that person to present so badly that their labour is not, in fact, merchantable, despite their ability to perform the work if given the chance. Yet another might be someone who can perform the work duties, but those duties would unacceptably aggravate his or her injury, or involve an unacceptable level of pain or discomfort in their performance. However, these cases would be the exception, rather than the rule. It is only when features of this type are present that the distinction between a capacity to perform work duties and a capacity to return to work in employment would matter.

Suitable employment

1. [His Honour set out the definition of 'suitable employment' in s 3 of the Act to the same extent as it is set out above.]

2. Again, as the Court made clear in Richter v Driscoll,[98] this definition, by confirming that employment is 'suitable employment' even if it is not 'available', conveys an intention to maintain the established notion that an inability to obtain work due to the state of the labour market does not give rise to an entitlement to compensation. Associated with this is the fact that an inability to obtain work does not, of itself, establish a compensable incapacity.

3. It follows from the above that, contrary to Mr Bainbridge's submission, so long as a Panel has in mind the concept of a worker's labour having to be saleable in the labour market, a Panel is not required to conclude whether or not the worker could 'find employment'.

Relevant 'personal characteristics' - time out of work

1. There is an issue as to whether or not the factors that create the situation that a worker has an ability to perform work duties but no ability to return to work in employment must arise from the relevant injury.
2. In Ball v William Hunt & Sons, the Court expressed the concept in terms that suggest that the relevant factor must derive from the injury. Earl Loreburn LC posed the question of whether the incapacity for work 'resulted from' the work injury, before stating that the 'physical defect' must 'make his labour unsaleable'.[99] Lord Atkinson said 'the workman whom because of the injury caused by an accident, nobody will employ, comes within its purview as much as one who is rendered unable to do any work at all'.[100] The examples given in para 25 above are all of that type.
3. On the other hand, matters independent of the compensable injury, such as a worker's age and work experience, have always been relevant. Indeed, they now form part of the definition of 'suitable employment'.
4. In Richter v Driscoll, the Court referred to 'the entirety of the worker's personal circumstances' as being relevant to the issue of whether a worker has labour to sell.[101] This proposition, if it was intended to include the effects of subsequent, independent injuries, would be too broad, because, as noted in Part B above, there are binding authorities that compel the contrary conclusion, and those authorities were not referred to in Richter v Driscoll.[102]
5. Also, when expressing the requirement that regard be had to the 'entirety of the worker's personal circumstances', the Court approved the following observation of Buckley LJ in Cardiff Corporation v Hall:

[O]wing to incapacity for work arising from the accident the condition of the workman is such that his labour is not saleable...[103]

1. Further, the Court quoted, and did not disagree with, the following passage in Barwon Spinners v Podolak ('Barwon Spinners'):

If the worker is of an age, is sufficiently skilled, perhaps after rehabilitation, is sufficiently close by and is able physically to do a particular job, then that is 'suitable employment', whether or not the job is currently available.[104]

1. Similarly, the Court in Richter v Driscoll did not dispute the conclusion reached by the Court in Barwon Spinners that incapacity cannot be established by showing that an employer is unlikely to hire a worker who has previously made a claim for compensation,[105] even though the fact that a worker has previously made a claim would in ordinary parlance be a 'personal circumstance' of that worker.
2. However, the Court in Richter v Driscoll did state that the fact that the worker had been 'out of all work for 20 years by reason of an incapacity which had been compensated' was 'surely a matter which required consideration'. It found this was a matter 'of considerable importance', whilst acknowledging that it was not a matter that fitted precisely into the categories to which reference was required to be made in the definition of suitable employment.[106]
3. What was meant by the phrase 'personal circumstances' was otherwise not the subject of argument, or further elucidated, because it did not have to be. The respondent had accepted that the Panel was required to evaluate the applicant's 'capacity to re-enter the workforce ... as a wage earning employee'[107] and the case turned on whether or not the Panel had improperly limited itself to the applicant's physical capacity to perform work duties. The Court concluded that the Panel had erred by focusing 'entirely' upon the applicant's physical capacity to undertake the duties described, and by not taking into account the applicant's age, previous experience, education, skills and place of residence.[108] That would have been sufficient to dispose of the case.
4. As noted above, the 'personal circumstance' that featured in Richter v Driscoll was the fact that the worker had been on weekly payments of compensation for some 20 years prior to having the payments ceased. If the Court of Appeal were intending that the fact that someone had been on weekly payments of compensation for an extended period was a consideration that had to be taken into account in assessing work capacity - ie that the worker may be a less desirable employee due to the fact that he or she had made a claim and received benefits - there would be a tension with the notion accepted in Barwon Spinners that the fact that a worker has had a compensation claim is not relevant. I assume, therefore, that the Court of Appeal was instead conveying that an extended period of time outside the workforce was a relevant consideration. There could be no argument with that proposition, particularly if the extended period of unemployment was a result of injury suffered. If nothing else, it would fall for consideration of part of the worker's 'work experience', which is a mandatory consideration contained in para (a)(iii) of the definition of 'suitable employment'.
5. Accordingly, I accept that in the circumstances of this case, the Panel was required to have regard to the fact that Mr Bainbridge had been out of work since March 2003.

...

C.5. Did the Panel err as contended by Mr Bainbridge - ie did the Panel limit itself to the ability to perform the work tasks?

...

1. Mr Uren made the further, more specific, submissions that:

(a) The Panel was required to ask whether or not Mr Bainbridge was able to 'get' or 'find' employment. For the reasons set out in paras 22-27, above, I do not agree. The question it had to ask was whether or not he had a capacity to return to work in employment.

38 The proceeding brought by Mr Bainbridge was dismissed by Gorton J. Apparently, there was no appeal. On 25 June 2021, three weeks after Bainbridge was decided, the Court of Appeal gave judgment in Sidiqi v Kotsios.[109] That was another of the cases in which Mr Uren QC, relying on Richter v Driscoll, had advanced the proposition that, putting aside labour market fluctuations, current work capacity necessarily involves an ability to find or obtain employment. The Court in Sidiqi v Kotsios included Kaye and Osborn JJA, each of whom had sat in Richter v Driscoll. The presiding judge was Beach JA. Their Honours referred to Bainbridge without a hint of disapproval. Indeed, their Honours expressly adopted a relevant passage from Bainbridge, as indicated below. Their Honours said:[110]

1. As this Court held in Richter v Driscoll,[111] the concept of return to work conveys an intention that the mere fact that a worker is able to physically perform work duties does not necessarily mean that the worker has the ability to undertake work in employment. The relevant definitions require consideration of the entirety of the worker's personal circumstances.[112]
2. The applicant submitted that the Panel focussed solely upon the question whether the applicant was physically capable of performing his pre-injury work and alternative duties. Attention was drawn to the expressions of opinion that the applicant's current medical condition 'would not preclude him from undertaking the full duties and hours of work of his pre-injury role ...'; and 'would not preclude him from being able to consistently and reliably perform the duties of any/all of these five job options on a full-time basis as a settled or established member of the wage-earning workforce, without need for retraining.'
3. In many cases, however, the capacity to undertake physical work will demonstrate a capacity to return to work. In this regard we adopt the observations of Gorton J in Bainbridge v Westside Meats Pty Ltd:

However, a capacity to perform work duties will, in many circumstances, correspond with a capacity to return to work in employment. There would have to be some feature of the individual worker arising from the relevant injury that justifies the distinction being drawn. One example is a worker being disfigured, such that they are not able to sell their labour in certain areas of work where disfigurement is in reality a disqualification from employment, notwithstanding an ability to perform the actual work duties. Another example would be a worker who has a variable medical condition, such as a worker with a back injury, who would be able to perform work duties for the most part, but who suffers from periodic exacerbations that would prevent him or her from attending work with sufficient regularity to be able to obtain or maintain employment. Another might be a person who has developed a psychiatric reaction that, for practical purposes, would make that person unable to attend job interviews, or cause that person to present so badly that their labour is not, in fact, merchantable, despite their ability to perform the work if given the chance. Yet another might be someone who can perform the work duties, but those duties would unacceptably aggravate his or her injury, or involve an unacceptable level of pain or discomfort in their performance. However, these cases would be the exception, rather than the rule. It is only when features of this type are present that the distinction between a capacity to perform work duties and a capacity to return to work in employment would matter.[113]

39 In Sidiqi v Kotsios, the Court of Appeal was entirely satisfied that the Medical Panel had made no relevant error in this regard (or at all). Indeed the Court of Appeal observed that there was 'nothing in this point'.[114]

40 No mention was made in Bainbridge or in Sidiqi v Kotsios of the federal cases to which, in Lang,[115] I referred as arguably providing support for a wide interpretation of the relevant statutory provisions - in accordance with a wide reading of Richter v Driscoll - in relation to the 'employability' proposition. Nor was it expressly stated in Bainbridge or in Sidiqi v Kotsios that anything said in Richter v Driscoll was legally erroneous or otherwise in need of correction. However, it now seems that, in whatever way Richter v Driscoll might otherwise have been read, a limited interpretation of the relevant statutory provisions is to be adopted, so far as 'employability' is concerned, by virtue of the express adoption by the Court of Appeal in Sidiqi v Kotsios[116] of paragraph [25] of Bainbridge. More particularly, it seems to be the law, at least now, that a capacity to perform work duties will be sufficient to show that the worker has a 'current work capacity' within the meaning of the Act unless the worker has features of the kind referred to in paragraph [25] of Bainbridge, such cases being the exception rather than the rule. This seems to be so whether or not it can also be said that the Court of Appeal in Sidiqi v Kotsios approved the whole of what was said in Bainbridge.[117]

41 Indeed it seems from Bainbridge and Sidiqi v Kotsios that a certain reading of Richter v Driscoll which was common ground in Lang, namely that Richter v Driscoll stands for, at least, the principles that are described in the first half of paragraph 19(5) of my judgment in Lang, is now to be seen as too wide a reading of that case. It seems that that description should be amended as follows:

... Richter v Driscoll requires, at least, that there be a consideration of whether there is an injury-caused inability to return to work in employment, ie as a settled or established member of the wage-earning work force, which in turn requires may, in certain kinds of circumstances of an exceptional nature, require more than a physical and psychiatric capacity to engage in a particular task or tasks that constitute that employment. Further, regard must be had to the entirety of the worker's relevant personal circumstances, including both the injury-caused incapacity and other circumstances personal to the worker bearing on his or her ability to work in the particular form of employment as a settled member of the work force. The relevant personal circumstances of the worker (other than any which must by law be disregarded) should be comprehensively brought to account on the question of incapacity.

42 On the other hand, I need not and do not express a concluded view about the effect of Bainbridge and Sidiqi v Kotsios (read together). Even if one were to take the broadest possible view of the relevant statutory provisions and of Richter v Driscoll, ie, even if one were to accept that, despite Bainbridge and Sidiqi v Kotsios, the Act should be interpreted in the fashion for which Mr Uren QC contended in Lang[118] and for which he has contended in the present case and in other cases, the Medical Panel would still have committed no error of law or jurisdictional error in this respect in the present case. This appears clearly from the Medical Panel's written statement of reasons, to which I now turn.

43 The Medical Panel's statement of reasons is dated 20 January 2020. It is structured as follows.

44 First, the statement gives the dates of the Panel's two examinations of Mr Jordan and identifies the other information that was taken into account in forming the Panel's certified opinion.

45 Next, under 'INTRODUCTION', the statement of reasons notes certain matters taken from the parties' joint statement of agreed facts, particularly concerning Mr Jordan's employment history, his injury and his claim for compensation; and at this point it also summarises, in a way to which no objection has been taken, the broad underlying issues between the parties as understood by the Panel.

46 Then the statement of reasons sets out the 'HISTORY PROVIDED TO THE PANEL BY MR JORDAN'. It does so under the following sub-headings:

• Pre-injury employment
• The injury related incident with accepted injury date of 26 June 2015
• Clinical Progress following the incident
• Present symptoms
• Present function
• Present treatment
• Employment, credentials, and skills
• Past medical history
• Psychiatric history.

47 The following section of the Panel's statement of reasons is entitled 'MEDICAL PANEL'S EXAMINATION FINDINGS AND CLINICAL OBSERVATIONS'. The sub-headings are:

• Physical examination
• Mental state examination.

48 The Panel then turns to the subject of 'MEDICAL TESTS AND INVESTIGATIONS'. Again, there are two sub-headings, namely:

49 The final section is entitled 'MEDICAL PANEL'S ANALYSIS AND CONCLUSIONS'. Here, the sub-headings are:

• Diagnosis
• Work capacity
• Consideration of other opinions.

50 Turning from the general structure of the statement of reasons to its full text, I note that everything, or nearly everything, included in it was relevant or potentially relevant not only to Mr Jordan's ability to carry out the tasks of various forms of employment but also, to a greater or lesser degree, to Mr Jordan's prospects of obtaining or finding employment. However, of particular significance to Mr Jordan's prospects of obtaining or finding employment were the matters referred to in the particular parts of the text to which I will now turn.

51 On page 3 of the statement of reasons, the Panel noted that the plaintiff had commenced employment with Skilled 'as a store person on 17 February 2012'.

52 On page 4, the history given by Mr Jordan about his pre-injury employment was recorded as follows:

The Plaintiff confirmed to the Panel that at the time of his injury he was employed by a [sic] Skilled Engineering and had been seconded to work as a warehouse worker on a casual basis at Lyon Dairies. He confirmed that his preinjury duties included driving forklifts, stacking crates, wrapping pallets and manually handling various pallets as well as the use of a pallet jack. He confirmed that although he was employed on a casual basis, he was averaging about 30 hours of work per week. He confirmed that he would have to take pallets that were stacked up to 10 pallets high, weighing anywhere between 20 and 55 kg, down onto the ground and then carry them and lay them out on the ground in 2 rows of about 11 pallets each. He confirmed that he handled approximately 120 such pallets in a four-hour period.

53 Another part of the plaintiff's history that the Panel was entitled to regard as being of major significance to his employability was recorded on pages 5 to 6 under the heading 'Employment, credentials and skills', as follows:

He completed year nine at school. All his working life has been as a forklift driver/storeman for various companies. At one stage for several years he worked as a warehouse manager supervising 3 others.

He confirmed to the Panel that, following the incident, he had about 8-9 months off work before returning in an administrative role. He confirmed this alternative work involved predominantly working at an engineering plant. He said that he worked at a bench assembling padlocks and door handles. He confirmed that he worked two days per week for a few months undertaking this work. He said that he was able to perform these duties without difficult [sic: difficulty] but that he didn't 'enjoy' the work. He confirmed that he then sought and obtained alternative work in the form of driving a truck and undertaking various deliveries. He confirmed that he started this job in approximately December 2016. He confirmed that he drove an automatic truck on relatively short trips, and that the truck was brand-new, and had a tailgate lift that meant manual materials handling was kept to a minimum. He confirmed that he was working about 36 hours per week. He confirmed that he was coping with this work although he would take Panadeine Forte on the days when his back was more sore than usual. He confirmed that in about the week prior to Easter 2017 he was told that there was no more work for him, and his services were terminated from that occupation.

He said that he has not worked since then.

He has a current forklift license [sic] and a standard motor vehicle licence. He can use a computer for emails and clicking around the internet. His wife does the online banking and he doesn't think he would be able to do that.

He has not undertaken or been offered any training courses in recent years.

54 On pages 6 to 9, under the sub-heading 'Psychiatric History', the Panel recorded, among other things, the following matters which were of particular significance to employability:

The Plaintiff said he ceased work on the day of the injury and was unable to resume work with the pre-injury employer. He said that after a period of time he sought alternative employment because he was under considerable financial stress, and he commenced work delivering air conditioning ducts at some stage in 2016 or 2017. He said he managed this role well as he was driving a new truck and was not required to do any heavy lifting. However, he was advised that his services were no longer required after approximately three months, and he has not worked in any capacity since that time.

...

He said he remains interested in previous hobbies, particularly repairing old cars, but he has been unable to engage in this hobby like he used to due to pain and limited finances. He said he had been re-building an old car in his shed for about ten years, but he has been unable to continue with this because of his injury. He said he has been 'doing bits and pieces' with the car but he becomes easily frustrated because he is unable to do more, and this leads to marked anger. He said 'it doesn't take much' for him to get into this state, and he described an associated lack of motivation.

...

He said he tries to work on his old car and he also helps his son, who is a motor mechanic, as much as he can, but he tends to feel sore after about 30 minutes, causing him to feel quite frustrated and at times to argue with his son. He said he manages by taking a break for a few hours and then resuming the task.

He said he hasn't been socialising as much as he used to since his injury due to his pain and limited finances. He said he used to travel interstate to attend car shows but he now declines invitations primarily because he can't afford it. The Plaintiff said his driving is now limited to a maximum of 45 minutes due to pain and numbness or parasthesiae in his feet.

...He completed Year 9 and said he worked as a store man and forklift driver for various employers prior to commencing work for the pre-injury employer in 2012.

55 On page 9, under the sub-heading 'Mental state examination', the following presently relevant passage appears:

The Plaintiff was asked about his views regarding his ability to undertake suitable employment. He said that he couldn't do any work currently because of his pain and associated symptoms. He said that he would like to work, and he does not think that his psychological state itself would stop him working.

The Plaintiff's attention, concentration and memory during the interview appeared normal. He demonstrated reasonable insight into his psychological difficulties.

56 For present purposes, the most important segment of the Panel's statement of reasons appears under the heading 'MEDICAL PANEL'S ANALYSIS AND CONCLUSIONS' and, in particular, under the sub-heading 'Work capacity'. It is desirable to set out in full what the Panel said on pages 11 to 12 under that sub-heading:

The Panel noted the nature and severity of Mr Jordan's current physical condition and the functional restrictions which it causes including limitations in lifting more than 15 kg, when taken in conjunction with his pre-injury duties which required repetitive and heavy lifting. The Panel concluded that the nature of Mr Jordan's physical condition is such that he is not currently capable of returning to his pre-injury employment as a storeman.

The Panel considered whether Mr Jordan has a current work capacity or no current work capacity. In doing so, the Panel took into account all aspects of the definition of 'current work capacity', 'no current work capacity' and 'suitable employment' in the Act and in particular;

• his age of 48 years, which would limit his employment options;
• the nature of his physical condition, which limits his capacity to undertake repetitive heavy lifting;
• his education to Year 9, which restricts his employment options;
• his transferrable skills and previous work experience (storeman, forklift driving, warehouse management, assembler, and delivery driving) which significantly limits his employment options;
• the length of time that Mr Jordan has been out of the workforce (around 3 years) which would somewhat limit his employment opportunities but the Panel did not consider that this would severely restrict his employment options in work which he had prior experience as these did not require significantly updated knowledge or skills;
• the absence of a return to work plan or rehabilitation program;
• the medical information in the referral material including the certificates provided by Mr Jordan's general practitioner;
• and his place of residence in Wallan which is approximately 15 minutes['] drive from Melbourne's outskirts and which would somewhat limit his employment options;
• his psychiatric condition, which the Panel considered was not of sufficient severity to in itself to [sic] preclude the Plaintiff from undertaking suitable employment. In particular the Panel noted that the Plaintiff had maintained a degree of interest and motivation to remain involved in previously enjoyable pastimes, and an ability to carry out various daily activities, but that he was primarily restricted by his physical symptoms rather than his emotional difficulties.

The Panel noted the 130 Week Vocational Assessment Report dated 23 September 2017 which identified the following suitable employment options: receptionist; sales assistant - motor vehicle parts and accessories; warehouse administrator; domestic cleaner; forklift driver.

The Panel noted the JSS Report dated 22 January 2018 which listed the current suitable employment options as: receptionist; warehouse administrator; general clerk; light packer; product assembler - light items.

The Panel noted the 130 Week Vocational Assessment Report dated 30 January 2018 which identified the following suitable employment options: light packer; light product assembler; receptionist; warehouse administrator; general clerk.

The Panel discussed these options with the Plaintiff who told that [sic] Panel that he would not be able to undertake receptionist or sales assistant duties because of his lack of experience. He said that he would not be able to undertake general clerk duties because of his lack of computer and general educational skills. He said that he would be able to perform the duties of a warehouse administrator or of a product assembler. He said that he didn't think he would be able to secure employment as a warehouse administrator because of his 3 years out of the workforce and his back problems that would mean an employer wouldn't employ him. He said he would like to do this type of a job of warehouse administrator. He said that while he would be able to physically perform work of a product assembler because he had done this previously without difficulty. He said that he didn't enjoy this type of work and therefore didn't think he would be able to be reliable in turning up to this job.

The Panel considered the current restrictions caused by his aggravation of pre-existing but previously asymptomatic lumbar spondylosis without radiculopathy. The Panel considered that he had an inability to lift weights greater than 15 kg.

Notwithstanding that a current labour market analysis for the roles of warehouse administrator and product assembler was not provided in the referral material, the Panel considered that sufficient employment options for these roles would be available within reach of the Plaintiff's residence for the purposes of securing and sustaining employment in a reliable and consistent manner. The Panel noted that the Plaintiff considers that he can physically perform both of these roles. The Panel considered that the Plaintiff would be able to perform this work as a settled or established member of the wage earning workforce without any risk of exacerbating or aggravating his persisting lumbar spine condition. The Panel therefore concluded that the Plaintiff does not currently have 'no current work capacity'.

The Panel considered that the Plaintiff's back condition has not significantly changed for years and that he was reliably and consistently able to undertake a number of jobs since the injury including delivery driver and product assembler. The Panel therefore concluded that the Plaintiff did not have 'no current work capacity' from 28 April 2018 up to the date of the Medical Panel examination.

57 Finally, in this regard, under the sub-heading 'Consideration of Other Opinions', the Panel said (on page 13):

The Panel noted the opinion of Dr Weekes in the report dated 26 March 2019 which stated 'Mr Jordan has no current capacity for employment'. The Panel noted the opinion of Dr Shubber in a report dated 9 February 2018 which stated 'he can do some modified part-time duties as follow... no weight lift more than 3-4 kgs; no repetitive back bending... Mr Jordan would be able to have Receptionist duties of Warehouse Administrator with the above restrictions'; and in the report dated 2 April 2019 which stated 'Mr Jordan is able to do modified duties like office duties and supervisor duties for example... with no lifting more than 5 or more kgs'. The Panel noted the opinion of Mr O'Brien in the report dated 14 March 2019 which stated 'given the patients [sic] employment background and the current ongoing physical restrictions I suggest it will be very difficult for this patient to obtain suitable employment'. The Panel disagreed with the opinions of Dr Weekes, [Dr] Shubber and Mr O'Brien as, for reasons outlined above, the Panel considered that the Plaintiff does not have 'no current work capacity' and did not have 'no current work capacity' since 28 April 2018.

The plaintiff has not shown that the Panel asked itself the wrong question

58 Having regard in particular to the parts of the text of the Panel's statement of reasons set out above, it is quite clear, in my opinion, that the Panel asked itself whether Mr Jordan, despite his back condition and his psychological condition, and taking into account all of Mr Jordan's relevant personal circumstances, would be able to find or obtain employment (and to sustain employment).

59 In this regard, the Panel made reference to, among other things, Mr Jordan's pre-injury employment history, the extent and effects of his injuries, and, most importantly, the fact that Mr Jordan had actually been re-employed three times after sustaining his back injury. The Panel noted that, after his back injury, Mr Jordan had, first, returned to Skilled in an 'administrative' role. Why this position came to an end is not expressly stated in the Panel's reasons. However, in vocational assessment material that was before the Panel, Mr Jordan is quoted as saying that he had done 'alternative' duties (apparently for Skilled) for four hours per day for a month after his return from the back injury, but had ceased to work for the company because it was unable to provide him with suitable duties any longer.[119] In any event, the Panel noted that Mr Jordan's next job was 'assembling padlocks and door handles'; that Mr Jordan had done this 'two days per week for a few months'; and that Mr Jordan had left this job (a job he later described as one he 'didn't enjoy') of his own accord and not because of his injuries. The Panel noted that Mr Jordan's third post-injury job was as a truck driver undertaking various deliveries, including deliveries of air conditioning ducts; that it was full-time work; that Mr Jordan coped with it despite his injuries; that he did it for about four months; and that he was told just before Easter 2017 that there was no more of this work available for him. Thus, it was noted by the Panel that the end of this work was not related to Mr Jordan's injury.

60 Even without more, I would be inclined to infer from the foregoing that the Panel was asking itself whether Mr Jordan, in all the relevant circumstances, would be able to obtain or find suitable (full-time) employment (and sustain it). But there is more - considerably more. In certain passages (about to be mentioned) in the Panel's statement of reasons as quoted above, there are two express references to the prospect of Mr Jordan securing (ie, obtaining or finding) employment and there is one express reference to Mr Jordan 'obtaining' employment.

61 First, in the sixth paragraph of the passage under the heading 'Work capacity' set out above, the Panel notes that Mr Jordan said that he would be able to perform the duties of a warehouse administrator or of a product assembler; but that Mr Jordan had proceeded to say that he did not think that he would be able to 'secure' employment as a warehouse administrator because of his three years out of the workforce and his back problems 'that would mean an employer wouldn't employ him'.[120] It is true that this is only a report of what Mr Jordan himself had said. But he had said it in the course of a discussion initiated by the Panel about the employment options that had been identified in the various vocational assessment reports. Hence, it is very likely to have been said in response to a question by the Panel about the prospect of Mr Jordan securing a job as a warehouse administrator or a job as a product assembler. Hence this passage alone indicates that the Panel was in fact asking itself about the prospects of Mr Jordan obtaining or finding employment.

62 Secondly, there is an express reference to securing (ie finding or obtaining) employment in the second last paragraph of the above extract from that part of the statement of reasons that appears under the heading 'Work capacity', being the paragraph commencing 'Notwithstanding that'. Here, the Panel says that it considered that sufficient employment options for the roles of warehouse administrator and product assembler 'would be available within reach of the Plaintiff's residence for the purposes of securing and sustaining employment in a reliable and consistent manner' (my emphasis). When I asked Mr Uren QC about this reference to 'securing' employment, he sought to discount it as occurring in a particular context, namely the context of the geographical location of the plaintiff's residence.[121] However, in my view, that was not a proper basis for discounting the reference. The context was not relevantly different.[122] The reference shows that, here also, the mind of the Panel was closely attuned to the prospects of Mr Jordan securing employment, and not merely occupied with the matter of Mr Jordan's physical ability to perform the duties of employment.

63 Thirdly, in the last of the extracts from the Panel's statement of reasons set out above, the Panel quotes from a medical report of Mr O'Brien which contained the following words: 'given [Mr Jordan's] employment background and the current ongoing physical restrictions, I suggest it will be very difficult for this patient to obtain suitable employment'; and the Panel records that it disagreed with the opinion of Mr O'Brien in this regard.

64 I am far from being satisfied that the Medical Panel proceeded on a wrong view of the law in a way that disadvantaged the plaintiff. Indeed, as it happens, I consider that the Medical Panel actually applied the broad interpretation of the legislation for which the plaintiff contends. Doing so, it nevertheless found against the plaintiff in relation to employability, on the facts. Of course, if the proper interpretation of the legislation is that which seems to be indicated in Bainbridge and Sidiqi v Kotsios, then the plaintiff fails on this point all the more starkly.

65 Accordingly, the plaintiff's first main ground of challenge ('asking the wrong question') must fail.

Proper, genuine and realistic consideration: grounds, originating motion paragraph 10

66 The plaintiff's second main ground is described in paragraph 3 above as his 'proper consideration' ground. It corresponds with paragraph 10 of the originating motion, with paragraphs 27-33 of the plaintiff's first set of written submissions[123] and with paragraphs 26 and 27 of the plaintiff's reply submissions. The ground was elaborated at the oral hearing, mainly by way of submissions (as indicated in paragraphs 2(c) and (d) above) to the general effect that the Panel was required to consider closely and in depth whether there was a 'match' between the plaintiff's abilities and circumstances, on the one hand, and the requirements of particular jobs, on the other hand, but did not do so.

67 More particularly, according to the plaintiff, the Panel was obliged to (but did not) consider closely and in depth whether there was so good a 'match' between his relevant abilities and circumstances and the requirements of particular jobs that he would not only be able to perform the functions of the jobs but would also be able to find or obtain employment in the jobs.[124] Again, the plaintiff relies heavily on Richter v Driscoll. This, I gather, was what Mr Uren QC, in his opening remarks at the hearing, was referring to as a failure by the Panel to carry out its 'statutory task'.

68 As indicated above, in my view, contrary to the plaintiff's case, the Panel did ask itself whether the plaintiff would be able to find or obtain employment; and this seems to be more than the plaintiff was entitled to on the most recent understandings of the legislation. Moreover, even assuming that the statutory question is one of 'employability' - and all the more so if it is not - I am far from satisfied that the Panel failed to give due consideration to any matters that it was required to consider for the purposes of question 4 of the referral. Quite the reverse.

69 Any requirement on a statutory administrative body to give something 'proper', 'genuine' and/or 'realistic' consideration can only apply to something that the statute expressly or impliedly obliges the body to consider. In other words, the thing must be a mandatorily relevant consideration.[125]

70 The plaintiff's submissions do not properly acknowledge this limitation. Thus the plaintiff erroneously submitted that it was 'the matters and issues raised by the answers and documents' that had to be given 'proper, genuine and realistic' consideration.[126] The plaintiff also submitted[127] that the Panel was required 'to engage in an active intellectual process, in which each relevant matter receives his or her genuine consideration', citing my judgment in Lang and also the judgment of Ginnane J in Sensis Pty Ltd v Jones.[128] However, in each of those cases the context made it clear that the comment was limited to mandatory relevant matters.[129] Of course, it is possible that, under a particular statutory scheme, it will be expressly or impliedly required of the decision-maker to, say, read all or some submissions or representations received from a certain quarter, or to consider all or some submissions or representations so received.[130] But there is no universal principle of administrative law that imposes either kind of obligation on all statutory decision-makers, regardless of what, if any, statutory provision is made for submissions or representations. In cases of doubt, the matter falls to be determined as a question of statutory construction. As to the present case, the relevant part of the Act makes no express provision for anyone to make submissions or representations to a Medical Panel.[131] In any event, there is no suggestion by the plaintiff in the present case that the Panel failed to read or consider some submission or representation that was made by him or his solicitors during the processes before the Panel.

71 By contrast to the plaintiff's submissions, in Skilled's written submissions on this topic and on a related topic, it was correctly pointed out that -

(a) whether a decision-maker has failed to take a (mandatorily relevant) matter into account or to give it due consideration is a matter of fact and not surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some instances it may be indicative;[132]

(b) use of the language 'proper, genuine and realistic' to describe what is involved in taking something into consideration has been criticised as risking a slide into impermissible merits review;[133]

(c) provided that it gives genuine consideration to mandatory matters, a Panel is entitled to give each mandatorily relevant matter as much or as little weight as it likes;[134] and

(d) a court must exercise caution not to exceed its supervisory role and engage in any merits-style reasoning in assessing the findings of the Panel.[135]

72 In its written submissions, Skilled also correctly noted that mandatorily relevant considerations of the kind dealt with in Minister for Aboriginal Affairs v Peko-Wallsend Ltd ('Peko-Wallsend')[136] are to be identified from the terms of the relevant statute.[137] There is, however, a distinction between a relevant consideration in the Peko-Wallsend sense and the evidence or factual material that may relate to such a consideration. As Skilled pointed out, the Court of Appeal discussed the distinction in Chang v Neill and, in particular, noted that a mandatorily relevant consideration is usually expressed at a significantly higher level of generality than the evidence or factual material that relates to it.[138] I note once again that, as Skilled correctly pointed out,[139] a decision-maker is obliged to consider only mandatorily relevant considerations. A decision-maker is not (or at least not necessarily) required to consider every item of evidence or factual material that relates to each such consideration.[140]

73 On the other hand, a Medical Panel dealing with a 'no current work capacity' referral is clearly and mandatorily obliged by the Act to have regard to, at least, the criteria set out in the definition of 'suitable employment', to the extent they apply. Whether it must do more than that is the issue discussed at length above. Skilled submitted that,[141] in the relevant passages of their judgment in Richter v Driscoll, Ashley and Kaye JJA say only that a Medical Panel must consider 'the entirety of the circumstances personal to the worker, as outlined in these reasons'.[142] Skilled contended that the circumstances 'outlined' in their Honours' reasons are those set out in the definition of 'suitable employment';[143] and that Osborn JA's reasons are relevantly to similar effect.[144] As indicated above, in relation the plaintiff's first main ground, I do not propose to express a concluded view about this issue. But the upshot is that, at most, the mandatorily relevant considerations are those expressly listed in the definition of 'suitable employment' in the Act, together with, possibly, an implicit requirement[145] to consider whether the worker is likely to find or obtain work in his or her relevant personal circumstances.

74 Turning to the necessary level of intensity of any 'consideration' that may be statutorily required, the High Court has said very recently, in effect, that particular caution is called for in relation to grounds of review expressed in the manner in which the plaintiff's second main ground of review is expressed. In Plaintiff M1/2021 v Minister for Home Affairs,[146] the plurality (Kiefel CJ, Keane, Gordon and Steward JJ) (with whom Gageler J agreed) said:

Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach.

75 More particularly, what this Court may properly expect of a Medical Panel by way of intensity of 'consideration' in a 'no current work capacity' referral will vary according to the medical and factual information before the Panel.[147] As mentioned above, the medical and factual picture in each of Richter v Driscoll and Lang was very different from that of the present case.

76 In Richter v Driscoll,[148] the Court of Appeal described and otherwise referred to the appellant worker as follows:

Ms Richter was born on 31 July 1957, and so she now is nearly 59 years of age. She lives in Wodonga. She was educated only to Year 7. The Panel, whose opinion lies at the heart of the present application, accepted that she has 'difficulties with literacy and numeracy'. She has no computer skills. Before 1994, at which time she would have been aged about 37, she had engaged in very little employment. She had done some babysitting, and had otherwise been a stay at home mother. She thus had virtually no acquired employment skills or experience. In 1994, she began a diploma in horticulture at the Wodonga TAFE. She worked as a nursery assistant between February and June of that year in the employ of the first and second respondents. But in the course of her employment, she suffered a serious low back injury. She ceased work in mid-1994, and has not been in employment since that time. Indeed, as will be seen, it was not in contest that, between mid-1994 and December 2013, a period exceeding 19 years, she was compensated for incapacity resulting from her injury - such a period of admittedly compensable incapacity being in our experience very unusual, and such as required careful consideration when it was asserted that she no longer had 'no current work capacity'.

77 In Lang[149] the plaintiff worker had been engaged as a sales assister/manager of a shoe shop. She injured her right foot at work in 2004 when she was 39 years of age. She ceased work completely that year and was off work and in receipt of weekly payments until 2016. The Panel's opinion was given in 2018. By then, Ms Lang had been out of the workforce for about 13 ½ years. She was 53 years of age. The Panel accepted that she had somatic symptom disorder with persistent pain and a finger injury as a result of her original foot injury. She had numerous other non-compensable medical conditions, including opioid dependence and morbid obesity and needed a four-wheeled walker for mobility.

78 By contrast, Mr Jordan had the extensive and varied pre-injury work history described above.[150] He was 44 years old when he was injured at work. In January 2020, the Panel found that he suffered from lumbar spondylosis without radiculopathy and a chronic adjustment disorder with mixed anxiety and depressed mood.[151] He was then only 48 years of age. He had actually been employed again in three separate jobs after his compensable injury. He told the Panel that he believed he could perform the duties of a warehouse administrator or of a product assembler. He had done the former job before his injury and the latter after his injury.

79 As Skilled submits,[152] in those circumstances a conclusion that Mr Jordan did not have 'no current work capacity' was not only open but was unsurprising if not inevitable.

80 In any event, by contrast to what was said in Richter v Driscoll, as indicated above, there was nothing 'very unusual' about Mr Jordan's time out of the workforce 'such as required careful consideration when it was asserted that [he] no longer had "no current work capacity"'. Nor was there anything else about Mr Jordan's situation that was remotely comparable to the situation of the workers in Richter v Driscoll and Lang.

81 At first sight, at least, the Panel's opinion and reasons in Mr Jordan's case seem to invite a comment comparable to that of Ashley J in Calleja v Franet Pty Ltd:[153]

The inhibitions placed upon the plaintiff's work capacity were clearly stated in the panel's reasons. Read sensibly, they left open a pretty extensive area of employability. The panel was not required to go further and define particular jobs that the plaintiff could undertake. It was entitled to be satisfied from the material in its possession, and by implication was satisfied, that work fitting the parameters which it set did exist (whether or not such work was in fact available was - by virtue of the Act - irrelevant).

82 Likewise, the facts in Dundar, Sidiqi v Kotsios and Yildirim Appeal were, in each case, much closer to the facts of the present case. In each case, it seems, the employment analysis on the part of the Panel was no more intensive - indeed was apparently less intensive - than that of the Panel in the present case. In each of those cases, the worker relied on statements made in Richter v Driscoll. In each case the worker was ultimately unsuccessful in challenging the Panel's conclusion that the worker did not have 'no current work capacity'. The following comment of the Court of Appeal in Karabinis v Bendrups[154] has a resonance here, although it was said in relation to an adequacy of reasons ground:

While the resolution of the present proceeding cannot be determined by a mere comparison between the Panel's reasons and the reasons of another panel in another case, the analysis of the reasoning of the Panel in Wingfoot is instructive.

83 In Karabinis v Bendrups, the Court of Appeal went on to note that the High Court in Wingfoot had not seen any deficiency in the relatively brief, straightforward explanation as to medical causation that had been given by the Panel in that matter. Similarly, in Sidiqi v Kotsios,[155] the Court of Appeal said:

In Woolworths Ltd v Warfe,[156] this Court observed with respect to judicial reasons given in respect of a serious injury application to the County Court:

The adequacy of the reasons must depend upon the issues, and nature of the proceeding, in any individual case. In an appropriate case, reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[157]

The following much-cited observation of the Privy Council in Ogden Industries Pty Ltd v Lucas[158] is also in point:

[Their Lordships] desire to reiterate however what has so often been said before that in a common-law system of jurisprudence which depends largely upon judicial precedent and the earlier pronouncements of judges, the greatest possible care must be taken to relate the observation of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, to the general compass of the facts before him, unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for judges always to express their judgments so as to exclude entirely the risk that in some subsequent case this language may be misapplied and any attempt at such perfection of expression could only lead to the opposite result of uncertainty or even obscurity as regards the case in hand.

These general principles are particularly important when questions of construction of statutes are in issue.

It is quite clear that judicial statements as to the construction and intention of an Act must never be allowed to supplant or supersede its proper construction and courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.

No doubt a decision on particular words binds inferior courts on the construction of those words on similar facts but beyond that the observations of judges on the construction of statutes may be of the greatest help and guidance but are entitled to no more than respect and cannot absolve the court from its duty of exercising an independent judgment. It is with these principles in mind that their Lordships approach this very considerable body of authority.

84 In paragraph 33 (read with paragraph 32) of his written outline, the plaintiff submitted that the following were matters which ought to have been, but were not, properly, genuinely and realistically considered or taken into account (on Richter v Driscoll principles) in relation to the matter of whether the plaintiff would likely be unsuccessful in obtaining employment as a warehouse administrator or product assembler within reasonable proximity to his home:

(a) whether an employer may not employ the Plaintiff in those occupations because his medical condition or his other circumstances would not make him a reliable or efficient employee.

(b) in the case of warehouse administrator, that the demands of that job include frequent walking, standing and sitting, as recorded in the 130 Week Vocational Assessment report for 2018, which the Medical Panel referred to;

(c) the Plaintiff [only] 'completed year nine at school. All his working life has been as a forklift driver/storeman for various companies';

(d) what was the content of the statement that 'At one stage for several years he worked as a warehouse manager supervising 3 others.' with no dates stated, or reference made to the duties involved, or to the size of the managerial task, or to it not being included in the Plaintiff's work history as contained in the JSS Report,

(e) the Medical Panel having no information to which it referred as to the nature and size of the warehouse job opportunities which it inferred (without evidence) were available in reasonable proximity to the Plaintiff's address, and whether they were within his capabilities, with his medical condition, and in his other circumstances;

(f) in the case of product assembler, that the Plaintiff's account of his experience as a product assembler was of little significance, appears to be a form of make-up work, and was only for 2 days a week;

(g) that the difficulty which the Plaintiff might have in being employed as and doing the work of a product assembler would depend on a number of considerations, such as the actual tasks involved in such an occupation, whether standing and walking was required, the size and weight of products to be assembled, and whether an employer would consider that the required tasks could be done quickly, reliably, appropriately and satisfactorily by the Plaintiff with his medical condition and in his other circumstances.[159]

85 I accept the submission of Skilled[160] that:

The matters set out in sub-paragraphs b) to f) of paragraph 33 of the plaintiff's submissions are pieces of evidence or contentions about pieces of evidence rather than mandatory considerations. It would not be a reviewable error for the Panel not to have had regard to them, or indeed to have made an error of fact in its assessment of them, unless it could be said that the failure or error was so significant as to amount to a constructive failure of the Panel to perform its task. That is not this case.

86 The matters listed in sub-paragraphs (a) and (g) of paragraph 33 of the plaintiff's outline are really particulars of the plaintiff's contention, based mainly on Richter v Driscoll, that the Panel did not ask itself whether the plaintiff would likely be able to find or obtain employment, given his relevant personal circumstances. For the reasons already set out under the plaintiff's first main ground, I reject that contention. In my view the Panel did ask itself that question. Since the greater includes the lesser, it follows that, in my view, the Panel did, at one and the same time, also ask itself whether the plaintiff had current work capacity in accordance with the more limited reading of the Act (and of Richter v Driscoll) referred to above.

87 As Skilled submits,[161] it is evident that the Panel considered not only the plaintiff's physical capacity but also his personal circumstances including age, education, transferrable skills, previous work experience and length of time out of the workforce as matters affecting his ability to return to work. I agree with Skilled[162] that the Panel's reasons show that it discussed with the plaintiff his education, employment history and skills.[163] In my view, the Panel brought these considerations and all of the other considerations set out on pages 11 and 12 of its statement of reasons into account when forming its opinion that the plaintiff would be likely to find or obtain employment, and therefore also in determining, in effect, that the plaintiff would be able to return to work as a settled and established member of the wage earning workforce.

88 Whether it was for the purposes of the wider test or for the purposes of the narrower test, the Panel did, in my view, consider (and consider sufficiently) all of the matters listed in paragraph 33 of the plaintiff's written outline. Certainly, the plaintiff has not shown the contrary.

89 Turning to the specific matters referred to in subparagraphs (b) to (f) of paragraph 33 of the plaintiff's submissions, I am in full agreement with Skilled's responses[164] to them, which were largely as follows:[165]

• As to b), the Panel had regard to the vocational assessment report, and by necessary implication the matters set out therein. However, insofar as the report described 'physical demands' of employment as a warehouse administrator, it did so by way of identifying in a general fashion the types of physical demands which might, but not necessarily would, be required. There was in any event, nothing incongruous about a conclusion that the plaintiff had the physical capacity to perform the job of a warehouse administrator which was not identified as requiring repetitive heavy lifting and which was said to allow for flexibility of movement, including given the plaintiff's ability to carry out the physical demands of delivery driver work on a fulltime basis.
• As to c), this is a matter extracted from the Panel's reasons. The Panel referred again to the plaintiff's education and his work experience and its impact on his ability to return to work in employment in its discussion on page 11 of the reasons.
• As to d), the Panel recorded that it was told by the plaintiff that his work experience included several years working as a warehouse manager supervising three others. This work experience had been previously described to Dr Das,[166] although it was not recorded in the JSS report, and the Panel was entitled to take it into account.
• As to e), for the reasons set out below under the 'No evidence' heading, it was well open to the Panel, on the material before it, to form the view (as it plainly did) that employment opportunities as a warehouse administrator and product assembler would be available to, and accessible, by the plaintiff.
• As to f), the product assembler work described by the plaintiff to the Panel involved assembling padlocks and door handles at an engineering plant. Simply because it was performed by the plaintiff on a part-time basis did not mean that it was a 'form of make-up work' and the plaintiff is not recorded as telling the Panel that it was. Nor did the plaintiff made such a submission in his written submissions to the Panel.[167] Whilst it is now (wrongly) asserted that this work experience 'was of little significance', the weight to be given to it was a matter for the Panel.

90 At the hearing, I raised with counsel for both sides the thought that it might have been informative for the Panel to know exactly why Mr Jordan had not been engaged in any employment after Easter 2017. However, no such point had been raised by the plaintiff in his written submission to the Panel or in his originating motion or in his written reply in this Court. There was no application for leave to amend. In any event, on reflection, I now consider that the thought was no more than a distraction. The onus was on the plaintiff to demonstrate to the Panel that he had 'no current work capacity'. He had solicitors acting at the time. He did not seek to make a case that he had been refused employment positions (that he might otherwise have achieved) because of his compensable injuries or because of employer perceptions about his compensable injuries. The situation was not of the exceptional kind that, according to Chang v Neill,[168] might generate a duty to inquire on the part of a Medical Panel.

No evidence, grounds, originating motion paragraph 11

92 The plaintiff submits, uncontroversially, that there will be an error of law, or a jurisdictional error, if a finding is not open, or there is no evidence to support it.[169]

93 The plaintiff further submits that there was no evidence, which the Panel relied on, which was rationally probative of the fact:[170]

(a) that there were suitable employment options available within reach of the Plaintiff's residence for the purposes of him securing and sustaining employment in a reliable and consistent manner as a warehouse administrator or product assembler; and

(b) that such employments were suitable employment for the Plaintiff, within the meaning of the Act.

94 The plaintiff points to the Panel's acknowledgement that it did not have a current labour market analysis for the roles of warehouse administrator and product assembler.[171]

95 In addition, the plaintiff contends that there was:[172]

no evidence of relevant matters necessary to be found for the 'suitable employment' finding, such as what were the job opportunities which were considered to be available in reasonable proximity to the Plaintiff's residence, the nature or size of or of [sic] the requirements of such job opportunities, or whether they were within his capabilities having regard to his symptoms[,] conditions and disabilities referred to in the Reasons, or were otherwise suitable employment for him having regard to the matters relevant to that conclusion.

96 In Sidiqi v Kotsios,[173] after referring to the expertise and the special functions of Medical Panels, the Court of Appeal said:

In consequence, establishing a ground of review based on 'no evidence' may be very problematic. It has been fairly said that in such a case the 'no evidence bar is set very high'.[174]

97 Here, the plaintiff is far from surmounting that bar. The answers to the plaintiff's submissions are quite evident in the extensive material that was before the Panel and in its statement of reasons.

had before it labour market analyses for employment as a warehouse administrator and product assembler which identified that employment existed in most parts of Australia and that there were numerous positions advertised in the Melbourne region.[176] The vocational assessment stated that '[w]hile there are jobs in many parts of Australia, Victoria has a large share of Product Assemblers'.[177] The Panel also had before it the occupational rehabilitation job seeking plan which recorded the plaintiff as having applied for numerous warehousing and packing roles, presumably within a reasonable distance from his place of residence. Although these reports were not current, they identified that employment opportunities in warehousing and product assembly roles were readily available. And, importantly, the Panel had its own experience and expertise to draw upon.

Further, it was not in dispute that the plaintiff had a current driver's licence and was able to drive. In the period following his injury he had been able to successfully carry out fulltime delivery driving work. The Panel noted that his place of residence in Wallan was only 15 minutes' drive from Melbourne's outskirts and that it would limit his employment options 'somewhat'. Having regard to all of these matters, there was no reason to think that employment as a warehouse administrator and produce [sic: product] assembler would not be accessible to the plaintiff, and it was open to the Panel to so find.

Failure to take into account lack of skills to be a warehouse administrator: grounds, originating motion paragraph 12

101 Next, the plaintiff contends that it was obligatory under the Act for the Panel to take into account a particular asserted fact, namely, that the plaintiff had insufficient skills - especially computer skills - to be employed as a warehouse administrator.[179] The plaintiff refers in this regard to medical reports from Dr Slesenger, a medico-legal expert engaged by the plaintiff, and from Dr Shubbar, the plaintiff's treating general practitioner. Dr Slesenger had opined that a specific worksite assessment would need to be carried out to determine whether the plaintiff could perform the duties of a warehouse administrator. Further, according to the plaintiff, it was not enough that the Panel recorded his own claim (to the Panel) that he could not undertake general clerk duties 'because of his lack of computer and general education skills'. The plaintiff complains that the Panel did not mention this in the specific context of the plaintiff's ability to perform the role of a warehouse administrator.

102 As Skilled submits, this was a thinly disguised attempt at merits review. The matters listed by the plaintiff were items of evidentiary material, not mandatory considerations. The weight to be given to the matters in question was for the Panel to decide. A failure to have regard to relevant factual material may constitute jurisdictional error only if it amount to constructive failure to perform the statutory function conferred on the decision-maker.[180] The plaintiff made no attempt to address this requirement.

103 I further agree with Skilled[181] that, in any event, there is no proper basis to conclude that the Panel did not, as it stated it had,[182] take into account all of the medical and other material before it, given that the Panel's detailed statement of reasons displays a thorough and careful review of the material.[183]

104 As Skilled further submits, the Panel was not required to refer in its written reasons to every piece of evidentiary material before it or to explain why it did not reach the same opinions as other practitioners. As noted above,[184] omitting to mention a matter is a 'very unsure guide' as to whether the decision-maker has taken it into account.

105 It is significant, as Skilled submits,[185] that the Panel records in its reasons that it asked the plaintiff about his previous employment, credentials and skills, including his computer skills;[186] and that, in the section of its reasons concerning the plaintiff's ability to return to work in employment, it also expressly stated that it had taken his transferrable skills into account. A Skilled further points out,[187] the Panel expressly referred to the vocational report that proposed warehouse administrator as suitable employment and set out on page 13 of its reasons various parts of Dr Shubbar's report received 2 April 2019 that it disagreed with. I do not accept that the Panel failed to take these pieces of evidentiary material into account.

106 Turning to the further specifics of this complaint, Skilled made the following telling points, with which I wholly agree:[188]

(a) Dr Slesenger in his report dated 27 February 2019 did not give an opinion that the plaintiff had insufficient computer skills to work as a warehouse administrator. What is referred to in the plaintiff's submissions is the part of Dr Slesenger's report in which Dr Slesenger records the plaintiff as telling him that he had 'no computer skills'. This differed from what the plaintiff told the Panel. The Panel discussed with the plaintiff his ability to return to employment as a warehouse administrator. While the plaintiff raised concerns about his lack of computer skills in the context of general clerk duties, he informed the Panel that he would be able to work as a warehouse administrator and that he would like to do so. The Panel were entitled to regard this as an informed opinion on the plaintiff's part.

(b) Dr Slesenger's recommendation for a 'job specific worksite assessment' was only in order to address whether the plaintiff would be required to cover for holiday or sickness on the warehouse floor.[189]

(c) Although it is asserted that the plaintiff had not been provided with any retraining, this was not a finding made by the Panel and page 4 of the notice of 22 January 2018 records that funding for a computer course had been approved and the plaintiff was due to commence the course in February 2018.

107 This ground (failing to take into account lack of work skills) fails.

Failure to take into account residual impairment, grounds, originating motion paragraph 13

108 The plaintiff further contends that the Panel failed to take into account his residual impairment resulting from the accepted injury to his back.[190]

109 The short answer to this complaint is that the Panel plainly did take the plaintiff's residual impairment into account. It did so fully and carefully and in proper context. It noted the plaintiff's physical restrictions. Applying its specialist expertise and informed by the reports and other information before it, the Panel concluded that the plaintiff's residual impairments would not prevent him from gaining and sustaining employment as a warehouse administrator or a product assembler. It made an express finding that the plaintiff would be able to reliably and efficiently perform the suitable employment. It had regard to the plaintiff's time out of work and to the relevance of his pre-injury and post-injury work experience. Not all of the physical demands listed in the vocational assessment reports for the respective types of job would be applicable to each and every such job. The plaintiff had been a warehouse administrator prior to his injury and had voluntarily given up a product assembly job, which he had performed 'without difficulty' after the injury. Contrary to the plaintiff's submissions, the Panel was not obliged to refer to the opinion of Dr Slesenger. In any event, Dr Slesenger said, in February 2019, that he was 'generally optimistic' that Mr Jordan could return to work as a warehouse administrator.[191]

110 There is nothing at all in this ground. It fails.

Taking into account irrelevant considerations: grounds, originating motion paragraphs 14, 15, 16

111 The plaintiff submits that the Panel erred by taking into account three matters said to be irrelevant considerations, namely his (claimed) experience as a warehouse manager, his experience as a process worker and his own views on the work which he would like to do, or could do.

112 The 'irrelevant consideration' ground can only succeed where the decision-maker is expressly or impliedly forbidden by the statute from taking the matter into account.[192] Self-evidently, none of the matters relied on here is a 'forbidden' consideration.

113 To the contrary, each was a relevant matter open to be considered by the Panel.

114 The plaintiff says that his claimed experience as a warehouse manager should not have been taken into account because it was not material contained in the vocational assessments. However, the plaintiff himself had told the Panel about it. In addition, he had told Dr Das about it, as recorded in a medical report that was before the Panel,[193] and had named the business at which he was so employed, 'Brilliant Aluminium'.

115 The amount of weight to be given to this was a matter for the Panel.

116 The plaintiff's experience as a product assembler was obviously not irrelevant. Again, weight was a matter for the Panel.

117 Likewise, the plaintiff's own views as to his likes and desires and capacities as to work were relevant. They were of at least some value. They were not forbidden considerations. Again, weight was for the Panel.

Adequacy of statement of reasons: grounds, originating motion, paragraph 8

119 The plaintiff's attack on the Panel's 'reasons' is not really an attack on the adequacy of its statement of its reasons at all. Rather, it is a thinly disguised complaint about the Panel's reasoning. That is shown in part by the plaintiff's significant reliance on a line from Gruma[194] which, with respect, must represent a verbal slip on the part of the Court of Appeal. The Court said:[195]

Compliance with s 68(2)[196] of the Act depends on the adequacy of the panel's reasoning for arriving at the answers to the medical questions.

120 As mentioned above, it is well established that the quality (or adequacy) of the reasoning of a decision-maker is quite different from the adequacy of a required statement of reasons of the decision-maker.

121 Here, the plaintiff does not point to any necessary step in the reasoning of the Panel that was not revealed in its statement of reasons. He does not identify any ambiguity or doubt generated or left by the statement of reasons as to whether the Panel carried out its statutory function properly.

122 His reliance on Richter v Driscoll and Lang under this ground is misplaced for the same reasons it was misplaced under the grounds already dealt with.

123 The plaintiff raises nothing new or additional under this ground.

126 Presumably, costs should follow the event. I will make a provisional order that the plaintiff pay Skilled's costs of the proceeding (including reserved costs) on the standard basis. I will reserve liberty to the parties to apply within 14 days for some different or other order as to costs.

I certify that this and the 55 preceding pages are a true copy of the reasons for judgment of the Honourable Justice Cavanough of the Supreme Court of Victoria delivered on 16 June 2022 as revised on 28 June 2022.

[1] Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('the Act') s 163. See further below as to the particular operation of s 163 of the Act in the present circumstances. As to the binding effect of opinions of Medical Panels, see the Act s 313(4) and see Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480.

[2] [2016] VSCA 142; (2016) 51 VR 95.

[3] [2019] VSC 376.

[4] See especially Sidiqi v Kotsios [2021] VSCA 187, [29]-[64], [79]-[92], [93]-[106]; A & L Windows Pty Ltd v Yildirim [2022] VSCA 46, [29]-[44]; cf Dundar v Bas [2019] VSCA 315, [46]-[53], [57]-[73]. See also, more generally, Maimonis v Bourke [2019] VSCA 302, [51]; Devaney v Crown Melbourne Ltd [2021] VSCA 168, [64]; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22]-[27]. See further below.

[5] See Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, [32]-[64] and see further below.

[7] This brief, introductory summary is drawn mainly from the Medical Panel's statement of reasons (Court Book ('CB') 667-682) and is not controversial.

[10] The Act s 152 (definition of 'second entitlement period').

[11] Section 165 provides for the making, after the expiry of the second entitlement period, of 'top up' payments to injured workers who have some current work capacity if they use that capacity to earn a certain minimum level of income.

[12] The Act s 3 (definition of 'no current work capacity').

[13] Letter dated 22 January 2018 from EML VIC Pty Ltd to Mr Jordan: CB 79-84, especially at CB 82.

[14] The jurisdiction of the Magistrates' Court is conferred by a combination of ss 264, 266 and 267 of the Act.

[15] See amended statement of claim in the Magistrates' Court dated 24 September 2019: CB 107-109.

[16] See notice under s 274 of the Act given in September 2019: CB 85-86.

[17] Those three medical practitioners are now named as the first, second and third defendants in the present proceeding in this Court. Skilled is the fourth defendant.

[18] See certified opinion of the Medical Panel dated 10 January 2020: CB 665-6.

[19] Originating motion for judicial review filed 6 March 2020, 2: CB 10.

[20] See R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[21] Yildirim v A & L Windows Pty Ltd [2021] VSC 139.

[22] A & L Windows Pty Ltd v Yildirim [2022] VSCA 46.

[23] [2021] VSCA 187.

[24] That is, after I reserved judgment in this matter.

[25] Part 4 is concerned with the return to work process and the obligations of employers and workers in that regard.

[26] Transcript of proceedings in this Court ('T') 2.

[28] As to the oral submissions, see, for example, the manner in which Mr Uren QC opened the case, as indicated in the previous paragraph.

[29] Kocak v Wingfoot Australia Partners Pty Ltd [2011] VSC 285, [133], citing Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 281-282 (McHugh JA). And see now Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 497-498 [43], 499 [48], 501 [54]-[55], 502 [57], 504-505 [63]; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [110].

[30] George v Nisselle [2005] VSC 177, [56].

[31] Mackinlay v Corlett [2016] VSC 376, [9]; Toyota Motor Corporation Australia Ltd v Bendrups [2016] VSC 718, [24]. Both cases were decided after and with reference to the judgment of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, a leading case which dealt with, among other things, the standard required for statements of reasons by Victorian Medical Panels (see further below). I note, also, that the two judgments of J Forrest J were given after (although without reference to) Richter v Driscoll.

[32] [2022] VSC 308, [104].

[33] [2018] VSCA 124, [39]-[40]. Cf Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [30].

[35] For example, see Richter v Driscoll [2016] VSCA 142; (2016) 51 VR 95, 112 [71(2)]; Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [109].

[36] (1996) 185 CLR 259, especially at 271-272.

[38] [2015] FCA 1183, [24].

[39] [2020] FCA 192, [40].

[41] [2014] VSCA 252.

[43] Citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (citations omitted); SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609, 617 [25]; Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175, [36]; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322, [9]. Ellipsis and square bracketed amendment in original.

[44] [2019] VSCA 302, [51(3)] (citations omitted).

[45] [2019] VSCA 315, [51].

[46] Citing Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29].

[47] [2021] VSCA 187, [64].

[48] [2019] VSCA 302, [51] (first line). Paragraph [51] is set out in full below. Note the reference to 'each' of Mr Maimonis' grounds of appeal.

[49] [2013] HCA 43; (2013) 252 CLR 480.

[50] A recent Austlii search indicates that Wingfoot has been cited 618 times, including 59 times in this first half of 2022.

[51] [2019] VSCA 302, [51] (citations included but renumbered).

[52] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498-9 [47]; Mailton Holdings Pty Ltd v Jussy [2019] VSCA 281, [59].

[53] Body Corporate Strata Plan No 4166 v Stirling Properties Ltd [No 2] [1984] VicRp 73; [1984] VR 903, 913; Dixon v Hacker [2007] VSC 342, [41]-[42]; Ventrice v Riva Plaster Pty Ltd [2008] VSC 415, [12].

[54] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 356; (1993) 43 FCR 280, 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2; Dixon v Hacker [2007] VSC 342, [44].

[55] Wingfoot [2013] HCA 43; (2013) 252 CLR 480, 501-2 [55]-[56].

[56] See the cases listed in n 53 above that were cited by the Court of Appeal in Maimonis v Bourke [2019] VSCA 302 for principle (2); and see also the cases listed in n 60 below.

[57] [2019] VSCA 302, [39].

[58] [2019] VSCA 302, [51].

[60] See, for example, Portland Properties Pty Ltd v Melbourne and Metropolitan Board of Works (1971) 38 LGRA 6, 18 (Smith J, Adam J agreeing); Ta v Thompson [2013] VSCA 344; (2013) 46 VR 10, 20 [50] (Osborn JA, Beach JA agreeing); Tan v Kotzman [2016] VSC 482, [29] (John Dixon J); Hart v Melbourne Underwater World Pty Ltd [2018] VSC 394, [35]; Miletic v ANZ Banking Group Ltd [2022] VSC 240, [23].

[61] See Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [47]; Tan v Kotzman [2016] VSC 482, [19] (John Dixon J); Morrison v Melbourne Pathology Pty Ltd [2018] VSC 477, [26]-[30] (Richards J); Valspar Paint (Australia) Pty Ltd v Ma [2020] VSC 304, [50] (Richards J); El-Najjar v Swidryk Investments Pty Ltd [2021] VSC 814, [55]-[56] (Richards J). See also my judgment in Pearce v Lloyd [2016] VSC 806, [60]-[61]. Cf Sidiqi v Kotsios [2021] VSCA 187, [106].

[62] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [29]-[31]; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, [2], [27]-[60]; Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, [93]-[100], [145].

[63] See Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372, [80], [82], [95], [118]-[121], [281]-[285].

[64] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, [28], [66]-[67].

[65] Plaintiff's written outline of submissions dated 29 July 2020 ('plaintiff's outline'), [20]-[23].

[72] See and compare Bennie v CGU Workers Compensation Colac Area Health [2005] VCC 1392, [50]-[52] (Judge Bowman); Nandan v Keilor Hostel for the Aged Association Inc [2017] VMC019, [85]-[89] (Magistrate B R Wright); Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, [139]-[140].

[73] [2016] VSCA 142; (2016) 51 VR 95.

[74] [2019] VSC 376, [19(6)], [65]-[75].

[75] [2016] VSCA 142; (2016) 51 VR 95, 110 [70(6)], [70(7)], 114 [73]. Noted in Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [69].

[76] [2016] VSCA 142; (2016) 51 VR 95, 112 [70(11)], 114 [73]. Noted in Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [69].

[77] [2016] VSCA 142; (2016) 51 VR 95, 111 [70] (last sentence), 114 [73]. Noted in Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [69].

[78] [2016] VSCA 142; (2016) 51 VR 95, 124 [106]. My emphasis. Noted in Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [70].

[79] [2016] VSCA 142; (2016) 51 VR 95, 135 [143]-[145]. My emphases. Noted in Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [71].

[80] Sneadon v Seniors Community Care Pty Ltd [2021] VSC 30, [62]-[70], [86]-[94]; Yildirim v A & L Windows Pty Ltd [2021] VSC 139, [25]-[27]; Bainbridge v Westside Meats Pty Ltd [2021] VSC 320, [10]; Sidiqi v Kotsios [2021] VSCA 187, [85]-[87]; Moutray v The Union Pastoral Co Pty Ltd [2021] VSC 723, [49] (see grounds 7(a) and (b) there quoted); Popal v Panda Care Pty Ltd [2021] VSC 812, [47]-[48]; Akbari v Victorian WorkCover Authority [2022] VSC 84, [46]-[48], [62]; A & L Windows Pty Ltd v Yildirim [2022] VSCA 46, [13], [32].

[81] [2021] VSC 320, [13]-[39], [51].

[82] Footnotes included, but renumbered.

[83] See, eg, Workers' Compensation Act 1914 (Vic), sch 1 cl 1(b); Workmen's Compensation Act 1925 (UK) 15 & 16 Geo 5, c 84, s 9; Workers Compensation Act 1958 (Vic) s 9 cl 2 [sic: s 9(2)].

[84] Accident Compensation (WorkCover) Act 1992 (Vic).

[85] Ball v William Hunt & Sons Ltd [1912] UKLawRpAC 29; [1912] AC 496, 499-500 (Earl Loreburn LC).

[86] See, eg, Kear v Shelton Iron, Steel and Coal Co (1921) 14 BWCC 121, 123 (Lord Sterndale MR).

[87] Cardiff Corporation v Hall [1911] UKLawRpKQB 52; [1911] 1 KB 1009, 1016 (Fletcher Moulton LJ); Roberts & Ruthven Ltd v Hall (1912) 5 BWCC 331, 333 (Cozens-Hardy MR), 333-4 (Fletcher Moulton LJ); Peart v Bolckow, Vaughan & Co Ltd [1925] 1 KB 399, 409-10 (Pollock MR); Kemp v Darling Island Stevedoring & Lighterage Co Ltd (1959) 76 WN (NSW) 707.

[88] Macdonald or Duris v Wilsons & Clyde Coal Co [1912] UKLawRpAC 30; [1912] AC 513, 517 (Earl Loreburn LC).

[89] Cardiff Corporation v Hall [1911] UKLawRpKQB 52; [1911] 1 KB 1009, 1021 (Fletcher Moulton LJ).

[91] Foster v Wharncliffe Colliery Co Ltd [1922] 2 KB 701, 715 (Scrutton LJ).

[92] Cardiff Corporation v Hall [1911] UKLawRpKQB 52; [1911] 1 KB 1009, 1021 (Fletcher Moulton LJ); Peterson v Colman [1938] WCR (NSW) 62, 76 (Rich, Starke and Dixon JJ).

[93] Cardiff Corporation v Hall [1911] UKLawRpKQB 52; [1911] 1 KB 1009, 1024-5 (Fletcher Moulton LJ).

[94] Ibid. See also Dobby v Wilson Pease & Co (1909) 2 BWCC 370.

[95] Cardiff Corporation v Hall [1911] UKLawRpKQB 52; [1911] 1 KB 1009, 1027 (Buckley LJ).

[96] [2016] VSCA 142; (2016) 51 VR 95, 119-20 [92] (Ashley, Kaye JJA); see also at 114-118 [75]-[82].

[97] A good example of this, although perhaps somewhat dated, is the case of Ball v William Hunt & Sons Ltd [1912] UKLawRpAC 29; [1912] AC 496. In that case Mr Ball worked as an edge tool moulder. He was blind in one eye, but his employers did not know and it did not affect his ability to perform his work. He then suffered an injury to his bad eye, which resulted in it being removed, and it becoming obvious that he could only see out of one eye. He could, of course, continue to perform his work duties as he had before. But the evidence showed that no employer would employ him because he could only see out of one eye; rather than this condition making him less attractive to employers, the factual conclusion was that this condition meant that there was no market for his labour, notwithstanding his ability to perform the work tasks. Accordingly, his later injury had rendered his labour unsaleable.

[98] [2016] VSCA 142; (2016) 51 VR 95, 117-18 [82] (Ashley and Kaye JJA).

[99] [1912] UKLawRpAC 29; [1912] AC 496, 499.

[101] [2016] VSCA 142; (2016) 51 VR 95, 120 [95] (Ashley and Kaye JJA).

[102] See, in this context, Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [41]-[42] (Cavanough J).

[103] [2016] VSCA 142; (2016) 51 VR 95, 120 [95] (Ashley and Kaye JJA), quoting Cardiff Corporation v Hall [1911] UKLawRpKQB 52; [1911] 1 KB 1009, 1026-7 (emphasis added).

[104] (2015) 14 VR 622, 636 [25] (Phillips JA), quoted in [2016] VSCA 142; (2016) 51 VR 95, 117 [79] (Ashley and Kaye JJA).

[105] [2016] VSCA 142; (2016) 51 VR 95, 115 [78], 117 [80] (Ashley and Kaye JJA).

[109] [2021] VSCA 187.

[110] [2021] VSCA 187 [85]-[87] (footnotes included, but renumbered).

[111] [2016] VSCA 142; (2016) 51 VR 95, 114-21 [73]-[98] (Ashley and Kaye JJA), 135 [143]-[145] (Osborn JA).

[112] The background to these provisions is described by Ashley and Kaye JJA in Richter v Driscoll [2016] VSCA 142; (2016) 51 VR 95, 119-20 [88]-[93].

[113] [2021] VSC 320, [25] (citation omitted).

[114] [2021] VSCA 187, [92].

[115] [2019] VSC 376, [72].

[116] [2021] VSCA 187, [87].

[117] Cf Akbari v Victorian WorkCover Authority [2022] VSC 84, [62] (Forbes J).

[118] See Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [19(6)], [65].

[119] See the vocational assessment material at CB 271 and CB 287 (discussed at T 25-30).

[120] It is notable that Mr Jordan's expression of opinion that he would not be able to secure employment as a warehouse administrator was not matched by any such expression of opinion in relation to his prospects of securing employment as a product assembler.

[121] T 12-13. See paragraph (a)(iv) of the definition of 'suitable employment' in the Act.

[122] Cf Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [62].

[124] See, eg, plaintiff's outline, [32].

[125] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (186) 162 CLR 24, 39-41 (Mason J); Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59, [44]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90; (2012) 203 FCR 166, [145]. I cited and applied these cases in Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [41], [79]. See also my judgment in Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [55].

[126] Plaintiff's outline, [27]. The plaintiff wrongly relied on Deloitte Touche Tohmatsu v Australian Securities Commission (1996) 136 ALR 453, 468; Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107, [29]-[45] for that proposition.

[127] Plaintiff's outline, [27]. Plaintiff's written outline of submissions in reply dated 4 November 2020 ('Plaintiff's written reply'), [26].

[128] [2018] VSC 754.

[129] Lang v Spendless Shoes Pty Ltd [2019] VSC 376, [55]; Sensis Pty Ltd v Jones [2018] VSC 754, [13], [63]-[64] and the cases there cited.

[130] See, eg, the cases cited by the plaintiff in paragraph 26 of his reply submissions, namely, DQM18 v Minister for Home Affairs [2020] FCAFC 110, [25]-[29] and JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293, [38]-[42] (Perry J). See also Plaintiff M1/2020 v Minister for Home Affairs [2022] HCA 17, [22]-[26].

[132] Fourth defendant's written outline of submissions dated 28 September 2020 ('Skilled's outline'), [37] citing Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679-680 (Barwick CJ); Bluescope Steel Ltd v Nisselle [2008] VSC 72, [67]; Brambles Industries Ltd v Nisselle [2005] VSC 82, [22].

[133] Skilled's outline, [22] citing Swift v SAS Trustee Corporation [2010] NSWCA 182, [45] (Basten JA); Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, 175-176; Anderson v Director General of the Department of Environmental and Climate Change [2008] NSWCA 337, [51]-[59] and Azriel v NSW Land and Housing Corporation [2006] NSWCA 372, [51].

[134] Skilled's outline, [22] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41; Blacker v Boss Trailers [2017] VSC 538, [18] and Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [79].

[135] Skilled's outline, [22] quoting Blacker v Boss Trailers [2017] VSC 538, [17] (Keogh J), in turn citing Milwain v Sim [2009] VSC 75, [22] (Kyrou J).

[136] (1986) 162 CLR 24.

[137] Skilled's outline, [23] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.

[138] [2019] VSCA 151; (2019) 62 VR 174, [67]-[73].

[140] See Chang v Neill (2019) 62 VR 141, [67]-[73].

[142] Richter v Driscoll [2016] VSCA 142; (2016) 51 VR 95, [97]. My emphasis.

[143] See also ibid, [106], where their Honours refer to the plaintiff's 'relevant personal circumstances which we have discussed' (my emphasis). The circumstances 'discussed' are said to be those set out in the definition of 'suitable employment'.

[145] Said by the plaintiff to be supported by the statutory phrase 'incapacity for work' as distinct from 'incapacity to work'. See plaintiff's outline, [22], plaintiff's written reply, [8(b)], and see ss 28, 103(b), 160 and 162 of the Act, in which the expression 'for work' appears.

[146] [2022] HCA 17, [26]. Citations omitted. Square bracketed amendment in original.

[147] Calleja v Franet Pty Ltd [2000] VSC 339, [40], [52]-[55] (Ashley J); Gruma Oceanic Pty Ltd v Bakar [2014] VSCA 252, [42].

[148] [2016] VSCA 142; (2016) 51 VR 95, [5]. My emphasis.

[149] [2019] VSC 376. See at [2], [6], [8], [11] and [12].

[153] [2000] VSC 339, [55]. Distinguished in Gruma Oceanic Pty Ltd v Bakar [2014] VSCA 252, [42].

[154] [2018] VSCA 124, [39].

[155] [2021] VSCA 187, [99].

[156] [2013] VSCA 22 (Tate and Whelan JJA and Kaye AJA).

[157] Ibid [131], citing ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [81]; Murray Goulburn Coop Co Ltd v Filliponi [2012] VSCA 230, [28].

[158] [1968] UKPCHCA 1; (1968) 118 CLR 32, 39. Cited recently in my judgment in Medical Board of Australia v Sami [2022] VSC 90, [130].

[159] Square bracketed amendment in original.

[163] As Skilled points out, there matters can be seen from page 5 of the Panel's reasons under the heading 'Employment, credentials, and skills' and from what is set out on pages 6 to 9 of the Panel's reasons under 'Psychiatric history'.

[165] Some editorial changes have been made, particularly to the fourth dot point. Footnote to third dot point added. Footnote to last dot point included but renumbered.

[166] Further, I note that, in giving a history to Dr Das, Mr Jordan described the warehouse manager position as the first of five 'major' jobs he had had. The employer was 'Brilliant Aluminium': CB 130.

[167] Plaintiff's submissions to the Medical Panel dated 25 September 2019.

[168] [2019] VSCA 151; (2019) 62 VR 174, [32]-[64].

[169] Plaintiff's outline, [34]-[36]. The meaning of 'evidence' here depends on the nature and the information-gathering powers of the decision-making body. See, generally, S v Crimes Compensation Tribunal [1998] 1 VR 83.

[173] [2021] VSCA 187.

[174] Ibid, [40]. Footnote included but renumbered. North v Homolka [2014] VSC 478, [63] (Ashley JA); Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [89] (Cavanough J). See also Moore v Barton [2014] VSC 78, [65]-[66] (John Dixon J) and cases there cited.

[176] WorkFocus 130 Week Vocational Assessment Report dated 30 January 2018: CB 323, 329-330; WorkFocus 130 Week Vocational Assessment Report dated 23 September 2017: CB 296-297.

[177] WorkFocus 130 Week Vocational Assessment Report dated 30 January 2018: CB 330.

[179] Plaintiff's outline, [40]-[41].

[180] Chang v Neill [2019] VSCA 151; (2019) 62 VR 174, [92].

[183] For similar conclusions, see Maribyrnong City Council v Malios [2014] VSC 452, [48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [83]; cf Haq v Dodgshun [2015] VSC 450, [45], all cited by Skilled in Skilled's outline, [36].

[184] See the cases cited in n 132 above.

[188] Skilled's outline, [39]. Footnote included but renumbered.

[189] Report of Dr Slesenger dated 22 February 2019: CB 267.

[190] Plaintiff's outline, [42]-[47].

[192] Ballantyne v WorkCover Authority of NSW [2007] NSWCA 239, [113]. See also my judgment in Love v State of Victoria [2009] VSC 215, [191]; Conroy v Romas [2019] VSC 695, [101]-[102] (Ginnane J).

[193] Report of Dr Das dated 12 February 2019: CB 130.

[194] [2014] VSC 252.

[196] This was a reference to s 68(2) of the Accident Compensation Act 1985 (Vic). See new s 313 of the Act.