Plaintiff v Firstnamed Defendant

3 It is convenient, first, to set out the provisions of the Act which are relevant to this case. Section 98C of the Act provides for the entitlement of a worker to compensation for non-economic loss in respect of an injury which is sustained arising out of or in the course of the worker's employment. Section 98C(3)(a) provides that the amount of non-economic loss, in respect of permanent psychiatric impairment, shall be calculated as "zero", if the worker's degree of impairment is less than 30 percent.

4 The Panel based its decision on s 91(2) and s 91(7)(c) of the Act, which provide:

"(2) In assessing a degree of impairment ..., regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, physical injury.

...

(7) For the purposes of s 98C -

...

(c) impairments from unrelated injuries or causes are to be disregarded in making an assessment."

5 Section 104B of the Act prescribes the process, which must be undertaken in assessing a claim by an injured worker for non-economic loss under s 98C. Subsection (2) provides that the Authority (or self insurer) must, within 120 days of receiving a claim, accept or reject it, and notify the worker of its decision. Under sub-section (7B), the worker has 60 days to accept or dispute that determination. Subsection (9) provides that the Authority (or self insurer) must, within 14 days of being advised by the worker that the worker disputes the determination, refer to a medical panel, for its opinion under s 67, the medical questions as to -

(a) the degree of impairment resulting from the injuries claimed, for which liability is accepted or established;

(b) whether the worker has an injury or injuries, for which liability is accepted or established, which is a total loss.

6 The provisions relating to medical panels are contained in Part 3 Division 3 of the Act. Section 67(1) provides that the function of a medical panel is to give its opinion on any medical question in respect of injuries arising out of, or in the course of, or due to the nature of, employment. Section 68(1) provides that the panel must form its opinion on a medical question referred to it within 60 days after the referral. Subsection (2) provides:

"(2) The medical panel to whom a medical question is so referred must give a certificate as to its opinion and a written statement of reasons for that opinion."

7 Section 68(4) provides that, for the purposes of determining any question or matter, the "opinion" of a medical panel on a medical question referred to it is final and conclusive.

8 The plaintiff, who is 49 years of age, commenced employment with the first defendant, at its premises at Sunshine, as a storeman in 2004. On 13 November 2008, he suffered an injury to his left shoulder, while pulling a length of aluminium from a rack. That injury was the subject of an accepted claim for compensation.

9 The plaintiff returned to work on 15 January 2009 on restricted duties. He ceased work on 23 July 2009, and underwent arthroscopic surgery to his left shoulder on 27 October 2009. In the meantime, he submitted a Worker's Injury Claim form dated 23 July 2009. In that form, the plaintiff stated that he had suffered injury consisting of "stress from workplace bullying". He stated that, for at least the previous four months, he had endured verbal abuse and bullying in relation to his shoulder injury.

10 The plaintiff's claim was referred to a medical panel. On 28 January 2010, the panel issued a Certificate of Opinion, stating that it was of the opinion that the plaintiff was suffering from a "mild adjustment disorder with anxious mood relevant to the claimed injury". The panel further certified that the plaintiff was not capable of performing his pre-injury duties, and that he had not been capable of performing those duties from 23 July 2009.

11 In the reasons, which it provided for its opinion, the panel concluded that, based on the plaintiff's reported history of how he had been treated by his employer after returning to work, the plaintiff was suffering from a mild adjustment disorder with anxious mood. The panel considered that the plaintiff's employment duties with the first defendant had led to the development of his adjustment disorder with anxious mood, and that that condition was relevant to the stress-anxiety/depression injury claimed by the plaintiff.

12 On 14 September 2010, the plaintiff completed a claim for impairment benefits, pursuant to s 98C of the Act. He claimed that he had suffered injury consisting of "stress, PTSD, adjustment disorder with anxiety and depression" arising from "stress from workplace bullying", which was the subject of the previously accepted claim for psychiatric injury.

13 In response, Cambridge Integrated Services Victoria Pty Ltd (trading as Xchanging) ("Xchanging"), on behalf of the first defendant, arranged for the plaintiff to be assessed by Dr Timothy Entwisle, a consultant psychiatrist. Dr Entwisle provided a report dated 22 November 2010. On 14 January 2011, Xchanging advised the plaintiff that liability was accepted for the injury consisting of "mild adjustment disorder with anxious mood", but noted that the plaintiff's psychiatric whole person impairment had been determined at 10 percent. Xchanging advised that, since, under s 98C of the Act, an impairment benefit is only payable if a worker's degree of permanent psychiatric impairment is 30 percent or greater, the plaintiff did not have an entitlement to an impairment benefit.

14 In response, on 8 February 2011, the plaintiff advised Xchanging that he accepted the acceptance of his claim, but disputed the level of impairment, and sought referral of his claim to a medical panel. Accordingly, on 16 February 2011, Xchanging referred to the second defendant, as Convenor of Medical Panels, the following two questions pursuant to s 104B(a) of the Act:

"(i) What is the worker's degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with s 91 and is the impairment permanent?

(ii) Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in s 98E(1)?"

15 On 8 March 2011, the Panel, constituted by the third defendants, supplied a Certificate of Opinion, pursuant to s 68(2) of the Act, in which it answered the questions, referred to it, as follows:

"(i) The Panel is of the opinion that there is a 0% psychiatric impairment resulting from the accepted mild adjustment disorder with anxious mood injury when assessed in accordance with s 91 of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.

16 The Panel provided written reasons for the opinion contained in its certificate. On page 4 of the reasons, the panel stated:

"The Panel considered that the worker is suffering from an Adjustment Disorder with depressed and anxious mood which results in part from the worker's left shoulder injury and in part to the worker's subsequent harassment which occurred at the workplace after his return on light duties in January 2009 from his left shoulder injury.

The Panel therefore concluded that the worker's current psychiatric condition results from a physical injury to his left shoulder and is therefore not related or relevant to the accepted mild adjustment disorder and anxious mood injury.

...

In the panel's opinion ... the degree of psychiatric impairment is 15 percent, which is all either secondary to the physical left shoulder injury or to the subsequent harassment which occurred at the workplace after the worker's return on light duties in January 2009 from his left shoulder injury, and therefore excluded from the psychiatric impairment assessment in accordance with s 91(2) and s 91(7)(c) of the Act. The panel considers the degree of impairment is permanent."

17 The Panel then noted the report of Dr Entwisle, in which he concluded that the plaintiff was suffering from a mild adjustment disorder with anxious mood, which had occurred in the context of the workplace stress, that he had experienced, and not in regard to his left shoulder.

"The panel came to a similar conclusion with respect to the diagnosis itself but formed a different view with regard to the nature of injury, and concluded that as the harassment at the workplace manifested itself subsequently to and due to the left shoulder injury, the panel's diagnosis was therefore not relevant to the accepted mild adjustment disorder with anxious mood injury.

The panel also came to a different conclusion with respect to the apportionment of impairment with particular regard for the secondary nature of the impairment as a result of the unrelated left shoulder incident, and with particular regard for the consequential nature of the harassment in relation to the unrelated left shoulder incident.

...

The panel therefore concluded that the worker has a o% psychiatric impairment resulting from the accepted mild adjustment disorder with anxious mood injury when assessed in accordance with s 91 of the Act. The degree of impairment is permanent within the meaning of the Act."

19 It is common ground that the Panel erred in reasoning that the psychiatric impairment of the plaintiff, which was caused by the harassment of him at work, arose "as a consequence of, or secondary to" his physical injury, within the meaning of s 91(2) of the Act. The Panel reached that conclusion by wrongly reasoning that, because the harassment of the plaintiff had arisen out of the restrictions at work imposed on him as a result of his physical injury, the resulting psychiatric impairment, caused by that harassment, also arose out of, or was secondary to, the plaintiff's physical injury. While, historically, the plaintiff's physical injury was a necessary step in the series of events which led to his harassment, and thus to his psychiatric injury, the Panel erred in concluding that, for that reason, the plaintiff's psychiatric injury, and his impairment, were thus causally related to his physical injury for the purposes of s 91(2) of the Act.[1]

20 Mr A G Uren QC, who appeared with Mr A Ingram for the plaintiff, submitted that, accordingly, the Panel had made an error of law on the face of the record, and that it had also made a jurisdictional error. He submitted that, on both bases, the certificate issued by the Panel should be quashed.

21 In response, Ms F McKenzie, who appeared for the first defendant, submitted that, notwithstanding the error made by the Panel, the certificate issued by it should not be quashed. She submitted that the error made by the Panel was not a jurisdictional error. She further submitted that the Panel's primary function was to make a medical assessment. The assessment by the Panel of a 15% impairment was not affected by the error made by the Panel in its construction of s 91(2) and s 91(7)(c) of the Act. If the Panel had not made the error in relation to s 91(2), the Panel would not have assessed the plaintiff's impairment at any higher than 15%. Such an impairment was insufficient to entitle the plaintiff to compensation for non-economic loss under s 98C of the Act. Thus, she submitted, the error made by the Panel was not a material error contributing to its ultimate decision.[2]

22 Ms McKenzie argued, secondly, that in any event the error on the part of the Panel did not necessarily invalidate the Panel's decision. In that connection, she relied on the decision of the High Court, in Project Bluesky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, in support of the proposition that an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. She submitted that, similarly, the error by the Panel did not vitiate the Panel's advice as to the plaintiff's entitlement under s 98C of the Act. It is the plaintiff's entitlement and the notice of any entitlement sent by the Authority, which is the relevant outcome for the plaintiff.

23 Thirdly, Ms McKenzie submitted that relief should not be granted in the nature of certiorari on discretionary grounds. In particular, she submitted that the grant of such relief would be futile. It has not been argued by the plaintiff that the Panel's opinion, as to his degree of impairment being assessed at 15%, was incorrect. It would therefore be futile to quash the certificate granted by the Panel, since, if the matter were remitted to the Panel, the certificate issued by it would be for a degree of impairment less than that required to entitle the plaintiff to compensation under s 98C of the Act.

24 Finally, Ms McKenzie submitted that, if I were to make orders setting aside the Panel's opinion, I should direct that the Panel replace its certificate, so as to contain the following answer to question (i):

"The Panel is of the opinion that the worker has a psychiatric impairment resulting from the accepted mild adjustment disorder with anxious mood injury when assessed in accordance with section 91 of the Act of 15% or less. The degree of psychiatric impairment is permanent within the meaning of the Act."

25 In response, Mr Uren submitted, first, that the decision of the Panel is that contained in the certificate. It is the opinion of the Panel, as expressed in the certificate, to which effect is given. Any expression of opinion, contained in the Panel's reasons, is not of itself of any legal effect. Accordingly, it is not to the point that, in its reasons, the Panel might have made a valid assessment of the percentage psychiatric impairment of the plaintiff. The reasons containing that assessment are not part of the Panel's decision. Rather, the Panel's decision is contained in the certificate. The conclusion, stated by the Panel in its certificate, contains an error of law, which is evidenced by reference to the reasons supplied by the Panel.

26 Mr Uren further submitted that the error made by the Panel was material to the decision recorded by it in its certificate. In its reasons, the Panel assessed the plaintiff's degree of psychiatric impairment at 15 percentum. Because of the error, as to the effect of s 91(2) of the Act, it concluded, and recorded in its certificate, that the plaintiff had a 0% psychiatric impairment when assessed in accordance with s 91 of the Act. In that way, the error by the Panel, in its application of s 91(2), played a direct and material role in the decisions stated by the Panel in its certificate.

27 Mr Uren also submitted that the decision of the High Court in Project Bluesky Inc & ors v Australian Broadcasting Authority,[3] on which Ms McKenzie relied, should be distinguished. He submitted that that decision related to the consequences of a breach of a condition, by a decision maker, regulating the exercising of a power. He submitted that the present case is not an instance of a breach of such a condition. Rather, the impugned decision made by the Panel was made in consequence of an error of law which is admitted by the first defendant.

28 Finally, Mr Uren submitted that the grant of relief in the nature of certiorari would not be futile. Such an order would set aside the certificate issued by the Panel, on the basis of which the plaintiff's entitlements under s 98C, and his right to issue common law proceedings under s 134AB(15), depend. Mr Uren submitted that the only relief, which I should grant, is an order in the nature of certiorari. Where such an order is made, the Court does not have power, without more, to make the consequential type of order, for which Ms McKenzie had contended.

29 The first submission by Ms McKenzie was that the reasons of the Panel form part of the record, and thus they are part of the decision or opinion of the Panel. She submitted that the Panel's function was, therefore, sufficiently performed when it assessed the degree of the plaintiff's psychiatric impairment at 15%, which was lower than the 30% threshold, which is necessary to qualify the plaintiff for compensation under s 98C of the Act.

30 That submission raises the question as to what document or documents constitute the relevant decision of the Panel. The answer to that submission is to be found in the provisions of the Act, to which I have already referred. In particular, s 104(B)(9) provides that specific questions must be referred by the Authority to the Panel. In accordance with that provision, the first question, submitted to the Panel, was the degree of the plaintiff's permanent whole person impairment resulting from the "accepted injury" as assessed in accordance with s 91. Section 68 of the Act required the Panel to form its opinion, on that medical question, within 60 days. Section 68(2) then required the Panel to give a certificate as to that opinion, and a written statement of its reasons "for that opinion". Thus, the decision of the Panel was constituted by the opinion reached by it on the medical question which had been referred to it. The document, which is the record of that decision, is the certificate issued by the Panel. Section 68(4) provides that, for the purposes of determining any question or matter, the "opinion" of the Panel on a "medical question" referred to the Panel is to be adopted and applied by any court, body or authority, and must be accepted as final and conclusive.

31 In this case, the first question, submitted to the Panel, comprised a composite of two issues, namely, the degree of the plaintiff's impairment, and the question whether that impairment resulted from the accepted injury. In its reasons, the Panel found that the plaintiff had a 15% impairment. However, by reason of the error, which it made on the issue of causation, it wrongly concluded that the plaintiff's psychiatric impairment, resulting from his accepted adjustment disorder, was zero percentum.

32 Section 10 of the Administrative Law Act 1978 has the effect that the reasons provided by the Panel form part of the record of the Panel. However, that provision does not constitute the reasons, so provided by the Panel, as part of the "opinion" of the Panel for the purposes of s 68. On the contrary, it is the certificate, issued by the Panel under s 68(2), which is the repository of its opinion.

33 The foregoing analysis is supported by the decision of the Court of Appeal in Lianos v Inner and Eastern Healthcare Network.[4] In that case, the plaintiff's counsel had sought to tender, in the Magistrates' Court, the Panel's reasons for its opinion, in a claim for reinstatement of weekly payments. The Magistrate ruled that the reasons were inadmissible, and dismissed the claim. The plaintiff's appeal to a single judge of the Court was dismissed. The plaintiff then unsuccessfully appealed to the Court of Appeal. On his behalf it was argued that, because of the operation of s 10 of the Administrative Law Act, the reasons given by the Panel formed part of its opinion, and thus constituted part of the material which could be placed before the Magistrate in accordance with s 68(3) of the Act. Chernov JA (with whom Tadgell JA and Batt JA agreed) rejected that submission. His Honour stated:

...the terms of the relevant provisions of the Act constitute, in effect, a self-contained code for the resolution of medical questions in the sense that they provide the steps that must be taken to achieve that end, namely, the reference by the court of the medical questions to the panel, the forming of an opinion by it on those questions, the provision of that opinion to the referring court and the adoption by the court of that opinion. The ALA (Administrative Law Act) has no role to play in this process.[5]

34 Thus, I reject the submission by Ms McKenzie that the assessment of the degree of the plaintiff's impairment (at 15%) in the reasons, constituted part of the Panel's opinion, so as to render the ultimate conclusion, stated in its certificate, of no consequence.

35 Ms McKenzie's next submission was that the error, made by the Panel, was not material to the ultimate result for the plaintiff. For, she submitted, if the Panel had not made that error, it would have issued a certificate to the effect that the plaintiff had a 15% permanent impairment, which would have been below the threshold required to qualify the plaintiff for compensation under s 98C of the Act.

36 It is well established that, for the purposes of the grant of prerogotative relief in the nature of certiorari, the error on the record, relied on by the plaintiff, must have been material to the conclusion ultimately reached by the decision maker. There have been a number of different formulations, of that requirement, in the authorities. Essentially, to be material, the error must have played a part in the reasoning of the Panel which contributed to its decision. On any view, the error of law would be material if the Panel would have made a different decision, if it had not committed the error in question.[6]

37 Clearly, the error made by the Panel was directly material to the conclusion, recorded in its certificate. The Panel, having assessed the plaintiff's degree of psychiatric impairment at 15%, incorrectly considered that the impairment was a consequence of, or secondary to, the plaintiff's shoulder injury. That error led the Panel to record, in its certificate, that the plaintiff had a 0% psychiatric impairment, rather than a 15% psychiatric impairment. In that way, the error, made by the Panel, in its reasons, was fundamental to its conclusion. It is unarguable that the conclusion stated by the Panel in its opinion, that the plaintiff had a 0% degree of psychiatric impairment, was wrong, and that it was wrong because it was produced by the error, which is common ground on this application.

38 Ms McKenzie submitted that, nevertheless, the error made by the Panel was immaterial, because, if the error had not been made, the "correct" conclusion which would have been reached by the Panel, namely, that the plaintiff had an impairment of 15%, would not have affected the plaintiff's entitlements under the Act. In my view, that submission wrongly conflates the conclusion reached by the Panel, with its legal effect under the Act. As I have stated, the error made by the Panel was directly productive of the wrong conclusion stated in its certificate. The fact that, if the Panel had stated its correct conclusion, the plaintiff would not, thereby, have been entitled to compensation under s 98C of the Act, is not to the point. Rather, what is at issue in this case is the conclusion by the Panel, and recorded by it, in its certificate. The error made by the Panel was directly productive of that conclusion. In that respect, it was material to the conclusion.

39 Further, I do not accept the submission by Ms McKenzie that the judgment of the High Court, in Project Bluesky Inc & ors v Australian Broadcasting Commission,[7] is applicable to this case. That case concerned the validity of an Australian Contents Standard determined by the Australian Broadcasting Authority ("ABA"). By clause 9 of that Standard, Australian programs were required to comprise at least 50% of all broadcasts. The High Court held that the Standard did not comply with s 160(d) of the Broadcasting Services Act 1992, which required the ABA, in determining program standards, to comply with Australia's obligations under any convention to which Australia is a party. The High Court held that the condition, contained in clause 9 of the Standard, breached s 160(d), because it did not comply with the Protocol to the Australian New Zealand Closer Economic Relations Trade Agreement. It nevertheless considered that the failure of the Standard to comply with s 160(d) of the Act did not invalidate any exercise of the statutory power by the ABA based on clause 9 of the Standard.[8]

40 In the present case, the question which I must determine is quite different. Unlike the Project Bluesky case, this is not a case involving non-compliance by an administrative body with a condition relating to the exercise of its power. Rather, in this case, the Panel made an error of law on the face of the record. That error was material to the decision made by the Panel, in respect of the question referred to it, and which decision was stated in the certificate issued by the Panel. The Panel's decision was a direct result of the error of law which it made. As such, it was a wrong decision.

41 Thus, the plaintiff has established that the Panel made an error of law, on the face of the record, which was material to, and which led to, the conclusion stated by the Panel in its certificate. The question which arises is whether there are any discretionary grounds, on which I should refuse to grant the plaintiff relief in the form of certiorari, to which the plaintiff would otherwise be entitled.

42 It is well established that prerogative relief, including relief in the nature of certiorari, does not lie as of right, but that it is discretionary.[9] Ms McKenzie submitted that I should not grant relief in the nature of certiorari, since to do so would be futile.[10] In particular, she submitted that there was no argument that the Panel's opinion as to the impairment of 15% would have been greater, if the Panel had interpreted the Act correctly. Ms McKenzie submitted that the plaintiff had not been deprived of any proper medical assessment. The grant of prerogative relief would not be of any consequence to the plaintiff, since the plaintiff's psychiatric impairment, properly assessed, is no greater than 15%.

43 The submission made by Ms McKenzie would have merit, if I were persuaded that, if I made an order for certiorari quashing the decision of the Panel, the matter should be remitted to the same Panel, with a direction that the Panel determine its decision on the basis of these reasons for judgment, as applied to its previous assessment of the plaintiff's impairment. However, as I shall set out below, I do not consider that such a course would be appropriate in the circumstances of this case. Rather, I consider that the appropriate relief is that contended for by Mr Uren, namely, that the plaintiff be granted an order in the nature of certiorari. In those circumstances, such an order, without more, would not necessarily be attended with futility. Another Panel, and indeed the same Panel, reviewing the plaintiff's medical condition, may not necessarily reach the same conclusion as to the degree of psychiatric impairments caused by his adjustment disorder.[11] Accordingly, it would not be futile for me to make an order in the nature of certiorari.

44 As I stated, Ms McKenzie submitted that, if I were to make such an order, I should remit the matter to the same medical panel, with a direction that it decide the question referred to it on the basis of the psychiatric impairment assessment already undertaken by it, and otherwise in accordance with these reasons for decision.

45 I am not persuaded that that course would be appropriate. The orders, which Ms McKenzie submitted I should make, are not orders which may be made upon the grant of relief in the nature of certiorari. Rather, such orders would constitute relief in the nature of mandamus.[12] In this case, the plaintiff did not seek relief by way of mandamus. Further, and more significantly, I do not consider that the relief contended for by Ms McKenzie would be appropriate. The error, which was made by the Panel, disclosed a significant degree of misunderstanding by it of the task it was required to perform. It must be borne in mind that the opinion, which a medical panel is required to form in relation to a question referred to it, is critical to the entitlement of an injured worker to compensation under the Act. In light of the nature of the error made by the Panel, I do not consider that it would be appropriate, or just, to remit to it, for further consideration, the question, which is determinative of the plaintiff's rights to compensation. Thus, I do not consider that, in the circumstances of this case, I should make orders, in the nature of mandamus, contended for by Ms McKenzie.

46 Finally, the first defendant also relied on s 8 of the Civil Procedure Act 2010, which directs the Court to give effect to the "overarching purpose" specified by the Act in s 7. Ms McKenzie submitted that, in conformity with the dictates of that provision, an order, remitting the matter to the same Panel, would be the most efficient and cost effective method of resolution of the issues in dispute between the parties. I do not consider that section 8 affects the relief which I should grant. First, s 7(1) states that the overarching purpose of the Act is to facilitate the just, efficient, timely and cost effective resolution of the "real issues in dispute". In this case, the real issues in dispute, before me, are whether I should grant relief in the nature of certiorari. However, assuming, for the purposes of Ms McKenzie's argument, that those issues also extend to the issues which were before the medical panel, I do not consider that s 8 requires me to make orders remitting the matter to the same medical panel, as contended by Ms McKenzie. The "overarching purpose", defined in s 7, is not only directed to timeliness and efficiency, but also to the "just" resolution of the issues in the case. For the reasons which I have stated, I do not consider that reconsideration by the same Panel, of the questions referred to it, would constitute a just resolution of the issues between the parties.

47 Accordingly, for the foregoing reasons, I shall grant the relief sought by the plaintiff, namely, an order, in the nature of certiorari, quashing the opinion of the medical panel, comprised by the third named defendants, certified in writing dated 8 March 2011.

[1] Compare Insurance Commission of Western Australia v Container Handlers Pty Ltd & ors [2004] HCA 24; (2003) 218 CLR 89, 106-107 [41]-[43], 114 [65] - [67] (McHugh J); [132]-[133] (Kirby J).

[2] Compare Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 384 (Toohey and Gaudron JJ).

[4] (2001) 3VR 136; [2001] VSCA 53.

[5] Page 144 [24]; see also Sherlock v Lloyd & ors [2010] VSCA 122, [19]; Gamble v Emerald Hill Electrical Pty Ltd & ors [2010] VSC 611, [63] (Ross J).

[6] Australian Broadcasting Tribunal v Bond & ors [1990] HCA 33; (1990) 170 CLR 321, 353 (Mason CJ), 384 (Toohey and Gaudron JJ); Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 176; Ex parte Brown; Re McNamara (19670 68 SR (NSW) 188, 191 (Wallace P), 200 (Walsh JA); Samud v District Court of New South Wales [2002] HCA 24; (2002) 209 CLR 140, 155 [44] (Gleeson CJ, McHugh J); Wilson v County Court & anor [2006] VSC 322; (2006) 14 VR 461, [40] (Cavanough J).

[7] [1998] HCA 28; (1998) 194 CLR 355.

[9] R v Aston University Senate, ex parte Roffe & anor [1969] 2 QB 538; Mann v Medical Practitioners Board of Victoria & anor [ 2004] VSCA 148, [17] (Netttle JA).

[10] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147.

[11] Cf. Ex parte Savage and Savage [1989] WAR 46, 53 (Nicholson J).

[12] R v Bowman [1898] 1QB 663; R v The Board of Education [1910] 2KB 165; Ex parte Mullen; re Hood & ors (1935) 35 SR (NSW) 289, 296 (Jordan CJ).