Plaintiff v Firstnamed Defendants

2 Further, the employer now contends that both the medical panel's opinion itself and the order of the Magistrates' Court founded upon it stand in the way of a pending application made by the plaintiff in the County Court for leave under the Act to sue the employer at common law for damages in respect of his neck condition. If the employer is correct and such leave cannot now be obtained, the plaintiff will also be disadvantaged in continuing to prosecute a pending action which he commenced against the employer in this Court in 2007 claiming common law damages in respect of a back injury.

3 The plaintiff needs an extension of time to seek judicial review of the certified opinion. However I have heard full argument on the application for judicial review as though an extension of time had been granted.

• whether there are "special circumstances" warranting an extension of time;
• whether a certified opinion of a medical panel given on a referral under s 45 of the Act can be quashed on the sole ground that the statement of reasons given under s 68 of the Act is inadequate; and
• whether the statement of reasons given by the panel in this case was inadequate.

• whether the panel failed to take into account mandatory considerations;
• whether the panel's answers to the questions referred to it were appropriately responsive; and
• whether, in any event, relief should be refused for discretionary reasons.

5 I have concluded that the extension of time should be granted, but that the application for judicial review should be dismissed. My reasons follow.

6 The plaintiff applies for an order under r 3.02 of the Rules extending the period of 60 days fixed by r 56.02(1) for the commencement of proceedings under Order 56. The extension required is either 35 or 46 days, depending on whether time should be measured from the date of the opinion or from the date when the plaintiff received notice of it.[1]

7 The application for an extension of time came before an Associate Justice originally. The Associate Justice referred it to a judge on the basis that there were conflicting decisions of single judges of this Court as to the effect of r 56.02(3) of the Rules, which provides that the Court shall not extend the time fixed by r 56.02(1) except in "special circumstances". The so-called conflict is described in Bailey and Arthur, Civil Procedure Victoria, at [56.01.40]. The issue is, or was, whether demonstrable legal error in the decision sought to be reviewed could ever amount to, or contribute to a finding of, special circumstances. The weight of authority now seems to favour the view that such error might at least contribute to a finding of special circumstances.[2] However there is no need for me to express a concluded opinion on the point because the plaintiff does not seek to establish special circumstances in that way. He is content to rely on other matters which, he submits, make the circumstances special.

8 According to the plaintiff, the circumstances are special principally because the employer's intention to attempt to use the medical panel's opinion against the plaintiff in the ways to which I have referred was not disclosed during the limitation period of 60 days; because the plaintiff did not anticipate, and could not reasonably be expected to have anticipated, that the employer would attempt to use the opinion in those ways; and because the consequences of the panel's opinion, if the employer's contentions are correct, are far more serious for the plaintiff than he anticipated or could reasonably be expected to have anticipated during the period prior to the expiry of the time limit.

10 The plaintiff was born in 1960 in Turkey. He migrated to Australia in 1973 with his family. He left school after Year 9. He worked in various labouring and unskilled jobs and businesses. He commenced employment with the first defendants, trading as South Pacific Tyres, in 1992. He began as a cureman, running rubber through presses, and then as a serviceman for a couple of years. He was later promoted to the position of tyre builder. He claims that the work of a tyre builder was heavy physical work involving frequent lifting and manual handling.

11 The plaintiff alleges that on 16 October 1996 he suffered a neck injury at work when pulling a heavy spool of rubber towards himself. This was the alleged injury the subject of the relevant opinion of the medical panel given some 14 years later on 15 August 2010.

12 Following the incident at work on 16 October 1996 the plaintiff went onto light duties for about three months until January 1997.

13 On 8 May 2000, the plaintiff allegedly suffered a major injury to his lower back at work. A WorkCover claim for the lower back injury was accepted. The plaintiff initially returned to work on light duties but ceased work in March 2001 and has not worked since then.

14 In 2007 the plaintiff commenced a proceeding in this Court for damages in respect of the alleged injury to his lower back of 8 May 2000. That proceeding is still pending.

15 In March 2009 the plaintiff apparently developed much more significant symptoms in his neck than he had previously encountered. He was admitted to hospital. His neurosurgeon, Mr D'Urso, recommended neck surgery. Mr D'Urso sought acceptance of liability for treatment expenses (surgery and an orthopaedic bed) for the neck problem by reference to the prior WorkCover claim relating to the lower back injury of 8 May 2000. Liability was denied on the basis that the plaintiff's neck complaint was not related to the incident of 8 May 2000.

16 In May 2009 the plaintiff submitted a new WorkCover claim alleging that his current neck condition was related to the incident of 16 October 1996. Liability was denied on 20 May 2009. On 29 June 2009 a Conciliation Officer certified that conciliation had failed to resolve the matter.

17 On 2 November 2009 the plaintiff commenced a proceeding in the County Court by originating motion (no CI-09-05193) seeking leave pursuant to s 135A(4)(b) of the Act to bring proceedings against the employer to recover damages at common law for the injury to his neck that allegedly occurred on 16 October 1996 and for a determination that he had complied with s 135AC of the Act in that he had made his application within 3 years of serious injury incapacity becoming known to him in respect of an injury and cause of action that arose before 12 November 1997.

18 On 11 November 2009 the plaintiff issued a County Court writ seeking a declaration of entitlement to medical or like expenses in relation to the alleged neck condition. That proceeding was transferred to the Magistrates' Court on 2 February 2010.

19 On 8 June 2010, at the employer's request, the Magistrates' Court referred three medical questions for determination by a medical panel. A panel was assembled. It consisted of the third defendants, namely Dr Steven Jensen, a musculo-skeletal physician, Mr Kevin Siu, a neurosurgeon and Mr John Bourke, an orthopaedic surgeon. The panel examined the worker on 2 August 2010 with the assistance of a Turkish interpreter. The panel produced a certificate of opinion dated 15 August 2010 and a document headed "Reasons for Opinion" dated the same day. Notification of the result of the referral was first received by or on behalf of the plaintiff when a copy of the certificate of opinion and a copy of the statement of reasons were received by the plaintiff's solicitors on 26 August 2010.[3]

20 The questions referred and the panel's answers were as follows:

"Question 1. What is the nature of the Plaintiff's neck/cervical spine condition relevant to the alleged neck/cervical spine injury?

Answer: The Panel is of the opinion that the Plaintiff is suffering from chronic mechanical left cervical spine dysfunction with referred pain to the left shoulder girdle and upper limb, in the absence of objective signs of radiculopathy, on a background of radiological changes of multilevel degeneration and a left C5-6 disc prolapse, but this condition is not relevant to any alleged neck/cervical spine injury.

Question 2: Was the Plaintiff's employment with the First Defendant on 16 October 1996 a significant contributing factor to his alleged neck/cervical spine injury?

Answer: The Panel is of the opinion that the Plaintiff's employment with the First Defendant on 16 October 1996 was in fact a significant contributing factor to a now resolved soft tissue injury to the neck, but was not in fact and could not possibly have been a significant contributing factor to any claimed recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing neck or cervical spine condition, in any way.

Question 3: What is the extent to which any neck/cervical spine condition results from or is materially contributed to by the Plaintiff's alleged neck/cervical spine injury on 16 October 1996?

Answer: The Panel is of the opinion that the Plaintiff's current neck/cervical spine condition does not result from, nor is it materially contributed to by the Plaintiff's alleged neck/cervical spine injury of 16 October 1996."

21 On 25 August 2010 the Victorian Court of Appeal handed down its judgment in Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman ("Brumar/Brown")[4]. These were two appeals heard together concerning certain related questions of law, being questions concerning the extent to which decisions made, or opinions given, under the Act about a worker might, by the operation of the Act or by estoppel, impact upon the determination of questions of fact or law arising in common law proceedings brought by the worker in consequence of those decisions or opinions. In one of the appeals, Brumar (Vic) Pty Ltd v Norris ("Brumar"), the respondent worker was represented by the same legal practitioners who are presently representing the plaintiff, namely Mr Uren QC and Mr Ingram, instructed by Clark, Toop & Taylor. However they were not involved in the other matter ("Brown").[5]

22 Between 31 August and 20 September 2010 there were communications between the plaintiff's solicitors and the employer's solicitors concerning the medical panel's opinion and reasons and concerning the disposition of the pending Magistrates' Court proceedings. Those communications are described in an affidavit (sworn 11 February 2011 and filed in the present proceeding) of Mr Savedra, the solicitor with the conduct of this matter on behalf of the employer.[6] The affidavit is uncontested. It indicates that for a time the plaintiff's solicitors contemplated challenging the medical panel's opinion.[7] Ultimately, however, on 20 September 2010, the plaintiff's solicitors returned to the employer's solicitors a duly signed minute of consent orders in the following terms:

"1. That the Court adopt and apply the opinion of the Medical Panel dated 15 August 2010.

1. That the Plaintiff pay the Defendants' costs including reserved costs on Scale F (amount reserved).
2. That the proceeding be dismissed."

On 21 September 2010 the employer's solicitors forwarded the minute of consent orders to the Magistrates' Court and requested the vacating of the next mention date (scheduled for 29 September 2010) on the basis that the proceeding had been settled.

23 On the next day, 22 September 2010, in the pending County Court "serious injury application", the employer served an affidavit of its solicitor, Mr Savedra, in which he stated that the employer intended to rely on certain specified evidentiary material as previously notified to the plaintiff, and also stated that he had "become aware of the existence of the following additional documents [sic] from which the Defendants intend to adduce evidence at the hearing of this proceeding:

(a) Certificate of Opinion of Medical Panel dated 15 August 2010."

The affidavit exhibited a copy of "the said opinion which the Defendants also wish to rely on in this proceeding". The affidavit did not expressly mention any intention to rely on the opinion as the source of an estoppel or the like. At the hearing before me, counsel for the employer, Mr Masel, conceded, on information he obtained from his instructing solicitor at the bar table, that in serious injury applications medical panel opinions are adduced into evidence for various purposes not limited to claims of estoppel or the like.[8]

24 The Magistrates' Court not having confirmed that the mention date of 29 September 2010 had been vacated, the employer's solicitors attended before Magistrate Wright on that date and saw to it that orders in terms of the minute of consent orders were then and there made by his Honour. Orders in those terms were duly entered in the records of the Magistrates' Court.

25 The period of 60 days referred to in r 56.02(3) expired on either 14 October or 25 October 2010.[9]

26 On 3 November 2010 the serious injury application came on for hearing in the County Court. Mr Stanley QC appeared for the employer with Mr Masel. Mr Ingram appeared for the plaintiff with Mr Harper. Mr Ingram applied for an adjournment. As one ground of his application Mr Ingram indicated to the judge that Mr Stanley had foreshadowed making a preliminary submission to the effect that the serious injury application should be dismissed on the basis of an issue estoppel arising from the medical panel opinion itself or from the consent orders made in the Magistrates' Court. Mr Stanley confirmed that he intended to make such a submission. To be more precise, the intended submission (as later elaborated by Mr Masel during argument before me) was to the effect that the medical panel's opinion directly binds the County Court under s 68(4) of the Act and thus gives rise to a statutory estoppel; and/or that the consent order which was made in the Magistrates' Court by reference to the opinion gives rise to a common law estoppel.

27 So far as the transcript of the hearing reveals, neither side expressly told the County Court judge exactly when the plaintiff or any of his legal representatives had first learned of the employer's intention to raise an estoppel argument based on the medical panel's opinion. The plaintiff's affidavit in the present proceeding is silent on this point as are the affidavits of his solicitors. However, putting aside the abovementioned affidavit of Mr Savedra of 22 September 2010, there was no document filed or served on behalf of the employer in the serious injury case in the County Court that raised the estoppel point. On the other hand, there are generally no pleadings or like documents at all in such cases. Mr Ingram informed the County Court judge that it was only on the previous day (2 November 2010) that he had first turned his mind to the possibility of challenging the medical panel's opinion.[10] Before me, it was asserted on behalf of the plaintiff (by Mr Uren QC and Mr Ingram) that the employer raised the estoppel point "for the first time" at the hearing on 3 November 2010.[11] Apart from referring to the affidavit of 22 September 2010, Mr Masel, for the employer, did not contradict this submission. Indeed, ultimately, he virtually conceded its correctness.[12] In all of these circumstances I will proceed on the basis that the employer did not expressly raise any estoppel point in the County Court serious injury case until 2 or 3 November 2010.

28 The County Court judge granted the adjournment application. He did so principally because he was satisfied that the plaintiff and his legal representatives should be given an opportunity to consider whether to apply for judicial review of the opinion of the medical panel. The plaintiff was ordered to pay the costs thrown away.

29 After the hearing of 3 November 2010 Mr Ingram was briefed to advise about seeking judicial review. The present application for judicial review was commenced by originating motion and summons filed on 29 November 2010. It was supported, in part, by an affidavit of the plaintiff sworn on 30 November 2010.

30 On 2 December 2010 an affidavit setting out a history of relevant events was sworn by Patricia Toop, a partner in Clark, Toop and Taylor. Ms Toop states, among other things, that prior to the County Court proceeding coming on for hearing the advice of counsel had not been sought as to whether judicial review of the medical panel's opinion was warranted;[13] and she acknowledges that it is "unfortunate" that such advice was not sought within the 60 day period.[14]

31 On or shortly after 11 February 2011 the abovementioned affidavit of Mr Savedra was served on the plaintiff's solicitors.

32 On 21 April 2011 two further affidavits were sworn in this proceeding, one on each side. Each merely exhibited additional documents. On the plaintiff's side the deponent was Travis Fewster, another solicitor at Clark, Toop and Taylor, who had the care and conduct of the matter on behalf of the plaintiff for at least part of the period in question. On the employer's side the deponent was again Mr Savedra.

33 In the most recent decision of this Court in which 56.02(3) of the Rules has been considered, Goodman v Victorian Civil and Administrative Tribunal[15], Habersberger J said:

"28 It is, in my opinion, now well established that 'special circumstances' in r 56.02(3) means something that is not 'general in character',[16] but something exceeding 'that which is usual or common'.[17] As Toohey J said in Re Beadle and Director-General of Social Security[18] when sitting as President of the Commonwealth Administrative Appeals Tribunal:

'An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special'.

1. In deciding whether or not 'special circumstances' exist, the Court is not confined to the failure to institute the proceeding in time but can consider all the circumstances of the particular case.[19] Matters to be taken into account include the length of the delay, the reason for the delay, any prejudice to the defendant(s), whether the plaintiff has an arguable case, and the public interest in the finality of litigation.[20]"

34 Having been referred to these paragraphs of the judgment of Habersberger J, and in particular to his Honour's statement that in deciding whether or not "special circumstances" exist the Court can consider all the circumstances of the case, Mr Uren nevertheless suggested that a distinction should be made between the question whether there are special circumstances and the question whether, in the end, the discretion to extend time should be exercised. Indeed Mr Uren submitted that most of the matters listed by Habersberger J in paragraph 29 of Goodman were matters that would not usually fall to be considered under the heading of special circumstances but rather under the heading of ultimate or residual discretion.[21] Consistently with that kind of approach, Mr Uren sought to mark out a particular feature of this case[22] as being unusual, uncommon or exceptional and as being, for that reason, and in itself, sufficient to satisfy the (putatively separate) requirement for "special circumstances".

35 However it is not appropriate to divide up the Court's task in such a way. As Osborn J said in Mann v Medical Practitioners Board of Victoria:[23]

"Whether special circumstances exist is a question to be determined by reference to the whole of the circumstances of a particular case. It is essentially a question of characterisation of the particular case."

That statement of principle was expressly endorsed by the Court of Appeal in Mann.[24] The judgment of Habersberger J in Goodman duly recognises this.[25] Hence the true, and only, question is whether, having regard to the whole of the circumstances of the particular case, the Court is satisfied that the circumstances are sufficiently special to justify an extension of time.[26]

36 All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tended to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself.

37 In the present case, the plaintiff relies principally on the alleged novelty of the employer's foreshadowed estoppel arguments together with the employer's omission to raise them until after the expiry of the 60 day period, in circumstances where (as Mr Uren asks me to find) neither the plaintiff nor his solicitors contemplated or ought to have contemplated that any estoppel problem might be involved and in circumstances where success on the part of the employer in relation to its estoppel arguments might have a drastic and unforeseen impact on the plaintiff's pending claims for damages. During argument both sides referred to this impact as the "knock-on effect".

38 Because this point comprises a major part of the plaintiff's claim for an extension and because the facts underlying it are in dispute to some extent, I will deal with it separately at first, before coming to the remaining circumstances of the case and then considering all the circumstances as a whole.

39 Mr Masel attacks the plaintiff's point in three ways. Primarily he submits that the Court should not be satisfied that the plaintiff's solicitors did not contemplate the prospect of the knock-on effect. Alternatively he invites the Court to find that the plaintiff's solicitors ought to have contemplated that prospect. Finally he contends that, on any view, the plaintiff made a deliberate decision, on legal advice, not to seek judicial review of the medical panel's opinion and that the plaintiff's point should be accorded no weight for that reason.

40 Generally speaking, an applicant for an extension of time has the onus of proving the facts on which he or she relies to support the application. In the present case, I will proceed on the basis that the onus is on the plaintiff to satisfy me that neither he nor his solicitors contemplated the possibility of the knock-on effect, even though this involves proof of a negative and even though the question of where the onus lay on that particular point was not explicitly raised at the hearing.[27]

41 The principal affidavits filed on behalf of the plaintiff in this proceeding were his own affidavit of 30 November 2010 and the affidavit of Ms Toop of 2 December 2010. They do not expressly state that neither the plaintiff nor his legal representatives contemplated or discussed the possibility of the knock-on effect before the employer raised it. On the other hand, a statement to that effect seems to be implicit or virtually implicit in those affidavits.

42 It is significant, in my view, that at the hearing before the County Court judge, Mr Stanley did not assert that the plaintiff or his solicitors knew or ought to have known about the knock-on effect. Mr Stanley said no more than that the plaintiff had had legal advice throughout. Nor does Mr Savedra's affidavit of 11 February 2011 purport to attribute foreknowledge of the knock-on effect to the plaintiff or his solicitors. Hence, contrary to Mr Masel's submission, I do not see great significance for present purposes in the fact that the plaintiff did not answer Mr Savedra's affidavit except by the purely formal affidavit of Mr Fewster sworn on 21 April 2011.

43 Having regard to all of the relevant material, I am satisfied that neither the plaintiff nor his legal representatives contemplated the knock-on effect before the employer raised it. Had he or they done so, a challenge to the medical panel's opinion would surely have been issued within time. After all, at all material times the plaintiff had on foot his County Court application under s 135A(4)(b) of the Act for leave to issue common law proceedings in relation to his neck condition and also his claim by writ in this Court in respect of the May 2000 incident. The employer's estoppel arguments are calculated to defeat the plaintiff's application under s 135A(4)(b) in respect of his neck condition. Further, if that application is defeated, the plaintiff's writ claim in relation to his back will be exposed to significant risks on causation issues.

44 Mr Masel theorised that the plaintiff's solicitors saw these risks but assessed that the plaintiff's chances of successfully challenging the medical panel's opinion were low; and that the plaintiff's solicitors merely hoped against hope that the employer's solicitors would not latch onto the possible estoppel. This theory strikes me as far-fetched. It is hard to reconcile with the very fact that the present application has been made. Moreover, it is confronted by the fact that in a reported decision of the Court of Appeal given on 25 October 2006 it was held that a medical panel's opinion obtained for the purposes of a worker's claim for statutory compensation is not binding on a court later considering an application by the worker for leave under s 134AB(16)(b) of the Act to institute proceedings for damages: Pope v Walker.[28] Mr Masel accepted that there is no material difference, for present purposes, between an application for leave under s 134AB(16)(b) and an application (of the kind made by the plaintiff) for leave under s 135A(4)(b).[29] The holding in Pope v Walker is likely to have been well known to the plaintiff's solicitors, a firm of experienced personal injury lawyers. Pope v Walker was affirmed by the Court of Appeal on 22 December 2009 in Kozma Engineering Pty Ltd & Anor v Pupic.[30]

45 True, as Mr Masel pointed out, in Kozma Engineering the Court of Appeal proceeded to say that if a court were to determine a worker's claim for statutory compensation after having received a medical panel's opinion, the court would be bound by s 68(4) of the Act to make the determination in accordance with the medical panel's opinion, and that it "may also be" that, once made, the court's determination would be binding as an issue estoppel.[31]

46 However these further observations in Kozma Engineering were obiter and were, in part, expressed tentatively. Moreover, the Court of Appeal did not discuss the extent of any estoppel that "may" arise from the court's determination. For example, it did not expressly deal with the question whether a finding on causation made by a court (applying a medical panel's opinion) in a statutory compensation case might be binding on another court in relation to any causation questions arising in an application for leave to issue proceedings under s 134AB(16)(b) or s 135(4)(b) of the Act or in the common law damages action itself.[32] In the present case the main underlying issue between the parties revolves around causation.

47 Nor did the Court of Appeal in Kozma Engineering address the issue of the extent to which a judgment obtained by consent (as in the present case) might give rise to an estoppel;[33] nor the question whether a judgment made inevitable by an administrative determination amounts to a judgment obtained by consent.

48 In any event, as Mr Masel confirmed[34], the employer still intends to submit that the medical panel's opinion is directly binding on the County Court, independently of the order of the Magistrates' Court. Asked how this argument could be reconciled with Pope v Walker and Kozma Engineering, Mr Masel submitted, albeit without much vigour, that, "by extension", the judgment of the Court of Appeal in Brumar/Brown given on 25 August 2010, especially the observations of Ashley JA at paragraphs [171]-[176], should have alerted the plaintiff's solicitors to the prospect that such an argument would be advanced. However, in my opinion, there was nothing in the judgment of the Court of Appeal in Brumar/Brown to indicate that the actual point determined in Pope v Walker and Kozma Engineering might no longer be good law. Since reserving my decision in this matter I have discovered by reading the Austlii transcript[35] that it was submitted in the High Court appeal in Brown on behalf of the respondent worker that Pope v Walker had been wrongly decided. But none of the plaintiff's lawyers were involved in the proceedings in the High Court. Moreover in those proceedings it was expressly submitted on behalf of the employer - in reality, the Victorian Workcover Authority - that Pope v Walker was correctly decided. In the present matter the Victorian Workcover Authority has likewise at all times stood behind the employer. Yet since about 3 November 2010 its counsel have been putting the exact opposite argument in this matter.

49 In the very recent (22 June 2011) judgment of the High Court in Brown[36] it was held that an opinion of a medical panel is only binding under s 68(4) of the Act in relation to "questions or matters arising under or for the purposes of the Act", and, in particular, that it is not binding in any common law proceedings, even if the common law proceedings were authorised to be brought as a result of the medical panel's opinion. On the other hand, Pope v Walker was twice referred to in Brown,[37] and, even though Pope v Walker was not explicitly disapproved in any respect, the reasoning of the High Court might perhaps be thought to suggest that Pope v Walker was wrongly decided to the extent that the Court of Appeal had interpreted s 68(4) of the Act to mean that the opinion of a medical panel obtained under the Act was binding only for the purposes of the particular statutory claim in relation to which it was obtained. The judgment of the High Court seems to indicate that a medical panel opinion may be binding in respect of any and all questions or matters which are covered by the opinion and which arise under or for the purposes of the Act. If so, and if the questions or matters arising in serious injury applications are questions or matters "arising under or for the purposes of the Act" within the meaning of the High Court's judgment in Brown,[38] then a medical panel opinion obtained for the purposes of, say, a s 99 claim (as in the present case), may be binding to the extent that it covers a question or matter arising in a serious injury application. However that may be, it would be too strict, in my opinion, to say that the plaintiff's lawyers might reasonably have anticipated all or any of this in the period between August and November 2010. Further, the parties have had no opportunity to comment on the judgment of the High Court in Brown, and I emphasise that my observations about it are entirely tentative.

50 The Victorian Workcover Authority professes to be a model litigant, Mr Masel informed me.[39] Yet at no time during the communications between the plaintiff's solicitors and the employer's solicitors during the 60 day period did the latter warn the former that the employer intended to argue that the medical panel's opinion would directly bind the County Court in the serious injury application and/or that the order of the Magistrates' Court would give rise to an issue estoppel.

51 In these circumstances I accept Mr Uren's submission that the plaintiff and his solicitors did not anticipate, and could not reasonably be expected to have anticipated, that the employer would seek to rely on the medical panel's opinion as the source of a statutory estoppel or preclusion in the serious injury application.

52 I further accept that neither the plaintiff nor his solicitors anticipated that the employer might seek to rely on the consent orders made in the Magistrates' Court as the source of a common law estoppel in the County Court proceeding. Had they anticipated this then they surely would not have consented to the making of the orders but would have sought judicial review of the medical panel's opinion instead.

53 I am satisfied, also, that this was not a case where the plaintiff's solicitors ought to have anticipated the common law argument. Mr Masel did not suggest that such an argument had ever been advanced before, much less succeeded, in circumstances like the present. As indicated above, the relevant observations in Kozma Engineering were brief and limited in scope and were obiter. Unlike Pope v Walker, Kozma Engineering is not a reported decision. None of the lawyers involved in Kozma Engineering have been involved on the plaintiff's side in this matter. The employer does not submit that the common law estoppel argument is obvious or that it is bound to succeed.

54 In any event, in this proceeding the plaintiff seeks only to challenge the medical panel's opinion, not the Magistrates' Court's order. What, if any, consequences might flow with respect to the future operation or effect of the Magistrates' Court's order if the medical panel's opinion were to be set aside is not something on which either side made a definite submission. Mr Masel did not invite me to determine that the Magistrates' Court's order necessarily rendered moot the question whether a statutory estoppel arises directly from the medical panel's opinion. Further, Mr Masel acknowledged that an extension of time to appeal against the Magistrates' Court's order might still be obtained, notwithstanding that the order was made by consent.

55 I conclude that the plaintiff has made good the basic premises underlying the principal point he advances in support of his application for an extension of time.

56 However, as mentioned above, the employer submits that the point is still not a good one because, on any view, the plaintiff made, and communicated to the employer, a deliberate decision to let the 60 day period expire without challenging the medical panel's opinion. Mr Masel did not cite any authority in this regard, but I note that in Shire of Carnarvon v Klein Corporation Pty Ltd (No 2),[40] J. Forrest J accepted that a deliberate decision to allow the 60 day period to expire would generally be a significant matter to be taken into account (against an applicant) in determining whether the circumstances can be classified as special. The applicant Shire, with the benefit of legal advice, had made just such a decision in that case. His Honour treated this as a significant matter but still granted an extension of time having regard to all the circumstances. Indeed, the extension of time granted was in excess of 14 months.

57 In Shire of Carnarvon, J. Forrest J observed that in Itek Graphix Pty Ltd v Elliott,[41] a limitation of actions case, the New South Wales Court of Appeal considered that a deliberate decision to allow a statutory limitation period to expire was a powerful factor militating against the grant of leave. On the other hand, very recently, Itek Graphix was distinguished by the New South Wales Court of Appeal in Nominal Defendant v Harris.[42] A point that emerges from the latter case is that the significance of a decision to allow a limitation period to expire may vary according to whether the applicant (personally) was fully informed about the limitation period and about the consequences of failing to commence proceedings within the limitation period.[43]

58 It is clear enough from Mr Savedra's affidavit of 11 February 2011 (which I accept in full) that the plaintiff's solicitors did consider seeking judicial review at an early stage. On 8 September 2010, while Mr Fewster was on leave, his secretary told Mr Savedra that the plaintiff "wished to appeal". Shortly thereafter, in communicating with Mr Savedra, the plaintiff's solicitors referred to "time restraints" as a reason for seeking to bring forward a mention in the Magistrates' Court. Later again, Mr Fewster told Mr Savedra that he was awaiting instructions from the plaintiff as to the future of the Magistrates' Court proceeding. The plaintiff's solicitors eventually signed and delivered a minute of consent orders providing for the dismissal of those proceedings, presumably on instructions. On the other hand, the plaintiff himself deposes that, until he received advice about judicial review from Mr Ingram after the November hearing, he "was not advised as to any entitlement to seek judicial review of the certificate"[44] and was unaware that he "even had a good place for seeking judicial review".[45] Doing the best I can (in the absence of any request for cross-examination of the plaintiff), I conclude that although the plaintiff's solicitors had themselves considered judicial review, they did not explain to the plaintiff that he had a right to seek judicial review or that a time limit applied, but rather merely advised him, in substance, that there was nothing he could usefully do to challenge the medical panel's opinion, and that he accepted that advice.

59 I need not consider whether (despite what was said in Harris), or to what extent, the knowledge of the plaintiff's solicitors about the availability of judicial review and about the time limit should be attributed to the plaintiff for present purposes. On any view it cannot be said that the plaintiff's decision was a "fully informed" one, because, as I have already found, neither he nor his legal representatives contemplated, or ought to have contemplated, either aspect of the knock-on effect.

60 Mr Masel did not put forward any other argument designed to show that Mr Uren's principal point was, in itself, unsound. In particular, Mr Masel did not refer to or rely upon, by way of analogy or otherwise, what was described by Mason P in Waverley Municipal Council v Cheowiry as "the well-established doctrine that in civil and criminal appeals an extension of time to appeal will not be granted solely on the ground that a subsequent decision to that now sought to be appealed from has disclosed that the law as it was understood when the trial was conducted is no longer the law"[46] ("the misunderstood law doctrine").

61 An argument by the employer based on the misunderstood law doctrine might have gone as follows. If it is no ground for an extension that the law as now revealed is actually different from the law as previously understood (and as previously applied against the applicant), then, a fortiori, it is no ground for an extension that the law is now merely suggested (by the applicant's opponent) to be different from the law as previously understood.

62 On the other hand such an argument might perhaps have been responded to by the plaintiff as follows. The doctrine is irrelevant. It relates only to appeals, not to applications for judicial review. In any event it relates only to the law affecting the validity of the substantive decision itself, not the law concerning the collateral consequences of the substantive decision. There is no (presently relevant) suggestion that the law affecting the validity of the medical panel's opinion itself is different from that law as it has always been perceived. Alternatively, the doctrine is irrelevant because it only applies where, previously, all parties believed the law to be in a particular state different from its present state. Here, during the critical period, the employer apparently perceived the law differently from the way in which it was being perceived by the plaintiff and his solicitors. Moreover, the employer (though purporting to be a model litigant) waited until after the 60 day period expired before revealing its position, even though it must have seemed likely to the employer's solicitors that the plaintiff and his solicitors were ignorant of the alleged need to challenge the medical panel's decision in order to preserve the plaintiff's position in the common law case. This was nothing more than an attempt to take undue advantage of the plaintiff. So might the arguments of the plaintiff have gone.

63 I have considered whether or not I should invite further submissions from the parties in relation to the misunderstood law doctrine. In the end I have decided against doing so, for several reasons. The employer has had ample opportunity to raise the matter if it thought fit but has not done so, with the result that the plaintiff has had no opportunity to be heard on it. The case occupied 3 hearing days, including a gap of two weeks. The parties have already filed and served four sets of written submissions each, including two sets filed and served, by leave, after the last day of hearing. To seek further submissions now would involve additional costs to the parties and would delay a decision. In any event, the misunderstood law doctrine may not be truly applicable, given the suggested answers mentioned above, and the possibility of other answers. Further, I propose to dismiss the substantive application for review in any event. In view of these matters, I will not take the misunderstood law doctrine into account against the plaintiff on the application for extension of time.

64 In my view, the plaintiff's principal point is of substantial weight. It is based on circumstances that do not commonly occur, namely a proposal to use a medical panel's opinion collaterally, in an unprecedented and unforeseen way, with the possible consequence that the person concerned will be prejudiced by the opinion far more than he was in the proceeding in relation to which it was obtained. The unprecedented and unforeseen nature of the proposal tends to explain the omission to commence proceedings earlier, and those matters together with the alleged serious potential of the proposal tend to support the application for an extension of time.

65 I turn now to the submissions of the parties in relation to the other circumstances of the case. In that regard it will be recalled that in Goodman Habersberger J said that matters to be taken into account include "the length of the delay, the reason for the delay, any prejudice to the defendant(s), whether the plaintiff has an arguable case, and the public interest in the finality of litigation".[47] The parties did not travel beyond those topics.

66 As to the length of the delay, I would agree with the employer that it is not inconsiderable, but it is not especially great either. Nor is it an unbroken period of delay.

67 The certificate is dated 15 August 2010. It was delivered to the plaintiff's solicitors on 26 August 2010. If time runs from the date of the certificate, rather than from the date of service or receipt of the certificate (or of the certificate and the reasons), as Macaulay J recently held in Wurth Australia Pty Ltd v Gallichio[48], then 106 days passed before the application was brought, as against the prima facie limit of 60 days. On the alternative view, which Osborn J had appeared to favour in Treacey v Newlands[49], 95 days passed. I will assume in favour of the employer, without deciding, that time ran from the date of the certificate, and that an extension of 46 days is now needed accordingly. However, I think that persons who are aggrieved by opinions of medical panels and who need an extension of the 60 day period should, at least in some cases, receive some allowance or credit in that regard in respect of any period before the opinion was notified.[50] In any event, even if I were not to take that view, my decision in the present case would be the same in the light of all the circumstances.

68 The plaintiff was not inactive or silent during the period of 106 days. His solicitors initially informed the employer's solicitors that the plaintiff wished to "appeal". The prospect that the plaintiff would seek to challenge the opinion by judicial review was real and alive in the eyes of the employer's solicitors, at least until the consent orders were made in late September 2010. Then, just over one month later, as soon as the employer raised its estoppel arguments, the plaintiff sought an adjournment of the County Court proceedings, avowedly to give him an opportunity to take counsel's advice about applying for judicial review of the medical panel's opinion. The adjournment was not vigorously opposed by the employer, and it was duly granted by the County Court judge. Given the lengthy history of the plaintiff's matter generally, the fact that over 50 medical reports needed to be considered, and the novelty and complexity of the estoppel arguments raised by the employer, the further period of about 3½ weeks that was taken to give advice, obtain instructions and commence the proceeding was not excessive.

69 Further, by virtue of the continuing pendency of the County Court proceeding, the employer remained on notice at all relevant times that the plaintiff was dissatisfied with the employer's rejection of his contention that his neck condition was related to the incident of 16 October 1996.

70 In his pre-trial written submissions Mr Masel asserted, by reference to the terms of certain orders made by an Associate Justice, that the plaintiff had (also) been dilatory in his conduct of this proceeding after commencing it, but Mr Masel did not repeat this assertion orally. I assume that it is not pressed. In any event, it appears to have little or no substance.

71 Accordingly, as between the plaintiff and the employer, I would not regard the length of the delay as being particularly significant. I appreciate that delay may also adversely affect the medical panel and/or the administrators of the medical panels, especially in the event of a remitter, but, as usual, they have not sought to be heard and I can only have regard to their position in a very general way.[51]

72 Turning to the reason for the delay, I think that this topic is fully covered by the plaintiff's abovementioned principal point, the parties' respective submissions on it and my views on it as expressed above.

73 As to prejudice to the defendants, in his pre-trial written submissions Mr Masel did not allege any. However at the hearing he argued that the employer would be prejudiced by an extension in several interrelated ways.[52] He said that the employer would be required to litigate the question of the legal validity of the opinion, thus losing the benefit of the plaintiff's prior election not to challenge it. Then, if the opinion were set aside on judicial review, the employer would lose the alleged statutory estoppel arising under s 68(4) of the Act and also (possibly) the alleged common law estoppel arising from the orders of the Magistrates' Court, and the employer would be required to re-litigate the medical questions before another (or the same) medical panel.

74 However I agree with Mr Uren that these matters are no more than the reverse side of the very relief sought by the plaintiff. They are not external to the litigation itself. At least in the circumstances of this case, they do not represent "prejudice to the defendant" as that expression is used in the authorities. They are better assessed under the heading of "the public interest in the finality of litigation" to which I will shortly come. Mr Masel confirmed that he could not submit that the employer had taken any steps, in reliance on the medical panel's opinion, that would now rebound to its detriment if the opinion were set aside.[53] No submission was made that the medical panel or the administrators of the medical panel would suffer any relevant prejudice.

75 It is not necessary to consider the arguability of the plaintiff's case, because the parties' arguments have now been fully heard. It is sufficient to say that I was not persuaded that the plaintiff's arguments were so lacking in merit as to make it futile to hear them fully. Further, a substantial amount of evidentiary material needed to be examined. Considerations of expediency favoured taking the procedural course that was taken.

76 Coming now to the "public interest in the finality of litigation", I accept that this is a significant factor to be weighed in the balance.[54] It underlies the very provisions that make this application necessary. I accept also that the employer has a private interest in the finality of the relevant litigation, as indicated above. However, the medical panel's opinion was given in the relatively recent past. So far, the plaintiff has only this once sought an opportunity to challenge it. Moreover, the granting of such an opportunity would not necessarily mean that the medical panel have to begin again. The panel's opinion would only fall if it were vitiated by jurisdictional error or error of law on the face of the record. Otherwise it would stand.

77 Looking at the whole of the circumstances, I consider that they are special. The plaintiff's main point has unusual or uncommon features that tend strongly to support the application for an extension of time. The delay is not great and it has been explained. An extension of time will not cause relevant prejudice to the defendants. The substantive claim is not futile. The legitimate interest of the public and the parties in the finality of litigation will not be unduly injured. On balance, the justice of the matter is heavily in favour of granting an extension.

78 Accordingly, I will grant the extension of time sought by the plaintiff.

79 The originating motion states 11 grounds of review, designated (a)-(k) inclusive, together with numerous sub-grounds.

80 During the hearing the plaintiff abandoned all grounds that alleged that the medical panel's certified opinion was, wholly or partly, unreasonable or not open to it.[55] This eliminated five grounds, namely grounds (b), (c), (g), (i) and (k).

81 Of the remaining grounds, ground (a) alleges that "in finding that it was not possible for an accepted compensable injury on 16 October 1996 to have been a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing cervical spine condition the Medical Panel ignored or failed to take into account relevant material and in particular:

(i) affidavit evidence of the Plaintiff;

(ii) the opinion expressed by the treating general practitioner, Dr Baglar;

(iii) the opinion expressed by the treating Neurosurgeon, Mr Brazenor;

(iv) the opinion expressed by the treating Neurosurgeon, Mr D'Urso;

(v) the radiological evidence; ... ."

It was accepted by the employer that this ground amounted to an allegation that the panel had failed to take into account mandatory considerations, ie considerations that the panel was bound to take into account;[56] and that therefore, if it was made out, it might warrant the quashing of the panel's opinion. However the employer disputed that the panel had ignored or failed to take into account any of the matters referred to by the plaintiff.

82 This ground assumed little or no independent prominence in the plaintiff's submissions. It was mentioned only once, and then only briefly, in the plaintiff's main written submissions.[57] During the oral hearing it was subordinated to what became, overwhelmingly, the plaintiff's principal attack on the panel's opinion, namely the allegation that the panel had provided inadequate reasons. Mr Uren indicated that he would deal with both inadequacy of reasons and failure to consider relevant matters at the same time.[58] However, his submissions in this regard were couched exclusively in terms of inadequate reasons, save that he did confirm (during Mr Masel's address) that the "relevant considerations" point was still pressed[59] and in reply he did say, without elaboration, that the Court might infer from the Panel's omission to refer to certain of the medical reports in question that it failed to take them into account.[60]

83 The plaintiff's "inadequate reasons" grounds (being grounds (d) and (e)) were set out in the originating motion as follows:

"(d) the Medical Panel failed to give any or adequate reasons for concluding that it was not possible for an accepted compensable injury on 16 October, 1996 to have been a significant contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing cervical spine condition suffered by the Plaintiff;

(e) having regard to the evidence before the Medical Panel and in particular -

(i) affidavit evidence of the Plaintiff;

(ii) the opinion expressed by the treating general practitioner, Dr Baglar;

(iii) the opinion expressed by the treating Neurosurgeon, Mr Brazenor;

(iv) the opinion expressed by the treating Neurosurgeon, Mr D'Urso;

(v) the radiological evidence -

the Medical Panel failed to give any or adequate reasons as to why it did not accept contrary opinion as to the relationship between an accepted compensable injury on 16 October, 1996 and its significance as a contributing factor to any recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing cervical spine condition suffered by the Plaintiff."

Apparently, the plaintiff has not been deterred by the observation made by Gillard J in 2005 in George v Nisselle[61] (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".

84 Although only three medical practitioners are named in grounds (a) and (e) (being the same three in each case), during the hearing the plaintiff also complained, without objection by the employer, about alleged omissions by the Panel to deal with the opinions of certain others, being Mr Henderson (orthopaedic surgeon), Mr Brearley (general surgeon) and Dr Blombery (vascular physician).

85 The three remaining grounds are grounds (f), (h) and (i). Ground (f) is expressed as follows:

"(f) the Medical Panel did not perform its function under [the Act] with respect to Question 1 in that the opinion which it provided was not an opinion as to the question submitted to it within the meaning of [the Act]."

Ground (h) is identical save that it refers to Question 2 rather than Question 1, and ground (i) is also identical save that it refers to Question 3 rather than Question 1. The plaintiff placed little or no emphasis on this set of grounds.

86 Because nearly all of the substantive argument in this case revolved around the "inadequate reasons" grounds, I will deal with them first.

Could inadequacy of the statement of reasons be a ground for quashing the opinion?

87 The parties are in dispute as to whether a certified opinion of a medical panel, given in circumstances like the present, can be quashed on the sole ground that the panel's statement of reasons for its opinion is inadequate.

88 This is a complex and difficult legal issue. However I do not need to decide it in this case, because the plaintiff has failed to persuade me that the panel's statement of reasons was relevantly inadequate at all. Nevertheless, in case this matter goes further, and for the sake of completeness, I should outline the parameters of the legal issue.

89 The plaintiff's principal submission is that the Court can, and generally should, quash a medical panel's opinion for error of law on the face of the record where the opinion is given under s 68 of the Act on a referral under s 45 of the Act and the panel has given an inadequate statement of reasons. In Sherlock v Lloyd,[62] a decision of the Court of Appeal given in relation to the law as it stood in 2008, it was held that a medical panel had no obligation to give reasons in respect of its opinion on a s 45 referral except pursuant to a valid request under s 8 of the Administrative Law Act 1978; and that the only remedies available in respect of total or partial non-compliance by the panel with its obligations in relation to such a request were the remedies provided for in s 8. In particular, it was held that there was no right to have the opinion itself set aside on the ground of inadequate reasons except pursuant to s 8. In the present case the plaintiff has made no request under the Administrative Law Act 1978 for a statement of reasons.

90 The plaintiff would distinguish the judgment of the Court of Appeal in Sherlock v Lloyd on the ground that, in that case, the aggrieved party could not, or at least did not, rely upon any obligation imposed by or under the Act itself to give reasons, whereas such an obligation has now been introduced into s 68 of the Act by an amendment which took effect too late to be applicable in Sherlock v Lloyd.[63]

91 The plaintiff would also distinguish the subsequent decision of Osborn J in Georgiou & Ors v Capitol Radiology Pty Ltd & Ors[64] on the ground that, in that case, the medical panel provided certified determinations under s 28LZG(2) of the Wrongs Act 1958, not certified opinions under s 68 of the Accident Compensation Act 1985, and on the ground that the panel's statements of reasons in that case were not given under a specific statutory obligation but only pursuant to a set of directions called the "Deputy Convenor's Directions as to the Procedures of Medical Panels". Although the giving of the Deputy Convenor's Directions was authorised by s 28LZ(4) of the Wrongs Act 1958, they comprised a broad ranging set of procedural and administrative requirements of varying levels of importance and, applying the principles in Project Blue Sky Inc v Australian Broadcasting Authority[65], Osborn J was not persuaded that it was a purpose of the legislation that determinations made otherwise than in compliance with the procedural directions given by the Deputy Convenor should be treated as invalid.[66] Having considered Sherlock v Lloyd, his Honour observed that if the reasons were inadequate the proper remedy was simply an order in the nature of mandamus compelling further reasons.

92 In the present case, the plaintiff in paragraph 14 of his main written submissions asserted that the "Convenor's Directions, given under s 65 of [the Act] and by which the Panel is bound, provide that the Medical Panel must give reasons for its decisions: see Direction 44". However, at the hearing, once it became common ground that the amended version of s 68 of the Act was fully applicable, the plaintiff acknowledged that paragraph 14 of his submissions had become "irrelevant".[67] I take it that the plaintiff thereby abandoned reliance on the Convenor's Directions.

93 So, in the end, as I understood his counsel, the plaintiff relied entirely on the obligations imposed by s 68 of the Act, as recently amended. Section 68 now provides:

(1) A Medical Panel must form its opinion on a medical question referred to it within 60 days after the reference is made or such longer period as is agreed by the Conciliation Officer, the County Court, the Authority or self-insurer.

(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.

(3) Within seven days after forming its opinion on a medical question referred to it, a Medical Panel must give the relevant Conciliation Officer or the County Court or the Authority or self-insurer its written opinion and a written statement of reasons for that opinion.

(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred."

I accept that s 68 in its present form applied in this case.

94 It is by no means clear that, in Australia,[68] a decision of an administrative body or tribunal (as distinct from a court) is necessarily liable to be quashed on judicial review (or to be set aside in a statutory appeal restricted to questions of law) on the (sole) ground that the body or tribunal has failed to comply, adequately or at all, with a statutory obligation to give a statement of reasons, even where the obligation is imposed by the very Act, or even by the very statutory provision, under which the substantive decision is made. In Sherlock v Lloyd it was held that the function of a medical panel in relation to a referral of medical questions under s 45 of the Act was not a judicial function but an expert medical function.[69] The Court of Appeal twice referred to the panel as an "administrative tribunal".[70]

95 As Mr Uren acknowledged,[71] there is no judgment of the High Court which has expressly upheld the quashing or setting aside of an administrative decision simply because of a failure to state reasons or an inadequate statement of reasons.[72] Moreover, cases commonly relied upon to suggest that an administrative decision will be liable to be quashed or set aside on such a basis if the obligation to give a statement of reasons is imposed by the very legislation under which the decision is made, such as Dornan v Riordan,[73] now have to be read subject to the judgment of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Palme[74]. Indeed, in Kennedy v Australian Fisheries Management Authority,[75] Tracey J, who has vast experience in the field of administrative law, held that, in the light of Palme, the judgment of the Full Court of the Federal Court in Dornan v Riordan and judgments that have followed it are no longer good law. The analysis of Palme by Tracey J appears to have been endorsed recently by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZLSP.[76]

96 Mr Uren sought to distinguish Palme on the basis that it was a "total failure to give reasons" case, rather than an "inadequate reasons" case. It is true that that description of Palme is supported by an observation made by Kenny J in SZLSP,[77] but it is contradicted by a subsequent observation of Gummow J (with whom Heydon and Crennan JJ agreed) in Minister for Immigration and Citizenship v SZGUR[78] and by the dissenting judgment of Kirby J in Palme itself. In any event, the distinction seems to me to be of doubtful relevance for present purposes. Either the statutory obligation to give reasons has been met or it has not. If, as a matter of legal principle, having regard to Palme, the only available remedy for a complete failure to comply with such an obligation is an order for the provision of a statement of reasons, it may be thought incongruous to say that partial failure to comply with the obligation can (or, as Mr Uren would have it, should usually) be remedied by an order to quash or set aside the substantive decision.[79]

97 Mr Uren also sought to distinguish Palme on the basis that it was concerned only with what may amount to jurisdictional error, especially in an application for the issue of a "constitutional writ" under s 75(v) of the Commonwealth Constitution. Mr Uren submitted that nothing in Palme affected the grounds available in an application in a State jurisdiction for an order in the nature of certiorari for error of law on the face of the record. He submitted that such an application could (still) be made on the basis of an inadequate statement of reasons.[80] Indeed I understood him to confine his client to such an application in this proceeding and to abandon any reliance on jurisdictional error.[81]

98 Again, it is by no means clear that Palme can be distinguished on that basis. It is true that in Kennedy Tracey J concluded his analysis by saying that he was bound by Palme to hold that the relevant tribunal's failure to comply with its obligation under the statute in question to provide an adequate statement of reasons did not constitute "a jurisdictional error" which would warrant setting its decision aside.[82] However the proceeding before Tracey J had come down to a statutory appeal on a question of law.[83] It was not necessary for Mr Kennedy to establish jurisdictional error. He did establish that the statement of reasons was inadequate in that it did not comply with the relevant statutory requirements. Yet his appeal failed. Plainly, Tracey J was not intending to confine his analysis to strict jurisdictional error.[84]

99 Ultimately, as Tracey J said in Kennedy[85] (by reference to Palme[86]), the question of whether a failure to comply with a statutory requirement to provide adequate reasons can affect the validity of the exercise of the substantive power is one of statutory construction. In the present case, powerful arguments were mounted on both sides of that question. Mr Uren relied principally on authority[87] and on arguments about the general desirability of tribunals giving adequate reasons.[88] Mr Masel relied principally on Palme and Kennedy, on the conceptual and temporal distinctions between making a decision and stating the reasons for it[89] and on what he submitted was the recognition of those distinctions in the language of s 68, especially in s 68(3) which refers, on the one hand, to the Panel "forming its opinion" on the medical questions and, on the other hand, to the Panel being required, within 7 days of forming its opinion, to give to specified persons "its written opinion and a written statement of reasons for that opinion".

100 Neither side submitted that the question was much illuminated by the legislative history or by extrinsic materials.[90]

101 As a practical matter I note that if the only remedy for an inadequate statement of reasons were an order for a further and better statement, then persons aggrieved by administrative decisions (including decisions of medical panels) and their advisors might need to pay very close attention to the time limits applicable to judicial review. They might need to move very swiftly to seek and obtain further reasons before commencing, or before further prosecuting, an application for judicial review.[91] Whether a preference for avoiding such a result might bear upon the question of construction is an interesting issue.

102 In any event, the resolution of the question of construction must await another day.

Was the medical panel's statement of reasons inadequate?

103 Grounds (d) and (e) of the plaintiff's originating motion, which are the grounds asserting that the panel's statement of reasons was inadequate, are set out above. As already indicated, ground (e) should be taken as including now a complaint that the panel omitted to deal with the opinions of three additional medical practitioners, making a total of six. The certified opinion in respect of which the statement of reasons was given is also set out above.

104 The panel's statement of reasons is quite lengthy. However it is necessary to set it out in its entirety:

RE: Mr Eyup KOCAK

Medical Panel Ref: No: M110/145

1. The Referral to the Medical Panel was received on 16 June 2010. The documents considered by the Panel are described in Enclosure A.
2. The worker was examined by the Panel Members with the assistance of a professional Turkish language interpreter, on the following date:

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

(b) the history provided by the worker and the examination findings elicited by the Panel at the above mentioned examination of the worker.

1. The reasons for the Panel's opinion are as follows:

The Panel notes from the Statement pursuant to Section 65(6A) of the Accident Compensation Act 1985 ('Agreed Facts') provided with the referral that it is agreed, inter alia, that 'On 16 October 1996 the Plaintiff, while working as a serviceman, attended the First Defendant's in-house medical centre and reported pain in the left scapula. Specifically, the relevant medical note indicated that the Plaintiff was pulling a full spool (of rubber steel belt) towards himself and felt a sharp pain the left scapula and thoracic area. Later the same day the Plaintiff reported that his pain was referring to the left side of the neck/shoulder'.

The Panel further notes it is accepted that medical records indicate that he was treated conservatively with modalities including physiotherapy. From 16 October 1996 the Plaintiff also performed some selected duties, and returned to normal duties on 13 January 1997.

The agreed facts state further that 'On 8 May 2000 the Plaintiff suffered a low back injury when he was then working as a tyre builder. He made a claim for this injury for which he remains in receipt of weekly payments and medical and like expenses. The Plaintiff did not return to normal duties after this injury and has not worked since 2001.

On 7 August 2000 the Plaintiff attended the First Defendant's in-house medical centre for a rehabilitation review of his back injury. The relevant entry states that the Plaintiff had a 'heat pack to the L) neck & shoulder - stiff after waking'.

The Plaintiff also reported such neck pain to his then general practitioner, Dr Scott Tunaley on approximately 10 August 2000 without any obvious reason ascribed to the cause of such pain.

The Panel noted the clinical records of the First Defendant's in-house medical centre and the clinical records of Dr Tunaley provided in the referral.

The Plaintiff told the Panel that the injury on 8 May 2000 occurred when he was removing some tyre rubber tread from a 'bear trap', which was a trolley fitted with leaves upon which rubber materials were transported. He said that a common difficulty with this process was that the rubber was liable to stick to the 'bear trap' or its leaves, which would then require significantly more force than usual to remove the rubber. On this occasion, as he tried to remove the rubber in the usual manner, by hoisting it onto his left shoulder whilst facing the bear trap, then turning to the opposite direction, and walking away to provide the required force, the tread became stuck and he had to give it a yank. As he did so, he noted severe pain all through his spine, from his neck to his lower back, concentrating in his lower back and radiating down his left leg to the foot.

The Plaintiff told the Panel that since that time he has suffered significant low back pain, but also constant pain spreading from the base of the neck, radiating across and above the left scapula, and then down into the posterior aspect of the left upper limb with associated tingling in the radial two digits of the left hand.

The Panel asked the Plaintiff about the discrepancy between his clinical history and the lack of any mention of neck pain associated with this 8 May 2000 injury in the First Defendant's in-house medical centre clinical records or those of Dr Tunaley until 7 and 10 August 2000 respectively.

The Plaintiff stated that he felt that his back condition was the very much worse at the time, and so most attention was directed to that by both himself and his treaters.

The Panel noted the Plaintiff was referred for neurosurgical opinions related to his back and neck conditions, initially to Mr. Graeme Brazenor, who he attended until approximately late 2003, and then subsequently to Mr . Paul D'Urso.

The Panel noted the medical reports of Mr Paul D'Urso provided with the referral, which indicate the Plaintiff was first referred in September 2005. His report to Dr H. Baglar dated 12 September 2005 is concerned primarily with the Plaintiff's lower back, but Mr D'Urso also states 'I also have concern with his cervical spine'. In his report dated 18 May 2009, Mr D'Urso opines that the activity of pulling a heavy spool towards himself 'may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis'.

The Panel further notes a severe exacerbation of his neck problem in March, 2009 without any specific precipitating event that culminated in his admission to the Epworth Hospital for further management. It was at this point in time that the Panel notes it was recommended he undergo surgery to his cervical spine.

In terms of treatment for his neck and back conditions, the Panel noted from the First Defendant's in-house medical centre records and letters from Campbellfield Physiotherapy provided in the referral that following the incident of 16 October, 1996 he did have physiotherapy treatment directed at his cervical spine that included traction. He said that following his lower back and neck injury of 8 May, 2000 he had treatment from a myotherapist who used to treat him from 'head to toe' with treatment sessions lasting about 30 minutes. He said this used to ease his symptoms somewhat and he was of the opinion that he required this as ongoing treatment in order to help him cope with his current back and neck conditions. The Panel notes that the Plaintiff underwent lumbar spine fusion surgery in August 2002, which he said did not help his back condition to any significant extent.

In relation to ongoing symptoms pertaining to his neck/cervical spine condition he described to the Panel a persistence of neck pain radiating through the left scapular region, down the posterior aspect of his left upper arm with concentration of pain around the elbow, and an associated tingling sensation now and then through the radial two digits of the left hand. He describes the neck and scapular pain as 'throbbing' and says this is the worst of his neck related symptoms. He describes the posterior arm pain as a 'cold and aching sensation'. He said that his hand often changes colour. He reported to the Panel that his neck often becomes very stiff. He says he has to sleep on two pillows to try to get some relief from his neck problem.

The Plaintiff told the Panel that as a result of his ongoing back and neck problems he is very limited in terms of physical activities. He says he spends his day watching television. He can only undertake very light chores such as helping with cooking. He can also run errands to the shops but can only purchase a few items at a time. He is independent in activities of personal care. He says his sons currently undertake the majority of the household chores, including outdoor chores.

He told the Panel that he has lost everything as a result of his injuries and his inability to continue working. This included losing the family home because of financial difficulties. He says his sons obtained work in the Horsham area so he subsequently moved there and has been living there for about seven months. He says his wife is expecting another child in November, 2010.

For his chronic pain and back condition the Panel notes he takes the narcotic analgesic agents Oxynorm 10mg daily, usually in the morning, and Oxycontin 40mg, usually at night. He takes between three and six Nurofen Plus, a combination ibuprofen/codeine analgesic agent, per day and says a packet of between 90-100 tablets lasts him one month. He takes Neurontin 300mg, an anticonvulsant agent often used for neuropathic pain states, three tablets twice daily, and Lioresal, a muscle antispasmodic agent, one daily for persistent leg pain. He also takes Periactin for a generalised itch. He takes Nexium for ongoing gastrointestinal upset. He also takes the psychotropic medications Xanax and Pristiq.

The Panel notes he has been diagnosed with Type 2 diabetes which is currently treated with diet only. He has documented ischaemic heart disease for which he takes medication including Plavix, and some other agents he could not recall the name of. He also takes the cholesterol lowering agents of Lipitor and Crestor. He takes Stilnox CR to help him sleep.

The Panel notes that the Plaintiff continues to smoke 15 cigarettes per day but he said that he does not have any cough or shortness of breath. He has some constipation secondary to his analgesic medication. He suffers occasional palpations but reported that it is rare for him to suffer any angina.

The Panel confined its physical examination to his cervical spine and neurological system of the limbs.

The Panel noted that during the course of the clinical interview the Plaintiff was able to nod and shake his head freely without obvious discomfort whilst giving his answers to various questions. On formal assessment the Panel noted a full range of cervical spine flexion but severely restricted extension to near 0°. Rotation to the right was limited to about 10° and lateral flexion to the right to about 10° with the movements of right rotation, right lateral flexion and extension all producing pain referred to the left neck and scapular region. He also had marked restriction of movement on lateral flexion to the left of 10° and rotation to the left of 20° that both caused a stiffness sensation through the left side of his neck. The Panel considered this discrepancy between range of observed motion during the clinical interview compared to that measured on formal assessment is consistent with an element of abnormal illness behaviour.

Tenderness to palpation was noted through the left side of the neck and along the upper left shoulder girdle.

The Panel noted normal power and reflexes through both upper and lower limbs and down going plantar reflexes. There was some patchy altered sensation through the left upper limb in a non-dermatomal, non-peripheral nerve distribution.

The Panel viewed serial diagnostic imaging studies of the cervical spine and noted various radiologist reports in the referral material pertaining to the cervical spine.

The Panel noted a report of a cervical spine plain film x-ray dated 19 November 1996 revealing some minimal disc space narrowing and osteophytic changes at C3-4 and C4-5 with minimal encroachment of the left C3-4 and C4-5 neural exit foraminae. The Panel viewed a plain film x-ray of the cervical spine dated 8 December 2003 revealing similar changes at C3-4 and C4-5, but also mild degenerative changes and marginal osteophytic lipping at C5-6.

The Panel viewed an MRI scan of the cervical spine dated 12 September 2000 that showed C3-4, C4-5 and C5-6 degenerative changes most marked at C4-5 causing some central canal stenosis. The Panel also viewed an MRI scan of the cervical spine dated 23 March 2009 confirming the previously noted degenerative changes at C3-4, C4-5 and C5-6 with the new addition of a left C5-6 foraminal disc protrusion that was compromising the exiting left C6 nerve root.

The Panel concluded that the Plaintiff is currently suffering from chronic mechanical left cervical spine dysfunction with referred pain to the left shoulder girdle and left upper limb, in the absence of objective signs of radiculopathy, on a background of radiological changes of multilevel degeneration and a left C5-6 disc prolapse.

The Panel considered the Plaintiff's description of his employment duties, the history of workplace injuries, medical reports of doctors who have treated and examined the Plaintiff, radiological results and the Panel's findings on clinical examination.

The Panel noted the various medical reports prepared by Dr Hakan Baglar, who indicates in his report dated 20 March 2001 that the worker 'contacted our clinic ... on 9 May 2000'. In the report dated 25 May 2009, Dr Baglar states 'Despite my close professional relationship with him, I was shocked when I learned that he was urgently admitted to Epworth Hospital for a dramatic presentation of a neck condition ... I was not aware of a neck condition, severe enough to warrant an admission to hospital. The best I can remember about his neck condition is that on a couple of occasions (the Plaintiff) mentioned about his neck pain, in passing when other health conditions were discussed. I do not remember one single consultation when his neck pain was discussed'. The Panel noted Dr Baglar's opinion as to the connection between the Plaintiff's current neck condition and his employment.

The Panel also noted the submissions of the Parties. The Defendant submits, in summary, that medical evidence supports the conclusions that 'any symptoms, effects or consequences of the 16 October 1996 incident resolved or ceased in or about 13 January 1997; and, the Plaintiff's neck/cervical spine condition does not result from nor is materially contributed to by the alleged neck/cervical spine injury on 16 October 1996'.

It is submitted on behalf of the Plaintiff that 'the present condition of his neck/cervical spine being such as to warrant surgery recommended by Mr D'Urso neurosurgeon, clearly results from or is materially contributed to by the incident referred to and has been sustained in employment with the Defendants'.

The Panel considered that the Plaintiff suffered a soft tissue injury to the neck/cervical spine during the course of his normal work duties on 16 October 1996.

The Panel further noted that the underlying degeneration in the cervical spine is a radiological diagnosis only, is often constitutional, and notes from the published medical literature that such degenerative changes may or may not cause symptoms, and that such degenerative changes on imaging studies, including MRI scanning, can commonly be seen in asymptomatic people.

The Panel considered that the soft tissue injury has now resolved, that it has not had any effect upon the progression on [sic] the degenerative changes noted on various imaging studies, and that the Plaintiff's current symptoms are not related to the soft tissue injury of 16 October 1996 in any way.

The Panel therefore concluded that the Plaintiff's employment with the First Defendant on 16 October 1996 could possibly have been, and was in fact, a significant contributing factor to a, now resolved, soft tissue injury to the neck, but could not possibly have been, and was not in fact, a significant contributing factor to any claimed recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing neck/cervical spine condition, in any way.

Whilst the Panel acknowledges that the Plaintiff does currently suffer from a significant medical condition of the neck/cervical spine as noted above, the Panel, based on it's clinical assessment, and the documents in the enclosures, concluded that the worker's current medical condition of the neck/cervical spine is not related to the now resolved soft tissue injury of the neck/cervical spine of 16 October 1996 in any way.

The Panel therefore concluded that the Plaintiff's current neck/cervical spine condition does not result from and is not materially contributed to by the Plaintiff's alleged neck/cervical spine injury of 16 October 1996."

The statement of reasons was accompanied by the document referred to in it as "Enclosure A", which consisted of a schedule listing 80 documents (comprising hundreds of pages) received by the panel for the purposes of the referral. The schedule is endorsed by the Presiding Member of the panel with a signed statement to the effect that the panel took into consideration the information contained in the listed documents in forming its opinion.

105 The plaintiff makes no attack on the panel's diagnosis of the plaintiff's current neck condition as set out in its answer to question 1 nor on the panel's statement of reasons insofar as the statement explains how that diagnosis was arrived at.

106 It will be recalled that ground (d) of the originating motion asserts that the panel failed to give any or adequate reasons for concluding that it was "not possible" for the injury of 16 October 1996 to have been a significant contributing factor to any recurrence, aggravation etc of any pre-existing cervical spine condition suffered by the plaintiff. On the fact of it,[92] this appears to be a complaint about the panel's answer to question 2 alone. In that answer the panel opined that the plaintiff's employment on 16 October 1996 was not in fact and "could not possibly have been" a significant contributing factor to any claimed recurrence, aggravation etc. Corresponding language is not used in the panel's answers to questions 1 and 3.

107 The plaintiff did not in his written or oral submissions place any great emphasis on the panel's use of the expression "could not possibly have been" in the answer to question 2. It is true that the expression does not appear in any relevant liability-creating provision of the Act.[93] However the plaintiff did not suggest that its use betokened any error as to the test to be applied of which he could legitimately complain. If anything, the panel's approach in this regard was unduly favourable to the plaintiff.

108 Nor did the plaintiff distinctly submit that the use of the expression "could not possibly have been" called for a greater or higher level of explanation on the part of the panel. In any event, in all the circumstances of this case, I do not think it did.[94] It seems to me, from the panel's opinion as a whole and from its statement of reasons, that in saying in its answer to question 2 that the plaintiff's employment on 16 October 1996 "could not possibly have been" a significant contributing factor to any claimed recurrence, aggravation etc, the panel was doing nothing worse than engaging in a bit of tautology. It was saying no more than that if, as it believed, the incident of 16 October 1996 had merely given rise to a soft tissue injury that had "now resolved", then, as a matter of logical necessity, the plaintiff's employment on 16 October 1996 "could not possibly have been" a significant contributing factor to any claimed recurrence, aggravation etc of any pre-existing cervical spine condition suffered by the plaintiff. The panel's use of the word "therefore" in the first line of the third last paragraph of the statement of reasons strongly supports this view.

109 Even though ground (d) might appear to be confined to an attack on the panel's statement of reasons only insofar as the statement relates to the panel's answer to question 2, I am prepared to read ground (d) as encompassing an attack on all three of the panel's answers insofar as those answers related to the causation issue, and as constituting, in substance, an attack on the ground that the panel failed to give adequate reasons for its conclusion that the plaintiff's current neck condition was not causally related to the incident at work on 16 October 1996.

110 This attack cannot sensibly be divorced from the matters raised by the plaintiff under ground (e) as expanded.

111 Accordingly, the kernel of the plaintiff's principal submission was that, in the face of his affidavit sworn 18 June 2009, the specified medical opinions and the imaging results, the panel had not sufficiently explained its conclusion that there was no causal link.

112 However, in my view, the matters relied on by the plaintiff did not, having regard to the standards applicable to medical panels and the particular circumstances of this case, call for a better statement of reasons than the panel provided.

113 The panel's statement discloses "a discernible path of reasoning"[95] and "the route by which it arrived at its conclusion"[96]. As is evident from the last six paragraphs of the statement, the panel determined, first, that the plaintiff suffered a soft tissue injury during the course of his normal work duties on 16 October 1996; second, that the soft tissue injury has now resolved; third, that it has not had any effect upon the progression of the degenerative changes noted on the various imaging studies; fourth, that the plaintiff's current symptoms are not related to the soft tissue injury of 16 October 1996 in any way; and fifth, that (therefore) the plaintiff's employment on 16 October 1996 did not contribute to the plaintiff's current neck condition, in any way.

114 The plaintiff submits that the panel should have explained, or explained further, why it considered that the injury suffered on 16 October 1996 was merely a soft tissue injury, not a bony injury; what sort of soft tissue injury the panel considered it was; why the panel considered that the soft tissue injury had not had any effect on the progression of the degenerative changes; and why the panel considered that the plaintiff's current symptoms are not related to the soft tissue injury in any way.

115 In my view, it was not incumbent on the panel to address or deal with any of those (mainly negative) propositions to any greater extent than it did in this case. Nor, in my view, did the panel fail to address sufficiently the material which is now said by the plaintiff to point to a different conclusion. I will come back to the facts shortly.

116 As to the law, there was a tendency in the plaintiff's submissions to assert, at least implicitly, that a statement of reasons by a medical panel is required to meet the same standards, in terms of form and content, as a judgment of a judge in a witness action. Thus the plaintiff contended[97] that an appropriate description of the content of any statutory requirement to give reasons, in terms of form and standard, is contained in the following passage from the judgment of Megaw J in In re Poyser and Mills Arbitration[98]:

"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

"... the relevant authorities, including decisions of this Court, broadly require that the reasons show how and why the Panel reached its opinion, and in so doing to say what evidence it did or did not accept, and the basis upon which it reached a conclusion differing from expressed opinions in the medical reports provided by the parties ... ."[99]

117 In my view, the judicial standard was not applicable to medical panels before the recent amendments to s 68 of the Act, and it remains inapplicable now.

118 It is true that the passage from In re Poyser and Mills Arbitration quoted above has been applied in various contexts on numerous occasions, as the plaintiff submitted.[100] On the other hand, as far as I am aware it has never been applied to a Victorian medical panel. Although Megaw J was speaking about the obligations imposed by s 12 of the Tribunals and Inquiries Act 1958 (UK) generally, the context was a dispute about an arbitrator's award in a commercial arbitration. Unlike commercial arbitrators, a Victorian medical panel dealing with a referral under s 45 of the Act does not determine a legal dispute between parties.[101] Rather, as the Victorian Court of Appeal said in Sherlock v Lloyd[102]:

"[A panel] expresses its 'opinion' on specific medical questions referred by the Court. In this sense the panel operates as a statutory expert, providing an expert opinion for the assistance of the court and the parties on medical (not legal) questions".

As mentioned above, the Court of Appeal went on to characterise the function of the panel as an "expert medical function".[103]

119 If, contrary to my view, the obligations of the medical panel in terms of stating reasons were the same as those of commercial arbitrators, then the 2007 decision of the Victorian Court of Appeal in Oil Basins Ltd v BHP Billiton Ltd[104] (being a decision in which, as the plaintiff submitted, the passage from In re Poyser and Mills Arbitration was applied[105]) would indicate that those obligations would equate to the corresponding obligations of judges.[106] However I note that in Gordian Runoff Ltd v Westport Insurance Corporation[107] the New South Wales Court of Appeal, declining to follow Oil Basins, held that the relevant obligations of commercial arbitrators are not to be equated with those of judges. The High Court has granted special leave to appeal, and has heard an appeal, on this point in Gordian Runoff, and judgment stands reserved.[108]

120 Care is required in considering passages from judgments given in other contexts, because very often the statutory obligation to give reasons will have been stated in different language. Not infrequently the obligation will have been stated in significantly more onerous and elaborate terms. For example, one of the very cases cited by the plaintiff in which Poyser was referred to, namely, Sabag v Health Care Complaints Commission,[109] where the context was a judicial review of the hearing and determination of an allegation of professional misconduct, the respondent Commission had a statutory obligation to "provide a written statement of its decision on an inquiry" and the statute further provided that:

(a) set out any findings on material questions of fact; and

(b) refer to any evidence or other material on which the findings were based; and

(c) give reasons for the decision."

In Sabag,[110] Davies AJA pointed out that these provisions were similar to provisions appearing in s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 28 of the Administrative Appeals Tribunal Act 1975 (Cth).[111] His Honour then quoted a discussion by the Administrative Appeals Tribunal in 1978 of the nature of the obligations imposed by such provisions. (The passage from Poyser had been referred to by the Administrative Appeals Tribunal in that discussion.) By contrast, s 68 of the Act requires only that the panel give a "written statement of reasons" for its opinion. The Act does not itself expressly require the panel to make findings of fact or to refer to the evidence or other material upon which findings were made. Nor is there in Victoria any equivalent of s 25D of the Acts Interpretation Act 1901(Cth), which operates to expand, along those lines, obligations to give reasons stated in bare terms by Commonwealth legislation.

121 The recent amendments to s 68 appear to have sprung from a recommendation of Mr Hanks QC in his Final Report on the Accident Compensation Act Review (2008). The relevant passages in the Report[112] indicate that medical panels have been producing statements of reasons without request for many years, presumably since their duty to do so on request pursuant to s 8 of the Administrative Law Act 1978 was established in Masters v McCubbery[113]. The only stated purpose of the suggested measure, as recommended by Mr Hanks QC, was to eliminate the "unnecessary step" of a request. Nor did the explanatory memorandum pertaining to the relevant amending provision[114] suggest that more detailed reasons would be required. Indeed it stated that the intention was "largely [to] enshrine current practice".[115]

122 I do not accept that the amendments to s 68 have imposed on medical panels greater obligations, in terms of the nature, form or content of statements of reasons, than have heretofore been imposed on them by valid requests under s 8 of the Administrative Law Act 1978.

123 Further, the plaintiff overstates the effect of the law (whether or not the law be affected by the amendments to s 68) insofar as he contends (as indicated above) that the relevant authorities "broadly require" that the panel's reasons show how and why the panel reached its opinion, and in so doing "say what evidence it did or did not accept, and the basis upon which it reached a conclusion differing from expressed opinions in the medical reports provided by the parties". As the employer submits, in an appropriate case even a judge need not make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact; nor is it necessary that the judge reason, and be seen to reason, from one fact to the next to a conclusion. Those principles were stated by Mahoney JA in Soulemezis v Dudley (Holdings) Pty Ltd[116] and were affirmed by the New South Wales Court of Appeal in Huntsman Chemical Co Australia Ltd v International Pools Australia Ltd[117].

124 In his principal written submissions[118] the plaintiff names two authorities in claimed support of the contentions he advances in the present respect, being[119] Clarke v National Mutual Life Insurance & Ors[120] and Moyston Court Fisheries Limited v Malios[121]. In the corresponding paragraph of his earlier written outline of submissions,[122] he had also included references to Milwain v Simm[123], Santos v Wadren Pty Ltd[124] and Collins v Nave.[125]

125 J Forrest J decided Clarke, Moyston Court and Collins v Nave. In each, his Honour extensively considered and helpfully summarised previous authority. In Clarke his Honour said:

"More often than not the reasons provided by a Medical Panel will be sufficient to imply that contrary opinions to that reached by the Panel have been considered and rejected. There is no necessity for a Medical Panel to deal with each of the medical opinions provided, nor with a particular theme that might underlie some of the medical opinions in the usual case."[126]

However, in his Honour's view, Clarke itself was "not a typical case".[127] The medical panel came up with a new diagnosis that had not been suggested in any of the medical reports. It was a diagnosis in relation to the worker's mental condition some 11 years earlier. It was contrary to the opinion held both by the worker's treating psychiatrist and his general practitioner, each expressed contemporaneously. Further, the panel had concluded that the events in question represented merely a temporary exacerbation of an underlying mental condition that had quickly resolved. This view was contrary to the medical reports and was unexplained. In these circumstances his Honour held that the statement of reasons was inadequate.

126 In Moyston Court, J Forrest J reiterated the principles he had summarised in Clarke. He also had regard to certain decisions of the Western Australian Court of Appeal concerning the lengths to which a medical panel's reasons must go in the context of a comparable accident compensation scheme. In particular, his Honour set out[128] a passage from Re Croser; ex parte Rutherford[129] in which, under the heading "Some "advice to Panels", Rolfe AJ (with whom Murray and Templeman JJ agreed) had said:

"(d) The expression of the conclusion, however, is made insufficient by the Act. The Act demands that the panel gives reasons. The law does not demand that the reasons should extend beyond those sufficient to enable the lay reader, and in some cases, the medical reader, to determine how the panel reached its decision.

(e) In those circumstances, one task for the panel is to determine which medical reports it accepts and which it does not. However, it is insufficient to simply make that statement.

(f) In concluding which medical reports to accept or reject, the panel may have regard to matters such as the sufficiency of the history given to the doctor providing each report by the worker; the extent to which, if at all, the doctor has examined the worker and what the doctor has ascertained from that examination; whether the examining doctor has overlooked some matter, which the panel has observed on its examination and which it considers to be relevant; and whether the views expressed by the doctor accord with a respected body of medical opinion. There may be other reasons for rejecting some medical reports. They should be stated."

Rolfe AJ had emphasised that in his "advice to Panels" he was not laying down any formula, let alone a rigid one, within which a panel was to seek to structure a determination; that in every case the determination must be that of the panel; and that his Honour was speaking generally and by no means purporting to cover all the circumstances which may arise for a panel's consideration.[130] Indeed, since Re Croser, the Western Australian Court of Appeal has been at pains to point out that each case must be considered individually and that the "advice to medical panels" was not binding. Thus in Re Knezevic; Ex parte Carter,[131] McLure JA (with whom Wheeler JA and Roberts-Smith JA agreed) said that Rolfe AJ had not been "purporting to state the minimum requirements for a sufficient statement of reasons" and that, if he was, "the guidelines would be inconsistent with prior authority". McLure JA continued:[132]

"In Re McWilliams & Ors; ex parte Pajdak[133] a court comprising Murray, Anderson and Parker JJ rejected as untenable a submission that a panel was required in every case to state or analyse what medical reports or evidence was relied on or what weight was attached to any of the medical reports."

It is true that McLure JA went on to quote[134] with apparent approval a comment of another judge to the effect that the "only unassailable proposition" to emerge from the Western Australian authorities was "that the reasons must be such as to enable the persons concerned to understand why the panel came to the conclusion it did and in particular, where it has been provided with conflicting opinions, to explain the way in which, it dealt with those conflicts". However, McLure JA also said that a panel (being required to act with expedition and being composed of medical practitioners, not lawyers) was not obliged to give "full and detailed reasons",[135] and that its reasons "may be stated shortly without being developed in detail provided they disclose the essential intellectual process by which the conclusions are arrived at".[136] McLure JA added that the panel was not bound to accept the opinion of any of the medical experts relied on by the parties; that the panel "does not perform an adjudicative function"; that its function is investigative in nature; and that the panel "descends into the arena to make its own assessment, having regard to the medical opinions in the reports".[137] Roberts-Smith JA delivered a short concurring judgment in which he said that some of the previous authorities were irreconcilable but that the principles were clear enough. His Honour said, among other things, that:

"The extent and content of the reasons required to be given by a panel will necessarily depend upon the circumstances of the particular case, including (but not limited to) the material before it, the nature of any conflict in the medical reports, the issue(s) in dispute and the findings of any examination by the Panel itself ... . In considering whether the reasoning process is adequately disclosed, regard should be had to what is expressly stated and what can reasonably be inferred ... ."[138]

Subsequently, in Re Anastas; Ex parte Tooley,[139] the statements of principle in Knezevic were reaffirmed by the Western Australian Court of Appeal.

127 I return to Moyston Court. J Forrest J recognised that Rolfe AJ's "advice to medical panels" was not of general application. His Honour said:

"Whilst, respectfully, I doubt whether this 'advice' can be applied to all medical panel opinions in this State, it nevertheless underscored the need for a medical panel in this State established under the Act to provide reasons that are more than just a 'standard form' medical report."[140]

" ... in some, not necessarily all, cases it will be necessary for the panel to state why it did not accept a contrary opinion either as to diagnosis or as to the relationship between the injury and the particular work activities."[141]

128 Moyston Court was another "new diagnosis" case. Three expert dermatologists whose opinions were before the panel attributed the worker's skin condition to a bacterial infection. There was no opinion to the contrary. Yet the panel attributed it to a past dermatological condition. It apparently rejected the three dermatologists' opinions. It did not explain "in terms or implicitly"[142] how it ultimately concluded that the condition was one of dermatitis. J Forrest J found the statement of reasons to be inadequate.

129 In Collins v Nave,[143] J Forrest J adopted the principles stated in Clarke and Moyston Court. He quoted a passage from Moyston Court which included the sentence set out above to the effect that "in some, not necessarily all cases it will be necessary for the panel to state why it did not accept a contrary opinion. ... ". His Honour italicised that sentence for emphasis.

130 Once again, this was a "new diagnosis" case,[144] and an unusual one at that. The worker had obtained a determination that he suffered tinnitus as a result of physical damage to his ears caused by the noise of an explosion at work. His permanent impairment had been medically assessed on behalf of the employer at 15% and the worker was offered a payment accordingly. He was dissatisfied with this and sought an increased impairment assessment. The matter was referred to a medical panel. The panel decided that his tinnitus was entirely psychological. It assessed his employment-related impairment at 0%. No other doctor had suggested, either in terms or implicitly, that the plaintiff's condition was non-organic. The panel gave no warning that it might so find. It did not explain why it rejected the expert opinion of the ENT specialist who had made the 15% assessment. In these circumstances J Forrest J held that the statement of reasons was inadequate.

131 As mentioned above, the plaintiff originally relied on two other cases, Milwain v Simm and Santos v Wadren Pty Ltd. Milwain v Simm was decided on the ground of failing to take relevant considerations into account, not inadequate reasons. It may be put aside. Santos v Wadren Pty Ltd was principally decided on the "relevant considerations" ground. Inadequacy of reasons was found to be an available alternative ground. However it was based on exactly the same complaints. The upholding of it was not necessary for the worker's success in the case. Smith J did say[145] that it had been incumbent on the panel to explain why it had not accepted the "strong" opinion of a particular orthopaedic surgeon concerning the worker's knee. However Smith J did not refer to any authorities as to what may constitute inadequacy.

132 J Forrest J returned to this field more recently in McIver v Barton.[146] Referring to the principles set out in Clarke and also to the judgment of Osborn J in Bluescope Steel Limited v Nisselle,[147] J Forrest J said (importantly for the present case):

"In most cases where a medical panel provides reasons it is not necessary for it to deal with medical opinions contrary to its own conclusions. The rejection of a contrary view, and the reasons for it, can usually be inferred from the panel's reasoning."

133 Finally, it is important not to confuse bad or unconvincing reasons with inadequate reasons. This point is well illustrated by Soulemezis v Dudley (Holdings) Pty Ltd,[148] which was a worker's compensation case involving an appeal limited to a point of law and which, as mentioned above, related to the adequacy of the reasons of a judge - in particular, a judge of the New South Wales Compensation Court. The decision challenged was a decision that the worker had been "fit for all work" after 17 January 1984. The following observations of McHugh JA[149] must surely apply a fortiori to a medical panel giving its opinion on a referral under s 45 of the Act:

"Accordingly, the present case is concerned with a finding of fact which involves no legal standard and is not subject to appeal. The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because, as Asprey JA pointed out in Pettitt v Dunkley (at 382), the learned judge 'has not properly fulfilled the function which the law calls upon a judicial person to exercise'. However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding.

Here the learned judge has obviously acted on the strength of the CAT scan report. His reasons for judgment necessarily involve the total acceptance of the opinions of the applicant's doctors until 17 January 1984 and the total rejection of their opinions after that date. His Honour gave no reasons for doing this. Since, ex hypothesi, the opinions of the applicant's doctors concerning her fitness after 17 January 1984 are necessarily wrong, it is difficult to see how on the facts of this case they could be right for the period immediately before that date. Alternatively, if they were right before that date, it is difficult to see how they could be wrong immediately after that date. Moreover, as counsel for the applicant pointed out, a CAT scan is simply a diagnostic aid. It would be quite erroneous to find as a fact that the applicant was fit for work from the date of the CAT scan simply because the CAT scan failed to reveal any evidence of unfitness. However, the question is not whether his Honour's finding that the applicant was 'fit for all work' after 17 January 1984 was correct. It is whether his Honour gave reasons, however erroneous, for that finding. While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact. Accordingly there was no failure to give reasons sufficient to constitute an error of law.

The appeal must be dismissed."

135 The plaintiff concedes that the panel was correct to focus on the incident of 16 October 1996. That was the only incident relied upon in the relevant claim for compensation.[150] Notwithstanding that the plaintiff had previously made claims for his neck condition based on the incident of 8 May 2000, and notwithstanding that the plaintiff's statement of claim in the Magistrates' Court proceeding referred to the whole course of his employment with the employer, it is evident from the agreed statement of facts which was submitted to the medical panel,[151] from the terms of the medical questions themselves,[152] from the plaintiff's own submission to the panel[153] and from the employer's submission to the panel[154] that by the time of the referral the plaintiff's case had become limited to a claim that his current neck condition was linked to the incident of 16 October 1996.

136 There is no need to dwell on the nature of the link that was alleged by the plaintiff, or that was enquired after by the magistrate or that was actually required by the relevant legislation.[155] It is not suggested by the plaintiff that the referring Magistrate or the medical panel erred in law in relation to the requisite link in such a way that the plaintiff might have been disadvantaged. It is plain that the medical panel was asked about, and opined about, whether there was any causal link. The plaintiff does not complain about that. Nor does the plaintiff suggest that the panel imposed too strict a (causal) test. In effect, the panel asked itself whether the incident of 16 October 1996 had any causal connection at all with the plaintiff's current neck condition, not, for example, whether it was the sole, principal or proximate cause. And, clearly, the panel concluded that there was no causal connection at all.

137 Further, it was of no assistance to the plaintiff in the present case to link his neck condition to his general history of employment with the employer in the absence of a causal link with the incident on 16 October 1996 in particular.

138 The plaintiff had not put before the panel, either in submissions or in other material, a clear case, much less a strong case, on the issue of causation. Nor had his case otherwise called for an adjudication of the detailed kind now suggested. A causal connection was only asserted sporadically and in general and vague terms. The written submission of his solicitors was extremely brief. It did not refer to any of the medical reports. Nothing was said in express or direct contradiction of the proposition that the injury suffered on 16 October 1996 was merely a "soft tissue strain type injury" which had resolved, being a proposition that was expressly put forward in the detailed material submitted to the panel on behalf of the employer.[156] Before me, the plaintiff's counsel did not dispute the contention of the employer's counsel that the plaintiff's solicitors could have put in a reply to the employer's solicitors' detailed submission to the panel. They did not do so.

139 The plaintiff submitted before me that the panel had not dealt with or remarked upon the contents of paragraphs 10-13 of the plaintiff's affidavit of 18 June 2009 which was before the panel. The plaintiff contended that that material was "contradictory of the Panel's ultimate decision".[157]

140 I agree with the employer's response to this complaint,[158] which may be summarised as follows. The material represents an account of the event of 16 October 1996, the plaintiff's ensuing treatment and his ensuing intermittent non-disabling symptoms. The plaintiff's submission that this material "was contradictory of the Panel's ultimate decision" is not made out. The plaintiff's account of these matters is, in substance, repeated in the statement of agreed facts the relevant part of which is extracted by the panel in its reasons[159]. It is also covered by the clinical records of the employer's in-house medical centre and of the plaintiff's GP, Dr Tunaley, and the letters from Campbellfield Physiotherapy, all of which the panel also expressly noted and, indeed, commented upon.[160] In addition, the panel expressly referred[161] to both the plaintiff's (brief) written submissions to the panel and the employer's (detailed) written submissions. The employer's written submissions had expressly referred to the discrepancy between paragraph 13 of the plaintiff's affidavit and the medical records. That discrepancy in turn was mentioned by the panel in its reasons.[162] From January 2007 the plaintiff had maintained his normal, strenuous work until his low back injury in May 2000. Even then, he did not complain of neck pain until August 2000. It may safely be inferred that if there were any intermittent non-disabling symptoms during that period they did not, given the panel's finding of a progressive degeneration of the cervical spine, indicate to the panel that there was a causal link between the particular event of 16 October 1996 and the condition that caused the onset of "much more significant neck symptoms"[163] in March 2009.

141 Turning to the opinions of the particular medical practitioners, once again I accept in substance the submissions of the employer.

142 As to the plaintiff's other GP, Dr Baglar, the panel expressly referred to his reports.[164] It included substantial extracts from his most relevant report of 25 May 2009.[165] It also "noted Dr Baglar's opinion as to the connection between the Plaintiff's current neck condition and his employment".[166] That was obviously a reference to Dr Baglar's comment that the entry in the medical records concerning the event of 16 October 1996 "is more than enough to prove the connection between his current condition and his employment". The omission to actually quote those words is not a proper basis for criticising the panel, especially since Dr Baglar himself set out no reasoning in support of his bald assertion.

143 As to the plaintiff's initial treating neurosurgeon, Mr Brazenor, the plaintiff quotes the following passage from a report dated 28 May 2001:

"This man has significant wear-and-tear in [his] cervical and lumbar spines, and I believe, judging from the work history, that he has sustained injuries in 1995, 1995-96 and the year 2000. It is my view that as a result of these work-related injuries Mr Kocak will never again do a job involving repeated bending at the waist, the repeated picking up of objects from ground level, or the lifting of weights (even where such lifting does not involve bending at the waist) in excess of 15 kgs. These restrictions are permanent, due to his work injuries, to neck and low back, and they apply in perpetuity, irrespective of how well Mr Kocak fairs symptomatically in the future."

The plaintiff also points out that similar views were expressed again by Dr Brazenor in a report dated 26 June 2001. The plaintiff submits that the panel nowhere refers to or makes any comment upon "what is again a clear expression by another treating practitioner as to the causal relationship between 1996 and the current condition of the Plaintiff's cervical spine".[167]

144 The panel was plainly aware that the plaintiff had been treated by Dr Brazenor. It mentioned this expressly.[168] On several occasions the panel asserted that it had had regard to all of the material before it: see paragraph 3 of its statement of reasons; the reference in the second last paragraph thereof to its conclusion being "based on", among other things, the documents in the enclosures; and the endorsement at the foot of Enclosure A to the effect that the panel took the listed information into account in forming its opinion. I see no reason, in this case, to doubt the accuracy of those assertions. Further, I agree with the employer that the omission to refer expressly to the passage upon which the plaintiff now relies or to the similar observation in the subsequent report of Dr Brazenor is of little or no significance given that:

(a) The reports were written in May and June 2001, without the benefit of knowing of the continued progression of the plaintiff's neck condition after he ceased employment and after the onset of disability symptoms in early 2009;

(b) The reports link the plaintiff's then condition (in 2001) to the totality of the "work history" and refer to injuries in 1995, 1995-96 and the year 2000. They do not in terms link his condition with the incident of 16 October 1996. Dr Brazenor had not had the benefit of a description of that incident, because the plaintiff had been unable to recall those circumstances when providing a history to Dr Brazenor in 2001.[169]

(c) The plaintiff made no specific reference to Dr Brazenor's reports in his submission to the medical panel.

145 Next the plaintiff relies upon the report dated 18 May 2009 of his current treating neurosurgeon, Mr D'Urso, in which Mr D'Urso said:

"You have requested an opinion regarding whether or not [the Plaintiff's] neck condition is related to his employment. Included in your brief has been a chronology of Eyup's neck symptoms between October, 1996 and May 2000. Particularly in 1996, it would appear that Eyup did indeed present complaining of neck pain and radicular arm pain. He apparently relates this towards workplace activity where he pulled a heavy spool towards himself. The symptoms would appear to be consistent with an injury to the cervical spine. This may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis. ... I did indeed write to GIO Insurance on 24 March, 2009 seeking liability to perform cervical spine surgery."

146 The plaintiff concedes that this opinion is referred to in part in the reasons of the medical panel.[170] However the plaintiff submits that the panel "ignored" Mr D'Urso's "belief" that the employer was liable to pay for the cervical spine surgery which was proposed. He submits that the panel did not refer to the opinion of Mr D'Urso that the plaintiff had presented with both neck pain and radicular arm pain and that those symptoms were consistent with an injury simpliciter to the cervical spine. Noting that Mr D'Urso had said that that injury may have been an intervertebral disc prolapse or an aggravation of underlying spondylosis, the plaintiff submits that, nevertheless, it is clear that Mr D'Urso expressed the view that what occurred in 1996 was an injury relevant to his request in 2009 for liability to be approved. The plaintiff submits that the panel expressed no view upon the reason or reasons for which it disagreed with Mr D'Urso.

147 I do not agree with the plaintiff's criticisms in this regard. As the employer submits, the panel expressly refers in its reasons[171] to Mr D'Urso's reports, including the report of 18 May 2009. The panel actually quotes Mr D'Urso's opinion that the activity of pulling a heavy spool towards himself "may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis". Moreover, as the employer submits, the language used by Mr D'Urso is that the symptoms "would appear to be consistent with an injury to the cervical spine" that "may have resulted in intervertebral disc prolapse or an aggravation of underlying cervical spondylosis" (emphasis added). The language used by Mr D'Urso is far from compelling. The Panel clearly came to a conclusion that there was no such injury, but rather a soft tissue injury that resolved. As in George v Nisselle,[172] the Panel sufficiently addressed the issue raised. Mr D'Urso did not in terms express a belief that the employer was liable to pay for the proposed surgery. The plaintiff's further submissions recast Mr D'Urso's request for funding as a belief that the employer was liable to pay for the proposed surgery. In his report Mr D'Urso referred to his letter to GIO "seeking liability" and GIO's response "that independent medical opinion has suggested that the cervical condition was not a work-related injury or illness", but he did not go on to put forward a contention that the independent medical opinion was wrong. I agree with the employer that the Panel's failure to expressly refer to these matters is of no special significance, particularly as the plaintiff had made no particular submission to the Panel in relation to them.

148 I turn now to the other medical practitioners who, although not referred to in the originating motion, have given reports on which the plaintiff now relies.

149 An orthopaedic surgeon, Mr Henderson, reported on 14 March 2001 that on the information then available it was "not possible to be sure" that the plaintiff's employment was a significant contributing factor, either in "1995" or in May 2000, although the "overall impression" he formed was that the plaintiff's employment "probably was a significant contributing factor on both occasions".

150 As the employer submits, Mr Henderson's opinion is qualified in its own terms. Further, he obviously did not know what the future would hold for the plaintiff's neck. Moreover, at best his opinion was that employment was probably a contributing factor "on both occasions", ie that it contributed to the onset of what the panel later found was a now resolved soft tissue injury sustained in 1996 and the injury in 2000. Mr Henderson's opinion is not inconsistent with the panel's conclusion.

151 Mr Brearley, a general surgeon, issued reports dated 20 May 2005 and 17 October 2008. Thus they predate the onset of the major neck symptoms. Moreover, Mr Brearley expresses no opinion about the incident of 16 October 1996 in particular. Rather he expresses his view in relation to contribution by reference to the entire course of the plaintiff's employment. In these circumstances the panel's omission to refer specifically to Mr Brearley reports is insignificant.

152 A vascular physician, Dr Blombery, reported on 18 December 2008 as follows:

"I also questioned him about pain in his neck. He told me that this had commenced in 1996 and had gradually increased. He continued to work despite this. In 1996, he had been involved in a work accident when he was pulling spools and developed pain in the neck and left shoulder. He said he went on to light duties for a period of time and then went back onto normal duties and his neck became pain free."

The plaintiff contends that this onset of symptoms in 1996 seems to be a factor in the ultimate conclusion expressed by Dr Blombery that:

"It is my opinion that employment was a significant contributing factor to the injuries to his cervical spine and lumbar spine."

153 Again, I agree with the employer that Dr Blombery's opinion is not inconsistent with the opinion of the panel, noting that Dr Blombery obtained a history that after the event in 1996 the plaintiff returned to light duties for a period of time and then went back to normal duties and his neck became pain free. Additionally, as the employer notes, it appears that Dr Blombery considered that the plaintiff suffered from widespread and severe degenerative changes in the cervical spine and that the cervical spine injury was a consequence of problems with the lumbar spine and surgery to it. Of course, that is the very case which the plaintiff and his solicitors previously advanced but from which he has now departed.

154 As to the radiological evidence, there is no merit at all in the plaintiff's complaint. The panel referred to it in detail[173] and commented on it.[174] Whether the panel's reasoning in relation go the radiological evidence was good or bad, or convincing or unconvincing, is not to the point.

155 On any available view of the appropriate standard for statements of reasons of medical panels, the panel's statement of reasons in this case was not inadequate. Grounds (d) and (e) fail.

Failing to take into account mandatory considerations

156 The plaintiff's (tentative) contention that the panel failed to take into account considerations which it was bound to take into account was based on the same matters as his contention that the panel's statement of reasons was inadequate. No separate argument was put. The latter contention having been unsuccessful, the former does not succeed either. Ground (a) therefore fails.

157 As already mentioned, the plaintiff said very little about the remaining grounds ((f), (h) and (i)). I have already dealt with the panel's use of the expression "could not possibly have been" in its answer to question 2. To the extent that the panel departed from or went beyond any of the questions it was asked, it did not do so to the disadvantage of the plaintiff. There is no merit in these grounds. They fail.

158 The employer submitted that I should dismiss this proceeding in any event on the ground that, the plaintiff not having presented a detailed case to the panel, he should not be permitted to put such a case forward now. Although I see some merit in the employer's contention, there is no need for me to rule on it.

159 Subject to any submissions by counsel as to form, I propose to make orders along the following lines:

(a) Time be extended so far as necessary to authorise the commencement on 29 November 2010 of this proceeding.

[1] See Wurth Australia Pty Ltd v Gallichio [2010] VSC 630 (Macaulay J) at [37]-[42].

[2] Mann v Medical Practitioners Board [2004] VSCA 148 at [57], [67]-[72], esp [71]-[72].

[3] Affidavit of Travis Fewster dated 21 April 2011, para 3.

[4] [2010] VSCA 206.

[5] In Brumar the respondent worker succeeded in the Court of Appeal. The employer did not seek special leave to appeal to the High Court. The provision of the Act that had been central to the issues in Brumar (s 134AB(19)(c)) had been amended by this time. However in Brown the employer did apply for special leave to appeal. Special leave was granted on 10 December 2010. The appeal was allowed on 22 June 2011: Maurice Blackburn Cashman v Brown [2011] HCA 22 (see further below).

[6] Affidavit of Joseph Anthony Savedra sworn 11 February 2011, paras 9-17.

[9] See footnote 1 above and the related text and see further below.

[10] CB 431, transcript of County Court hearing, p 15.

[11] Plaintiff's written outline of submissions dated 21 April 2011, para 6; plaintiff's further written submissions dated 4 May 2011 para 6; transcript, passim.

[15] [2011] VSC 35 (21 February 2011) at [28]-[29]. Footnotes retained but renumbered.

[16] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreed with Hansen AJA).

[17] Mann [2004] VSCA 148, [70] (Hansen AJA).

[18] (1984) 6 ALD 1, 3. An appeal from that decision was dismissed by the Full Court of the Federal Court of Australia [1984] AATA 176; (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ).

[19] Mann [2004] VSCA 148, [57] and [72] (Hansen AJA); Lednar v The Magistrates' Court [2000] VSC 549, [140]-[143] (Gillard J) not following Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221, 224 (Beach J).

[20] Mann [2004] VSCA 148, [57], [58] and [72] (Hansen AJA); Lednar v The Magistrates' Court [2000] VSC 549, [137], [142] and [143] (Gillard J); Young v The County Court [2005] VSC 311, [17] (Osborn J).

[23] [2002] VSC 256 at [19].

[24] Mann v Medical Practitioners Board [2004] VSCA 148; (2004) 21 VAR 429 at [57], [72]. See also at [1], [5] and [8].

[25] [2011] VSC 35 at [29].

[26] Compare Principe v Nisselle [1988] VSC 137 at [18].

[27] Compare Nominal Defendant v Harris [2011] NSWCA 70 at [69]- [92].

[28] [2006] VSCA 227; (2006) 14 VR 435.

[29] Transcript p 118 lines 11-12; cf Brumar/Brown [2010] VSCA 206 at [68], [74].

[30] [2009] VSCA 313. But see now Maurice Blackburn Cashman v Brown [2011] HCA 22 at [29], [34]-[36]. And see further below.

[31] At [18], citing Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2 (Dixon J).

[32] Compare Brumar/Brown at [45].

[33] See FCT v Day [2007] FCAFC 193; (2007) 164 FCR 250 and Carter v Walker [2010] VSCA 340.

[35] [2011] HCA Trans 113 (3 May 2011).

[36] Maurice Blackburn Cashman v Brown [2011] HCA 22 at [34]- [37].

[38] Brown confirms that questions or matters arising in the common law action itself are not questions or matters "arising under or for the purposes of the Act": Brown at [34]-[37]. However it is not clear whether the High Court would distinguish between applications for statutory benefits and applications for leave to bring common law claims, both of which are purely statutory creatures. Of course, this question did not need to be decided in Brown.

[40] [2009] VSC 30 at [42], [51] and [56].

[41] [2002] NSWCA 104; (2002) 54 NSWLR 207 at [91]-[98].

[42] [2011] NSWCA 70.

[43] [2011] NSWCA 70 at [30]-[32], [37]-[52], [69]-[84].

[44] Affidavit of the plaintiff sworn 30 November 2010, para 3.

[46] Waverley Municipal Council v Cheowiry [2003] NSWCA 12 at [11] per Mason P. The reasons for the doctrine had been expounded in R v Unger (1977) 2 NSWLR 990. See also Love v State of Victoria and Roads Corporation, Supreme Court of Victoria, Court of Appeal, Ashley and Harper JJA (No 5 APCI 2010 0033), unreported, at [9] per Ashley JA and at [59]-[60] per Harper JA.

[47] [2011] VSC 35 at [29].

[48] [2010] VSC 630 at [37-[42].

[49] [2007] VSC 224 at [7]- [11].

[50] See Treacey v Newlands [2007] VSC 224 at [11]; cf Wurth Australia v Gallichio [2010] VSC 630 at [40], [45]-[46].

[54] See, eg, Lucic v Nolan (1982) 45 ALR 411 at 416; Hunter Valley Developments Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-350.

[56] See Moyston Court Fisheries Ltd v Malios [2007] VSC 518 at [42]- [47].

[57] Submissions dated 4 May 2011, para 22.

[58] Transcript pp 218-219. And note the similarity between ground (a) set out above and ground (e) set out below.

[61] [2005] VSC 177.

[62] [2010] VSCA 122.

[63] Accident Compensation Amendment Act 2010, s 90 which commenced on 5 April 2010.

[64] [2011] VSC 158.

[65] [1998] HCA 28; (1998) 194 CLR 355 at 390-1 [93].

[66] [2011] VSC 158 at [106].

[68] I say nothing as to what the position may be in England: see De Smith's Judicial Review, 6th ed, 2007 at 7-097 to 7-115 to which Mr Uren referred.

[69] [2010] VSCA 122 at [19]- [22].

[72] Compare Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 at 445-446 per Brennan J (dissenting, but not on this point); Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [62].

[73] (1990) 24 FCR 564 at 573. See also Re Croser; ex parte Rutherford [2003] WASCA 8 at [23]- [25]. And see the references to this issue in Sherlock v Lloyd [2010] VSCA 122 at [39]- [43].

[74] [2003] HCA 56; (2003) 216 CLR 212.

[75] [2009] FCA 1485; (2009) 182 FCR 411. See esp at [28], [55]-[74]. See also Sanhueza v AAMI Ltd [2010] 56 MVR 347 at [109]; Secretary, Department of Education, Employment and Workplace Relations v Ergin [2010] FCA 1438; [2010] 119 ALD 155 at [43].

[76] [2010] FCAFC 108; (2010) 187 FCR 362, esp at [54], [91].

[77] [2010] FCAFC 108; (2010) 187 FCR 362 at [56]. However Kenny J's observation was made in relation to a different question, namely in what circumstances might it be appropriate to infer from an administrative tribunal's statement of reasons (or purported statement of reasons) that it has committed a substantive legal error, such as omitting to take into account some relevant consideration or making a critical finding of fact without any supporting evidence or other material. See now Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [60]- [73].

[78] [2011] HCA 1; (2011) 241 CLR 594 at [72].

[79] Mr Uren cited the judgment of Ormiston J in Body Corporate Strata Plan No 4166 v Stirling Properties Pty Ltd No 2 [1984] VR 909 in support of his submission, but it seems that Ormiston J may at least have left open the view that, even in the case of mere inadequacy or partial failure to give reasons, the substantive decision cannot be set aside and there may simply be no fully satisfactory remedy: see esp at 912-913, particularly p 913 lines 19-22. That reading of the judgment of Ormiston J was apparently adopted by the author of the VR headnote: [1986] VR 903 at 903-904. In Comcare v Lees [1997] FCA 1415; (1987) 151 ALR 647 at 657-658, Finkelstein J observed that the view of Ormiston J was that, except in the case of a statutory arbitration such as was considered in Re Poyser and Mills Arbitration [1964] 1 QB 467, "the appropriate remedy for a failure to give adequate reasons was mandamus". However, compare Sasterawan v Morris [2008] NSWCA 70 at [51]- [59].

[80] Citing, especially, Sasterawan v Morris [2008] NSWCA 70 at [37], [47]. I note, however, that Sasterawan involved judicial review of a court, not a tribunal; and, insofar as the Court in Sasterawan followed the judgment of the New South Wales Court of Appeal in Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, it must be remembered that Vegan was distinguished in Sherlock v Lloyd [2010] VSCA 122.

[81] Transcript pp 206, 228. Indeed Mr Uren said that he did not even need to go so far as to establish that the giving of an adequate statement of reasons was a statutory condition of the validity of the decision: cf Byrne v Legal Services Commission [2010] VSCA 162 at [55]; Palme at [55] per McHugh J.

[82] [2009] FCA 1485; (2009) 182 FCR 411 at 436 [74].

[84] Compare Secretary, Department of Treasury & Finance v Dalla-Riva [2007] VSCA 11; (2007) 26 VAR 96, 102 [23] and cases there cited; Paul & Paul Pty Ltd v Business Licensing Authority [2010] VSC 460 at [67].

[87] Many of the cases relied on by Mr Uren were referred to by Tracey J in Kennedy or had previously been referred to by Finkelstein J in Comcare v Lees [1997] FCA 1415; (1997) 151 ALR 647 in observations to which Tracey J referred with approval in Kennedy. One case on which Mr Uren placed particular reliance - Oil Basins Ltd v BHP Billiton Ltd [2007] VSCA 255; (2007) 18 VR 346 (esp at [62]) - was a statutory arbitration case and may therefore be in a special category: see Body Corporate Strata Plan No 4166 v Stirling Properties (No 2) [1984] VicRp 73; [1984] VR 903 (Ormiston J) at 912, Comcare v Lees [1997] FCA 1415; (1997) 151 ALR 647 (Finkelstein J) at 658. Incidentally the New South Wales Court of Appeal declined to follow Oil Basins in a different respect recently: Gordian Runoff Ltd v Westport Insurance Corporation [2010] NSWCA 57; (2010) 267 ALR 74. An appeal to the High Court in Gordian Runoff has been heard and judgment stands reserved: [2011] HCA Transcript 12. See further below.

[88] Especially as put by De Smith, loc cit. As to the corresponding arguments in relation to the giving of reasons by courts, see Brown v Tabro Meat Pty Ltd [2011] VSC 221 (Kaye J) at [18].

[89] In this regard see especially Palme at [55] per McHugh J and Kennedy at [65] (Tracey J). Mr Masel referred also to Lianos v Inner & Eastern Health Care Network [2001] VSCA 53; (2001) 3 VR 136 and Perkins v County Court [2000] VSCA 171 at [55]- [62].

[90] See, however, paras 10.319-10.323 of the Final Report of the Accident Compensation Act Review by Peter Hanks QC (August 2008) and the Explanatory Memorandum for the Accident Compensation Amendment Act 2010 (s 90), both referred to again below.

[91] Compare Chubb Security Australia Pty Ltd v Kotzmann (No 2) [2010] VSC 281.

[93] See ss 82 and 99 (as in force at the relevant time) and see Hegedis v Carlton & United Breweries [2000] VSC 380; (2000) 4 VR 296. The panel's use of the expression "could not possibly have been" is reminiscent of provisions contained in paragraphs (b) and (ba) of the definition of "medical question" in s 5 of the Act. Those provisions authorise the use of corresponding language in medical questions, but of course the questions actually asked in this case did not use such language.

[94] Contrast Abbott v Eptec Victoria Pty Ltd & Ors [2011] VSC 267 (Beach J) at [18], [19], [27], [36].

[95] Moyston Court Fisheries v Malios [2007] VSC 518 at [78] per J Forrest J, quoted with approval and applied by Cummins J in Qantas Airways Ltd v Nisselle [2008] VSC 150 at [19].

[96] Kamener & Ors v Griffin & Ors [2005] VSC 202; [2005] 12 VR 192 at 201 per Ashley J (as Ashley JA then was), also quoted with approval and applied by Cummins J in Qantas at [19].

[97] Written submissions dated 4 May 2011, para 19.

[98] [1964] 2 QB 467 at 478.

[99] Written submissions dated 4 May 2011, para 21.

[100] He cited Westminster City Council v Great Portland Estates PLC [1985] 1 AC 661 at 673, Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 345 at [62], Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [43]- [45] and Cyressvale Pty Ltd v Retail Shop Lease Tribunal [1995] QCA 187; [1996] 2 Qd R 462.

[101] Whether the position is any different in relation to a referral to a medical panel under s 104B(9) of the Act for the determination of a degree of impairment need not be considered: cf Collins v Nave [2008] VSC 85 (Forrest J) esp at [4], [17].

[102] [2010] VSCA 122 at [20]. And see above (para 94).

[104] (2007) 18 VR 345.

[106] On the other hand, even judges are not subject to limitless obligations to give reasons. See further below.

[107] [2010] NSWCA 57; (2010) 267 ALR 74.

[109] [2001] NSWCA 411.

[110] [2001] NSWCA 411 at [43].

[111] His Honour might have added that they are similar, also, to the provisions of s 25D of the Acts Interpretation Act 1901 (Cth) and to the much litigated provisions of s 430 of the Migration Act 1958.

[113] [1995] VICSC 209; (1996) 1 VR 635.

[114] Section 90 of the Accident Compensation Amendment Act 2010.

[115] See Abbott v Eptec Victoria Pty Ltd [2011] VSC 267 (Beach J) at [32].

[116] (1987) 10 NSWLR 247 at 271, 274.

[117] (1995) 36 NSWLR 242 at 256-258 per Rolfe A-JA. See also at 244 (Kirby P) and 250 (Mahoney JA). See also the authorities collected by J Forrest J in Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3 at [32]- [34].

[119] After allowance is made for obvious errors in citation.

[120] [2007] VSC 341 at [43]- [61].

[121] [2007] VSC 518 at [57]- [83].

[123] [2009] VSC 75 at [30]- [37].

[124] [2009] VSC 303 at [23]- [27].

[125] [2009] VSC 85 at [30].

[126] [2007] VSC 341 at [59].

[128] [2007] VSC 518 at [76].

[129] [2003] WASCA 8 at [44]- [46].

[130] [2003] WASCA 8 at [45]- [46].

[131] [2005] WASCA 139 at [24].

[133] [2002] WASCA 203.

[134] [2005] WASCA 139 at [24].

[139] [2006] WASCA 232 at [1], [3], [4], [28].

[140] [2007] VSC 518 at [77].

[142] [2007] VSC 518 at [82].

[143] [2008] VSC 85 at [31].

[144] See also Bluescope Steel Limited v Nisselle [2008] VSC 72.

[145] [2009] VSC 303 at [47].

[146] [2010] VSC 22 (22 February 2010) at [59].

[147] [2008] VSC 72 at [83].

[148] (1987) 10 NSWLR 247.

[152] CB 371-372. See especially questions 2 and 3.

[155] On the other hand, those matters may have significance hereafter in relation to the strength of the employer's abovementioned estoppel claims in other litigation.

[156] See the report of Mr Dooley (orthopaedic surgeon) dated 31 August 2009, pp 4, 5 (CB 367-368). See also the reference to Dr Tunaley's notes in paragraph 2(e) of the employer's written submissions to the panel dated 27 May 2010 (CB 443-447, esp at 446).

[157] Plaintiff's written submissions dated 4 May 2011, para 36.

[158] See employer's written submissions dated 9 May 2011, paras29-32 and see transcript of oral argument, esp at 272.

[160] CB 373, 374 (6th and 7th paragraphs from top) and CB 375 (first paragraph).

[162] CB 374 (7th paragraph from the top).

[163] Statement of agreed facts, CB 439.

[164] CB 377 (2nd complete paragraph).

[167] Plaintiff's written submissions, 21 May 2011, paras 40-41.

[172] [2005] VSC 177 at [55]- [62].

[173] CB 376 (6th and 8th full paragraphs).

[174] CB 377 (6th and 7th full paragraphs).