Court of Appeal (Vic)|2010-05-28|Before: MAXWELL P, ASHLEY JA and BYRNE AJA

Sherlock v Lloyd & Ors [2010] VSCA 122 (28 May 2010)

[2010] VSCA 122 1ST Revision, 1 June 2010, (see fn 79)

Sherlock v Lloyd [2008] VSC 450 (Kyrou J)

1 This appeal raises an important question about the nature and effect of the obligation imposed on a tribunal by s 8(1) of the Administrative Law Act 1978 (Vic) (the 'ALA') to give reasons for a decision. A related question concerns the proper characterisation of the function performed by a medical panel when giving an opinion upon medical questions referred to it under s 45(1) of the Accident Compensation Act 1985 (Vic) (the 'ACA').

2 For reasons which follow, we respectfully agree with the trial judge that, where a medical panel is requested under s 8(1) of the ALA to provide a statement of reasons for its opinion, the provision of an inadequate statement of reasons is not, by itself, an error of law. The appeal must therefore be dismissed.

3 The background facts may be stated shortly. The appellant brought a claim in the County Court for compensation under the ACA. A judge of that court subsequently referred seven medical questions to a medical panel, pursuant to s 45(1) of the ACA. A panel was constituted, comprising the first and second respondents (the 'Panel'), and in due course the Panel provided its opinion upon the referred questions.

4 As a 'person affected' by the Panel's decision, the appellant made a request of the Panel under s 8(1) of the ALA that it provide a statement of reasons for its opinion. Being dissatisfied with the reasons provided in response to that request, the appellant subsequently commenced a proceeding in this Court, under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), seeking judicial review of the Panel's decision. The grounds relied upon were want of procedural fairness and inadequacy of reasons. It was not contended that such reasons as were provided disclosed any error of law. Kyrou J dismissed the application.

5 The present appeal is confined to the ground of review based on what was alleged - and held by the judge - to be the inadequacy of the reasons provided by the Panel. His Honour held that this inadequacy did not constitute a ground upon which the application for judicial review could succeed. The only remedy available to the appellant in these circumstances, his Honour held, was to seek an order from the Court under s 8(4) of the ALA that the Panel provide a 'further statement of its reasons'.

6 In reaching this conclusion, the judge declined to follow a number of first instance decisions of the Court to the contrary. He agreed with the result expressed in other first instance decisions. As we have already said, we agree with his Honour's conclusion and would dismiss the appeal. The contrary decisions must be overruled.

7 The appellant advanced her case on two bases. The first was that a medical panel under the ACA was 'a body having a duty to act judicially, from which there is no appeal'. This characteristic was said to create a common law duty in the Panel to give reasons. That being so, it was argued, the inadequacy of the Panel's reasons constituted an error of law amenable to prerogative relief. The second basis was that, on the proper construction of the ALA, inadequacy of reasons provided in response to a request made under s 8(1) of the ALA was an error of law amenable to such relief. We will address these bases in that order, although it was the second of these upon which the appellant principally relied.

REASONS AT COMMON LAW: WAS THE PANEL PERFORMING A JUDICIAL FUNCTION?

8 The starting-point in a case where there is a complaint of want of adequate reasons for the decision of an administrative tribunal is the question whether the tribunal has a legal obligation to give reasons. In general, it has no such obligation unless the statute under which the decision was made expressly or impliedly so requires.[1] Where no such obligation exists, a person aggrieved by such a decision has at common law no ground of complaint for want of reasons.

9 It was accepted that that there is in the ACA no express requirement for reasons. The contention put on behalf of the appellant, however, was that such a requirement should be implied from the judicial nature of the task undertaken by the medical panel. The second step in the argument was that the Panel's failure to provide reasons which were adequate constituted an error which was amenable to relief in the nature of certiorari.

10 The appellant relied on the decision of the New South Wales Court of Appeal in Campbelltown City Council v Vegan.[2] This was a case under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) under which, in a claim for compensation, a medical question might be referred to an approved medical specialist for assessment. The medical specialist is required by s 325(2) to provide a certificate of the assessment, which is to include the reasons for the assessment and the facts on which it was based. By s 326 the certified assessment is conclusively presumed to be correct as to the medical matters certified.

11 There is, however, a right of appeal upon specified grounds from the medical specialist to an appeal panel, which is to review the assessment and may confirm the certificate of assessment or revoke it and issue a new certificate of assessment. There was no requirement in the statute that the appeal panel should give reasons. In Vegan, upon appeal by the worker to the appeal panel against the assessment of the medical specialist, the panel assessed her injuries to be more serious than had been assessed and issued a new certificate of assessment, with brief reasons. The employer sought judicial review upon grounds which included a ground that the reasons of the appeal panel were inadequate. The Court of Appeal held that the appeal panel was obliged to give reasons and that the reasons given for its new certificate were inadequate. Accordingly, its certificate of assessment was set aside.

12 The question as to the obligation of the appeal panel to give reasons arose because there was no provision in the relevant act which required it to do so. The Court of Appeal nonetheless held that there was an implied obligation imposed upon the appeal panel by the statute to give reasons for its decision upon the appeal. Handley JA so held for two reasons. The first depended upon the fact that the appeal panel was sitting on appeal from a medical specialist who was himself required to give reasons. The panel in correcting error in the assessment 'should do what the medical specialist should have done, that is, make the right decision and give reasons for it.'[3] The second reason depended upon that fact that there was in the statute a power to direct that a further assessment be made where there was other evidence suggesting that the assessment was wrong or where the worker's condition had changed. His Honour was of opinion that the exercise of this power would be hindered if there were no reasons given for the assessment which was to be revisited.[4]

13 Basten JA came to the same conclusion, but for further reasons.[5] His Honour characterised the function of the appeal panel as being judicial in nature:

... the assessment of permanent impairment undertaken by the Appeal Panel involves the application of a statutory test, by which legal rights as between an employee and employer are determined. Accordingly, it is an exercise in the nature of a judicial function, whatever the precise name or status of the Appeal Panel itself.[6]

Because the appeal panel's function was judicial and not administrative, his Honour said, the Osmond principle was inapplicable. In the present appeal, the appellant argued by analogy that the function of the Panel was likewise judicial in nature.

14 Basten JA also based his conclusion upon the role of the certificate of assessment as part of the process whereby the Workers Compensation Commission determined the contested claim of a worker. Since the Commission was required to give reasons for its decisions, his Honour said, it would be anomalous that the parties would have the benefit of its reasons and also those relating to the medical questions, but in the latter case, only where the medical assessment was that of the medical specialist, not that of the appeal panel. His Honour quoted[7] with approval the following dictum of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd:[8]

... [I]t is no longer correct to say that a judge has no duty to give reasons unless there is a right of appeal against his decision. If it was, an ultimate court of appeal would have no duty to give reasons. In my opinion, the duty rests on a wider basis: its foundation is the principle that justice must not only be done but it must be seen to be done.[9]

15 Whether a statutory tribunal is obliged by its jurisdiction-conferring statute to give reasons for its decision, and what consequence flows from a failure to do so, are often difficult questions. In the modern environment there is a general expectation that a decision which affects the rights of parties should be reasoned. This serves to assuage any sense of grievance in the losing party and as a discipline for the tribunal;[10] and renders the decision less likely to appear to have been an arbitrary one[11] or affected by extraneous considerations.[12] But, as Basten JA observed in Vegan, '[u]ltimately the question must be approached as one of statutory construction, always acknowledging that the principle of Public Service Board of New South Wales v Osmond[13] has not been abandoned or diminished'.[14]

16 Osmond held, as we have already noted, that there is 'no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions.'[15] The judgments in Osmond and the cases which have followed it have, however, acknowledged that this principle will yield to a statutory intention that reasons be given.[16] This intention might be indicated - for example - where the statute empowered the tribunal to exercise a power in the nature of a judicial function; or to do so subject to a right of appeal which could not be exercised without some indication of the reasoning process which led to the tribunal's decision;[17] or, perhaps, in what Gibbs CJ in Osmond identified as 'special circumstances'[18] in which procedural fairness required that reasons be given. It could not be said, however, consistently with the Osmond principle, that the mere fact that the decision was final and determined rights of the parties was of itself sufficient to attract an obligation to give reasons.[19]

17 There is, as we have mentioned, no express provision in the ACA requiring a medical panel to give reasons for its opinion. By s 68 the panel is required to form its opinion upon the referred questions[20] and to give a certificate as to this opinion.[21] It must give its opinion in writing within seven days of forming the opinion.[22] Where the question for the panel's opinion is referred by the County Court, a copy of the opinion must be given to the worker and to the employer, the Authority or self-insurer.[23] The ACA does not contemplate that further information will be provided to the parties as to the opinion or the reasons of the medical panel unless, perhaps, this is exposed where a panel member gives evidence under s 48.

18 The medical panel is not bound by rules or practices as to evidence but may inform itself in any manner it thinks fit.[24] Although it is required to act informally and without regard to technicalities, and to do so speedily,[25] it is required to comply with the rules of natural justice.[26] Nevertheless, where the claimant attends before the panel this must be in private unless the panel considers it necessary for another person to be present.[27] Its opinion must be adopted in the court and must be accepted as final and conclusive.[28] There is no provision for appeal from an opinion.

19 In our view, the function of a medical panel to which a medical question has been referred under the ACA is not such as to impose on that panel an obligation to provide reasons for its opinion. First, the statutory framework in which the medical panel operates lacks the indicia identified by the New South Wales Court of Appeal in Vegan. There is in the ACA no provision for appeal or for re-opening the opinion of the medical panel. There is no aspect of the claims procedure which would require an examination of its reasons. Indeed, its reasons are not to be considered by the court which may be required to give effect to the opinion in its decision as to the claim.[29]

20 Secondly, the function of a panel under the ACA is altogether different from that of the appeal panel under the New South Wales legislation. A panel under the ACA does not sit 'on appeal' from a medical assessment made by some other person or body. Rather, it 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.

21 The provisions of the ACA foreclose debate on the panel's opinion, by making the panel's answers conclusive of the issue(s) the subject of the referred medical questions.[30] But that circumstance could not, in our view, convert into a judicial function what is defined - by the express terms of the Act - as an expert medical function. As the ACA makes clear, the panel performs its medical function in aid of the judicial function being performed by the County Court.

22 With respect to Basten JA, we are not convinced that it is correct to describe as the hallmark of the judicial function 'the application of a statutory test, by which legal rights are determined'. We accept, of course, that this is an important aspect of the judicial function. But judges are not the only decision-makers who perform this task. We would have thought that this criterion would apply to decisions of a variety of public officials whose functions would not ordinarily be thought of as judicial. But it is unnecessary for present purposes to pursue this question further.

23 The consequence of our conclusion is that the Panel's failure to provide adequate reasons cannot provide the basis for an attack at common law upon its opinion.

REASONS REQUIRED BY STATUTE: WHAT REMEDY DOES THE ALA CREATE FOR INADEQUATE REASONS?

24 We turn to the second basis on which the appeal was argued. This was the appellant's contention that inadequacy of reasons provided in response to a request made under s 8(1) of the ALA constituted a reviewable error of law. As we have noted, the reasons in the present case were provided in response to such a request.

25 The appellant argued that the imposition by s 8(1) of the ALA of a statutory duty to provide reasons on request had 'changed the common law' as reflected in Osmond (which was, of course, decided some years after the ALA was enacted). Indeed s 8(1) did change the law: it imposed upon a tribunal an obligation, on request, to provide reasons. But the real question is whether, on the proper construction of the ALA, it was intended to be a corollary of that obligation that the provision of inadequate reasons should, without more, enliven the power of the Supreme Court to grant relief in the nature of certiorari to quash the decision of the tribunal (in this case, the Panel).

26 It is important at the outset to emphasise the limited scope of the question raised by this second part of the appeal. It is a question of statutory construction, to be resolved by ascertaining what the Parliament of Victoria intended in 1978 when it enacted the ALA and imposed in s 8 the statutory obligation to give reasons on request.

3 Tribunal decisions may be reviewed

Any person affected by a decision of a tribunal may make application (hereinafter called an application for review) to the Supreme Court for an order calling on the tribunal or the members thereof (hereinafter called an order for review) and also any party interested in maintaining the decision to show cause why the same should not be reviewed.

...

7 Powers of Court

Upon the return of the order for review, the Court may discharge the order or may exercise all or any of the jurisdiction or powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings for relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto or in proceedings for a declaration of invalidity in respect of the decision or for an injunction to restrain the implementation thereof and may extend the period limited by statute for the making of the decision but shall not exercise any other jurisdiction or power or grant any other remedy.

Reasons for decision to be furnished by tribunal on request by party concerned

(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.

(3) The statement of reasons shall be in writing and furnished within a reasonable time.

(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.[31]

...

10 Reasons to be part of record

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

28 Three features of s 8 may be noted immediately. First, the purpose of imposing the requirement to provide reasons is made clear by s 8(4). It is to enable the person affected - and the Court - 'to see whether the decision does or does not involve any error of law'. Secondly, the entitlement to receive reasons exists independently of the decision-making process. The tribunal does not have to give reasons unless these are requested within the prescribed period. Thirdly, the entitlement to seek reasons under s 8(1) also exists independently of court proceedings. This reflects the fact that a person affected by a decision will typically wish to see a statement of reasons for the decision in order to decide whether, and on what grounds (if any), to seek judicial review.

29 Should the person decide in due course to commence a proceeding for judicial review, he/she then has a choice whether to bring the proceeding in accordance with the ALA or under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). As noted earlier, the appellant chose the latter course. It is in that context that she seeks to rely upon the inadequacy of the reasons given in order to establish a ground of review based on the provisions of the ALA.

30 Kyrou J concluded that the inadequacy of a statement of reasons provided in response to a request under s 8(1) was not, of itself, an error of law entitling the appellant to relief in the nature of certiorari or mandamus. In his Honour's view, s 8(4) of the ALA provided its own - and the sole - remedy for inadequate reasons.

31 His Honour gave four reasons for this conclusion, as follows:[32]

Firstly, since the statutory test of inadequacy is whether the reasons 'enable a Court to see whether the decision does or does not involve any error of law', it is 'illogical' to characterise the inadequacy itself as an error of law.
Secondly, s 8(4) provides no remedy for inadequate initial reasons other than an order for a further statement of reasons (subject to the matters set out in s 8(5)). The reference to alternative remedies when the reasons are subsequently provided pursuant to an order under s 8(4), and the absence of a reference to alternative remedies when the tribunal initially refuses to provide reasons or provides inadequate reasons, confirms that at the initial stage the sole remedy the Court can give is an order that reasons (or further reasons) be provided.
Thirdly, the provision in s 8(4) of a remedy for inadequate reasons on the basis that they are deemed to be an error of law 'suggests strongly' that there would not otherwise be such an error of law.
Fourthly, the ALA reformed the procedures for seeking judicial review of administrative decisions but did not expand or alter the common law grounds of review.[33] This is apparent from the language of s 7 of the ALA.[34] Moreover, provisions such as ss 8, 10, 11 and 12 of the ALA were inserted

to facilitate the ability of a person affected to seek judicial review and prove the common law grounds of review, but not to alter those grounds. Thus, the ability to obtain reasons under s 8 assists in identifying errors which may have remained undetected in the absence of reasons. Likewise, by deeming reasons to form part of the record of the decision, s 10 facilitates the ground of review of error of law on the face of the record.[35]

32 In Western Health v Gallichio,[36] decided subsequently, Pagone J did not accept Kyrou J's reasoning.[37] He was of the opinion that:

Section 8(4) of the Administrative Law Act provides a particular remedy where a party satisfies this Court that a reasonable time has elapsed after a request for reasons without reasons having been furnished or with inadequate reasons having been furnished. The specific power given in s 8(4) to compel the furnishing of additional reasons, and the specific orders which a Court may make upon such a failure, does not carry with it the necessary consequence that, the obligation in s 8(1) having arisen, the only remedy of a party is that found in s 8(4). The remedy provided in s 8(4) is not, in my view the only remedy. The section does not say that it is, and the general purpose of the obligation created by s 8(1) suggests to me that it was not intended to be. In my view the Administrative Law Act was intended to supplement and extend the rights at common law and not to provide an exclusive code.[38]

33 The result arrived at by Pagone J was consistent with the outcome in a number of first instance decisions of the Supreme Court, which we examine below. We shall return, too, to the observation of his Honour that the ALA does not establish 'an exclusive code'.[39]

Does the ALA make inadequacy of reasons an error of law?

34 The appellant advanced four separate propositions in support of her contention that the provision of inadequate reasons in response to a request under s 8(1) of the ALA constituted an error of law amenable to prerogative relief.

35 First, it was contended that the effect of s 8(1) was to make the provision of adequate reasons 'a condition of the legality of the decision'. As a result, according to the submission:

[I]n the absence of adequate and proper reasons, the exercise of power miscarried, and the medical panel's decision was not authorised by law.

36 Secondly, it was said, s 10 of the ALA (which makes the reasons given by the tribunal part of 'the record') carried the necessary implication that inadequacy of reasons was an error of law in itself.

37 The third argument was that the enactment of s 8(1) should be seen as a statutory declaration that the obligation to accord procedural fairness, which qualifies the Panel as a 'tribunal' under the ALA, encompassed an obligation to give adequate reasons for the decision. On this approach, a failure to give adequate reasons would itself be a breach of natural justice.

38 Finally, it was contended that the failure to give adequate reasons meant that the Panel had not followed the 'procedures required by law to be observed in connection with the making of the decision'. We will deal with each of these arguments in turn.

A condition of the exercise of decision-making power

39 The appellant sought to rely by analogy on the decision of the Full Federal Court in Dornan v Riordan.[40] In that case, the statute establishing the relevant tribunal imposed an express obligation on the tribunal upon the completion of an inquiry to issue 'a statement, in writing, of its findings and the reasons for them.'[41] Likewise, when it made a determination or a decision, the tribunal was required to issue 'a statement, in writing, setting out the terms of that determination or decision and the reasons for making it.'[42] The effect of these provisions, the Full Court held, was to render 'a statement of reasons ... a requirement of the exercise under the statute of the decision-making power.'[43] Accordingly, a 'substantial failure' to state reasons for a decision constituted an error of law.

40 The appellant also relied on a statement to similar effect by Lord Reed in the Scottish Court of Sessions in Lothian and Borders Police v Gemmell:[44]

... [W]here there is a statutory duty to provide reasons as part of the notification of the decision to the parties, the court will normally interpret the legislation as having made the provision of adequate reasons with the decision a condition of the validity of the decision ... In effect, in such a case a just and legitimate decision cannot be given without the provision of adequate reasons.[45]

As the appellant pointed out, this statement was subsequently applied by the Northern Ireland High Court in Applicant X.[46]

41 This argument by analogy has found favour in recent decisions of the Trial Division. In Gallichio,[47] referred to earlier, Pagone J held that the proposition enunciated in Dornan was applicable to the decision of a medical panel under the ALA and 'ought to be followed by this Court insofar as it enunciates a principle of the common law of Australia.'[48] This view was subsequently endorsed by Smith J in Santos v Wadren Pty Ltd.[49]

42 With great respect to their Honours, we do not consider that the Dornan principle is applicable in this statutory context. First, the statute establishing the Panel and defining its functions - the ACA - says nothing about the provision of reasons. Secondly, there is nothing in the language of s 8(1) to suggest that the giving of adequate reasons was intended to be a 'condition of validity' of every decision made by every 'tribunal' to which the ALA applies.

43 Far from making the giving of reasons 'a requirement of the exercise of the decision-making power', s 8(1) treats the provision of reasons as something separate and distinct from the making of the decision. And it is a contingent obligation, not an absolute one. No reasons are required to be given by a decision-maker to which the Act applies, unless a request is made. Plainly, the giving of reasons is not - in contrast to the position under the statute considered in Dornan - a step in the giving of the decision. Under s 8(1), the giving of reasons is separate from, and subsequent to, the making and communication of the decision itself. The deeming provision in s 10, whereby the reasons are 'to be taken' as part of the decision, does not affect this conclusion. The first of the appellant's arguments must be rejected.

Section 10 of the ALA itself creates a remedy

44 The appellant's second proposition relied on s 10 of the ALA. It was submitted that s 10 of the ALA did two things. First, it removed the uncertainty which previously existed about whether the reasons for decision formed part of the record. This facilitates the task of the Court on judicial review to decide whether there was error of law on the face of the record. Secondly, by necessary implication, the section enabled the person challenging the decision to rely on the inadequacy of the reasons as constituting, in itself, error of law on the face of the record.

45 The second part of the argument relied on what Smith J said in Pyle v Nisselle,[50] as follows:

In making the reasons part of the decision and part of the record, the intention was to give persons affected by the decision the opportunity to challenge the decision for error on the face of the record. Such error being demonstrated by the reasons, s 8 was intended to serve the s 3 review. In light of the aims of the legislation there would need to be a clear statement in s 8 that remedies under s 3 of the Act were not available where the attack was based on inadequacy of reasons.[51]

46 With respect, we do not think this is persuasive. Section 10 establishes that the reasons are part of the record. But the proposition that inadequacy of reasons is itself an error of law must be made good otherwise than by s 10 itself. Of course, if inadequacy of reasons is an error of law - because of some principle of law existing independently of the ALA - then by force of s 10 it will be an error of law which appears on the face of the record.

47 It is in this sense that the reference to the ALA establishing an exclusive code[52] is relevant. As the Full Court decided in 1984 in Monash University v Berg,[53] the ALA did not, except in one respect, change the substantive law with respect to the entitlement to prerogative relief following a tribunal decision. The purpose of the ALA was to 'eliminate procedural technicalities which attended the machinery of the prerogative writs ...'. The exception is s 8(4), which gives a right to relief for error of law on the face of the record in circumstances where this right does not exist under the general law. Subject to that exception, an applicant for relief must make out a case falling within an established ground of review entitling the applicant to that relief.

48 The third argument for the appellant relied on the following passage from the judgment of Winneke P in Masters:[54]

Section 8 was no doubt introduced because it was seen to be a necessary incident of the function of a tribunal which owed an obligation to accord procedural fairness to provide reasons for its decision. It is only by setting out its reasons in sufficient detail to demonstrate whether it has acted on proper principles that the court will be in a position to effectively review its decision: cf Norton Tool Co Ltd v Tewson [1972] EW Misc 1; [1973] 1 WLR 45 at 49.

49 As the appellant pointed out, Gibbs CJ in Osmond referred to s 8 of the ALA as reflecting a legislative decision, on grounds of policy, to depart from the settled common law rule that no reasons for decision were required.[55] His Honour quoted what Kirby P had said in the court below, about parliaments, including the Victorian Parliament, having 'enacted laws elaborating modern conceptions of administrative justice and fairness'. Gibbs CJ took no issue with this characterisation but said that these legislative steps did not entail a parallel development of the common law.

50 The argument now under consideration does not appear to have been advanced at first instance and, as far as we are aware, has not been considered in any of the many cases where the scope of s 8 has been examined. Though the argument is superficially attractive, we think it is founded on a misreading of the ALA and of what Winneke P was saying in Masters. In short, the argument overlooks the fundamental distinction in the ALA between that which qualifies a decision-maker as a 'tribunal', on the one hand, and the obligations which the statute imposes on a decision-maker thus qualified, on the other.

51 The ALA is applicable if, and only if, the decision in question was made by a 'tribunal'. The definition of 'tribunal' is as follows:

tribunal means a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice.

The distinguishing characteristic of a 'tribunal' under the ALA, therefore, is its obligation to comply with 'one or more of the rules of natural justice' in arriving at its decision.

52 It is clear that, when enacting this definition of 'tribunal' by reference to the 'rules of natural justice', the Victorian Parliament was incorporating by reference the common law rules of natural justice.[56] On the authority of Osmond, the common law of Australia did not then - and still does not - treat the provision of reasons as a requirement of natural justice.[57]

53 As Winneke P said in Masters, the clear intent of the Victorian Parliament in 1978 was to impose on a decision-maker bound by the (existing) rules of natural justice an obligation to give reasons on request, as a 'necessary incident' of the discharge of its function. It would have been quite a different thing - and would have required the clearest of statutory language - to create by legislative decree a new rule of natural justice obliging a 'tribunal' to provide a statement of reasons for its decision.

54 The ALA contains no such language, and all of the indications in its provisions are to the contrary.[58] As noted earlier, the ALA was not enacted to create new grounds of review or to make substantive changes to the general law. Instead, it was machinery legislation, intended to facilitate the prosecution of conventional judicial review proceedings on conventional grounds.

55 As the appellant's submission pointed out, Gibbs CJ in Osmond[59] referred to three English decisions where the tribunal in question was obliged (by the Tribunals and Inquiries Act 1971 (UK)) to give reasons if requested to do so. One of the decisions referred to by Gibbs CJ was Norton Tool Co Ltd v Tewson,[60] the case which Winneke P cited in Masters in the passage set out above.

56 In that case, Sir John Donaldson, sitting as the President of the National Industrial Relations Court, held that the failure of the tribunal to give reasons was an error of law, saying (in the passage cited by Winneke P):

Our jurisdiction is limited to a consideration of questions of law. Accordingly, it is not sufficient for an appellant to satisfy this court that, within the range of discretion conferred upon the tribunal, it might or even would have reached a different conclusion. If an appellant is to succeed, he must satisfy this court that the tribunal has erred in principle. But it is a corollary of the discretion conferred upon the tribunals that it is their duty to set out their reasoning in sufficient detail to show the principles upon which they have proceeded. A similar obligation lies upon this court, when sitting as a court of first instance from which appeal lies to the Court of Appeal on questions of law alone. Were it otherwise, the parties would in effect be deprived of their right of appeal on questions of law. No great elaboration is required and the task should not constitute a burden. Indeed, the need to give reasons may well assist in the process of properly making the discretionary assessment of damages.

In the present case the tribunal has not made entirely clear the principles upon which it has acted and to that extent has erred in law.[61]

57 Then, in Alexander Machinery (Dudley) Ltd v Crabtree,[62] the Court said:

We have already said that it is unsatisfactory and amounts to an error of law for a tribunal simply to state the amount of compensation which is to be awarded without showing how that figure has been arrived at: see Norton Tool Co Ltd v Tewson [1972] EW Misc 1; [1972] ICR 501. The basis of this proposition is that in the absence of reasons it is impossible to determine whether or not there has been an error of law. Failure to give reasons therefore amounts to a denial of justice and is itself an error of law.

... The overriding test must always be: is the tribunal providing both parties with the materials which will enable them to know that the tribunal has made no error of law in reaching its findings of fact? We do not think that the brief reasons set out here suffice for that purpose.[63]

58 Subsequently, Lord Donaldson as Master of the Rolls decided in R v Civil Service Appeal Board, Ex parte Cunningham[64] that tribunals not subject to a statutory requirement to give reasons for their decisions might nevertheless be required at common law to do so 'if justice so requires'. In his Lordship's view, fairness required the relevant tribunal

to give sufficient reasons for its decision to enable the parties to know the issues to which it addressed its mind and that it acted lawfully.[65]

This decision was subsequently endorsed by the House of Lords in R v Secretary of State for the Home Department; Ex parte Doody.[66]

59 As appears from the passages cited, the English courts have reached a quite different conclusion from that of the High Court in Osmond, on the question whether the common law obligation to accord procedural fairness obliges an administrative decision-maker to give reasons. Since, however, we are bound by Osmond, it is unnecessary to consider these decisions further in the present case.

60 We therefore reject the third of the appellant's arguments.

Failure to observe 'the procedures required by law'

61 The final argument for the appellant on this aspect of the appeal was that the Panel had failed to observe 'the procedures required by law to be observed in connection with the making of the decision'. Reliance was placed on the decision of the Full Federal Court in Muralidharan v Minister for Immigration and Ethnic Affairs.[67] As is apparent from the reasons of Sackville J in that case, however, this is a statutory ground of review available under - and only under - the Administrative Decisions (Judicial Review) Act 1977 (Cth). That statute applies only to the review of decisions made under Commonwealth law and has no application to the present case. It has no equivalent under Victorian law. This argument, too, must fail.

62 We mentioned earlier that a number of first instance decisions of this Court have expressed a conclusion which differs from ours. We have identified and commented upon some of them in the course of these reasons. We should now refer to the sequence of decisions at first instance, which begins with the 1991 decision of Gobbo J in State Electricity Commission v Commissioner for Equal Opportunity.[68]

63 In that case, a claim was made against the SEC alleging victimisation of an employee. The Commissioner for Equal Opportunity made a decision extending the time for making the claim, a decision which the SEC sought to impeach. The SEC requested reasons pursuant to s 8(1) of the ALA. After the request was made, the Commissioner resigned her position without having prepared or given reasons in response. A statement of reasons was subsequently prepared by her successor, but Gobbo J held that these could not be regarded as reasons for the decision made by the resigned decision-maker. The SEC sought relief in the nature of certiorari pursuant to s 3 of the ALA.

64 Gobbo J held that, in the particular circumstances of the case, the SEC might rely upon the Commissioner's failure to provide reasons under s 8(1) as part of its application under s 3. He quashed the decision on that ground and remitted the matter for fresh decision. In the course of his Honour's judgment he said the following:

I do not accept that s 8 is in effect a separate and watertight provision. It is, in my view, primarily directed to providing a mechanism to cover the provision of reasons. Sub-section (4) plainly provides that it is not to operate alone. Where the procedure in the Act for requesting reasons has been followed and no statement of reasons is provided, there is no reason why such failure should be irrelevant for the purposes of a review under the same Act. It is true that no further direction was given by the court in the proceedings commenced by the SEC against the commissioner for that purpose but that was because the commissioner agreed that no reasons had been given. The commissioner went further and said in effect that no reasons would or could be given.

It would be productive of inconvenience and procedural circuity if it was necessary to have separate proceedings in circumstances where it was clear that no reasons had been or would be supplied. I am accordingly of the view that the applicant is entitled in the particular circumstances of this case to rely upon the refusal to provide reasons as part of its application under s 3 and that such refusal amounts to an error of law on the face of the record.[69]

65 The decision in SEC v Commissioner has been understood[70] as having established that a refusal to provide reasons, or a failure to provide adequate reasons, in response to a request under s 8(1) constitutes a ground of judicial review independent of s 8(4). With respect, we think this is a misreading of what Gobbo J decided. Properly understood, his Honour was saying no more than that the s 8(4) remedy could be obtained in a proceeding brought under s 3 of the ALA. It was in this sense that his Honour rejected the notion that s 8 was 'a separate and watertight provision'. His Honour understandably wished to avoid the need for separate proceedings (for s 8(4) relief) 'where it was clear that no reasons had been or would be supplied'.

66 In the case at hand, as his Honour noted, no direction had been given under s 8(4) requiring the provision of (further) reasons but - as his Honour also recognised - such a direction would have been futile given the new Commissioner's statement that 'no reasons would or could be given'. In those circumstances, Gobbo J evidently concluded that it was open to him to give the relief expressly provided for by s 8(4). Hence his Honour's conclusion that the Commissioner's 'refusal' to provide reasons amounted to error of law on the face of the record. There is certainly no suggestion in the judgment of any other legal basis for the conclusion that the failure to provide reasons was an error of law.[71]

67 The issue arose again in Pyle v Nisselle,[72] a decision of Smith J upon an O 56 application, where there was complaint about the adequacy of the reasons of a medical panel. Having found the reasons to be inadequate, his Honour concluded that this was an error of law.[73] Since, by s 10 of the ALA, the reasons were part of the record, his Honour found that the pre-conditions for the availability of certiorari were established. In concluding that there was error of law, his Honour relied principally upon Sun Alliance Insurance Ltd v Massoud.[74] But, with respect, that was a case, like Pettit v Dunkley,[75] which concerned the obligation of a court, not an administrative tribunal, to give reasons where there is a right of appeal from the court's decision. As we have sought to explain, a medical panel does not perform a judicial function. In the alternative, Smith J said (shortly and without elaboration) that the provision of inadequate reasons was a denial of natural justice. In the light of Osmond, that conclusion was not open.

68 The position, as things stood following these decisions, was that an aggrieved party was regarded as having a choice where a medical panel provided inadequate reasons in response to a request under s 8. The aggrieved party could either seek an order for further reasons[76] or seek prerogative relief. As a matter of procedure, these options might be exercised by an O 56 application[77] or by an application for review under s 3 of the ALA.[78] A series of decisions followed these cases,[79] each of which proceeded on the basis that relief in the nature of certiorari was available for inadequate reasons, on the ground that it constituted a reviewable error of law.

69 But in 2005, in Brambles Industries Ltd v Nisselle,[80] an application for review made under the ALA, Bongiorno J had challenged this proposition. Having concluded that the reasons for the medical panel were inadequate, his Honour said this:

The mere failure of a body charged with making an administrative decision to give adequate reasons for that decision will not, of itself, vitiate the decision unless the failure to give reasons warrants an inference that the body has failed, in some respect, to exercise its powers according to law and that inference is drawn by the Court. If the Court draws such an inference, then it may act upon it and proceed to review the administrative decision but the invalidity invoked as a justification for such review is not a mere failure to give reasons but is the inference drawn by the Court from such failure.[81] A Medical Panel's decision is not a judgment of a Court. It may leave unexpressed its rejection of any particular evidence if such rejection is a reasonable inference from the acceptance of a contrary version.[82]

70 The highlighted passage from the reasons of Bongiorno J drew explicitly on the influential judgment of Brennan J in Repatriation Commission v O'Brien,[83] where his Honour had said:

It is not clear to me that the AAT did fail to expose its reasons for rejecting Mr O'Brien's claim but, in any event, a failure by a tribunal adequately to fulfil its statutory obligation to state the reasons for making an administrative decision does not, without more, invalidate the decision or warrant its being set aside by a court of competent jurisdiction. If a failure to give adequate reasons for making an administrative decision warrants an inference that the tribunal has failed in some respect to exercise its powers according to law (as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts), the court may act upon the inference and set the decision aside.[84]

71 Smith J returned to the controversy in 2009 in Santos v Wadren Pty Ltd.[85] Noting the decision of Kyrou J in the case under appeal, Smith J said that '[b]oth sides to the debate appear to accept that "mere failure" to fully expose the reasons is not sufficient to invalidate the decision.'[86] His Honour then sought to reconcile the competing views, saying that a 'substantial failure' to state reasons might, in the circumstances of a particular case, warrant the inference that the tribunal had failed to exercise its powers according to law, so that the test enunciated by Brennan J in O'Brien's case was satisfied.[87]

72 We respectfully agree. A similar view was expressed by Gummow ACJ and Kiefel J in the recent decision of the High Court in Minister for Immigration and Citizenship v SZMDS.[88] Referring to Osmond,[89] their Honours observed that '... from the absence of reasons [for an administrative decision] the court may infer the absence of any good reason.'[90]

73 Smith J went on, however, to say that the test referred to by Bongiorno J in Brambles was 'too specific to be used as an exhaustive test' and that the test in Dornan was to be preferred:

The Dornan test can address all cases of inadequate reasons where it may fairly be said that a consideration of them points to "a failure to make the decision according to law". At the same time the Dornan test also satisfactorily addresses the major countervailing concern - avoiding inappropriate interference with the decisions of administrative tribunals.[91]

We have already sought to explain why the Dornan principle is inapplicable here.

74 Since an administrative tribunal has no obligation to provide reasons unless the statute under which the decision was made expressly or impliedly so requires, it cannot be correct to say that in the absence of such a requirement, the tribunal's failure to provide reasons or adequate reasons is of itself an error of law. Accordingly, and for the reasons we have given, the failure by a medical panel to provide adequate reasons in response to a request under s 8(1) of the ALA is not in itself an error of law. Those cases which have reached, or relied on, a contrary view must be regarded as having been wrongly decided, and must be overruled.

[1] Public Service Board of NSW v Osmond (1986) 159 CLR 656 ('Osmond').

[5] McColl JA agreed generally with the reasons in both of the principal judgments: Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, 377 [33].

[6] Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372, 394 [109]; see also [117]-[118].

[8] (1987) 10 NSWLR 247 ('Soulemezis').

[9] Ibid 278. See also Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246 ('Perkins').

[10] Fletcher Construction Australia Pty Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189; (2002) 6 VR 1, 31 [100] (Charles, Buchanan and Chernov JJA); Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162, 178 (French J).

[11] Osmond (1986) 159 CLR 656, 675 (Deane J).

[12] See Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65, 88 (Sheppard J).

[14] [2006] NSWCA 284; (2006) 67 NSWLR 372, 394 [108]. See also his Honour's discussion in Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101, [46]-[56].

[15] Ibid 662 (Gibbs CJ, with whom Wilson, Brennan and Dawson JJ agreed), 675-6 (Deane J).

[16] Ibid 671 (Wilson J), 676 (Deane J).

[17] Ibid 667 (Gibbs CJ). See also Pettit v Dunkley [1971] 1 NSWLR 376, 387.

[18] Ibid 670 (Gibbs CJ), 676 (Deane J).

[26] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635 ('Masters').

[29] Lianos v Inner & Eastern Health Care Network [2001] VSCA 53; (2001) 3 VR 136, 144 [23] (Chernov JA, with whom Tadgell and Batt JJA agreed).

[32] Sherlock v Lloyd [2008] VSC 450, [25].

[33] His Honour cited FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342, 358, 389, 406; Monash University v Berg [1984] VicRp 30; [1984] VR 383, 388-9. See also Masters [1995] VICSC 209; [1996] 1 VR 635, 653 (Callaway JA).

[34] It was also made clear by the then Attorney-General when the Administrative Law Bill 1978 was introduced: Victoria, Parliamentary Debates, Legislative Council, 25 October 1978, 5090-2 (Haddon Storey, Attorney-General).

[35] Sherlock v Lloyd [2008] VSC 450, [25d].

[36] [2009] VSC 134 ('Gallichio').

[37] Whereas Beach J in Kuek v Victoria Legal Aid [2009] VSC 43, [30] endorsed the analysis of Kyrou J.

[38] Gallichio [2009] VSC 134, [22] (footnote omitted).

[39] See [47] below.

[40] (1990) 24 FCR 564 ('Dornan').

[43] Dornan (1990) 24 FCR 564, 573.

[44] [2005] Scot CS CSOH 32 (1 March 2005).

[48] Dornan [2009] VSCA 134, [19]. His Honour referred to Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89, 151-2.

[49] [2009] VSC 303, [52], [64]-[5]; see [71]-[73] below.

[56] Masters [1995] VICSC 209; [1996] 1 VR 635, 653-4 (Callaway JA).

[57] (1985) 159 CLR 656, 662, 670 (Gibbs CJ); see also Perkins [2000] VSCA 171; (2000) 2 VR 246, [56]-[61].

[61] Norton Tool Co Ltd v Tewson [1972] EW Misc 1; [1973] 1 WLR 45, 49 (emphasis added).

[68] [1992] VicRp 6; [1992] 1 VR 79 ('SEC v Commissioner').

[70] See, for example, Gallichio [2009] VSC 134, [22].

[71] Gobbo J proceeded to consider the case on the basis of a hypothesis which he did not himself accept, namely, that the reasons provided by the new Commissioner were capable of being treated as reasons for the resigned Commissioner's decision. On that assumption, his Honour concluded that the reasons were 'plainly defective' and showed error of law on the face of the record. This was so, his Honour said, partly because the reasons 'failed to show a process of reasoning' and partly because they disclosed 'reliance upon extraneous and irrelevant matters': SEC v Commissioner [1992] VicRp 6; [1992] 1 VR 79, 88. The first part of this obiter analysis of error was novel - and must now be seen as incorrect. The second part invoked a conventional category of error.

[73] Ibid [33]. Leave to appeal was refused on the ground that his Honour's decision to follow Gobbo J in SEC v Commissioner was not attended by sufficient doubt: State of Victoria v Pyle (Unreported, Court of Appeal, Tadgell and Charles JJA, 3 November 2000).

[76] As was done in Masters v McCubbery (No 3) (1996) 10 VAR 18. See, too, Calleja v Franet [2000] VSC 339 (Ashley J).

[77] As in Pyle v Nisselle [2000] VSC 398 (Smith J); Kamener v Griffin [2004] VSC 235 (Williams J) and Robert Bosch (Aust) Pty Ltd v Barton [2008] VSC 227 (Judd J).

[78] As in Taylor v Mountain Pine Furniture Pty Ltd [2004] VSC 324 (Williams J) and Clarke v National Mutual Life Insurance Ltd [2007] VSC 341 (J Forrest J).

[79] See Kamener v Griffin [2004] VSC 235 (Williams J); Taylor v Mountain Pine Furniture Pty Ltd [2004] VSC 324 (Williams J); Clarke v National Mutual Life Insurance Ltd [2007] VSC 341 (J Forrest J); Moyston Court Fisheries v Malios [2007] VSC 518 (J Forrest J); Davidson v Fish [2008] VSC 32 (Pagone J); Collins v Nave [2008] VSC 85 (J Forrest J); Robert Bosch (Aust) Pty Ltd v Barton [2008] VSC 227 (Judd J); Gallichio [2009] VSC 134 (Pagone J); and Melbourne Health v Lloyd [2009] VSC 370 (Pagone J).

[81] His Honour here referred to Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422, 445 (Brennan J); Denver Chemical Manufacturing Company v Commissioner of Taxation (NSW) [1949] HCA 25; (1949) 79 CLR 296; Sullivan v Department of Transport (1978) 20 ALR 323, 348, 349, 352; and Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, 679 (Barwick CJ).

[82] [2005] VSC 82, [21] (emphasis added). His Honour had previously expressed this view in State Trustees v Transport Accident Commission [2002] VSC 428; (2002) 6 VR 359, [37]-[39] and Wight v Transport Accident Commission [2003] VSC 214, [13].

[84] Ibid 445-6. The other members of the Court did not discuss this issue.

[89] Osmond (1986) 159 CLR 656, 663-4.

[90] The other members of the Court did not address this issue.

[91] Santos v Wadren Pty Ltd [2009] VSC 303, [64].

Compensation Act 1985

Court (General Civil Procedure) Rules 2005

Injury Management and Workers Compensation Act 1998

Tribunals and Inquiries Act 1971

Decisions (Judicial Review) Act 1977

Sherlock v Lloyd & Ors [2010] VSCA 122

At a glance

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Judgment (176 paragraphs)

Sherlock v Lloyd & Ors [2010] VSCA 122 (28 May 2010)

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Legislation Cited (7)

Cases Cited (18)