State of New South Wales v Hill

Judgment (18 paragraphs)

[1]

Solicitors: HWL Ebsworth Lawyers (Plaintiff) LHD Lawyers (Defendant) File Number(s): 2017/262526

[2]

Judgment

By an Amended Summons filed in Court by leave on 23 April 2018, the plaintiff, which I will refer to as the Department, seeks judicial review of a medical assessment certificate given by a Medical Appeal Panel appointed under s 328 of the Workplace Injury Management and Workers' Compensation Act 1998 (NSW) ("WIM Act") ("Appeal Panel") on 5 June 2017. The Appeal Panel, constituted by Arbitrator Catherine McDonald, approved medical specialist, Dr Robert Gertler and approved medical specialist, Dr Lana Kossoff confirmed the medical assessment certificate given at first instance by approved medical specialist Dr Wasim Shaikh on the 17 January 2017. Dr Shaikh had assessed that the first defendant, whom I will refer to as Ms Hill, suffered a 17 per cent whole person impairment resulting from psychological injury received in the course of her employment with the Department as a teacher. This injury has a deemed date of injury of 6 August 2015. The Department seeks orders in the nature of, first, certiorari quashing the panel's certificate and, secondly, mandamus remitting the matter for the medical appeal to be determined according to law.
The sole issue dividing the parties before the Appeal Panel was whether a deduction should have been made from the assessed impairment for a proportion of the impairment that was due to previous injury, or any pre-existing condition or abnormality in accordance with s 323 of the WIM Act.
In the Summons the Department relied upon five grounds of what was said to be jurisdictional error. In the alternative it argued the same matters constituted error of law in the face of the record of the proceedings before the Appeal Panel.
Before detailing the asserted errors, it will be necessary to set out a summary of the factual background, statutory provisions and the reasons provided by the Appeal Panel.

[3]

Evidence

The evidence before me consisted of the affidavit of Mr Brad Quillan sworn on 31 October 2017. Mr Quillan is the solicitor with carriage of the matter in the office of the solicitors for the Department. His affidavit attaches the material which was before the Appeal Panel, the Appeal Panel's statement of reasons for its decision, its medical assessment certificate confirming Dr Shaikh's certificate, and a certificate of the determination of the Workers Compensation Commission ("the Commission") (Arbitrator Farrell) ordering the Department to pay lump sum compensation to Ms Hill in the sum of $40,120.00. Although no order seeking to set aside the Commission's decision was sought in the Amended Summons and it was not mentioned in oral submissions, I am of the view that if the challenge to the Appeal Panel's decision is made good, the decision of the Commission must be set aside because there will remain a subsisting medical dispute about the degree of permanent impairment suffered by Ms Hill which must be resolved by medical assessment before her legal entitlements can be determined: s 321 of the WIM Act. The Commission is named as the third defendant in any event.
The Appeal Panel and the Commission have, conventionally, filed submitting appearances through the Crown Solicitor's Office save as to costs.

[4]

Factual Background

Ms Hill has been a teacher working mostly in the Government Service since her graduation from the University of New England in 1984. From an unspecified date in 2012 until 6 August 2015 she was employed as the Head Teacher of Secondary Studies at Walgett Community College High School. Although this statement is a matter of some controversy between the parties, Ms Hill said that she was healthy when she commenced this employment and for the first two and a half years "everything went well" (Affidavit, Brad Quillan, 31 October 2017 at par 17 of Annexure "A"). Things changed in Term 4 of 2014 when there was a change of leadership at the school. Thereafter on a daily basis she was subject to "violence, threatening and intimidating behaviour, abuse and swearing from students". Her car was vandalised a number of times. Complaints to parents (and police) made the abuse worse. Her superiors were not supportive and she felt she was being harassed by them.
The situation worsened in Term 1 of 2015. She dreaded going to work because her anxiety was causing nausea and diarrhoea. She also feared for her safety at school and in town in case she came across abusive students.
On or about 6 August 2015, she informed the Deputy Principal that she had a doctor's appointment that day and would need to absent herself from school. She was suffering from flu symptoms as well as anxiety. She said the Deputy Principal abused her for making a medical appointment on a work day and she was unable to cope and ceased work.
She attempted to resume work in September 2015, but was unable to last longer than 3 days.
She suffered depressed mood, anxiety, loss of interest in activities and developed suicidal ideation. Living in a remote part of the State, psychological treatment was restricted to a fly-in, fly-out psychologist initially and then telephone counselling. Her General Practitioner did not prescribe antidepressant medication.
Compensation was paid under Workers' Compensation Act 1987 (NSW) ("Compensation Act"). At the request of her solicitors, Ms Hill was examined by Dr Robert Hampshire, then practising as a psychiatrist, for the purpose of assessing any whole person impairment resulting from her psychological injury. He assessed the degree of permanent impairment at 22 per cent. A claim for lump sum compensation was made on the Department's insurer which arranged to have Ms Hill assessed by psychiatrist, Dr Glen Smith. In substance Dr Smith agreed with Dr Hampshire's diagnosis, with one potentially significant difference to which I will return, but given the paucity of treatment Ms Hill had received, perhaps due to her remote place of residence, Dr Smith regarded her condition as neither stabilised nor reaching maximum medical improvement. For this reason he was unable to assess the degree of permanent impairment. He recommended "assertive treatment".

[5]

Medical evidence of the parties

In his report of 2 May 2016, Dr Hampshire recorded a detailed history of the psychologically stressful circumstances Ms Hill was subjected to leading up to ceasing work in August 2015. As the Appeal Panel subsequently recognised, he incorrectly recorded that "Ms Hill has never had any prior psychiatric illness". In his opinion, Ms Hill was suffering from both a Post-Traumatic Stress Disorder ("PTSD") involving panic attacks and a major depressive disorder. As I have said, he assessed the whole person impairment at 22 per cent.
Dr Smith, for the Department, arrived independently at and agreed with Dr Hampshire's diagnosis. However, he expressed himself in terms of "a relapse of major depressive disorder and the development of PTSD according to the criteria of DSM-5" (my emphasis). In his opinion "the main contributing factor" to Ms Hill's condition was the nature and conditions of her employment at Walgett Community College.
Dr Smith's history was different from Dr Hampshire's. Under the heading Past Psychiatric History, he recorded that Ms Hill told him of anxiety and depression after the birth of her second child which resolved after five months and depression in 2010 for which she saw a psychiatrist, Dr Jarrett Johnston who prescribed medication. The latter depression was also a work injury.
Dr Smith was also provided with a copy of the clinical notes of Ms Hill's treating General Practitioner in Lightning Ridge. It may be relevant to record that these documents had been printed on 4 March 2016. From that he recorded the following information which appeared under the heading 'Inactive Past History': 19/1981 depression; 11/12/2008 nervous breakdown (DX from patient) 20/2008 Apprehended Violence Order 20/2008 Drink driving 12/03/2009 Bipolar Affective Disorder 02/12/2009 Hypertension 01/02/2002 Depression (Recorded as written.) These matters were not further fleshed out in the clinical record of consultations. Dr Smith obviously discussed them with Ms Hill because she denied ever having suffered from Bipolar Affective Disorder, and denied any history of symptoms consistent with hypo-manic or manic episodes. Dr Smith obviously accepted the accuracy of Ms Hill's account because in explaining his methodology in arriving at his diagnoses, he said: "There is no evidence of long-standing psychotic illness…and there never has been a manic episode or hyper-manic episode." He offered the following relevant "provisional" diagnoses: "1. Major Depressive Episode, Recurrent, Moderate 2. Post-Traumatic Stress Disorder (PTSD)." As I have said he did not regard it as appropriate to assess whole person impairment.

[6]

Decision of the AMS

Ms Hill applied for resolution of this dispute by assessment by the AMS on 16 November 2016 in accordance with s 288 WIM Act. In its reply dated 7 December 2016, the Department identified the issues as including: "The respondent submits that any permanent impairment suffered by [Ms Hill] should be significantly reduced on account of a pre-existing psychiatric condition/injury in accordance with s 323 of the 1988 Act."
Ms Hill was assessed by Dr Shaikh on 16 January 2017. In his reasons for his certificate dated 17 January 2017 he received a full history of Ms Hill's complaints including the relevant past history of seeing Dr Johnson on six occasions in 2010 with depressive symptoms which were treated with medication. She said she was then off work for about 12 months. Ms Hill also gave the history of suffering depressive symptoms after the birth of her son. She reported being "well" at the commencement of her employment with the Walgett Community College which was sometime in 2012. Dr Shaikh diagnosed Major Depressive Disorder. He did not diagnose PTSD. He assessed Ms Hill's whole person impairment due to this psychological injury at 17 per cent. He was required to answer the following question: "e. Is any proportion of loss of efficient use or impairment or whole person impairment, due to a previous injury, pre-existing condition or abnormality? Answer: No."

[7]

Appeal

The Department filed an appeal against the decision of the Approved Medical Specialist on 8 February 2017 on the sole ground that the medical assessment certificate contained a demonstrable error: s 327(3)(d) of the WIM Act. In written submissions in support of the application the Department referred to the history as recorded by Dr Smith and the "past inactive history" in the clinical records from the Lightning Ridge Medical Practice, so far as the latter was relevant to her psychological state, including the record from 12/03/2009 of Bipolar Affective Disorder. It was also argued that her statement to the effect that "everything went well" at Walgett Community College for the period following her appointment was contradicted by the record by a report of depression on 1 February 2012. The Department argued that the approved medical specialist had failed to apply s 323 WIM Act and that "a substantial deduction would be appropriate and correct in relation to the effect the prior psychological symptoms has had on the respondent worker's current psychiatric presentation". The Registrar must have been satisfied in terms of s 327(4) of the WIM Act that, "on the face of the application" and the submissions at least one ground of appeal "has been made out".
An Appeal Panel exercises powers under s 328 of the WIM Act. By s 328(2) "the appeal is to be by way of review of the original assessment, but the review is limited to the grounds of appeal on which appeal is made". Under s 328(5) the Appeal Panel is empowered to confirm the original certificate or revoke it and issue a new certificate "as to the matters concerned".
In written submissions filed on behalf of Ms Hill, reliance was placed upon Cole v Wenaline Pty Limited [2010] NSWSC 78 ("Cole") at [30], Schmidt J and my decision in Ryder v Sundance Bakehouse [2015] NSWSC 526 ("Ryder") at [45]. It was also argued that "inactive past history" in the Lightning Ridge Clinical Notes referred to conditions which "were not causing the respondent worker any problems at the time of the current injury".
The essential part of the Appeal Panel's reasoning is set out at paragraphs [25] to [32] of its statement of reasons: "[25] Ms Hill's solicitors qualified Dr Robert Hampshire who reported on 2 May 2016. His history that Ms Hill had never suffered previous psychological illnesses is incorrect. He diagnosed Post Traumatic Stress Disorder as a result of the injury at Walgett Community College. [26] The employer's solicitors qualified Dr Glen Smith who reported on 16 August 2016 and his report reveals that he saw reports which do not form part of the Commission's file. [27] Dr Smith recorded that Ms Hill suffered Post-Natal Depression after the birth of her son 20 years before, which resolved with no treatment and she returned to work five months later. She experienced a "relapse" of depressive symptoms in 2010 at Boggabilla High School for which she underwent treatment. When she commenced work at Walgett Community College in 2012, her mood was stable, she was not undergoing treatment and she initially enjoyed her job. [28] Dr Smith reviewed medical reports including the history from Lightning Ridge Health Centre. His provisional diagnoses were "Major Depressive Disorder, Recurrent Moderate", "Post Traumatic Stress Disorder" and "Alcohol Use Disorder in Sustained Remission." Dr Smith considered that the main contributing factor to Ms Hill's condition was "the recurrent verbal and physical aggression, with no systemic response and support that she experienced during her employment as Head Teacher at Walgett Community College." [29] Dr Smith noted that Ms Hill had not undergone treatment and declined to make an assessment of permanent impairment because her condition had not reached maximum medical improvement. He did not make any assessment of permanent impairment and he did not consider s323 of the 1998 Act. His statement that the events of 2015 were the main contributing factor to Ms Hill's current condition might suggest that he did not consider that a deduction was warranted. [30] Section 323 of 1998 Act requires the AMS to make a deduction for any proportion of the impairment that is due to a pre-existing injury, condition or abnormality. Ms Hill's history is that she was well when she commenced work at Walgett Community College and worked there without developing symptoms for a considerable period. Her general practitioner noted that her past history was "inactive". [31] While a previous history of Major Depression may have made Ms Hill vulnerable to developing the condition again, a low grade vulnerability is not a pre-existing condition or abnormality that necessitates a deduction under s323. Similarly, the fact of the history of past psychiatric illness is not evidence that any impairment arose from it. The appellant seeks to draw a conclusion from a past history without a medical opinion that the history was relevant. [32] While it would have been better for the AMS to explain why he did not make a deduction under s323, the failure to do so is not an error."

[8]

Legal Considerations

Section 323 WIM Act is in the following terms: (1) In assessing the degree of permanent impairment resulting from an injury, there is to be a deduction for any proportion of the impairment that is due to any previous injury (whether or not it is an injury for which compensation has been paid or is payable under Division 4 of Part 3 of the 1987 Act) or that is due to any pre-existing condition or abnormality. (2) If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence. Note. So if the degree of permanent impairment is assessed as 30% and subsection (2) operates to require a 10% reduction in that impairment to be assumed, the degree of permanent impairment is reduced from 30% to 27% (a reduction of 10%). (3) The reference in subsection (2) to medical evidence is a reference to medical evidence accepted or preferred by the approved medical specialist in connection with the medical assessment of the matter. (4) The Workers Compensation Guidelines may make provision for or with respect to the determination of the deduction required by this section. (5) (Repealed) Note. Section 68B of the 1987 Act makes provision for how this section applies for the purpose of calculating workers compensation lump sum benefits for permanent impairment and associated pain and suffering in cases to which section 15, 16, 17 or 22 of the 1987 Act applies.
In Cole Schmidt J said at [30]: "Section 323 does not permit that assessment to be made on the basis of an assumption or hypothesis, that once a particular injury has occurred, it will always, 'irrespective of outcome', contribute to the impairment flowing from any subsequent injury. The assessment must have regard to the evidence as to the actual consequences of the earlier injury, pre-existing condition or abnormality. The extent that the later impairment was due to the earlier injury, pre-existing condition or abnormality must be determined. The only exception is that provided for in s 323(2), where the required deduction 'will be difficult or costly to determine (because, for example, of the absence of medical evidence)'. In that case, an assumption is provided for, namely that the deduction 'is 10% of the impairment'. Even then, that assumption is displaced, if it is at odds with the available evidence." See also her Honour's decision in Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liquidation) [2013] NSWSC 365 at [89] and [91].

[9]

The grounds of review

In written and oral submissions Dr Blount for the Department argued the Appeal Panel's decision was vitiated by five grounds of jurisdictional error.

[10]

Ground 1

Ground 1 related to paragraph [29] of the Appeal Panel's decision. Dr Blount identified this ground as an example of the Appeal Panel misdirecting itself, or asking itself the wrong question: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 317; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]. The portion of [29] criticised is the following statement: "[Dr Smith's] statements that the events of 2015 were the main contributing factor to Ms Hill's current condition might suggest that he did not consider that a deduction was warranted." It will be recalled that Dr Smith did not assess whole person impairment because he considered that Ms Hill had not reached maximum medical improvement because there was yet treatment available that might improve her condition. Dr Blount argued that for this reason he should be taken as not having turned his mind to the s 323 question. Viewed in this light, the Appeal Panel's statement is at best speculative. But the main thrust of Dr Blount's argument was that it was clear that in using the expression "main contributing factor" Dr Smith was picking up and applying the language of s 4 Workers Compensation Act 1987 (NSW) defining the conditions necessary to establish disease injury for the purpose of the legislative scheme. Dr Smith had nothing to say about the operation of s 323 other than what might have been implicit in the use of the expressions "relapse" on the one hand and "recurrent" on the other.
Mr Romaniuk SC and Ms Grotte for Ms Hill argued that the observation was a mere statement of fact and in seeking to impugn it, the Department was inviting the Court to engage in impermissible merits review.

[11]

Consideration of Ground 1

I accept that Dr Smith was no more than picking up and applying the language of the statute in assessing from a medical point of view that Ms Hill's psychiatric condition from August 2005 was a compensable injury. I also accept what is implicit in the argument, that employment as a main contributing factor leaves open the semantic and legal possibility that there may yet be other if lessor contributing factors. The use of the statutory phrase did not of itself exclude the hypothetical possibility that had Dr Smith turned his mind to the question of whole person impairment, he might have, consistently with his opinion about the injury, concluded that a portion of the impairment was due to the previous injury, pre-existing condition or abnormality.
Equally an opinion about the occurrence of work injury may say nothing about what Dr Smith's opinion might have been about the s 323 question. However, I do not read the Appeal Panel's statement looking at it in the context of the whole of the reasons as constituting any decision or conclusion of law. The observation has the flavour of a mere comment made in passing. The expression "might suggest" is acutely non-determinative language constituting no more than the acknowledgment of a possibility without deciding it. To the extent to which the sentence standing alone may be capable of suggesting error, it could rise no higher than factual, non-jurisdictional error. I reject this ground.

[12]

Ground 2

Dr Blount characterised the second error for which he contended as illogical and irrational reasoning in attempting to reconcile Ms Hill's self-reported history that she was well when she commenced work at Walgett Community College (sometime in 2012) with the note in the "inactive past history" section of the Lightning Ridge Clinical Notes that she complained of depression on 1 February 2012. Reliance was placed upon Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332; [2013] HCA 18 ("Li"). It was argued that the irrationality and illogicality consisted of confusing the note entered in the inactive section with the disease which must have been active when the note was made. The note was said to be objective evidence of active disease incontrovertibly at odds with Ms Hill's self-report.
Mr Romaniuk argued that it was fallacious to approach the separate components of the Appeal Panel's reasoning path in the manner adopted by the Department. At the very least paragraphs 30 and 31 needed to be read together. When that is done, it was submitted that it was clear the Appeal Panel had properly directed itself as to law. This was obvious when one bore in mind the direction in the first sentence at paragraph 30, "Section 323 of 1998 Act requires the AMS to make a deduction for any proportion of the impairment that is due to a pre-existing injury, condition or abnormality." The Appeal Panel thereafter was reviewing the evidence. If there was error in accepting Ms Hill's history and making its own assessment of the relevance of the previous history of a Major Depressive Disorder that was a factual error within the jurisdiction not enlivening the Court's power to intervene.

[13]

Consideration of Ground 2

There is force in Mr Romaniuk's submissions and they invoke the well- established "beneficial construction" approach to consideration of administrative decisions which obtained the imprimatur of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6. The plurality said at 272 that the beneficial construction approach was well settled for the reason that: "[It recognises] the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." (Footnotes omitted.) The same caveat is applicable here.
In plainer language Kirby J expressed the same principle this way, in the first of his eight propositions at 291: "The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law." Subject to what appears below about Ground 5, a court is not concerned with expunging errors of fact which generally will be taken as being errors within the jurisdiction vouchsafed to the Appeal Panel by the legislature.
Two relevant considerations arise out of the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 ("Wingfoot"). Although concerned with Victorian legislation, the High Court's approach has frequently been applied to New South Wales legislation: for example Zahed v IAG Ltd (t/as NRMA Insurance) [2016] NSWCA 55; (2016) 75 MVR 1. The two matters of particular significance relate to the nature of the Appeal Panel's functions. Essentially the function of the Appeal Panel "… is to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise": Wingfoot at [47]. The second point concerns the content of a medical panel's reasons, explained at [55]: "The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law."

[14]

Grounds 3 and 4

Grounds 3 and 4 concern aspects of paragraph 31. The first argument is the statement in the last sentence of the paragraph that the Department's argument is not supported by medical opinion is wrong because of Dr Smith's qualification of his diagnosis of major depressive disorder by use of the word "relapse" or "recurrent". It was argued that it was implicit in Dr Smith's use of "relapse" or "recurrent" that there was a pre-existing condition of Major Depressive Disorder. And overlooking this matter amounted to a failure to take into account a mandatory relevant consideration i.e. Dr Smith's expression of opinion: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 ("Peko-Wallsend").
Again, Mr Romaniuk submitted this was no more than an invitation to indulge in merits review. He also made the point that because of the approach Dr Smith took, that expert never addressed or turned his mind to the question of a deduction under s 323 of the WIM Act. In any event the Appeal Panel was able to make its own assessment of the significance of the medical history.
So far as Ground 4 was concerned, Dr Blount argued that the Appeal Panel failed to give adequate reasons for the finding that Ms Hill's previous major depressive disorder left her with no more than a low-grade vulnerability. Learned counsel accepted that a "low-grade vulnerability does not qualify as a pre-existing condition for the purpose of s 323" of the WIM Act. He referred to Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416 ("Cullen") at [46], Beech-Jones J.

[15]

Consideration of Ground 3 and 4

The difficulty in relation to the use by Dr Smith of the expression "recurrence" or "relapse", as Dr Blount conceded, is that those terms are not medical terms of art implying any particular on-going pathological process such as might inure whether symptoms are manifest or not. Even if one accepted that the Major Depressive Disorder was a condition which recurred, and Dr Smith used "relapse" and "recurrence" apparently interchangeably, it does not necessarily follow that a portion of any permanent impairment was due to a previous injury, pre-existing condition or abnormality. The Appeal Panel was entitled to treat the generality of Dr Smith's opinion, of which its reasons show that it was well aware, as not providing evidence it could evaluate about the s 323 issue. Moreover, and fundamentally as the High Court made clear in Wingfoot at [47] the Appeal Panel may choose to utilise the medical opinion the parties have put before it, but it is not bound to; its function is not to adjudicate upon other competing medical opinions, but to form its own. This disposes of the Peko-Wallsend point.
So far the Appeal Panel's reasons are concerned for forming the view that Ms Hill was subject to a low-grade vulnerability because of her previous conditions that, in my opinion, was a matter the Appeal Panel was entitled to decide by applying its own medical experience and expertise. As Basten JA said in Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 ("Vegan") at 122 of the obligation of a medical panel to give reasons: "…. to fulfil a minimum legal standard, the reasons need notbe extensive or provide detailed explanation of the criteria applied by medicalspecialists in reaching a professional judgment". (Citations omitted) It is also important to bear in mind, what is required is reasons which explain the actual path of reasoning by which the Appeal Panel arrived at its opinion on the medical question referred to it. It is not necessary to give detailed reasons individually for every step along the way. The medical question referred here was whether a deduction should be made from the assessment of whole person impairment under s 323 of the WIM Act. That is a matter, in my opinion, that the Appeal Panel addressed and its statement of reasons measure up to the Wingfoot and Vegan standard. As Beech-Jones J said in Cullen at [46], a mere pre-disposition or even susceptibility is insufficient to constitute a pre-existing condition. The Appeal Panel assessed that the previous Major Depressive Episode gave rise to a vulnerability and no more. This is sufficient to explain why they decided Dr Smith's opinion did not require a deduction under s 323. Grounds 3 and 4 disclose no jurisdictional error.

[16]

Ground 5

Finally, Dr Blount relied upon legal unreasonableness as explained in Li. He laid emphasis upon subsequent decisions of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 ("Singh"), Allsop CJ, Robertson and Mortimer JJ; and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 ("Stretton"). Emphasis was laid upon the species of legal unreasonableness which depends on unreasonableness of outcome even though it is not possible to precisely identify underlying error: Singh at [44]. Dr Blount emphasised that the Full Federal Court recognised that a court's reasoning process when reviewing a decision for legal unreasonableness "will inevitably be fact dependent" but not involving the substitution (by the Court) of its own judgment for that of the decision-maker: Stretton at [61] (Griffith J). Dr Blount argued given Ms Hill's past history the Appeal Panel's decision declining to make a deduction was wholly unreasonable bespeaking latent error.
The argument effectively was that as: Ms Hill had a past history of depression, nervous breakdown, Bipolar Affective Disorder and further depression; these health issues had gone untreated (or at least not satisfactorily since August 2015); and the history given by Ms Hill was at odds with the so-called objective history, it was plainly unreasonable for the Appeal Panel to refuse a s 323 deduction.
Mr Romaniuk maintained that these arguments amply demonstrated that the Court was being invited to substitute its own opinion for the opinion of the Appeal Panel.

[17]

Consideration of Ground 5

In resolving this question it is well to bear in mind that the unanimous court in Singh said at [47]: "…we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The "intelligible justification" must lie within the reasons the decision-maker gave for the exercise of the power - at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court." Their Honours emphasised that if it goes outside the reasons given by the decision maker, a court might be seen to have placed itself in the position of the repository of the statutory power and thereby acting impermissibly or contrary to law. This restraint is reiterated by Griffiths J in Stretton at [62] who suggests, although the ground of legal unreasonableness has had some traction in quashing procedural decisions, courts remain averse to vitiating decisions that are "within the authority of the decision-maker to make". This reluctance stems from the Court's nature and function.
In Stretton, Wigney J reminds said (at [92]): "…the Court's role [remains] strictly supervisory. It is concerned with determining whether there has been a lawful exercise of power having regard, in particular, to the terms, scope and purpose of the statute conferring the power." It is not enough that the Court disagrees even emphatically with the decision under review. Wigney J continued: "If there is an evident, transparent and intelligible justification for the decision… or if the decision is within the 'area of decisional freedom' [afforded] to the decision-maker, it would be an error for the Court to overturn the decision simply on the basis it would have decided the matter differently." (Citations omitted.)
It is also important to bear in mind that the question of whether a s 323 deduction should be made from an assessment of whole person impairment is not the exercise of a discretionary power. Rather, it is an evaluative judgment involving the application of a statutory test to facts established by material properly before the Appeal Panel, involving the application by the Panel of its medical expertise to the ultimate decision. Where their reasons as expressed are not palpably illogical or irrational it will be difficult for a plaintiff to demonstrate the relevant jurisdictional error.

[18]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 May 2018

At a glance

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Judgment (18 paragraphs)

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Cases Cited (25)