Weerappah v Nisselle [1999] VSC 249

She also seeks orders in the nature of Mandamus that the Medical Panel convened by the first defendant and constituted by the second, third and fourth defendants consider any medical questions in relation to the plaintiff in accordance with law. Finally, she seeks directions from the court to achieve that result. Directions sought include directions

"for the giving of an opportunity to the plaintiff by herself and by her legal representatives of being heard on - (a) the proper form and content of the medical questions to be determined by, (b) the material already in the possession of, and (c) material to be sent to - the Medical Panel."

At the commencement of the hearing, HIH Worker's Compensation (Vic) Ltd and Eastern Health Care Network were added as defendants. It was those defendants who were represented and opposed the application.

10. In November 1992 the plaintiff while employed by the Alfred Hospital received an electric shock and suffered injury. On 14 January 1993 the insurer for the hospital, FAI Workers Compensation Ltd, accepted liability for compensation and expenses.

13. The plaintiff received weekly payments of compensation. On 20 April 1998 she was advised by the insurer that her weekly payments would be terminated as from 23 May 1998. The plaintiff exercised her right to seek conciliation and on 15 May 1998 requested a conciliation conference. It was to be conducted on 3 July 1998 but it was cancelled and re-scheduled to allow the plaintiff to obtain more recent medical reports. The re-scheduled conference was held on 14 August 1998. The plaintiff attended the conciliation conference with her daughter and her psychologist but was not legally represented. At some time prior to 31 August 1998, the Workcover Conciliation Officer contacted the plaintiff in relation to a video tape apparently obtained from the insurer. The plaintiff's son conveyed that information to the plaintiff's solicitor. No information about what use it was sought to make of it was conveyed to the solicitor for the plaintiff as at 31 August 1998. The solicitor for the plaintiff attempted to contact the Conciliation Officer on several occasions between 14 August 1998 and 7 September 1998. On 7 September 1998 the Conciliation Officer spoke to the solicitor for the plaintiff and advised him that he had referred medical questions to a medical Panel. The plaintiff's solicitor was not then made aware of the content of the medical questions or of the material which had been provided. On the same date, however, the solicitor for the plaintiff received a facsimile from the Conciliation Service informing him of the questions referred to the Panel and that the insurer's medical reports had been sent to the medical Panel together with the video. It appears that a copy of the videotape was not sent at that time to the plaintiff or her solicitor.

16. The referral had in fact been made on 19 August 1998. The referral document described the injury as "electrocution". It set out under the heading "FACTS" what appears to be an attempted summary of histories given to examiners. It was as follows:

"According to histories given to a number of examiners it appears that this lady was carrying out her duties as a Supervisor in the Catering section of the Alfred Hospital on 1 September 1992 when she received a severe electric shock from a piece of equipment known as a Carusel. She was thrown backwards on to a chair. She noticed numbness in the right hand and was advised to go to Casualty however, she continued working and completed her shift. The next day she attended work and was sent to Casualty but had no time from work. She continued working until 1995 but ceased due to continual pain in the hand. There were then periods of returns to work but eventually in 1995 ceased again and has not worked to date."

20. The document then stated that the authorised insurer had terminated the weekly payments by notice which stated the following reasons:

"A. Your incapacity is no longer caused or materially contributed to by an injury arising out of or in the course of your employment. B. Your employment is no longer a significant contributing factor to your injuries. C. You have been in receipt of weekly payments for 104 weeks and you do not have a Serious Injury and you are not totally and permanently incapacitated. D. You are no longer incapacitated for employment."

The document noted that reports were sent to the Panel from Mr Elsner and Doctors Mendleson, Turecek and Baker on behalf of the insurer and from Dr Moore and Mr Strangward for the worker. The reports were identified by their dates. The document also stated that it had been agreed at the conference of parties held on 14 August 1998 that on the basis that the medical evidence presented by the parties was conflicting, then this matter should be referred to the Medical Panel. In terms, the document did not say that the worker had agreed to the actual questions. The document set out the questions referred by the Conciliator to the Medical Panel. They were as follows:

"A. What is the nature of the workers medical condition relevant to injury B. What is the extent to which any physical or mental condition resulted, or was materially contributed to by the injuries C. What is the workers degree of impairment in relation to the condition/s identified in response to questions (a) when assessed in accordance with s.91. D. Is the worker capable of performing her pre-injury duties. E. If not, does the worker have a current work capacity. F. If so what employment would, and what employment would not constitute suitable employment. G. Does the worker have no current work capacity. H. Did the workers incapacity for work result from, or was it materially contributed to by the injury."

"ENQUIRIES Please contact me on 9628 1174 if you have any queries concerning this referral."

I assume that the concluding statement was directed, as the letter was, to the Medical Panel.

31. As noted above, the date of the referral to the Medical Panel was 19 August 1998. Doctor Nisselle, the Convenor of the Medical Panel, by letter of 26 August 1998, advised the plaintiff of the fact that the Medical Panel had received a reference and directed her pursuant to s 65(5) that she must attend medical examinations by the second, third and fourth defendants on the 7th and 21st September 1998. In so acting, the Convenor presumably purported to act on behalf of the Panel; for s 65 (5) of the Act empowers the Panel to ask the worker to submit to an examination. She was instructed to take "medical reports, x-rays, etc" in her possession to the examinations. The document stated

"The more relevant and complete the information the better. This will help the Medical Panel doctor understand your injury or condition"

It then referred her to a brochure which was said to be enclosed. There was no evidence before me that it was and no evidence as to its contents.

36. On 11 September 1998 the solicitor for the plaintiff wrote a letter (dated 10 September 1998) objecting to the referral and asking that it be withdrawn. The letter was addressed to the Senior Conciliation Officer. The letter complained that the referral had occurred without consultation with the solicitors for the plaintiff despite the fact that the Conciliation Service knew that the solicitor was acting on behalf of the plaintiff and had been doing so for some time. It argued further that it was unsuitable to refer the matter to the Medical Panel because it could not accurately form an opinion without hearing the total of the plaintiff's evidence and that that was a matter for the courts not for the Panel. The letter stated that without the benefit of the plaintiff's evidence it was difficult to ascertain how the Medical Panel could form unbiased opinions given the extent of the material provided to the Medical Panels from the insurer. The complaint was also made the material provided was incomplete in that the authorised insurer had more material that was not provided to the Panel. Reference was made to the video tape and the complaint made that it would be highly prejudicial to have that available to the Panel without also the plaintiff's full and properly obtained evidence. The letter also complained that a copy of the video tape had not been received and objection was taken to the Panel having access to it. The letter asked that the referral be withdrawn and that the conciliator issue a certificate of conciliation outcome so that the matter could proceed to the Magistrates' Court where it could be dealt with appropriately.

39. On 22 September 1998, Mr O'Brien of the Workcover Conciliation Service wrote to the solicitors for the plaintiff in reply to the letter of 11 September 1998. He indicated he did not intend to withdraw the request for a Panel. He enclosed a copy of the video tape, however, and said that he would forward a copy of the Panel opinion on receipt. I am satisfied that the plaintiff's solicitor received the letter and the video tape on 23 September 1998.

42. On 6 October 1998 the solicitor for the plaintiff wrote to the Conciliation Service requesting a copy of all the documents referred to the Panel and an up to date list of the questions referred and any evidence taken at the conciliation. He also sought confirmation that any transcript of evidence of the conciliation would be given to the Panel.

45. No response was received to that letter until 29 October 1998 when a facsimile was received from the Conciliation Service enclosing the decision apparently made by the Medical Panel on 12 October 1998. It provided the following answers to the above questions:

A. Mrs Weerappah does not suffer from any medical or psychiatric condition related to the injury. B. Her current physical and mental conditions have not resulted from nor were they materially contributed to by the said injury. C. As there is no identifiable permanent work related mental or physical condition, the degree of impairment in accordance with s.91 is zero per cent. D. Yes the worker is capable of performing her pre injury duties. E. Not applicable - the worker is capable of performing her pre injury duties. F. Not applicable - the worker is capable of performing her pre injury duties. G. The worker has a current work capacity. H. The worker has no incapacity for work."

49. On 10 November 1998, the plaintiff received a certificate from the Conciliation Service to the effect that the conciliation had been determined in accordance with the opinion of the Medical Panel and that the decision to terminate her weekly payments would not be varied.

52. Doctor Nisselle has deposed that he forwarded the opinion of the Panel to the Conciliator and that prior to institution of the present proceedings he had received no communication from the plaintiff or her solicitors. It will have been noted that the only communication to the plaintiff or her solicitor on behalf of the Medical Panel was that by Dr Nisselle on 26 August 1998. That communication, however was directed to the plaintiff personally and related solely to the medical examinations. The notification of the referral of questions came from the Conciliator. There was nothing on the material before me to suggest that the Convenor or the Medical Panel had information as to what parts of the materials supplied to the Panel had been supplied to the worker or the insurer. There was no procedure in place whereby the Panel or the Convenor advised the parties as to what materials the Panel had before it. It will also be observed that there was no document emanating from the Convenor or the Panel advising the parties of an entitlement to make submissions or that they had a right to be heard. I note also that the Act imposed no express obligation on the Convenor or the Panel to communicate with the parties.

56. At the time, the Panels did not have the benefit of guidelines. By directions dated 1 March 1999, directions were given by the Convenor for Panels as to the arrangement of business and the procedures to be adopted. The power to give such directions is contained in s 65(7) & (9) of the Act. Dr Nisselle has deposed that at the time the reference to the Panel occurred and was being considered the procedures set out in those directions were in place and were adopted in dealing with the reference notwithstanding that the direction had not been formally made.

59. Counsel for the plaintiff drew particular attention to the following clauses in the Convenor's directions. I refer first to those related to the Convenor's role:

"Receipt of referrals 8. The Convenor will examine each referral and if a question is not clear in its meaning or is not a statutory medical question appropriate to be determined by a Medical Panel, the Convenor will not convene a Panel to address the question until he consults the person making the referral with a view to clarifying or amending the question/s. 9. The Convenor will endeavour to ensure that that (sic.) all parties concerned have been or will be provided with a copy of the referral and all supporting documents received from the referring body. Further information 10. The Convenor may, before convening a Panel in a particular case seek such further information and advice that the Convenor considers necessary or desirable for the proper consideration of the medical question by a Medical Panel. 11. The Convenor will advise all parties in writing of any further information and/or advice that he receives in relation to the referral."

Counsel for the plaintiff submitted that the Convenor failed to apply the procedure set out in the directions in cl. 8, 9 and 10. He could not have considered the questions (Direction 8) because if he had he would not have allowed them to proceed. On the evidence, he took no steps in accordance with Direction 9. He did not seek the information about the original injury needed to make any sense of the questions (Direction 10). Counsel also referred to further clauses concerning the Convenor's duties:

"18. the Convenor will notify the worker of examination appointments, and will ensure that the notification is accompanied by :- * an information booklet relating to Medical Panels (which explains, among other things, the procedures of Medical Panels and the legal status of the opinions); * a list of all relevant documents in the Panel's possession; * a request that the worker supply to the Convenor, for distribution to the Medical Panel, copies of any additional documents in the worker's possession (including documents in possession of the worker's legal representative) that relate to the medical question(s) referred; and * advice as to the possible implications of the failure to attend a Medical Panel appointment or the failure to supply documents or answer questions."

Counsel for the plaintiff submitted that while Doctor Nisselle claimed to have complied with the directions, no booklet or list of documents or invitation to supply further documents was delivered to the worker. Counsel for the plaintiff then referred to clauses dealing with the Convenor's obligations on receipt of the opinion.

"29. The Convenor will ensure that the Certificate of Opinion and the Reasons for Opinion are in the appropriate form and that the medical questions have been answered. 30. If the Convenor believes there is any deficiency in relation to the form of the answers to the Medical Questions on the face of the Certificate of Opinion or Reasons for Opinion then he will communicate his concerns to the presiding member of the Medical Panel in a manner that does not undermine the independence of the Panel in the exercise of its functions. 31. On receiving details of the concerns of the Convenor, the presiding member will communicate with the other Panel Members with a view to deciding whether or not to take any further action in relation to the opinion and the reasons, and to re-drafting Certificate of Opinion and/or Reasons for Opinion. 32. After the Panel resolves the concerns over the form of the Certificate of Opinion and/or Reasons for Opinion, the presiding member will forward the final document to the Convenor. 33. On receiving the final Certificate of Opinion and final Reasons for Opinion from a Medical Panel, the Convenor will immediately forward the Certificate of Opinion to the referrer. Where the referral was received from an Authorised Insurer, Victorian Workcover Authority or Self insurer, a copy of the Certificate of Opinion will also be forwarded to the worker. 34. On request from a relevant party, the Convenor will provide a copy of the written Reasons for Opinion."

Counsel for the plaintiff submitted that the Convenor was given an active role in the decision making process and, having regard to what appears in the Certificate of Opinion and Reasons, failed to discharge his obligations.

68. Finally, I note that the second numbered paragraph 19 of the Directions is relevant to the Panels and their obligations. It is as follows:

"Where a member/s of a Medical Panel examining a worker possesses information, or is aware of any circumstances or consideration, that is contrary to anything that the worker says to the member/s, the member/s should inform the worker of the matter and invite the worker to make any desired comment on it within a specified time and, subject to statutory time limits, the Medical Panel's opinion should not be concluded until such comment has been received or the specified time has expired, as the case may be. The worker's comment should be taken into consideration by the member/s."

73. The same grounds are relied upon in respect of the orders sought in the nature of certiorari, against the first defendant, the Convenor, and those sought against the second, third and fourth defendants, the members of the Panel. They are that there was denial of procedural fairness to the plaintiff or her legal representatives because of

(a) a denial of any opportunity to be heard on the form and content of the medical questions to be put to the Panel (b) a lack of notice of any reference to the medical Panel and (c) the denial of an opportunity to put forward material relating to the medical questions both as to their form and as to the merits of the matters referred to the medical Panel.

78. It was common ground between the parties that the obligation to accord procedural fairness was imposed on the Panel and that issue appears to be beyond doubt in light of the decision of the Court of Appeal in Masters v McCubbery [1996} 1VR 627. This concession was made by the defendants in the context that Masters v McCubbery was concerned only with a referral to a Panel by the court and that the Act then provided that only the opinions so obtained were binding on the parties. I note, further, that counsel for the defendants conceded, properly in my view, that the 1997 amendments, (s.68 (4) ) which provide that the opinions of the Panel, however sought, bind everybody, had the effect that procedural fairness was required in respect of all referrals to the Panel.

81. It was said for the plaintiff that the Convenor, Mr Nisselle, was the administrative arm of the Panel. Attention was drawn to the fact that documents under his signature are headed "Medical Panels". It was the Convenor who sets up the Panel and he or she is appointed for that purpose. The plaintiff argued that in that situation the Convenor too, like the Medical Panel, was subject to the requirement to accord natural justice. Alternatively, it was put that if he was not, nonetheless, such an obligation was imposed upon the Medical Panel.

84. I note that the Convenor in the Directions that have been given to the Panels does take the position that he has a role to play in the decision making process and in particular claims a supervisory role over the Panels and the questions to be referred. It is unnecessary however, to determine whether the Convenor was obliged to accord natural justice. The question is a difficult one and should be deferred for consideration to a case where the issue is decisive.

87. Turning to the obligations imposed on the Panels, counsel for the plaintiff submitted that, for referrals outside court proceedings, and in particular by the Conciliation Officer, there was no statutory obligation on the Panels to provide a copy of the referral questions to the parties. In the present case the questions referred covered all issues in dispute between the parties. As to relevant material, the Act obliged the Conciliation Officer to refer all relevant documents in his or her possession to the Panel (s.67 (4A) ) but there was no statutory obligation to supply those documents to the parties. Section 56 (6) which conferred the power to refer medical questions on the Conciliation Officer imposed no obligations on him. Counsel for the plaintiff argued that the Conciliation Officer was probably not bound by the rules of procedural fairness because he was not obliged to make a final decision. He, therefore, in referring the questions did not have to go through the process of hearing submissions about the questions. His decision, it was conceded was beyond the control of the parties. Thus when the matter reached the Panel, the parties had not had an opportunity to make submissions on the questions. Counsel submitted, further that the Conciliation Officer could have in his or her possession more documents than in the possession of either of the parties. At the same time, the obligation on the Conciliation Officer to refer all documents to the Panel could not ensure completeness of all relevant material for the Panel. Thus, there was no express statutory obligation placed on anyone to ensure that all relevant documents were before the Panel or that all parties had or were made aware of the material in the possession of the Panel. It was put that the obligations of the Panel had to be considered in the above context.

90. In the present instance, the plaintiff submitted that, in accordance with the principles of natural justice, the Panel or the Convenor or both should initially have provided

* documents to the parties in simple form setting out the questions referred

* a list of the documents supplied by the Conciliator to the Panel

* an invitation to the parties to make comments on the questions and materials, they having had no opportunity before the Conciliator

* an invitation to add any materials which the parties argued were relevant to the questions

and nominated a limited time in which to attend to those matters. The Panel or Convenor should also have asked that, if any further information was to be supplied, it should be supplied to the opposing parties. The plaintiff conceded that if those steps had been taken by the Convenor, they would have discharged the obligation to accord natural justice whether it was imposed on the Convenor or the Panels. It was said, also, that in the circumstances of this case a specific obligation arose to give the worker the opportunity

* in person or in writing to place material before the Panel to deal with the video tape.

* to detail the earlier history of the matter at the time of the examinations or at another time.

100. The plaintiff submitted that the failure to accord natural justice resulted in the Panel dealing with the matter even though there was no information before it as to the injury which originally gave rise to compensation. The reference by the Conciliator had described the injury as "electrocution". That, however, was merely the incident that gave rise to the injury. This issue it was said, had to be sorted out before the Panel could proceed. Counsel submitted that this problem made it imperative, for the Panel to ensure that the parties were given an adequate opportunity to make submissions about the questions and to lay before the Panel the precise history of the matter including that of the original injury. It was put that, if a fair hearing had been provided, the problem would have been brought to the attention of the panel and the parties would have been able to submit to the Panel that the questions referred were not proper because of the lack of a definition of injury referred to in the questions. Counsel submitted that the Panel itself should have considered the questions and, if it had done so, should have invited submissions on them. While it could not alter the questions, it could have declined to deal with them until they were made relevant. Counsel for the plaintiff submitted that the Panel's opinion itself could have been quashed on the basis of error because of the definition of injury submitted to the Panel by the Conciliator but it was conceded that these proceedings do not challenge the decision on that basis.

103. Counsel for the plaintiff relied upon statements in the leading authority of Kioa v West [1985] HCA 81; (1985) 159 CLR 550. Chief Justice Gibbs (at 569) quoted Lord Denning in Kanda v Government of Malaya ([1962] UKPC 2; 1962) AC 322. Lord Denning spoke of the right to be heard, if it is to be a real right, carrying with it a right to know the case made against the person, the evidence given, statements made affecting the person and a fair opportunity to correct or contradict them. Lord Denning also said that it was sufficient to justify intervention that there was a risk of prejudice as a result of the approach taken by the Tribunal (see also Stead v Government Insurance Commission [1986] HCA 54; (1986) 67 ALR 21, 25). Counsel quoted passages (at 582, 583) from the judgment of Mason, J., as he then was. In particular, he referred to the passage in which Mason, J. spoke of the right to know the case to be made against the person, the need to be given an opportunity to reply to it and the equating, on many occasions, of natural justice and fairness and the duty to act fairly. Counsel also referred to the following passage (at 584)

"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commission of Taxation, Kitto, J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ` the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the enquiry, the subject matter and the rules under which the decision maker is acting . . . "

Counsel also referred to the following passage from the judgment of Brennan, J. at 627:

"What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known. The repository of a power has to adopt a reasonable and fair procedure before he exercises the power and his observance of the principles of natural justice must not be measured against facts which he did not know and which he would not have known at the relevant time though he acted reasonably and fairly. As the obligation to observe the principles of natural justice is not correlative to a common law right but is a condition governing the exercise of a statutory power, the repository satisfied the condition by adopting a procedure which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised. When the question for the court is whether the court is satisfied, the court must place itself in the shoes of the repository of the power to determine whether the procedure adopted was reasonable and fair.

For the defendants it was submitted that there was an obligation on the Panel to accord procedural fairness to all parties and that this was a heavy responsibility. Counsel also submitted that, while the Panel had done nothing to draw matters to the attention of the plaintiff or her solicitors, nonetheless, there had been no breach of natural justice because the plaintiff and her solicitors had received all necessary information to enable her to have a fair hearing prior to the Panel's decision. Counsel submitted that the Conciliation Officer had advised the solicitors of the reference and the questions referred and the materials supplied. The Convenor had, in the document relating to medical examinations, informed the plaintiff of the identity of the Panel and the identity of the Convenor. Further it was put that the plaintiff had the opportunity at each of the examinations to say whatever was necessary. She had the opportunity also to raise any matters and refer any documents she wished including the original claim form and there was no evidence to suggest she was prevented in any way from doing so. It was further submitted that there was no obligation upon the Panel to raise matters specifically. The opportunities were there, at the medical examination appointments to give a full history and to deal with any other issues such as the content of the questions or the provision of early history or explanations of the video tape.

110. I note that the defendants' argument places unrepresented parties in the position of having to appear critical of the tribunal being called upon to decide a case because it places the onus on the parties to challenge the way the proceeding is conducted.

114. Division 3 of Part 3 of the Act deal with the establishment and constitution of Medical Panels and related matters. Section 63(1) of that Division provides:

"63 Establishment and Constitution (1) Medical Panels must be constituted as necessary for the purposes of this act to carry out such functions as may be conferred on a Medical Panel under this Act." Section 63 goes on to refer to the appointment of members for the Panels by the Governor in Council and the appointment of one of them as Convenor by the Minister. It is then provided: "(4) Each Panel must consist of one, two or three members nominated by the Convenor of the Medical Panel." The powers and procedures of a Medical Panel set out in s.65 as follows: "65. Procedures and powers (1) A Panel is not bound by the rules or practices as to evidence, but may inform itself on any matter relating to the reference in any manner it thinks fit. (2) The Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows. (3) . . . (4) Any attendance of a worker before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present. (5) A Panel may ask a worker -

(a) to meet with the Panel and answer questions

(b) to supply copies of all documents in the possession of the worker which relate to the medical question to the Panel;

(c) to submit to a medical examination by the Panel or by a member of the Panel.

121. It will have been noted that the Conciliation Officer provided copies of documents to the Panel but did not at the same time provide copies to the worker or the insured. As noted above there appears to be no statutory obligation to do that. The only express statutory obligation is to provide documents to the Panel (s.67 (4A) ).

124. It was not in dispute that the questions referred to the Panel in this instance came within the definition of "medical question "under the Act (s.5).

127. It is to be noted that the Panels are given broad powers and are able to conduct what is in effect an inquisitorial proceeding. It should also be noted that, unless the Medical Panel considers it necessary, no person other than the worker may be present during any "attendance" by a worker before a Panel (s 65 (4) ). Therefore, unless the Panel rules it "necessary", the worker can have no assistance before the Panel and no opposing party can be heard. Thus the Panel is placed in the difficult position of determining how to ensure that natural justice is provided in the circumstances of a particular case with little or no initial assistance from the parties.

131. At this point it becomes necessary to consider what occurred at the Panel examinations and how the Panel reached its decision.

134. As to the latter it appears to be common ground that the Panel reached its decision by the Panel members communicating with each other - i.e. there was no hearing in the traditional court or tribunal sense but rather each examined the plaintiff and spoke with her in the course of such examination and then there was communication between them for the purpose of reaching what was described in the opinion as a "consensus" As to what occurred at each of those examinations there is no direct evidence either from the Panel members, who are competent but not compellable witnesses, or from the plaintiff. The statement of reasons, however, sets out the following statement about what the Panel considered.

"The Panel considered the medical reports of Misters Strangward and Elsner, of Doctors Mendelson, Turecek, Baker, Moore, Arulanatham and Gordan, the video tape provided by the authorised insurer and documentation by Mr Andrew Watt (Customer Service Officer FAI Workerscompensation). The Panel's opinion is based on the documents and tape provided, the worker's reported history and physical findings on examination."

I note that the reference to the "documentation by Andrew Watt" was accepted between the parties to be as a reference to the letter from FAI Workers Compensation Insurance to the plaintiff advising her that the payments had been stopped. This document somehow found its way before the Panel but nothing turns on the fact that it had that document and the plaintiff was not aware of it. It is an example, however, of the Panel having a document and failing to inform the parties of that fact. I note also that the reports of Doctors Arulanatham and Gordan were not referred by the Conciliation Officer to the Panel, but the plaintiff made no issue of that fact.

139. Counsel for the plaintiff submitted that the Panel's statement of reasons indicated quite clearly that it had no oral material before it from the plaintiff about her condition and, in particular, no response from her about the video tape. Counsel for the defendants submitted that the plaintiff may well have been asked relevant questions about such matters and that on the evidence we simply do not know. He sought to rely upon the fact that the plaintiff had herself not given any evidence in the present proceedings about what had occurred in the examination.

142. The evidence before me is limited. The defendants might have been expected to attempt to have evidence from one or more of the Panel members even though they were not compellable. There was no explanation before me as to why that did not occur. Similarly, the plaintiff might have been expected to give evidence about these matters. There was no explanation before me as to why that did not occur. Applying the rule in Jones v Dunkel, the inferences that may be drawn from the failure to lead evidence and which apply against both sides of this debate are that the witnesses, if called, would not have advanced the cases of the parties that might have called them. (Brandi v. Migot (1976) 12 A.L.R. 551, 560.) In applying the rule in Jones v Dunkel, it is necessary to proceed with some caution because the reason for not calling the evidence is not known. It may, in my experience, be the result of an erroneous assessment of the situation by the parties' lawyers.

145. In considering what may have been said at the examinations it is relevant to bear in mind that the information conveyed by the Convenor to the plaintiff could easily have misled the plaintiff because it focused on the medical examination as if that was the only contact to be had between the plaintiff and the medical Panel. It was likely, therefore, that she went to those medical examinations with no anticipation that she had any right to argue her case but was simply obliged to be examined by the doctors and to respond to their investigation. In addition her solicitors plainly assumed that it was appropriate for them to approach the Conciliation Officer and they were still dealing with him when the opinion was received from the Panel. The system also encourages Panels to look on their task as a traditional medical examination. These factors would tend to lead to the result that there would be little challenging or exploration of histories given and heavy reliance placed on the reported histories by the, no doubt busy, Panel members.

148. A final matter to consider, is that the contemporaneous official statement of the Panel is probably the best evidence of what the Panel considered and it is likely that it would have been preferred to oral evidence of witnesses in the event of any inconsistency.

151. In this unsatisfactory situation it seems to me that the issue of whether the Panel had any oral history from the plaintiff is to be resolved by relying on the Panel's statement and determining what the Panel meant in that statement. As to that, counsel for the defendant submitted that the reference to "the worker's reported history" was a reference to history told by the plaintiff to the doctors on the Panel. I do not accept that proposition. The quoted expression is referring not to history directly received but to the history reported, that is, contained in the medical reports. If the doctors had been referring to the history they had received from the worker they would have referred to that in addition to the reported history and the physical findings. There can be no argument, however, that on the basis of the Panel's statement of what it considered, it did not receive any explanation or comment from her concerning the video tape.

155. The question in the present case is whether, in the light of what occurred, there was a denial of natural justice in circumstances where the worker who is complaining of a denial of natural justice had knowledge of the referral and the content of the referral and the nature of the material supplied to the Panel and met with members of the Panel. Ultimately, the question is whether that was enough to satisfy the requirements of natural justice in this case.

158. Counsel for the plaintiff submitted that to have that information and an opportunity to seek to be heard is not enough. Counsel referred to a discussion of the issue of waiver of the right to address the court in Escobar v Spindaleri (1986) 17 NSWLR 51 at 61 and 62. Samuels, J.A. rejected obiter of Simon P in Mayes v Mayes [1971] 1 WLR 679 that

"But I am inclined to think that the general principle is that a rule of natural justice which goes to the very basis of judicature (as I think this does) cannot be waived. You cannot by waiver convert a nullity into a validity"

"With respect, I do not think that this proposition is sound. Counsel can always, I would have thought, waive, in the sense of not wishing to exercise, some procedural or other forensic rights. If he does so voluntarily, and with knowledge of the options open to him, it follows that he has not been deprived of any right or privilege and hence has not been denied justice."

It was put for the plaintiff that the defendants would have to establish that the plaintiff voluntarily and with knowledge of the options open to her made the deliberate choice not to exercise the rights that she had and that that is something the defendants cannot demonstrate on the evidence before me.

165. Accepting that argument, as I do, the problem remains, however, as to whether there was a positive obligation on the part of the Panel to specifically alert the plaintiff to the matters which it is said should have been raised. It seems to me that this must depend on the circumstances of each individual case and that no general rule can be laid down to apply to Medical Panels.

168. A case referred to by the defendants appears to me to give guidance on this issue. I refer to Commissioner for Australian Capital Territory Revenue v AlphaOne Pty Ltd [1994] FCA 1074; (1994 49 FCR 576) where the Full Court of the Federal Court considered the obligation to accord natural justice and stated the following (at 591):

"A person likely to be affected by an administrative decision to which requirements of procedural fairness apply can support his or her case by appropriate information but cannot complain if it is not accepted. On the other hand, if information on some factor personal to that person is obtained from some other source and is likely to have an effect on the outcome, he or she should be given the opportunity of dealing with it: Kioa v West at 587 (Mason, J.) 628 (Brennan, J.). Within the bounds of rationality a decision maker is generally not obliged to invite comment on the evaluation of the subject's case: Sinnathamby v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506 (Fox, J.), 513 (Neaves, J.) . . . The general proposition set out above may be subject to qualifications in particular cases. Two such qualifications were enunciated by Jenkinson, J. in Somaghi at 108 - 109: 1. The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason); Sinnathamby at 348 (Birchett, J.); Broasserd v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett, J.). 2. The subject is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister for Immigration and Ethnic Affairs v Kooma (unreported), Full Court, Federal Court, 31 May (1990); Kioa v West at 573, 588 and 634.

His Honour observed that those qualifications may be no more than an application of the general requirement of procedural fairness in particular cases. As Gummow, J. there said at (359):

"in a particular case fairness may require the applicant to have the opportunity to deal with matters adverse to the applicants interest which the decision maker proposes to take into account, even if the source of concern by the decision maker is not information or material provided by the third party, but what is seen to be the conduct of the applicant in question."

174. Having an obligation to accord natural justice means that the body in question must consider what its obligations are in the circumstances of a particular case and it carries the responsibility to accord natural justice to the litigants. That can be a significant burden where parties are not represented. Counsel for the defendants, in referring to the above case, conceded that there could be situations where the relevant tribunal was obliged to give an opportunity to the relevant parties to be heard about a critical issue - for example, where the worker provided the Panel with new material and, thus, in fairness to the insurer, it was necessary to contact the insurer to give it an opportunity to respond.

177. In the classic case where a purely medical question is referred to a medical Panel, it may well be that no more is required for each of the parties concerned than knowledge of the questions referred and the material supplied and the opportunity for the worker to respond to questions from the Medical Panel members in the course of any examination by them. They will be expected to apply their expertise to all the material and that is the system envisaged by the Act. It may be said that the present procedures and directions assume such a scenario to be the likely scenario. Problems may arise, however, where, as appears often to be the case, the Medical Panel is asked to determine questions of fact and law which, while they fall within the statutory definition of "medical question", are not confined to pure medical issues and which commonly involve the Panel deciding the entire dispute. In that situation what occurs is not a reference to an expert to deal with an issue relying solely on his or her expertise, but a reference to the Panel to determine the dispute by applying judicial skills. If the present case is an example of how such matters are conducted when the reference is by a Conciliation Officer, then the procedure carries the grave risk that the parties may be denied natural justice. The weaknesses in the system included the following:

(a) There was no direct contact between the Panel or the Convenor and the parties which purported to formally set up the Panel's review as between the parties.

(b) The only document sent by the Convenor to the parties was the letter to the worker advising the worker of medical examinations. Further, there was nothing done to indicate to the worker that there would not be a hearing, or similar procedure to deal with non-medical issues.

(c) There was nothing said or done to indicate that the examination would be the only contact that would occur between the worker and the Panel before the Panel expressed its opinion.

(d) There was no indication to the worker that the worker could do anything more than attend the examination and answer questions and generally "help the Panel doctor".

183. The risk of a denial of natural justice is increased because of the fact that the worker will normally not be represented at any examination by the Panel and the power imbalance and the dynamics of the examinations will discourage any attempt by the worker to challenge the views of the doctors expressed in the reports and otherwise present his or her case.

186. Turning to the present case, the first issue that should have arisen in the minds of the Panel, acting "reasonably and fairly" (see Brennan, J., as he then was in Kaio above) was its inability to answer the questions. For, on the evidence before me, the papers submitted to them did not identify the injury for which compensation had been paid and to which the questions referred. In that situation, a body required to determine the questions would fail to give the parties natural justice if it proceeded without giving both parties the opportunity to be heard on the issue. To that extent, it should have invited submissions on the questions. In extending such an invitation to the parties, the plaintiff should have been invited to provide a history (such also being relevant to the video tape).

189. Assuming the Panel adequately dealt with that problem, the next issue was the Panel's proposed reliance on the video. Whether my view is correct about the potentially misleading nature of the existing procedure and its relevance to what is required to give natural justice, the fact was that the video constituted a significant piece of evidence as to which neither the plaintiff or the insurer had commented or led any evidence. It was evidence of a kind that a Panel should not consider acting upon without first inviting the parties to attend and comment or lead other evidence about it. In the absence of such an invitation, both parties were properly entitled to feel that they were denied natural justice, particularly the unsuccessful one.

192. Thus grounds (a) and (c) (set out in para 17 above) are made out. As notice was received, ground (b) is not made out.

195. I note that an issue arose as to whether at the time of her medical examinations, the plaintiff was aware of the content of the video tape and, therefore, had an opportunity to address it. That would appear not to have been the case and, therefore, even on the defendants' argument, there was a denial of natural justice because the plaintiff had no opportunity to speak to one of the members of the Panel about the video tape. The plaintiff, however, doesn't seek to rely on that particular argument.

198. I appreciate that the obligations I seek to impose on the Panel would cause the Panel to take on the appearance of a tribunal and to act like one. That is so, but the video tape, in particular, raised issues about the credibility of the plaintiff and that needed to be borne in mind in deciding what procedural fairness required in this case.

201. One way to avoid or minimise these difficulties would be for the Minister or the Convenor under the Act to formulate further directions for the Panels. I say further directions because the existing directions do attempt to address some of these issues. Consideration might also be given to the formulation of a standard letter to be sent by the Convenor to the parties advising them of the questions referred to the Panel the materials supplied to the Panel and of their right to be heard.

204. While much of the foregoing discussion is centred on the position of the worker, it must be borne in mind that there is always another party to these disputes and it too can be disadvantaged if the Panel does not accord natural justice. For example, in the course of a medical examination, the worker may reveal information of which the insurer is unaware and which may, if accepted, entitle the worker to the compensation that it had been denied. It would be a denial of natural justice for the insurer not to have an opportunity to address that information before the Panel reached its decision.

207. It is important not to subvert Parliament's intention by encrusting what is intended to be a cheap, flexible and speedy system with unreasonable and impractical requirements. I have considered whether the foregoing merely represents a legalistic perspective. The Panels, however, are obliged in law to give procedural fairness. The problem that has to be addressed is a real one and it arises because, in my view, a system that was set up ostensibly to enable a speedy resolution of "medical questions" and structured accordingly is required by the Act to determine questions of law and fact which include not only purely medical questions but also all questions arising in respect of a claim for compensation under the Act including questions of fact and the credibility of evidence. Because the Panels are required to provide natural justice, they must act appropriately according to the circumstances of each individual case and ensure that both parties are given a reasonable opportunity to be heard on the matters at issue in the reference to the Panels.

210. It seems to me that as soon as the Panel finds itself having to make decisions that go beyond medical expertise, it must be particularly alert to the issue of natural justice. In particular the Panel needs to consider whether the parties need to be invited to make oral or written submissions and whether it needs to organise an informal hearing involving the Panel members and the parties.

214. As I have indicated I do not propose in these proceedings to make any final decisions about whether the Convenor has any and if so what obligations to provide procedural fairness to the parties to a reference from the Conciliation Officer to a Medical Panel. Accordingly I do not propose to make any orders relating to the decision of the Convenor to convene the Medical Panel. It is in my view sufficient for present purposes to make orders relating only to the decision of the Medical Panel itself.

217. In light of the above, I have come to the conclusion that an order in the nature of certiorari should be made in respect of the decision made on 12 October 1998 by the Medical Panel. I am also satisfied that an order in the nature of mandamus should be made directed to the Medical Panel in the form sought in the originating motion.

220. The parties have not made submissions to me about the question of what further directions should be made by the Court to achieve the result that the Medical Panel makes a decision in accordance with law. I will delay any final decision as to those matters until counsel have had an opportunity to address me on them. It may be that sufficient appears from the reasons for that not to be necessary. A difficulty that is faced by an application for such directions is that the parties have not as yet placed before me all the material that was placed before the Panel.