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• Background
• Adequacy of reasons as a ground of review
• Comment
• Further information

Background

A Medical Panel is a Tribunal which - among other roles - determines disputes about the degree of impairment resulting from an injury which is the subject of a claim for damages under the Wrongs Act 1958 (Vic).

Specifically, the Panel determines whether a claimant's degree of impairment satisfies the required threshold for an entitlement to damages for non-economic loss. There is no appeal on the merits of a Panel decision, however judicial review by the Supreme Court on administrative law grounds is available.

Adequacy of reasons as a ground of review

Until the Victorian Court of Appeal's decision in May this year of Sherlock v Lloyd & Ors¹, there was conflicting authority in the Supreme Court on the issue of whether the failure of a Medical Panel to provide adequate reasons² for its decision constituted an error of law, which could be the subject of judicial review and lead to the quashing of the decision.

The Court of Appeal put that debate to rest by determining that a failure to provide adequate reasons does not of itself constitute a reviewable error of law. Additional steps pursuant to s.8 of the Administrative Law Act 1978 (Vic) (ALA) are needed before the Court has any power to make orders concerning Medical Panel reasons.

Subsequent decisions of the Supreme Court in Chubb Security Pty Ltd v Kotzman & Ors ³ make it clear that strict compliance with these steps is necessary.

As a result of these decisions, it now seems clear that:

• There is no common law obligation upon a Medical Panel called upon to determine the level of a claimant's impairment for the purposes of the Wrongs Act 1958 (Vic) to provide reasons for its decision.
• The obligation of a Medical Panel to provide reasons only arises upon a request for reasons by any person affected by its decision⁴ .
• The request may be oral or in writing, but it must be made:
  • before the Panel gives or notifies its decision; or
  • within 30 days of the decision coming to the knowledge of the person making the request; or
  • in any event no later than 90 days after the Panel gives or notifies its decision⁵ .
• Upon receipt of a request, the Panel is obliged to provide written reasons within a reasonable time.⁶
• If the Panel fails to provide reasons within a reasonable time, or the reasons are inadequate, a party may apply to the Supreme Court for an order that the Panel provide reasons or further reasons for its decision⁷ . Such an application should be made within a reasonable time after the Panel fails to provide reasons or provides inadequate reasons⁸ .
• If the Panel does not comply with the Court's order, there is in effect a deemed error of law on the face of the record and the Court then has power to quash the Panel's decision on this ground⁹ .
• If, as is often the case, the Panel provides reasons for its decision voluntarily, i.e. in the absence of a specific request, and a party considers them to be inadequate, the party still needs to follow the procedure for requesting reasons pursuant to ss.8(1) & (2) ALA. Otherwise the party will not be able to avail themselves of the remedies provided by s.8(4) ALA¹⁰ .

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Comment

This article relates only to determinations of the Medical Panel under the Wrongs Act 1958 (Vic) and other administrative decisions by a Tribunal which is not required under the relevant legislation to give reasons for its decision.

Both Chubb and Sherlock involved decisions of the Panel under the Accident Compensation Act 1985 (Vic) (ACA) which, at the relevant time, did not require the Panel to provide reasons.

The ACA was amended earlier this year to require that reasons now be provided by a Panel determining a medical question under that Act. While those cases may have been decided differently had the amendments to the ACA applied, their reasoning is still applicable to Wrongs Act 1958 (Vic) cases.

A Medical Panel's reasons can be critical in determining whether it has made an error, which may provide grounds for judicial review. It is therefore vital that the remedies provided by s.8 ALA be exercised if a party suspects that an error may have been made in the Panel's decision-making process, but the reasons are not sufficient to demonstrate that this is indeed the case.

Some doubt remains as to how applications to the Court pursuant to s.8(4) ALA are to be made. Justice Cavanough in Chubb suggested, although did not formally decide, that they can be made in proceedings for review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.

However the trial judge in Sherlock (Justice Kyrou) was of the view that they can only be made in an application for review under s.3 ALA, or on summons returnable before a judge. This procedural controversy is yet to be resolved.

Further Information

Lisa Newcombe | Partner
+61 3 9269 9364
lnewcombe@landers.com.au  

Kate Clark | Special Counsel
+61 3 9269 9315
kclark@landers.com.au

Jane Fiske | Senior Associate
+61 3 9269 9364
jfiske@landers.com.au  

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