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Davidson v Fish & Ors [2008] VSC 32 (18 February 2008)

Last Updated: 19 February 2008

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AT MELBOURNE

COMMON LAW DIVISION

No. 6524 of 2007

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Adequacy of reasons – Jurisdictional error – Remit to the same or different panel

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HIS HONOUR:

1 The plaintiff, Mr Davidson, seeks judicial review of a certified medical panel’s opinion dated 5 March 2007 made pursuant to the Accident Compensation Act 1985 (“the Act”). The first to fifth defendants were constituted as a medical panel pursuant to Part III Division 3 of the Act and did not participate in the proceeding other than to indicate that they would submit to such orders as might be made by the Court.[1] The opinion was accompanied by a six page document also dated 5 March 2007 headed “Reasons for Opinion” (“the Reasons”). The plaintiff challenges the decision by originating motion dated 1 June 2007 claiming that the decision was vitiated either because the medical panel fell into jurisdictional error by failing to take into account considerations it was bound in law to consider when making the decision, or because the Reasons were inadequate. The evidence in the proceeding was an affidavit by the plaintiff’s solicitor with some ten exhibits.

2 The background to the present proceeding involves earlier claims by the plaintiff for compensation under the Act. He had been employed by the sixth defendant, Eclipse Balustrade and Fencing Pty Ltd (“Eclipse”), as a carpenter, when he injured his right shoulder on 22 June 2000. Mr Davidson made a claim for compensation in respect of the injury on 4 April 2001, which was accepted and he received payments under the Act until 23 November 2004. On 14 October 2004 Mr Davidson’s entitlement to weekly payments for compensation were terminated with effect from 23 November 2004 on the basis that he had received weekly payments of compensation over an aggregate period of 104 weeks (the period relevant under the terms of the Act applicable to Mr Davidson’s claim at the time) and that he had a current work capacity. Mr Davidson disputed the termination of his entitlement to weekly payment of compensation and referred the dispute to conciliation in accordance with the Act.

3 On 5 September 2005 the Accident Compensation Conciliation Service certified that a conciliation conference had been held on 5 September 2005, that there was an arguable case in support of the denial of liability to make or continue to make weekly payments, and that there was a genuine dispute with respect to the liability to make or continue to make weekly payments. Mr Davidson then issued proceedings on 12 April 2006 in the Magistrates’ Court seeking an order for payment of weekly payments of compensation pursuant to s 93 of the Act as from 24 November 2004 and seeking that they continue from that date. Mr Davidson requested that certain medical questions be referred by the Magistrates’ Court pursuant to s 45(1)(b) of the Act to a medical panel for opinion. For that purpose the first to fifth named defendants in this proceeding were constituted to be the medical panel to give an opinion pursuant to the Act which, as I have said, was given on 5 March 2007 with the Reasons.

Adequacy of Reasons

4 It may be convenient if I begin with the second challenge because it may be analytically anterior to the first and much of the argument about the first seemed to depend upon some acceptance of the Reasons as having a secure foundation upon which to form views about whether the panel had, or had not, taken adequate account of all relevant considerations.

5 It was common ground between the parties that the medical panel had an obligation to provide sufficient reasons for its decision to enable it to be seen by the Court and the parties that it had arrived at its decision in accordance with its statutory functions.[2] In Masters v McCubbery Winneke P articulated the obligation to give reasons as follows:

A medical panel is not required to do more than provide sufficient reasons to enable it to be seen by the court and the parties that it has arrived at its decision in accordance with its statutory functions.^[3]

The President subsequently said:

... they are not obliged to overwhelm themselves with the provision of elaborate reasons. ... [T]hey are required to do no more than to provide a succinct statement of why they came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their mind to relevant matters and have not acted unreasonably.^[4]

Ormiston JA said:

It may be conceded that Parliament did not require the opinion given to take the form of a judgment but that does not mean that it did not consider it appropriate that, when asked, such panels should not give sufficient explanation of their reasoning as to enable a review thereof by the Supreme Court either under the Administrative Law Act or otherwise by judicial review.^[5]

Callaway JA also concluded that a medical panel was required under the Act to provide reasons saying that there was “nothing in the nature even of the simplest medical question that [was] incompatible with the furnishing of reasons. For example one doctor could sensibly ask another for the “reasons” for his or her diagnosis of a patient’s illness.”[6]

6 The importance of giving reasons may flow in part from the need of a court and the parties to see that the panel arrived at its decision in accordance with its statutory functions[7] but also from the very significant consequences which flow from an opinion given by a medical panel by force of the provisions of the Act. Section 68(4) provides that the opinion of the medical panel on a medical question referred to the medical panel “is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the medical panel or when the medical question was referred” for the purposes of determining any question or matter. The gravity of these consequences was described by Winneke P in Masters v McCubbery as follows:

These ultimate conclusions expressed by the panel as “opinions” dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them in money terms. The conclusions by virtue of the Act become binding on the court. Thus the effect which the Act gives to the panel’s “opinion” is apt to demonstrate how clearly the powers invested in the panel are capable of interfering with the rights of the individual. By virtue of those opinions the appellant’s claims that he was entitled to compensation as a person who had suffered a “serious injury” and/or was “totally incapacitated for work” were conclusively determined against him.^[8]

Inadequacy of reasons will be sufficient to support the quashing of an opinion.^[9]

7 Eclipse contended that the medical panel did give adequate reasons for its opinion. Mr Davidson’s originating motion gives seven particulars in respect of which the Reasons of the medical panel were said to be inadequate. Each of these was addressed on behalf of Eclipse with an explanation drawn from the Reasons or the materials which are referred to in the Reasons or are otherwise in evidence. I intend no criticism of counsel for Eclipse by complimenting their submissions in this respect. Counsels’ detailed written, and oral, submissions addressing each of the seven challenges made to the adequacy of the Reasons may well provide the explanation intended by the medical panel in their Reasons. The problem, in my view, is that the panel’s Reasons are not adequate as expressed.

8 The questions referred to the medical panel under s 45(1)(b) of the Act and their answers were as follows:

The medical questions referred to, and considered by, the medical panel required some fact finding, some medical evaluation and some conclusions about whether statutory conditions were satisfied based upon their expert enquiries and knowledge. The third and fourth questions asked, and answered, are critical to Mr Davidson’s claims under the Act and depend upon a consideration of a number of definitions in the Act. The definitions of “current work capacity” and “no current work capacity” (referred to in the questions) include in their statutory definition another defined term, namely, “suitable employment”. A consequence of the medical panel dealing with questions 3 and 4 was that it had to consider whether Mr Davidson was able to return to work in “suitable employment”, notwithstanding that he might not be able to return to his pre-injury employment. To determine whether Mr Davidson was able to return to work in “suitable employment”, the medical panel was required to have regard to six matters set out in the definition of “suitable employment” in s 5 of the Act.

9 The obligation to “have regard to” a matter has been said to require a decision maker to take those matters “into account and to give weight to them as a fundamental element in making [the] determination”.[10] The explanation given by counsel for Eclipse of the medical panel’s Reasons were not immediately apparent to me from a reading of the Reasons unaided by the written submissions of counsel and of oral argument. It may be that the explanations are correct and that, with the benefit of the explanations, it is possible to read the Reasons as contended. However, what struck me when reading the Reasons was a distinct lack of explanation connecting the facts to the conclusions reached. It may readily be accepted that the medical panel was not required to deal with each of the matters presented to it but, at very least, what was needed was such explanation as to enable a reader to understand the way in which the matters being taken into account were bringing about the conclusion expressed.

10 The document setting out the medical panel’s “Reasons” had four numbered sections of which the fourth (spanning over five pages) began with the words “[t]he reasons for the panel’s opinion are as follows”. What then followed, however, usually failed to link the facts set out with the various conclusions reached.[11] The medical panel’s conclusion that Mr Davidson had a current work capacity, for example, listed a series of facts and circumstances without explanation of how those facts and circumstances weighed in reaching the conclusion. Facts were set out, but there was little by way of explanation of law or why a fact was weighing upon the decision maker’s conclusion. This may perhaps best be seen by an example which counsel for Eclipse in oral argument said was particularly important, although it was not one which had previously appeared in the written submissions. On the last page of the Reasons it was said:

The plaintiff also said that he had not performed any paid employment since December 2000. He stated that he had provided loans of tools to his friends and minimal assistance in performing other duties. He stated that he had run an advertisement in the local paper to perform handyman work. He had provided three or four quotes only but had not actually performed any handyman work as a result. The panel also noted that the plaintiff had good verbal and written English communication skills.

Counsel for Eclipse said that the reference to the advertisement was significant because it enabled counsel to conclude that the panel had formed the view that Mr Davidson had an ability to work and had shown a readiness, willingness and an ability to do so. Perhaps that is what the medical panel intended to convey in the more economically expressed passage than was necessary for counsel in a judicial proceeding, but it had not been the conclusion I had reached when I first read the passage. On the contrary, the reference in the passage to the fact of having placed an advertisement, referred to in the passage quoted above, given where it appeared in the paragraph, had led me to conclude (perhaps erroneously) that such willingness as Mr Davidson may have had to perform handyman work had not been matched by any ability to do so. There was certainly nothing expressly said in the Reasons about an ability to work and, in any event, the mere fact of placing an advertisement by Mr Davidson, even if it showed a willingness to perform handyman work, says nothing about the kind of handyman work in question and whether the kind that he may have been capable of undertaking would have satisfied the statutory description. In that regard I note that the words “handyman work”, as a category of income producing activity, is of such breadth as to be an unreliable substitute for “suitable employment” whether regard was, or was not, had to the six specific matters required by the definition of that term.

11 Another example of uncertainty in the Reasons is provided by the panel’s conclusion that Mr Davidson’s employment with the employer was not a significant contributing factor to any continuing injury to the right elbow. The conclusion was expressed in the Reasons as:

Notwithstanding the previous Panel finding, the present Panel concluded that the plaintiff’s employment with the defendant was not a significant contributing factor to any continuing alleged injury to the right elbow.

The reference to the “previous Panel finding” was to the certificate of opinion, and accompanying reasons, of a differently constituted panel which had given opinions in January 2006. That panel had concluded that Mr Davidson had an 8% whole person impairment resulting from the accepted right shoulder, right elbow, gastric condition and epigastric hernia and scarring injury when assessed in accordance with s 91 for the purposes of other provisions of the Act. The earlier panel had concluded that the degree of impairment was permanent and gave reasons for that conclusion. The medical panel in this proceeding reached its conclusions and expressed them in the Reasons in terms which suggested a disagreement with the first panel. Counsel for Eclipse submitted that there was no disagreement between the two because, in essence, different questions were being asked to differently constituted panels. That view may be correct but it was not apparent to me as to what the second panel meant upon my reading of the second panel’s reasons nor, in my view, is that what would ordinarily be understood by a conclusion prefaced with the words “notwithstanding the previous Panel finding”. It may be, as counsel for Eclipse contended, that the earlier panel had been asked questions upon an assumption of acceptance of the injury whilst the second panel was asked to determine whether the employment was a significant contributing factor to the injury, but it is far from clear whether the second panel’s conclusion in this regard (essentially embodied in the answer to question 2) disagreed, purported to disagree, or thought that they were disagreeing, in any way with the findings of the previous panel. Nor was it clear whether the second panel meant only to place emphasis upon the word “continuing” in relation to any link between the employment and the injury. Indeed, my first reading of the answer given to question 2, and of such of the Reasons as appeared to deal with that matter (principally from the latter part of p.5 to the top of p.6), suggested to me that the second panel had taken the view that any injury still suffered by Mr Davidson was no longer referrable to the injury connected with the employment, but was now explicable by supervening factors or by the elimination of previously operative factors over the passage of time or because of treatment; that is, that on one reading of the Reasons, the second panel had taken the view that some of the symptoms which had been referrable to injury sustained at the employment had been treated or resolved and that what was left was no longer sufficiently referrable to the injury sustained at the employment. In the second-last paragraph on p.5, for example, the second panel had expressed a conclusion that Mr Davidson’s employment with Eclipse “was a significant contributing factor” to some of the conditions but which had either been treated or resolved. That reading of the reasons, however, was not the one urged upon me by counsel for Eclipse which focussed, rather, on the fact that the earlier panel had assumed compensable injury rather than having had to decide whether there was one. That reading may be correct but, if it is, the language used by the second panel, suggesting a conclusion “notwithstanding” a previous panel’s “finding”, is not apposite since, on the construction of the reason urged upon me by counsel for Eclipse, the previous panel had made no such “finding”.

12 In my opinion, the document purporting to be the Reasons of the medical panel are inadequate as reasons. It is not enough that the document be headed “Reasons” or that the panel considered the document to contain its reasons.[12] What is critical is that a reader may see the reasoning process leading to the conclusion. The usefulness of reasons are lessened, and the important safeguard provided by the obligation to give reasons is reduced, to the extent that the reasons do not explain why or in what way a conclusion is reached.[13] Counsel for Eclipse rightly conceded that the reasons could have been expressed differently with clearer linkages between the facts stated and the conclusions reached. Connecting words like “because” or “therefore” between facts and conclusions would assist the reader, such as Mr Davidson, in understanding why and how his personal case and rights were being affected, and would assist a court in seeing how the medical panel had discharged its statutory functions. That is not to say that the medical panel needed to consider all of the issues raised or to have given lengthy reasons; rather, it is to say no more than that it needs to make explicit how or why the facts and circumstances it selected lead it to the conclusion it reached. The reason for the omission of some fact, issue or submission may be clear from the circumstances of the case without the need for all facts, issues and submissions to be dealt with specifically and expressly. The obligation to give reasons is not a requirement merely to have them. The requirement to give them focuses upon their expression and communication to those who receive them: what must occur is an exposition of the reasoning process for the reader so that the reader can understand how and why the writer’s conclusion was reached.

Jurisdictional Error: Failure to take account of relevant considerations

13 The conclusion I have reached about the adequacy of the Reasons makes it, in my view, inappropriate to consider the other challenge, namely, whether the medical panel had failed to take into account various matters which were urged on behalf of Mr Davidson. I say that in part because the view that I have taken of the Reasons makes it perhaps unsound to form confident conclusions about what was or was not taken into account by the medical panel in reaching its conclusion: in other words, that my conclusion that the Reasons were inadequate means that I cannot be confident that they express a sufficiently reliable view of what was or was not taken into account. I should, however, perhaps, say in deference to the careful and helpful arguments by counsel that were I called upon to decide the matter, I would prefer the arguments advanced on behalf of Eclipse to those for Mr Davidson. That is to say, that I could not confidently conclude that Mr Davidson had discharged the burden of establishing that the medical panel had failed to take into account the various matters which it was contended should, but had not, been taken into account in reaching the conclusion. In that regard I note in particular that the medical panel undertook various investigations, had regard to the materials set out in a schedule attached to the Reasons, said that they had taken those matters into account, and in its Reasons for opinion expressed themselves in a way that indicated detailed, technical and precise familiarity with Mr Davidson and his circumstances. The general impression given by the document suggests the probability of a careful consideration of the material and of all the matters which they said they had taken into account. The medical panel specifically said that they took into account the material in enclosure “A”, and there is no reason to doubt the veracity of that statement. The problem is that it is not clear to me how the various matters were taken into account in explanation of the outcome.

Remitting to the same or different panel

14 Counsel for Mr Davidson submitted that I should refer the medical questions back to the Convenor of medical panels for determination by a differently constituted panel in accordance with a practice that may have developed in this jurisdiction.[14] A frequently cited authority for that course is the decision of Ormiston J in Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (No. 2)[15] where his Honour said, in relation to reasons which were held partly to be defective, that an order compelling the delivery of further and better reasons “would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether.”[16]

15 This dicta has been followed in a number of cases over 20 years although it is important that his Honour’s dicta should not be taken out of context. His Honour did not suggest that a body charged with a statutory duty would not, or could not, be relied upon to discharge its duty to give reasons for a decision. The “unreality” referred to by his Honour is that necessarily implicit in an exercise of requiring a decision maker to give reasons in circumstances where it was found, or was likely, that its decision had not taken into account a matter. In those circumstances it would be unreal to require reasons about something which was likely not to have been operative in the decision: it is unreal to ask a decision maker to explain a decision by reference to something which the decision maker had not taken into account. The “patch up” his Honour warned against was the undesirable exercise, in that context, of seeking to have a decision maker explain how its conclusion might be reached by taking into account a matter which, on the hypothesis of the example, is supposed to have been entirely “overlooked”. In other words, that it is undesirable for the Court to order the giving of reasons for a decision where it is likely that some matter had not been taken into account: in that case justice requires that the matter be looked at afresh. In this case I have no reason to assume that the medical panel would “patch up” something shown to be defective or that the same panel would do anything other than diligently exercise its statutory duty according to law.

16 His Honour in Stirling Properties distinguished cases where “reasons are partly defective, in the sense that not all issues have been dealt with”, from those cases where “no reasons at all are given by a tribunal required to state reasons”. It was in the former class of case that his Honour expressed the view that an order compelling the delivery of further and better reasons would “have an air of unreality about it”, whilst in “the case of total absence of reasons,” the object of an obligation to give reasons “is better served by compelling the delivery of reasons rather than by the outright quashing of the decision”.[17] In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal[18] Davies and Foster JJ dealt with the appropriate orders to be made when remitting a decision for rehearing and said:

If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the tribunal as originally constituted could be worthless, for the member’s views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that tribunal ordinarily allocates to the rehearing a different member of the tribunal. There are, of course, cases where it is convenient for the tribunal as previously constituted to deal with the matter. And occasionally the Court itself expresses such a view, so as to make it clear that it would not be improper for the tribunal as previously constituted to consider the matter again.^[19]

These observations were, of course, made in respect of a decision set aside for error and remitted for “rehearing” rather than a decision set aside for failure to give adequate reasons. The situation considered in that case was different from the setting aside of a decision on the ground that the reasons were defective in the sense considered by Ormiston J, and different again from the situation where the relevant order be one that reasons be provided where none had been given. The observations, however, do point to the general desirability of fresh minds being brought to bear in decision making where possible.

17 The relief that is appropriate in any particular case must “depend on all the circumstances of the case”[20] and I do not think it desirable for any fixed rule to be developed in substitution for a careful evaluation of all the facts of each case. It is easy to conceive of situations where an error identified in an opinion by a medical panel is of such a kind that it would be entirely appropriate, and in the interests of fairness and justice, that it be referred to the same medical panel, just as it may be easy to identify cases where the error, or other circumstances, be such that fairness would best be served by the matter being remitted to a differently constituted panel.

18 Orders by the Court about the composition of a medical panel to which the questions may be remitted should also bear in mind that there may be administrative, technical or logistical difficulties caused by an order to exclude some members from the composition of any newly constituted panel. Panels are constituted at the discretion of the Convenor of the medical panels under s 63(4) of the Act. The Convenor constitutes panels of not more than five members on a case by case basis after considering, presumably, administrative needs, availability, urgency and the expertise required and relevant to each particular case. The members are chosen from a list of members appointed by the Governor-in-Council under s 63(2) of the Act. In this case the medical panel which made the decision which is the subject of this proceeding was made up of five members including an occupational physician, an orthopaedic surgeon, a rheumatologist, a psychiatrist and a gastroenterologist. The earlier panel was composed of three different members being an occupational physician, an orthopaedic surgeon and a gastroenterologist. It is the Convenor who has the statutory power to convene a panel, but he was not a party to this proceeding and neither set of counsel before me were able to inform me about the number of people on the lists, the category of people on the lists, or the administrative or practical consequences of an order which might exclude the panel members who had sat on this medical panel from reconsidering the opinion remitted back to the convenor. This case was not brought on the basis of actual or apprehended bias[21] nor was there any suggestion that the panel members, if required to give reasons, would do anything other than act in accordance with the law in reaching the correct decision and expressing their reasons accurately when doing so.

19 The view I have taken about the adequacy of the reasons leads me to conclude that the appropriate order to make is to set aside the decision rather than require the giving of reasons. Counsel for Mr Davidson impressed on me, however, that because the existing medical panel had already expressed a conclusion, remitting the matter back to the same individuals might result in them seeing their task as one of simply justifying a conclusion already made. He accepted, as may be common experience amongst lawyers, that the discipline of setting out reasons for an opinion may sometimes result in a change of view. Indeed, the articulation of reasons for a decision is an important safeguard by providing a discipline and structure for decision making. The task to be undertaken in referring the questions back for re-determination will involve a reconsideration of the decision afresh and I have no reason to assume that the members of the medical panel in this case would see their task as one of justifying the decision set aside.

20 However, as the authorities show, it is frequently fairer that matters be reconsidered by differently constituted panels. Accordingly, the preferable course in this case may also be for the questions to be reconsidered by a differently constituted medical panel. It may, indeed, be administratively more convenient and expedient for a differently constituted panel to be convened than for the existing members to be reconvened. In this case Mr Davidson does not resist a reconstitution of the medical panel, indeed he positively urges that that should occur. A fresh decision by a reconstituted panel has merit and would avoid doubts in the mind of Mr Davidson whether or not the doubts had any foundation.

21 These are all matters for the Convenor to take into account in the exercise of his statutory jurisdiction to constitute a panel pursuant to s 63(4) of the Act. It may seem preferable to me that the matter be considered by a differently constituted panel, but the materials do not cause me to conclude that to be essential, although it may be in other cases, and I have insufficient information to form a view about whether that is possible or reasonably practicable.

22 The parties having made submission on costs, I make the following orders:

1. That the decision of the medical panel made on 3 March 2007 is set aside and the questions be referred back to the convenor of medical panels for re-determination.
2. The sixth named defendant pay the costs of the plaintiff of this proceeding.

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^[1] The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman and ors [1980] HCA 13; (1980) 144 CLR 13, 35 (Gibbs, Stephen, Mason, Aicken, Wilson JJ); BTR Plc v Westinghouse Break & Signal Co (Australia) Ltd (1992) 34 FCR 246, 265 (Lockhart and Hill JJ).

^[2] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635; cf Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 and Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465, 479-480 (Wilcox J).

^[3] Ibid 650.

^[4] Ibid 651.

^[5] Ibid 653.

^[6] Ibid 661.

^[7] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635; see also the general observations, albeit in the context of a duty upon a judge to give reasons, in Roy Morgan v State Revenue (Victoria) [2001] HCA 49; (2001) 207 CLR 72, 84 (Gaudron, Gummow, Hayne and Callinan JJ); Hon Justice M Kirby AC CMG “Literature in Australian Judicial Reasoning” (2001) 75 ALJ 602; Sir Frank Kitto “Why Write Judgments” (1992) 66 ALJ 787. See also Prof Enid Campbell “Reasons for judgment: some consumer perspectives” (2003) 77 ALJ 62.

^[8] Ibid 643. See also: Nichols v Robinson [2001] VSCA 11 (Unreported, Winneke P, Phillips and Charles JJA, 22 February 2001), [19] (Winneke P); Pong Property Development Pty Ltd v Strangio [2005] VSC 217 (Unreported, Ashley J, 27 June 2005) [67].

^[9] Kamener v Griffin [2004] VSC 235 (Unreported, Williams J, 1 July 2004) [56]; Taylor v Mountain Pine Furniture [2004] VSC 324 (Unreported, Williams J, 1 September 2004) [49]; Pyle v Nisselle [2000] VSC 398 (Unreported, 2 October 2000, Smith J) [25]; Moyston Court Fisheries v Malios [2007] VSC 518 (Unreported, Forrest J, 14 December 2007) [77]; see also re Croser; ex parte Rutherford [2003] WASCA 8 (Unreported, Murray and Templeman JJ and Rolfe AJ, 21 November 2002).

^[10] R v Hunt; ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322, 329 (Mason J, Gibbs J agreeing at 324); see also at 334 per Murphy J that the requirement was that a decision maker “must take them into account and consider them and give due weight to them”.

^[11] Sir Harry Gibbs, writing extra judicially, described as the “worst kind of judgment” one that did not make “any logical connection[s] between the facts and the law or showing how the legal principles applied to the facts: “Judgment Writing” (1993) 67 ALJ 494, 498. The same may be said of any exposition of reasons for a decision.

^[12] Dorman v Riordan (1990) 24 FCR 564, 568 (Sweeney, Davies and Burchett JJ).

^[13] In Ansett Transport v Wraith [1983] FCA 179; (1983) 48 ALR 500 Woodward J said at 507 that a requirement for a decision maker to give reasons requires the decision maker to explain the decision in a way which will enable a person aggrieved to say, in effect: “Even though I may not agree with it, I now understand why the decision went against me”.

^[14] Kamener v Griffin [2005] VSC 202; (2005) 12 VR 192; Taylor v Mountain Pine Furniture [2004] VSC 324 (Unreported, Williams J, 1 September 2004); Cladingboel v Newcrest Mining Limited & Ors  [2007] VSC 345 (Unreported , Habersberger J, 17 September 2007); Clarke v National Mutual Life [2007] VSC 430 (Unreported, Forrest J, 18 September 2007) [70]; Moyston Court Fisheries v Malios [2007] VSC 518 (Unreported, Forrest J, 14 December 2007) [86].

^[15] [1984] VicRp 73; [1984] VR 903.

^[16] Ibid 912.

^[17] Ibid 912.

^[18] (1990) 26 FCR 39.

^[19] Ibid 42-43.

^[20] Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Unreported, Heerey, Merkel and Goldberg JJ, 2 December 1999) [40].

^[21] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Fletcher v Commissioner of Taxation (1992) 38 FCR 137, 142 (Lockhart, Wilcox and Burchett JJ).