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Supreme Court of Victoria |
Last Updated: 14 July 2022
AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Assessment of worker’s medical condition and work capacity – Whether Medical Panel committed a jurisdictional error – Whether Medical Panel failed to have regard to a relevant factual matter – Medical panel accepted that plaintiff suffered from pain – Pain as medical condition – Adequacy of Panel’s reasons – Appeal dismissed – Chang v Neill [2019] VSCA 151 – Richter v Driscoll [2016] VSCA 142; (2016) 51 VR 95 – Sidiqi v Kotsios [2021] VSCA 187 – Didani v Downes-Brydon & Ors [2021] VSCA 281 – Emmelmann v Thomson Geer Services [2020] VSC 801 – Ayana v Qantas Airways Ltd [2021] VSC 500 – Moutray v The Union Pastoral Co [2021] VSC 723 – Akbari v Victorian WorkCover Authority & Ors [2022] VSC 84 – Miletic v ANZ Banking Group Limited & Ors [2022] VSC 240 – Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468 – Calleja v Franet Pty Ltd [2000] VSC 339 – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr G Uren QC with
Mr E Makowski |
Arnold Thomas & Becker Lawyers
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For the First Respondent
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Mr D Star QC with
Ms M Norton |
Russell Kennedy
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For the Second to Sixth Respondents
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No appearance
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Victorian Government Solicitor’s Office
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Preliminary
1 Mr Dodds is a 44-year-old man who
suffered injury to his left knee when, on 23 July 2015, during the course of his
employment, he
slipped off the ledge of a bench top whilst removing a window
(‘the incident’). Mr Dodds seeks to claim pain and suffering
and
pecuniary loss damages for the injuries he suffered in this incident. In order
to do so, Mr Dodds must first satisfy the ‘serious
injury’
definition contained in s 325(2)(e) of the Workplace Injury Rehabilitation
and Compensation Act 2013 (Vic) (‘the
Act’).
2 Mr Dodds presently has an Originating
Motion on foot in the County Court of Victoria, in which he is seeking leave to
bring proceedings
pursuant to s 335 of the Act. At the request of the first
defendant, the County Court referred certain questions to a medical panel, which
were relevant
to the determination of his serious injury application.
3 On 4 March 2021, a medical panel composed of the
second to sixth defendants (‘the Panel’) delivered its Certificate
of Opinion (‘Opinion’) and written statement of Reasons for that
Opinion (‘Reasons’). The Panel found that
as a consequence of the
incident, Mr Dodds suffers persistent left knee dysfunction resulting from a
surgically treated medial meniscus
tear, aggravation of osteoarthritis, and a
mild adjustment disorder. The Panel also determined that Mr Dodds had a current
work
capacity, in that it found he was capable of working as a product assembler
on a full-time basis.
4 Mr Dodds seeks judicial
review of the Panel’s decision on grounds of jurisdictional error. In
particular, Mr Dodds alleges
that the Panel was erroneous in failing to find
that his left knee pain was a medical condition, and that it did not take into
account,
or have regard to such pain when considering his capacity for suitable
employment. Further, Mr Dodds contends that in considering
what constituted
suitable employment, the Panel failed to have regard to the supplied material
provided in relation to the requirements
of employment as a product assembler,
as well as Mr Dodds’ personal circumstances, including his places of
residence. If I
am satisfied there was a jurisdictional error, Mr Dodds seeks
an order quashing the Panel’s Opinion, together with an order
remitting
the referred questions to a differently constituted medical panel.
5 For the reasons that follow, I dismiss the
application.
Background facts
6 The following are background facts,
which were either agreed between the
parties[1] or do not appear to be in
issue. I will briefly summarise them to provide background to Mr Dodds’
claim and to give context
to the issues that arise in this
application.[2]
7 Mr
Dodds was born in New Zealand and attended school to the equivalent of Year 11.
He subsequently worked as a commercial fisherman
for approximately 12 years.
Mr Dodds then obtained a divemaster’s certificate and worked in that
industry for two years.
He later worked as a carpenter’s
assistant.
8 In 2007, Mr Dodds migrated to Australia
and obtained employment as a labourer for six months. He then undertook an
apprenticeship
in carpentry which he completed in 2010, and subsequently worked
for numerous labour hire companies performing carpentry, labouring,
and
landscaping work.
9 Mr Dodds commenced employment
with Atcorp Investments Pty Ltd (‘Atcorp’), a labour hire agency, in
2012. Atcorp subsequently
placed Mr Dodds with a host employer, Greenstar
Demolition Pty Ltd (‘Greenstar’), as a demolition labourer. On 23
July
2015, Mr Dodds suffered injury whilst working as a labourer with Greenstar.
10 On 5 August 2015, Mr Dodds lodged a
worker’s injury claim in which he claimed that in the incident, he
suffered injuries
which he described as ’left knee, tear to medial
meniscus and microtrabecular fracture of the medial tibial plateau’.
His
claim was subsequently accepted and he received weekly payments of compensation
and reasonable medical and like expenses.
11 On 8
October 2015, Mr Dodds underwent surgery to his left knee.
12 In approximately February 2016, Mr Dodds returned
to work on alternative duties, which included shredding paper, photocopying,
preparing packs of papers, and filing. Mr Dodds initially worked for two hours
per day, twice a week. Thereafter, Mr Dodds increased
his hours and days of
work but never returned to his pre-injury hours and duties. In April 2016, Mr
Dodds was advised there were
no longer alternative duties available and his
employment with Atcorp ended.
13 On 4 July 2016, Mr
Dodds’ weekly payments of compensation and medical expenses were
terminated on the basis that his incapacity
for work was not materially
contributed to by an injury arising from the course of his employment, and that
the medical and like
expenses he was claiming were not for an injury which
entitled him to compensation under the Act. Mr Dodds issued Magistrates’
Court proceedings in respect of that decision, which resulted in a referral from
the Magistrate to a medical panel. That medical
panel examined Mr Dodds on 12
January 2018. It was of the opinion that Mr Dodds suffered from continuing
dysfunction of his left
knee from aggravation of osteoarthritis in his knee
which had been surgically treated, together with a mild adjustment disorder
consequential
to the accepted left knee injury. The medical panel opined that
as a consequence of the accepted left knee injury, Mr Dodds had
a capacity for
suitable employment, and thus a current work
capacity.
14 On 5 August 2016, Mr Dodds lodged a
claim for impairment benefits in respect of his left knee and psychological
injury. After
being medically examined for this claim, Mr Dodds was
dissatisfied with the statutory insurer’s determination as to his level
of
impairment, and that decision was referred to a differently constituted medical
panel who examined him on 29 October 2018. That
medical panel concluded Mr
Dodds suffered from persistent dysfunction of the left knee as a result of a
surgically treated medial
meniscal tear and aggravation of osteoarthritis of the
left knee relevant to the injuries sustained on 23 July 2015. The medical
panel
concluded that Mr Dodds had a 4% whole person impairment resulting from the
accepted physical injury and that the degree of
impairment was permanent.
15 The medical panel also conducted a psychiatric
examination and concluded that Mr Dodds suffered from an adjustment
disorder with
depressed mood relevant to the left knee injury and that there was
a degree of psychiatric impairment of 14% secondary to the accepted
physical
injury. The medical panel determined there was a 0% degree of psychiatric
impairment when assessed in accordance with s 54 of the Act.
16 On 20 June 2019, Mr Dodds lodged a serious injury
application pursuant to Division 2 of Part 7 of the Act in respect of the
impairment of his left knee, as well as a consequential mental or behavioural
disturbance or disorder.
In his serious injury application, Mr Dodds relied
upon pecuniary loss, as well as pain and suffering
consequences.
17 Atcorp rejected Mr Dodds’
serious injury application and he subsequently issued proceedings in the County
Court seeking leave
to commence proceedings to claim common law damages. Atcorp
defended the application and applied to the Court to have questions
referred to
a medical panel.
18 On 16 July 2020, pursuant to s
274 of the Act, the County Court referred questions to the Panel (‘the
referral’).
19 The Panel was composed of
orthopaedic surgeon Mr Robert Pianta, rheumatologist Dr Maninder Mundae,
rehabilitation physician Professor
Peter Disler, and psychiatrists Dr Dennis
Handrinos and Dr Dianne Kirby. These medical practitioners are the second,
third, fourth,
fifth, and sixth defendants in the proceedings, however, as is
the usual arrangement pursuant to the principles in
Hardiman,[3] they did not take an
active role in the proceedings and indicated by way of correspondence that they
would abide by the decision
of the Court.
20 The
Panel examined Mr Dodds on 22 and 28 January 2021.
21 The referral included a number of documents in a
Schedule of Attachments. Such documents included the Joint Statement pursuant
to s 304 of the Act, written submissions from both Mr Dodds and Atcorp, Mr
Dodds’ injury claim form, Mr Dodds’ serious injury
affidavit,
medical imaging, reports of treating practitioners, medico-legal opinions
obtained by both Mr Dodds and the statutory
insurer, and a surveillance report
and footage of Mr Dodds.
22 The Schedule of
Attachments also included vocational material, including a vocational
assessment report from Recovre, dated 9
September 2019 (‘the Recovre
report’). This report detailed five possible vocational options for Mr
Dodds. Of relevance
to this judicial review was the product assembler role.
The Recovre report detailed a worksite assessment of a workplace offering
such a
position in Laverton North in May 2019. At that workplace, eleven different
positions across two assembly lines were described,
and the nature of the tasks
associated with such positions were detailed. The Recovre report noted that
workers were rotated across
those positions, and across the assembly lines. The
‘summary of critical work demands’ outlined in the Recovre report
stated that sitting was available in most positions along both assembly lines.
In the three assembly line positions where standing
was essential, the nature of
the standing was described as dynamic, as workers were able to move about within
small areas for a maximum
duration of two hours. Further, the report stated
that it was feasible for workers who were unable to stand for two hours to
negotiate
a more frequent rotation with a seated worker. The report also stated
that product assemblers were not required to squat, bend for
a sustained period,
climb stairs or ladders, and the heaviest item handled was 2.5kg. Further, it
stated that most positions required
constant dexterous fine manipulation of
items such as screws and rubber seals.
23 On 4
March 2021, the Panel delivered its Opinion and
Reasons.
24 On 29 April 2021, Mr Dodds filed an
Originating Motion seeking judicial review in the nature of certiorari quashing
the Opinion
of the Panel, and an order in the nature of mandamus remitting the
medical questions to a differently constituted
panel.[4]
Medical Panel Opinion
25 The parts of the Opinion relevant to this application were as follows:
Question 1. What is the nature of the medical condition/s of the Plaintiff’s:
(a) left knee;
(b) mind?
Answer: In the Panel’s opinion Mr Dodds has:(a) persistent left knee dysfunction resulting from a surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis;
(b) a mild Adjustment Disorder.
Question 2: Does any medical condition of the Plaintiff’s
(a) left knee; or
(b) mind –
continue to result from, or be materially contributed to by, the accepted left knee injury suffered by Mr Dodds in the course of his employment on 23 July 2015?
Answer: In the Panel’s opinion the persistent left knee dysfunction resulting from a surgically treated medial meniscus tear, aggravation of osteoarthritis, and the mild adjustment disorder continue to result from and is materially contributed to by the accepted left knee injury.
Question 3. Is the medical condition of the Plaintiff’s
(a) left knee; or
(b) mind –
as identified by the Medical Panel “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer: (a) Yes
(b) No
Question 4. If ‘yes’ to question 2(a), does that left knee condition (excluding the psychological or psychiatric consequences of such conditions) result in or materially contribute to Mr Dodds having:(a) a “current work capacity” within the meaning of the Workplace Injury Rehabilitation & Compensation Act 2013 (“the Act”); or(b) “no current work capacity” within the meaning of the Act?
Answer: (a) Yes
(b) No
Question 5. If ‘yes’ to question 4(b), is this incapacity “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer: Not applicable.
Question 6. If “yes” to question 4(a), having regard to any physical consequences of the left knee injury (excluding the psychological or psychiatric consequences of such conditions):(a) What employment would or would not constitute suitable employment within the meaning of the Act and, if so, for how many hours and days per week?
(b) Would employment as a:
(i) Forklift driver;
(ii) Traffic Controller;
(iii) Ferry Master;
(iv) Dive Master
(v) Maintenance handyperson;
(vi) Light delivery driver/courier;
(vii) Product assembler;
(viii) Truck driver;
(ix) Bus driver:
constitute suitable employment with the meaning of the Act and, if so, for how many hours and days per week?
Answer: In the Panel’s opinion:(a) Employment that does not demand prolonged standing, walking, particularly over uneven surfaces, going up or down stairs and slopes, climbing ladders and doing heavy lifting would constitute suitable employment for Mr Dodds, and this could be carried out in a full-time capacity;(b) Employment as a Product Assembler would constitute suitable employment for Mr Dodds, and this could be carried out in a full- time capacity.
Question 7. In respect of any capacity for suitable employment identified in answer to question 6(a) or (b), is this capacity “permanent” meaning “likely to last for, during or through the foreseeable future”?
Answer: In the Panel’s opinion Mr Dodds’ capacity for suitable employment is permanent.
Medical Panel Reasons
26 In its ‘Introduction’, the
Panel noted the documents it had been provided and the facts that were agreed
between the
parties. It also detailed Mr Dodds’ occupational history, the
history of the incident, the treatment he subsequently received,
and his return
to work for a limited period in 2016.
27 The Panel
then noted the following in respect of Mr Dodds’ current status:
Mr Dodds said that his current symptoms comprise constant left knee pain which is increased by walking, kneeling or squatting. He said that on a good day he may be able to walk a kilometre on level ground, but he avoids stairs and hills. He said that at times the pain has increased markedly after he has had to walk fast to catch a tram and remained severe for about two days thereafter. He said that when the pain is severe he may limp when walking. He said that the knee pain may wake him from sleep at night.
He said that the knee may lock in a flexed position and this usually occurs at night in bed. The knee may also give way when he is walking and he wears an elasticised Velcro-fastening knee brace when walking. He said that he also has a more complex brace that a friend gave him but he tends not to use this.
28 The Panel noted that Mr Dodds
consulted his general practitioner in Frankston from ‘time to time’,
took over-the-counter
Nurofen (up to nine tablets a day), and he used Voltaren
gel.
29 In respect of his social situation, the
Panel noted that Mr Dodds spent half the week at his ex-girlfriend’s house
in Albert
Park, and the other half with a friend in Burwood. The Panel noted
that Mr Dodds did not have his drivers’ licence and commuted
on public
transport. Further, it noted that Mr Dodds reported difficulty on trams with
steps and that he needed to sit rather than
stand on a journey.
30 After conducting a physical examination of Mr
Dodds, and reviewing the radiological investigations, the Panel found as
follows:
Based on the history taken by the Panel, its physical examination of Mr Dodds and its review of the attached documents and radiological investigations, the Panel concluded that he has persistent left knee dysfunction and pain resulting from a surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis of the left knee, relevant to the accepted injury to the left knee sustained on 23 July 2015
The Panel considered that the Mr Dodds had evidence of osteoarthritis on the MRI scan of 28 July 2015, only a few days after the accepted left knee injury, which the Panel considered to be constitutional in origin. However, the Panel understood from Mr Dodds that he had not experienced pain in the left knee prior to the claimed injury of 23 July 2015, and had no functional limitation at home or work resulting from the osteoarthritis.
The Panel also noted that Mr Dodds has continued to experience left knee symptoms and functional limitation since the date of the claimed injury.
The Panel took all of the above into account in concluding that Mr Dodds’ current knee condition, with persistent left knee dysfunction and pain, is related to the surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis, which results from and is materially contributed to by his accepted left knee injury.
The Panel considered the extent of his left knee condition as well as the degree of osteoarthritis which Mr Dodds has in his left knee and concluded that his left knee condition can be considered to be permanent...
31 The Panel also conducted a psychiatric
examination and concluded that Mr Dodds was ‘suffering from a mild
adjustment disorder
that has arisen following the injury to his left knee and
the resultant financial hardship and diminished quality of life’.
The
Panel was of the opinion that Mr Dodds’ psychiatric condition did not
cause him any current incapacity for full time work.
32 In respect of his physical condition, the Panel
stated as follows:
the Panel considered Mr Dodds’ description of the work that he carried out in the employ of Workforce Excess and Manpower (as detailed above) and noted that his duties were physically demanding, including the use of a jackhammer, crowbars, angle grinders, using shovels and pushing wheelbarrows. The Panel also considered the nature of Mr Dodds left knee condition relevant to the claimed injury with an aggravation of osteoarthritis and considered that he could be at risk from an exacerbation or aggravation of this condition if he were to return to his pre-injury duties at the present time.
The Panel thus concluded that Mr Dodds has an incapacity for his pre-injury employment on the basis of his physical condition relevant to the accepted left knee injury. For the same reasons, the Panel also concluded that this incapacity results from and is materially contributed to by his accepted left knee injury.
33 The Panel then stated that it considered the definitions of ‘no current work capacity’, ‘current work capacity’, and ‘suitable employment’ in answering the questions asked of it, and separately considered Mr Dodds’ physical and psychiatric conditions. In respect of his physical condition, the Panel was of the opinion that:
with an aggravation of osteoarthritis in the left knee Mr Dodds could be at risk of an exacerbation or aggravation of his condition if he were to carry out work that demands prolonged standing, walking (particularly over uneven surfaces), going up or down stairs and slopes, climbing ladders or doing heavy lifting.
34 In respect of its determination as to
whether Mr Dodds had a current work capacity based on his physical condition
alone, the Panel
noted the following 9 considerations (the ‘9
considerations’):
• His age of 43 years
which in the opinion of the Panel would not limit his employment
options;
• The severity of Mr Dodds’
left knee condition as detailed above;
• His
incomplete high school education with average literacy and numeracy and basic
computer skills, which in the opinion of
the Panel, could limit some employment
options;
• His completion of an apprenticeship
in carpentry;
• The relatively prolonged
period that he has been out of the
workforce;
• His lack of a current car license
but his use of public transport;
• His few
transferable work skills which would limit his employment
options;
• The lack of a return to work plan;
and
• The medical information in the referral
material from those doctors who have treated or assessed Mr Dodds.
35 The Panel considered the nine vocational options
proposed in question 6 of the referral. It concluded that eight of those
options
were unsuitable as they either involved: frequently getting in and out
of a vehicle; prolonged sitting or standing; manual lifting;
being on an
unstable vessel; frequent lifting; climbing ladders whilst carrying a load; or
required a drivers’ licence.
36 However, the
Panel considered that the role of product assembler was suitable for
Mr Dodds as ‘it does not demand heavy lifting,
can be carried out in
a sitting or standing position, does not demand walking for long distance or on
uneven ground, or climbing
steps or ladders’. The Panel considered that
the role of product assembler was therefore ‘within Mr Dodds’
functional
capacity and would not put him at risk of exacerbation or aggravation
of his physical condition’.
37 The Panel
stated that it reviewed all of the medical reports provided to it, including a
report from occupational physician Dr
Joseph Slesenger. It expressly agreed
with Dr Slesenger’s opinion as to why numerous vocational options
were unsuitable for
Mr Dodds, however disagreed with his opinion that the
role of product assembler was unsuitable for Mr Dodds. In respect of this,
the
Panel said as follows:
...the Panel also noted that Dr Slesenger had considered that the role of Product assembler would demand sitting or standing for prolonged periods and could aggravate Mr Dodds’ symptoms. As noted above the Panel considered that the option for sitting and standing could be an advantage for Mr Dodds, who could then vary his position and did not demand heavy lifting, walking for long distance or on uneven ground, or climbing steps or ladders.
Based on its cumulative experience and expertise, the Panel considered that such work does lie within Mr Dodds’ functional capacity and would not put him at risk of exacerbation or aggravation of his physical condition. The Panel thus disagreed with the opinion of Mr Slesenger in this respect.
38 The Panel concluded that the role of product assembler constituted work for which Mr Dodds was currently suited and that he could perform such work on a reliable and consistent basis in a full-time capacity.
Relevant statutory provisions
39 In reaching its Opinion, the Panel was
required to consider the following definitions: ‘current work
capacity’, ‘no
work capacity’, and ‘suitable
employment’.
40 These are defined in s 3 of
the Act as follows:
current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment;
...
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre‑injury employment or in suitable employment;
...
suitable employment, in relation to a worker, means employment in work for which the worker is currently suited—
(a) having regard to the following—(i) the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;(ii) the nature of the worker’s pre-injury employment;
(iii) the worker’s age, education, skills and work experience;
(iv) the worker’s place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b) regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c) employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and(d) employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e) suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;
41 In Richter v Driscoll
(‘Richter’)[5]
Ashley and Kaye JJA (with whom Osborne JA agreed) said of these
definitions:
... we agree with the applicant’s
submission that return to work in employment, so understood, requires more than
that a physical
capacity to engage in a task or tasks. That is because there is
more to an ability to work in employment — ‘ability’
being
converse of ‘inability’, which appears in the definitions of
‘no current work capacity’ and ‘current
work capacity’
— than the ability to perform a task that happens to be required in that
employment. The definition of
‘suitable employment’, which falls for
consideration in the context of ‘no current work capacity’, plainly
shows that physical capacity to perform a particular task does not mean that an
employment requiring that task thereby becomes suitable
employment. If it were
otherwise, paragraphs (a)(ii), (iii) and (iv) would have no work to
do.
...whether a worker has ‘no current work
capacity’, according to the definition, depends in the first place upon
whether
the worker has an inability to work in his or her pre-injury employment.
It would be contradictory if, in determining that question,
one was confined to
an examination of the worker’s physical capacity to perform a particular
task or tasks in that employment.
For if it was concluded that there was such
capacity in a particular case, one would never get to the question whether the
worker
was able to return to work in ‘suitable employment’, which
specifically requires consideration of matters travelling
beyond physical
capacity to perform a task.
42 Ashley and Kaye JJA
gave the following example:
Suppose that a worker
was adjudged physically able to perform the tasks required by his or her
pre-injury employment, but that the
employer’s place of business was so
far distant from the worker’s place of residence that the continuing level
of incapacity
precluded travel to and from that workplace. If inability to
return to work in pre-injury employment began and ended with consideration
of a
worker’s physical capacity to perform the tasks required by the job, then
the worker would be held to have the ability
to engage in his or her pre-injury
employment. But if the question was whether the worker had the ability to work
in ‘suitable
employment’, the worker’s place of residence
would be relevant — either because there was simply no ‘suitable
employment’ in the area where the worker resided — the
‘Melbourne residence/Mildura work’ situation —
or else because
the area in which ‘suitable employment’ must have existed was
confined by incapacity-caused limits upon
the worker’s ability to
travel.[6]
43 Further
it was stated that:
whether a worker has ‘no current work capacity’ requires consideration of the worker’s ability to work in employment having regard to the entirety of the worker’s personal circumstances—these including the injury-caused incapacity and as well other circumstances personal to the worker bearing upon his or her ability not simply to perform physical tasks required by a particular employment, but to work in that employment as a settled member of the workforce.
44 The definitions of ‘current work capacity’ and ‘no work capacity’, were recently considered by Gorton J in Bainbridge v Westside Meats Pty Ltd.[7] In that decision, the principles from Richter were summarised in the following way:
the fact that both these definitions embrace the concept of returning to work in employment conveys an intention to maintain the established notion that the mere fact that a worker is able to perform work duties does not mean that they have a work capacity. Rather, the issue is whether they have the capacity to return to work, in the sense of having something to sell in the market for labour.[8]
45 Justice Gorton went on to say:
However, a capacity to perform work duties will, in many circumstances, correspond with a capacity to return to work in employment. There would have to be some feature of the individual worker arising from the relevant injury that justifies the distinction being drawn. One example is a worker being disfigured, such that they are not able to sell their labour in certain areas of work where disfigurement is in reality a disqualification from employment, notwithstanding an ability to perform the actual work duties. Another example would be a worker who has a variable medical condition, such as a worker with a back injury, who would be able to perform work duties for the most part, but who suffers from periodic exacerbations that would prevent him or her from attending work with sufficient regularity to be able to obtain or maintain employment. Another might be a person who has developed a psychiatric reaction that, for practical purposes, would make that person unable to attend job interviews, or cause that person to present so badly that their labour is not, in fact, merchantable, despite their ability to perform the work if given the chance. Yet another might be someone who can perform the work duties, but those duties would unacceptably aggravate his or her injury, or involve an unacceptable level of pain or discomfort in their performance. However, these cases would be the exception, rather than the rule. It is only when features of this type are present that the distinction between a capacity to perform work duties and a capacity to return to work in employment would matter.[9]
46 These observations were subsequently
approved by the Court of Appeal in Sidiqi v Kotsios
(‘Sidiqi’).[10]
47 Further, of relevance to this application are
the terms ‘injury’ and ‘medical
condition’.
48 Injury is defined in s 3 of the
Act as follows:
injury means any physical or mental injury and, without limiting the generality of that definition, includes—
(a) industrial deafness; and
(b) a disease contracted by a worker in the course of the worker’s employment (whether at, or away from, the place of employment); and(c) a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease
49 The term ‘medical condition’ is not defined in the Act but is referred to under the definition of ‘medical question’. Section 3 of the Act defines ‘medical question’ as including:
(a) a question as to the nature of a worker’s medical condition relevant to an injury or alleged injury;
50 The parties referred me to several
recent Supreme Court decisions which considered the terms injury and medical
condition, [11] as well as the Court
of Appeal decision of Didani v Downes-Brydon & Ors
(‘Didani’).[12]
51 Commencing with the first of these decisions, in
Emmelmann v Thomson Geer Services
(‘Emmelmann’),[13]
Ms Emmelmann claimed she injured her back whilst working as a legal secretary.
Ms Emmelmann sought leave in the County Court to
commence common law proceedings
for damages. The Court referred medical questions to a medical panel, which
determined Ms Emmelmann’s
soft tissue injury to her spine had since
resolved and therefore, she suffered no physical medical condition. The medical
panel
also determined Ms Emmelmann did not suffer a psychiatric or abnormal
psychological condition. As the panel found that she did not
suffer a medical
condition, it was not required to answer the subsequent questions which asked
whether her employment materially
contributed to any such condition.
Ms Emmelmann sought judicial review of the panel’s decision, and
complained, inter alia,
that the panel failed to have regard to her spinal pain.
Ms Emmelmann’s proceedings were heard by Moore J who was satisfied
the
panel had committed a jurisdictional error and quashed the panel’s
decision.
52 Justice Moore noted that in Ms
Emmelmann’s application for leave to commence proceedings, she relied
solely upon consequences
in respect of her pain and suffering. Justice Moore
considered that ‘a person’s continuing experience of pain is capable
of being described as a ‘medical condition’ within the ordinary
meaning of that term’.[14] He
concluded that the medical panel had erred in adopting an unduly narrow approach
to the meaning of the term ‘medical
condition’.[15] Justice Moore
held that as the medical panel did not consider Ms Emmelmann’s accepted
history of pain was a manifestation
of her mind, it presumably followed that her
experience and history of pain was a physical
condition.[16] Justice Moore
concluded the panel misdirected itself by conflating the different subject
matters of two distinct questions, namely,
the relevant medical condition and
its cause.[17]
53 In Didani, Mr Didani’s weekly
payments of compensation were terminated on the basis that he had a work
capacity. Mr Didani disputed
this decision and referred it to the Accident
Compensation Conciliation Service (‘the ACCS’). As the dispute was
not
resolved there, the ACCS referred two medical questions to a medical panel.
In the referral documents, the conciliator from the
ACCS stated that Mr
Didani’s injury was ‘Lower back pain which radiated to the left leg
as cited on the worker’s
injury claim form sustained on 6/8/16’.
The referral material noted that the claim was accepted. The first question
asked
of the panel was ‘What is the nature of the worker’s medical
condition (including any sequelae) relevant to the claimed
injury?’.
54 The medical panel determined that
Mr Didani’s soft tissue injury had resolved and that any pain he suffered
was not a symptom
of his claimed medical condition. Mr Didani sought
judicial review of this decision – in part on grounds similar to that
claimed
by Mr Dodds – that the medical panel erred in that it
misunderstood the meaning of ‘medical condition’ and failed
to take
into account his lower back and leg pain in answering the first question. It
was contended that, as Mr Didani had been suffering
pain since the date of the
work incident, and as pain was a medical condition (as well as an injury as
defined in the Act), the only
answer the panel could have given was that the
medical condition relevant to the claimed injury was the continuing lower back
and
left leg pain. The application was heard by Keogh J who dismissed the
proceedings (‘Didani at first
instance’).[18] Justice Keogh
held that in applying its own medical experience and expertise, the panel was
required to consider the diagnosis of
the claimed injury and any relevant
medical condition, and was not obliged to accept that Mr Didani’s pain was
still related
to the claimed work
injury.[19]
55 Mr Didani appealed that decision to the Court of
Appeal
(‘Didani’).[20]
In a joint judgment of Beach JA, Emerton JA and Macaulay AJA, consideration was
given to two decisions of Military Rehabilitation and Compensation Commission
v May (‘May’)[21]
and Calleja v Franet Pty Ltd
(‘Calleja’).[22]
56 In
May, the High Court considered the meaning of ‘injury’ and
‘disease’ under the Safety and Rehabilitation and Compensation
Act 1998 (Cth) and the Court of Appeal in Didani considered those
terms were similar to those defined terms under the Act. In May, the
High Court rejected a proposition that ‘subjectively experienced symptoms
without accompanying physiological or psychiatric
change’ constituted an
’injury’ as defined under the Safety and Rehabilitation and
Compensation Act.[23]
57 Further, the Court of Appeal noted that in
Calleja, Ashley J said:
If the worker has particularised — in medical rather than legal terms — the injury he or she claims to have suffered, the panel’s task is to opine whether some and what condition is then present which can be related to the injury alleged. But if the worker specifies injury only in the most general terms (as here: ‘injury to the right elbow ...’) the panel cannot sensibly answer a question in the form of [the question] without first assessing — in a medical, not legal sense — the likely nature of the claimed injury.[24]
58 In considering the aforementioned case law, the Court of Appeal said:
In our view, the propositions from these two cases (which we adopt) answer the applicant’s contentions on the question of how the Medical Panel had to approach the specified injury in Question 1. If a medical panel is asked for an opinion as to whether any present medical condition is relevant to an injury that is only expressed in terms of a subjectively experienced symptom of pain, it is plainly appropriate for that panel to approach the question applying its medical understanding of the physiological (or psychiatric) change that was likely to have accompanied that subjective experience of pain. That is what the Medical Panel did, identifying the relevant physiological change as injury to the soft tissue in the applicant’s lower back.[25]
59 In dismissing the appeal, the Court
held that it was for the medical panel to determine whether there was any
present medical condition
affecting Mr Didani that was relevant to his claimed
injury.[26] Further, the Panel
could not be constrained by the terms of the question put to it in a way that
presumed Mr Didani’s complaint
of pain was a medical condition
relevant to the claimed
injury.[27]
60 In
Ayana v Qantas Airways Ltd
(‘Ayana’),[28] Mr
Ayana suffered an onset of symptoms in his left knee and lower back while
working as a baggage handler. He made a claim for compensation
under the Act
which was subsequently accepted. Approximately three years later, Qantas
terminated Mr Ayana’s payments on the
basis that he no longer suffered
from a compensable injury. The worker sought leave to commence common law
proceedings for the recovery
of damages in the County Court. The Court referred
questions to a medical panel. The panel concluded that Mr Ayana was
suffering
from a chronic adjustment disorder with depressed mood, but no longer
suffered from a medical condition of the left knee or back
attributable to the
initial injury.
61 Mr Ayana sought judicial review
of the panel’s decision, and his application was heard by Gorton J. One
of the questions
before the Court was whether the panel failed to have regard to
whether or not the plaintiff had a ‘chronic pain syndrome’
or
‘genuine non-organic pain condition’ in circumstances
where the issue was ‘squarely raised’ by the material
before the
panel. The panel noted that aspects of Mr Ayana’s presentation were
inconsistent with video surveillance, but made
no express finding that he had a
pain disorder nor whether or not he was feigning
symptoms.
62 Justice Gorton stated that in
circumstances where there may be a suspicion a worker was feigning symptoms, but
the reasoning of
the panel avoided the issue, it was a ‘matter of
inference’ as to whether, in all the circumstances of the case, the
panel
failed to consider the relevant issue when forming its opinion.
63 In his judgment, Gorton J observed that there is
a:
tension that can arise between the principle that a panel must set out its reasoning process in sufficient detail and the principle that a panel is not obliged to give reasons to explain why it did not reach an opinion it did not form.[29]
64 The Court noted that the panel’s
reasons included ‘too many references to his pain’ and the
inconsistent and
unusual way that he presented to support a finding that the
issue was simply overlooked. However, the Court was not satisfied that
the
panel considered the issue at the stage that it was formulating its diagnosis
– there was nothing explicit in its reasons
that showed the panel had
considered and excluded a diagnosis of genuine non-organic pain syndrome, or
that Mr Ayana’s ‘exaggerations’
precluded the existence of
such a condition. Justice Gorton set aside the decision of the panel on the
basis that that the panel’s
reasons failed to explain its path of
reasoning in sufficient detail for the Court to determine its opinion on Mr
Ayana’s diagnosis
and therefore contained an error of law.
65 In Moutray v The Union Pastoral Co
(‘Moutray’),[30]
Ms Moutray suffered an injury to her hand after she was kicked by a cow whilst
working as a herd manager. Ms Moutray lodged a claim
for compensation, which
was accepted. After approximately two and a half years, her weekly payments
were terminated and she issued
Magistrates’ Court proceedings seeking the
reinstatement of such payments. The Magistrate referred questions to a medical
panel.
That panel was of the opinion that the soft tissue injury to Ms
Moutray’s hand had resolved and she did not suffer any other
medical
conditions, including complex regional pain syndrome or a psychiatric condition.
Ms Moutray sought judicial review of this
decision, claiming that the panel
erred in finding that she did not suffer a psychiatric condition. The Court
dismissed Ms Moutray’s
submission that the medical panel should have
concluded she had a diagnosed pain condition based on her subjective report of
pain
in the absence of any diagnostic criteria.
66 In rejecting Ms Moutray’s grounds and
associated arguments in relation to the panel’s determination of question
1,
O’Meara J noted that:
... if mere complaints of pain not engaging relevant diagnostic criteria in respect of recognised psychiatric disorders were to require serious consideration as constituting a ‘psychological injury’ for present purposes, manifold questions abound. If the ‘psychological injury’ concerned is not a recognised psychiatric condition with defined criteria, what is ‘it’? What are the recognised features of ‘it’ and what may be said to differentiate it from a defined psychiatric chronic pain disorder? What pattern of symptoms might be said to present over time? How long might ‘it’ be expected to last? How can ‘it’ be best treated?[31]
67 In Akbari, v Victorian WorkCover Authority & Ors (‘Akbari’),[32] the worker suffered a lower back injury whilst working as a machine operator. Mr Akbari sought leave in the County Court to commence proceedings for the recovery of common law damages. The Court referred questions to a medical panel. The panel concluded that Mr Akbari had sustained a soft tissue injury to his lower back which had resolved, his persistent lower back pain was ‘secondary to deconditioning, consequent to inactivity’ from the soft tissue injury, and that he also had a mild adjustment disorder. The panel determined that Mr Akbari had a current work capacity. Mr Akbari sought judicial review of the decision of the panel. In part, Mr Akbari contended that in accordance with the reasons of the Moore J in Emmelmann, pain symptoms were a medical condition. It was then put that the panel’s determination that he suffered pain from deconditioning, involved the diagnosis of a medical condition which was not referred to in the medical material supplied to the panel, and Mr Akbari alleged he was therefore denied procedural fairness. In rejecting Mr Akbari’s submission, Forbes J said on the meaning of ‘medical condition’:
Pain may be a symptom or a consequence of many and varied medical conditions. It may be a product of physical or mental medical conditions or a combination of both. It may result in a psychiatric diagnosis if otherwise unexplained. In Emmelmann, a medical panel accepted the plaintiff suffered ongoing pain. Similarly, in a referral in the context of a serious injury application, the contest was one of pain from exacerbated degenerative changes on the one hand or a resolved musculoligamentous strain on the other. His Honour was concerned with the meaning of the term ’medical condition’ as that term is contained in the first of the medical questions prescribed in the Act, but itself not defined. He concluded that a medical condition embodied both physical and mental conditions. In circumstances where that panel found neither a physical condition nor a mental condition, it took an unduly narrow interpretation. In my view, the Panel’s conclusion in this case avoids the error identified in Emmelmann which did not address an explanation for the persisting pain that it accepted was still present.[33]
68 Justice Forbes stated that the panel
‘joined the dots’[34] to
conclude that Mr Akbari’s pain was a consequence of the soft tissue
injury, despite the injury having resolved some time
before the panel’s
examination. The injury resulted in Mr Akbari’s inactivity, a consequence
of which was deconditioning,
and his continuation of pain was secondary to that.
Justice Forbes held that the answer from the panel assisted the court
determining
the serious injury application to understand that the pain was to be
considered under the paragraph (a) claim for impairment of body
function, and
not the paragraph (c) claim. As such, the Court was not persuaded that the
conclusion of the panel in respect of this
was adverse to Mr Akbari. Further,
it was not satisfied that Mr Akbari was denied procedural fairness, as the
panel’s explanation
fell within the parameters of the dispute before
it.
69 In Miletic ANZ Banking Group Limited &
Ors
(‘Miletic’),[35]
Ms Miletic suffered injuries to her right wrist, elbow, and arm due to overuse
of a computer mouse at work. Her employer, ANZ Banking
Group Ltd, accepted
liability and made payments in respect of her injuries. Ms Miletic’s
payments subsequently ceased and she
sought leave in the County Court to
commence common law proceedings for the recovery of damages. The Court referred
questions to
a medical panel. The panel opined she no longer suffered from any
intrinsic medical condition but had a mild adjustment disorder
with depressed
mood and anxiety. Ms Miletic sought judicial review of that opinion on the
basis that, in addressing the medical
questions, the panel did not lawfully deal
with the plaintiff’s complaints of pain. Justice Cavanough heard the
application
and was not satisfied that any of Ms Miletic’s grounds of
challenge to the opinion were made out.
70 Ms
Miletic contended that the panel unduly limited the scope of question 1 to
‘intrinsic’ medical conditions. The
Court determined there was no
merit in Ms Miletic’s complaint as statutory medical questions are
‘subject to limitations
as to form and are required to be
relevant’.[36] The Court
noted question 1 asked ‘only’ about Ms Miletic’s physical or
anatomical condition of the specified parts
of her body. Further, his Honour
stated that medical questions should be read against the relevant statutory
scheme relating to
the referral of medical questions and making of serious
injury applications under the
Act.[37] The Court stated that in
doing so, question 1 is understood as a question about the nature of the medical
condition (if any) directed
to the worker’s injury or alleged injury.
71 Ms Miletic also contended that it was not open
to the panel not to conclude that she was suffering from pain, relying on the
decision
of Emmelmann. The Court noted that Ms Miletic relied heavily on
comments included in the panel’s reasons relating to her complaints of
pain, however rejected that such comments constituted the panel’s
acceptance of her pain as being ‘actual products of
any persisting
physical injury’.[38] In
distinguishing Emmelmann, Cavanough J said:
In Emmelmann, Moore J observed that a person’s continuing experience of pain is ‘capable’ of being described as a ‘medical condition’ within the ‘ordinary meaning’ of that term. Putting together the acknowledged pain in Ms Emmelmann’s spine and the ‘ordinary meaning’ of ‘medical condition’, Moore J concluded that it had not been open to the Panel in that case to determine (as it had purported to do) that Ms Emmelmann had no physical medical condition of the spine. As already mentioned, the present case is very different, because the Medical Panel did not accept Ms Miletic’s complaints of actual physical pain. Further and in any event, I would not treat the judgment in Emmelmann as laying down any universal proposition that wherever a Medical Panel is asked about the medical condition of a person in relation to an injury or alleged injury of the person, the Panel is obliged, if it finds actual pain associated with such injury, to answer the medical question by expressly and separately referring to the pain as a medical condition.[39]
72 In respect of the panel’s application of its own medical expertise and experience to the circumstances of the case, Cavanough J said the following:
... depending perhaps on the precise wording of the medical question, it may well be sufficient for the Panel to give a diagnosis of the relevant body part in anatomical terms. It may well be open to the Panel merely to take into account the accepted pain as being an indicator or symptom of a particular medical condition. These are matters on which a Medical Panel is entitled to apply its own medical expertise and experience.[40]
General principles relevant to judicial review of a medical panel decision
73 In considering this application, I am bound by the following principles:
(a) this is a matter of judicial review, and not merits review;[41]
(b) the statutory function of the medical panel is an essential consideration in conducting the review. It is to form an opinion in respect of questions referred to it, and to state the reasons for its answers to those questions.[42]
(c) a medical panel will make a jurisdictional error if it identifies the wrong issue, asks itself the wrong question, or fails to take into account relevant material.[43]
(d) I should be mindful that each medical panel is comprised of medically qualified professionals, not lawyers or judges;[44]
(e) I should not be overly zealous in considering the Reasons of the Panel;[45]
(f) the Reasons of the Panel should be given a beneficial construction;[46]
(g) it will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of that medical panel, in terms of both general and specialist medical expertise.[47]
(h) there are often differing and sometimes opposing medical opinions contained within the material before a medical panel, and reasonable minds may differ about the answers to medical questions.[48]
74 In considering this application, I am also assisted by the High Court’s description of the Medical Panel’s statutory function in Wingfoot Australia Partners v Kocak:[49]
The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[50]
Mr Dodd’s submissions as to why the Panel committed jurisdictional error
(1) Pain as a medical condition
75 Mr Dodds submitted that the Panel made
a jurisdictional error on the basis that it had not answered question 1, had
misunderstood
question 1, or had misunderstood or misapplied the meaning of the
term ‘medical condition’ as contained in the question.
In short it
was contended that given the Panel’s apparent acceptance of Mr
Dodds’ reports of left knee pain, the Panel
was required to include Mr
Dodds’ left knee pain as part of his medical condition in its answer to
question 1. As it did not
do so, Mr Dodds submitted that the Panel made a
decision which was not open to it. It was then said that the Panel’s
answers
to questions 2 and 3, were dependent on the answer to question 1, and so
too were answered in error. Finally, it was submitted that
questions 4, 6 and 7
were also dependent upon the answers to questions 1 and 2, and that the Panel
did not take into account, or
have regard to, or give proper, genuine or
realistic consideration to, Mr Dodds’ left knee pain in deciding whether
he had
a current work capacity. It was put that Mr Dodds’ incapacity
included that which resulted from his left knee pain, and it
was said that the
Panel did not have regard to that incapacity in answering the question.
76 As the term ‘medical condition’ was
not defined in the Act, Mr Dodds contended that it should be given its ordinary
meaning.[51] Mr Dodds relied upon
the decision of Emmelmann, and Moore J’s acknowledgement that pain
is capable of being considered a medical condition within the ordinary meaning
of
that term.[52]
77 It was claimed by Mr Dodds’ counsel in
oral submissions that the pain must be due to ‘some effect on his nervous
system
resulting from the injury that occurred’ and therefore his pain
constituted a medical condition.
78 Further, it was
noted that in its answer to question 1, when the Panel identified
Mr Dodds’ injury to the left knee, it also
included his left knee
dysfunction resulting from the anatomical defects referred to in the
answer.[53] It was put that the
term ‘dysfunction’ should also be given its ordinary meaning, that
is, the malfunctioning or failure
of that body part to perform. It was
contended that, just as the Panel had referred to the medical condition of
dysfunction, the
Panel was also required to include the medical condition of Mr
Dodds’ left knee pain.
79 It was put that
in answering question 1, the Panel was required to consider the sequelae to Mr
Dodds’ injuries, even though
it was not specifically asked to do
so.[54] As Mr Dodds’ left
knee pain and restrictions were a sequelae to his left knee injury, the Panel
was required to refer to this
in identifying his medical condition in answer to
question 1, just as it had referred to the dysfunction in the knee.
80 It was emphasised that the Panel’s answer
to this question had very serious consequences to Mr Dodds’ claim for
damages,
as in considering his application for leave to commence common law
damages, the County Court judge would be required to apply the
Opinion of the
Panel and not the Reasons. It was noted that although the Reasons indicated
that the Panel accepted that Mr Dodds
suffered left knee pain, there was no
reference to that in its Opinion. It was then contended that as the
Panel’s answer to
question 1 did not include Mr Dodds’ left knee
pain, the judge hearing his application for leave to seek pain and suffering
damages could not consider his left knee pain, as it was not identified by the
Panel as a medical condition. It was put that the
judge could only consider
persistent left knee dysfunction, and that the ordinary meaning of the word
dysfunction does not mean
‘pain’, or ‘the experience of
pain’.
81 In addition to Mr Dodds’
submission that the Panel committed jurisdictional error in its answer to
question 1, he also contended
that the Panel erred in its answer to question
4[55] in relation to his work
capacity. This was because question 4 was predicated on previous answers which
did not include reference
to Mr Dodds’ left knee pain. When considering
the definitions of ‘suitable employment’, ‘current work
capacity’
and ‘no current work capacity’ the Panel must have
regard to both the worker’s incapacity caused by the compensable
injury,
and the medical information provided to it. It was submitted that in doing so,
the Panel was required to have regard to
Mr Dodds’ left knee pain and its
consequent restrictions. As in Mr Dodds’ submission these were mandatory
considerations,
he contended that its failure to do so constituted an error in
accordance with the principles outlined in Minister for Aboriginal Affairs v
Peko-Wallsend
Ltd.[56]
82 Mr
Dodds contended that for the panel to fulfill its obligation to have regard to
such matters, it was required to engage in ‘an
active intellectual
process’[57] in which each of
the prescribed circumstances were given ‘genuine’
consideration.[58] Further, it was
said that the Panel must have, as a matter of substance, given appropriate
consideration to the centrality of the
matter in issue, and any
consequences.[59]
83 Mr
Dodds submitted that the Reasons show the Panel did not comply with such
requirements. It was submitted that the issue of
Mr Dodds’ capacity for
work in suitable employment required an assessment by the Panel of his
incapacity which resulted from
the medical conditions, including his left knee
pain and consequent restrictions. It was contended that this aspect was not
taken
into account at all by the Panel in its reasoning process (notwithstanding
reference to it in the Reasons) or alternatively was not
given the consideration
required by law. Instead, it was said that the Panel confined its assessment
of Mr Dodds’ work capacity
to a consideration of a physical condition of
aggravation of osteoarthritis in the left knee, and the risk of an exacerbation
in
relation to this condition if he were to perform duties that demanded
prolonged standing, walking (particularly over uneven surfaces),
going up or
down stairs, climbing ladders, or doing heavy lifting.
84 In respect of the Panel’s statement that
it had regard to the 9 considerations, Mr Dodds submitted that the reference to
‘the severity of Mr Dodds’ left knee condition as detailed
above’ did not encompass the references to pain ‘three
of four pages
back’ in the Reasons, but rather was limited to what was stated directly
above (in that part of the Reasons),
which referred only to dysfunction and not
pain. Mr Dodds contended that the Reasons were silent as to the effect of pain
on his
ability to undertake employment, which in turn demonstrated that the
Panel failed to have regard to it.
85 Mr Dodds
submitted that his left knee pain and consequent restrictions were not genuinely
considered, or indeed considered at all,
when the Panel concluded that the role
of a ‘product assembler’ constituted suitable employment. Mr Dodds
submitted
the Panel’s finding that he had capacity to work as a product
assembler on the basis that such work would not put him ‘at
risk of
exacerbation or aggravation of his anatomical condition’ was evidence that
the Panel only considered the anatomical
condition of his left knee in relation
to his suitability for that role, and did not consider his pain. It was said
that this narrow
focus constituted an error by the Panel.
86 In addition, Mr Dodds submitted that the Panel
was required to consider ‘personal circumstances’ in determining his
capacity for suitable employment in accordance with the principles in
Richter. He contended that his left knee pain and consequent
restrictions fell under that requirement. Mr Dodds submitted that
despite knowing of and accepting his left knee pain, the Panel did not have
regard to this when forming its
answer to question 4, and this also constituted
a jurisdictional error on its part.
(2) Product assembler was not suitable employment
87 In the alternative, Mr Dodds submitted
that there were four additional grounds upon which the Panel had committed
jurisdictional
error in reaching its Opinion that the role of product assembler
was suitable employment for him. These were on the basis that the
Panel had:
erred in its understanding of the requirements of the role; failed to take into
account whether Mr Dodds could perform
tasks which required manual dexterity;
failed to take into account his places of residence; and failed to have regard
to his capacity
to obtain and then work in such employment as a settled member
of the workforce.[60]
(i) Mr Dodds submitted that in considering what
constituted suitable employment, the Panel failed to take into account or have
regard
to the material it was supplied as to the requirements of employment as a
product assembler, in particular the Recovre report. It
was submitted that this
led the Panel in to error in respect of its answer to question 6 regarding
suitable employment.
88 Mr Dodds submitted that the
Panel made an erroneous and material finding of fact in considering that the
role of product assembler
could be carried out in a sitting or standing
position, such that it was within his functional capacity. He submitted that
the Recovre
report (which he said was the only evidence the Panel had as to the
role of product assembler) demonstrated the role required prolonged
sitting and
standing, as well as some assembly line positions that required dynamic
standing.
89 It was asserted by Mr Dodds’
counsel that the workplace assessment was conducted at a ‘showplace
establishment’
such that it was not a realistic indication of the role of
product assembler.
90 In support of Mr
Dodds’ submission that such error constituted a jurisdictional error, I
was referred to the Court of Appeal
decision in Chang v
Neill[61] where it was stated
that:
The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.[62]
91 Mr Dodds submitted that the Panel
erred in respect of its factual finding that the product assembler role could be
carried out
in a sitting or standing position, and that such a finding was an
essential feature of its opinion that the role constituted suitable
employment.
(ii) Mr Dodds submitted that the Panel
failed to take into account or have regard to the material with which it was
supplied, namely
the Recovre report, in relation to the fine manipulation
requirements of the role of a product assembler. Mr Dodds contended that
the
role required dexterous handling of small items such as screws and rubber seals.
He submitted there was no evidence that he was
capable of such work and there
was nothing in the Panel’s Reasons to indicate that it gave consideration,
or any proper consideration
to this. It was said therefore that the Panel
failed to consider his ‘personal circumstances’ as it was required
to
when considering the definition of suitable employment, consistent with the
principles outlined in Richter.
(iii) Mr
Dodds submitted that the Panel did not have regard to his two places of
residence in deciding that the role of product assembler
constituted suitable
employment for him. It was submitted that the definition of suitable employment
required the Panel to consider
whether opportunities for such employment existed
within a reasonable distance of Mr Dodds’ places of residence. It was
said
that the absence of reference to Mr Dodds’ residential locations in
the 9 considerations, was evidence that the Panel had not
taken this mandatory
consideration into account. It was said that this was a further jurisdictional
error by the Panel.
(iv) Mr Dodds submitted that
in answering question 6, the Panel only had regard to his physical condition, as
defined in its answer
to question 1. He submitted the Panel did not take into
account, or give proper, genuine or realistic consideration to whether his
injuries or medical condition would inhibit his ability to obtain employment,
and if so, his capacity to work in employment as a
settled member of the
workforce, as required by Richter. It was submitted that these were
material matters which the Panel was bound to consider in answering question 6.
Atcorp’s submissions as to why the Panel did not commit any jurisdictional error
(1) Pain as a medical condition
92 Atcorp urged me to reject Mr
Dodds’ submission that the Panel committed a jurisdictional error by not
concluding that his
left knee pain was a medical condition in itself. It was
said that on any fair reading of the Reasons, it was plain that the Panel
both
accepted and considered Mr Dodds’ symptoms of pain and its consequent
restrictions. It was noted that the word pain appears
multiple times throughout
the Reasons. Further, it was noted that the Panel accepted that Mr Dodds had
not experienced pain in the
left knee and had no functional limitations at home
or at work resulting from his pre-existing osteoarthritis prior to the work
incident.
The Panel accepted that Mr Dodds ‘had continued to experience
left knee symptoms and functional limitation’ since that
time.
93 Atcorp emphasised that in explaining its answer
to question 1 (a), the Panel expressly stated that:
The Panel took all of the above into account in concluding that Mr Dodds’ current knee condition, with persistent left knee dysfunction and pain, is related to the surgically treated medial meniscus tear and aggravation of pre-existing osteoarthritis, which results from and is materially contributed to by his accepted left knee injury.
94 In view of those matters, it was said
that there was no basis for Mr Dodds to contend that the Panel
‘ignored’ his
left knee pain and its consequential restrictions.
95 It was put that the Panel’s conclusion
that Mr Dodds was suffering ‘persistent left knee dysfunction resulting
from
a surgically treated medial meniscus tear and aggravation of
osteoarthritis’, was both open on the evidence and represented
an entirely
orthodox approach to the term medical
condition.
96 Atcorp submitted that there is a
distinction between pain as a symptom and pain as a condition, with the latter
being either organically
based or a psychiatric chronic pain syndrome. It was
put that there was no evidence before the Panel that Mr Dodds’ pain was
an
organic or psychiatric based condition, and therefore, it was proper for the
Panel to take Mr Dodds’ left knee pain into
account as a symptom of the
diagnosed medical condition of his left knee.
97 Atcorp referred me to several cases in which the
Court had found that it was open to a medical panel not to include a
worker’s
pain as a medical
condition.[63] It was said that
this was a matter of medical opinion, and that in conducting this judicial
review I should be mindful of the principles
outlined in Sidiqi (included
in paragraph [73] above).
98 It was put that the
Panel’s answer to question 1 was within its expertise, was open on the
evidence and was consistent with
the view of other doctors, as well as the two
previous medical panels who had examined Mr
Dodds.
99 In response to Mr Dodds’ submission
that the Panel was bound to treat his left knee pain as a medical condition,
Atcorp relied
upon the Court of Appeal decision in Didani. It was said
that the Court of Appeal reasoned that questions concerning medical conditions
require a medical panel to consider
‘any relevant conditions and in doing
so, to apply its own medical expertise and
experience’.[64] Further, a
presumption that pain (simpliciter) is a medical condition would
‘constrain the approach of the expert Medical
Panel in answering the
question such that no medical expertise was required to perform the
task’.[65]
100 Atcorp
suggested it was unclear what the consequence to Mr Dodds was by the Panel not
including left knee pain as part of his
medical condition, when it had otherwise
accepted that the medical condition of his left knee was both causally related
to his compensable
injury and permanent. It was put that this was distinct from
the workers in Emmelmann, Didani, and Moutray, as the respective
medical panels in those cases were not satisfied that the workers had persisting
medical conditions relevant to
their accepted work injuries, despite the
workers’ complaints of ongoing pain. Therefore, any attack on this error
(which
was disputed) was not material.
(2) Product assembler was not suitable employment
101 Atcorp submitted that there was no
error by the Panel in its finding that Mr Dodds had a current work capacity to
perform the
role of a product assembler.
102 In
relation to the assertion that the Panel erred in its findings as to the
requirements of the product assembler role, Atcorp
disputed this and submitted
that it was open for the Panel to conclude that work as a product assembler was
within Mr Dodds’
functional capacity and constituted a suitable full-time
employment option. Atcorp contended that the Panel was not mistaken as
to the
requirements of the product assembler role. Further, it contended that Mr
Dodds’ submission that the Panel erred in
this respect required a
selective reading of the position descriptions contained in the Recovre report.
103 In support of the assertion that the Panel
correctly understood the position description, Atcorp noted that in a report
from orthopaedic
surgeon, Associate Professor Esser dated 30 October 2019, the
standing requirements were described in the following way: ‘sitting
is
available on most positions along the assembly line. Standing is required on
occasions. When standing is essential, workers are
apparently able to move
around’. As such, it was said that the Panel’s conclusion that the
work as a product assembler
‘can be carried out in a sitting or standing
position’ was similar to Associate Professor Esser’s conclusion, and
was not in error.
104 The Panel noted that
occupational physician Dr Wyatt and Associate Professor Esser reached the same
conclusion in relation to
Mr Dodds’ capacity for work as a product
assembler. Further, the Panel acknowledged the opinion of occupational physician
Dr
Slesenger, and explained why it reached a different conclusion. As such,
Atcorp submitted that there was no basis to contend that
the Panel had erred in
this finding.
105 Atcorp noted that in explaining
its answer to question 6, the Panel, in its Reasons, expressly stated that it
had considered the
relevant statutory definitions, and noted 9 considerations
relevant to its determination of Mr Dodds’ current work capacity
based on
his physical conditional alone. In response to Mr Dodds’ allegation that
the Panel had failed to have proper, genuine,
and realistic consideration of Mr
Dodds’ left knee pain and his personal circumstances, Atcorp submitted
that this was not
borne out in the Panel’s Reasons. In particular it
emphasised that three of the 9 considerations included:
106 Atcorp submitted that on a beneficial
reading of the Reasons, the reference to the severity of Mr Dodds’ left
knee condition
included consideration of his consequential pain, as was detailed
in the Panel’s Reasons on multiple occasions. Further, this
was evident
in the Panel forming the view that 8 of the 9 suggested jobs were not suitable
for Mr Dodds.
107 In relation to Mr Dodds’
assertion that the Panel did not give proper consideration to the fine
manipulation requirements
of the job, Atcorp noted that in Mr Dodds’
submissions to the Panel, he took no issue with this aspect of the product
assembler
role. Further, aside from a single reference to ‘a fine tremor
in his hands’ in the 18 February 2019 report of Dr Wyatt,
the
materials before the Panel did not raise any issue with Mr Dodds’ fine
motor skills or capacity for tasks involving ‘fine
manipulation’.
In any event, it was noted that Dr Wyatt considered that Mr Dodds could work as
a product assembler, notwithstanding
the fine tremor in his hands. In these
circumstances, it was said that the Panel did not err for not expressly
considering this
aspect of the product assembler role in its Reasons.
108 In relation to Mr Dodds’ places of
residence, it was noted that the Reasons referenced two locations within
Melbourne where
Mr Dodds resided. Further, in the Panel’s 9
considerations, it expressly noted that, although Mr Dodds did not have a
license,
he was able to use public transport. As such, it was said that an
inference could be drawn from the Reasons that the Panel considered
that Mr
Dodds’ places of residence in suburban Melbourne did not limit his
opportunities for suitable employment.
109 Finally,
Atcorp denied the assertion that the Panel had not given proper consideration as
to whether Mr Dodds was able to obtain
employment and be a settled member of the
workforce. It submitted that the Reasons were consistent with the principles
outlined in
Richter. Atcorp noted one of the Panel’s concluding
remarks was that it was satisfied the role of product assembler was work for
which
Mr Dodds was currently suited and could perform on a ‘reliable and
consistent basis’ in a full-time capacity, noting
the terms
‘reliable and consistent’ was the precise language of the Court of
Appeal in Richter.
Analysis
(1) Pain as a medical condition
110 In reviewing a medical panel
decision, it is helpful to consider the nature of the dispute between the
parties and the purpose
of the questions asked of the panel. The questions
asked and the answers given by the medical panel must serve the purpose for
which
the referral was made.[66]
111 In this application, the referral was made by a
County Court judge to answer medical questions relevant to Mr Dodds’
application
for leave to commence common law proceedings. To assist in the
determination of Mr Dodds’ serious injury application, the
Panel was asked
to form an opinion and answer medical questions as to the nature, cause, and
permanency of Mr Dodds’ knee injury
and psychological condition, and to
assess the consequences of any such medical conditions in terms of his ongoing
capacity for work.
112 The first question in the
chain of questions put to the Panel asked what the nature of the medical
condition of Mr Dodds’
left knee was. To answer this question, the Panel
was required to ‘consider the diagnosis of the claimed injury and any
relevant
medical condition. In undertaking that function, it [is] necessary for
the Panel to apply its own medical experience and
expertise’.[67]
113 The
Panel, composed of medical experts from a range of specialities, was required to
form its own conclusion as to Mr Dodds’
medical condition. There was no
error in the Panel confining the medical condition to the physiological
dysfunction in the left
knee. The panel was not required to also list, as a
medical condition, Mr Dodds’ subjective experience of pain. It would
appear from the Panel’s Reasons that it accepted that Mr Dodds suffered
consequential pain, but in doing so, it was for the
Panel to determine whether
to treat such pain as a medical condition, or a symptom of his medical
condition. I therefore reject
Mr Dodds’ submission that the Panel was
compelled to include his left knee pain as a medical condition.
114 As previously mentioned at paragraph [77]
above, in oral submissions it was put by Mr Dodds’ that his pain arose
from ‘some
effect on [his] nervous system resulting from the
injury’. I consider such an assertion demonstrates the obviousness of
this
being a medical question, for the Panel, as a group of medical experts, to
answer using their own experience and expertise.
115 While in answering question 1, it may have been
open to the Panel to include Mr Dodds’ pain as a medical condition in
the
way foreshadowed by Moore J in Emmelman, it was not obliged to do so.
As was observed by Cavanough J in Miletic, it was also open for the Panel
to take into account the accepted pain as being an indicator or symptom of a
particular medical condition,
and not refer to it in the answer.
116 I have considered the numerous cases the
parties referred me to which considered whether a worker’s pain was or was
not
a medical condition. This application was distinguishable from those cases
as, unlike those workers, the Panel accepted that Mr
Dodds suffered a persisting
physical medical condition, which was still work related and a symptom of which
was pain.
117 Notwithstanding that the Panel did
not find Mr Dodds’ complaints of pain to be a medical condition in the way
he contended,
the Reasons make it clear that the Panel accepted Mr Dodds’
symptoms included left knee pain. There was no reason to infer
that the Panel
did not take into account Mr Dodds’ pain and functional restrictions when
answering the questions as to suitable
employment. To the contrary, the Panel
stated that based on the history reported by Mr Dodds, its physical examination
of him, and
its review of the material, it concluded that Mr Dodds suffered from
pain symptoms and functional limitations relevant to his
injury.
118 The Panel’s findings in respect of
suitable employment evince a recognition by the Panel that Mr Dodds suffers from
pain
and restrictions in his left knee. The Panel considered that that 8 of the
9 proposed jobs were unsuitable employment options as
they involved tasks which
could exacerbate or aggravate Mr Dodds’ medical condition. That medical
condition does not exist
in a vacuum - it is a condition which gives rise to
pain and functional restrictions - both of which were expressly acknowledged
by
the Panel in its Reasons.
119 I am satisfied that
in answering the questions, the Panel gave proper, genuine and realistic
consideration to Mr Dodds’
pain. Further, I am not satisfied that the
Panel was artificially focused on the anatomical structure of the left knee. It
was
open to the Panel to form the Opinion it did, and its Opinion was not
unreasonable.
120 Separate to my
findings that there was no jurisdictional error, I also reject Mr Dodds’
contention that the absence of pain
in the Panel’s answer to question 1
will prevent the County Court considering his reports of pain when determining
the application
for leave to commence common law proceedings for pain and
suffering. Pursuant to s 313(4) of the Act, the Court will be bound to
adopt
and apply the Panel’s Opinion as to Mr Dodds’ medical condition as
expressed in the Panel’s answer to question
1. Then, in considering Mr
Dodds’ application under s 335(2)(d) of the Act, the Court will be
required to determine whether
the consequences of Mr Dodds’ impairment
arising from that medical condition satisfy paragraph (a) of the definition of
‘serious
injury’ contained in s 325(1) of the Act. In doing so, the
Court must be satisfied that, when judged in comparison with other
cases in the
range of possible impairment or losses of a body function, the consequences to
Mr Dodds from the impairment to his
left knee can be fairly described as being
‘more than significant or marked’ and ‘at least very
considerable’.[68]
121 In Haden Engineering Pty Ltd v
McKinnon,[69] Maxwell P detailed
matters relevant to a court’s assessment of a plaintiff’s pain and
suffering consequences. It was
stated that this ‘encompasses both the
plaintiff’s experience of pain as such and the disabling effects of pain
on the
plaintiff’s physical capabilities, including capacity for
work’.[70] As the Panel
accepted that Mr Dodds suffered persisting left knee dysfunction, the Court will
consider his claimed consequences
arising from this, including his experience of
left knee pain and the disabling effects of his pain. The Court will have
regard
to what Mr Dodds says about the pain, what he does about the pain, what
the doctors say about the extent and intensity of his pain,
and what objective
evidence indicates about the disabling effect of the pain. This will ordinarily
involve consideration of Mr Dodds’
oral evidence, reports of his treating
medical practitioners, and the opinions of medico-legal specialists who have
examined Mr Dodds.
122 When a County Court judge
comes to consider Mr Dodds’ application, they may not receive the
Panel’s Reasons, as these
are not ordinarily admitted into evidence,
unless the Reasons contain admissible opinion evidence about a fact in
issue.[71] In deciding whether to
admit the Reasons as evidence, the Court would need to consider whether either
party is unfairly prejudiced
by the fact that Panel members are not compellable
witnesses and so any statements in the Reasons cannot be tested in
cross-examination.[72]
123 In this judicial review, it was not for Atcorp
to formally agree to the tender of the Reasons in the County Court proceedings.
In any event, irrespective of whether or not the Panel’s Reasons are
tendered, the relevant County Court judge will be able
to properly conduct the
analysis described in Haden Engineering based upon the Panel’s
answer to question 1, and will consider the evidence relevant to the
consequences of that medical condition
and its impairment to Mr Dodds’
left knee. As such, I am not satisfied there can be any adverse consequence to
Mr Dodds in
the County Court’s assessment of his pain and suffering
consequences, arising from the Panel not including pain as part of
his medical
condition.
(2) Product assembler not suitable employment
124 In reaching its conclusion as to what
constituted suitable employment for Mr Dodds, the Panel was obliged to consider
the material
before it, as well as Mr Dodds’ history and its findings on
examination. Having done so, the Panel was required to draw upon
its own
experience and expertise and apply all of those matters to the definition of
‘suitable employment’. It was then
required to determine whether
there was any
‘practical’[73] suitable
employment for Mr Dodds.
125 In Richter, the
Court of Appeal stated that in determining whether a worker has ‘no
current work capacity,’ consideration must be
given to whether a worker is
able to return to work in a ‘meaningful
way’.[74] Capacity to return
to work therefore requires more than a mere physical capacity to perform tasks,
but also ‘consider[ation
of] matters travelling beyond bare medical
expertise’.[75] For the
reasons explained below, I am satisfied that the Panel did
so.
126 The Recovre report was one of many
documents before the Panel. That report involved considerable detail as to the
specific tasks
associated with the job of product assembler. I do not accept
that the report conveyed that the role of product assembler required
prolonged
standing.
127 Criticisms by Mr Dodds that the
workplace assessment was conducted at a ‘showplace establishment’ go
to matters relevant
to merits review and do not assist in this judicial review.
Just as medical experts such as Dr Wyatt, Associate Professor Esser,
and
Dr Slesenger considered the Recovre report in determining what constituted
suitable employment for Mr Dodds, so too did the Panel,
together with the other
evidence before it, including reports from those three medical experts.
128 It was open to the Panel reading the entirety
of the Recovre report, as well as the other material before it and drawing on
their
own expertise, to conclude that the position of product assembler was a
role that was suitable for Mr Dodds. As such, I am not satisfied
there was
a material error in the Panel’s findings in respect of this role.
129 In relation to Mr Dodds’ complaint that
the Panel did not have specific regard to his ability to perform tasks which
involved
manual dexterity, I am not satisfied this was required of it. In the
absence of a diagnosed medical condition regarding problems
with manual
dexterity, and given Mr Dodds’ written submissions to the Panel did not
contend this was a reason the role of product
assembler was unsuitable, there
was no positive obligation on the Panel to have regard to this matter in
determining whether the
role constituted suitable employment.
130 Further, in circumstances where the Panel noted
that Mr Dodds lived in metropolitan Melbourne and was able to use public
transport
(albeit whilst climbing the entrance to tram steps slowly and needing
a seat), the Panel was not required to have specific regard
for the availability
of product assembler jobs, when the Recovre report referred to the availability
of such work in Melbourne.
The Panel expressly referred to Mr Dodds not
having a drivers’ licence and using public transport in its Reasons. This
is a
sufficient indication that the Panel considered Mr Dodds’ personal
circumstances were such that he was capable of accessing
such jobs within a
reasonable distance of his residences.
131 Finally,
I reject Mr Dodds’ submission that the Panel did not give proper
consideration to his prospects of returning to
work in a ‘meaningful
way’ as a settled member of the workforce, in the way contemplated in
Richter. Overall, it is clear from the Panel’s Reasons that it
applied the relevant statutory definitions to Mr Dodds’ personal
circumstances, and concluded that he was capable of working full time in a
product assembler role. This was a finding open to the
Panel, and there is no
substance to this ground of review.
Concluding remarks
132 I reject each of the grounds of review relied upon by Mr Dodds in this matter. I will hear from the parties as to any consequential orders.
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JAMES DODDS
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Plaintiff
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v
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ATCORP INVESTMENT PTY LTD
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First Defendant
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and
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DR DENNIS HENDRINOS
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Second Defendant
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and
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DR DIANNE KIRBY
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Third Defendant
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and
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PROFESSOR PETER DISLER
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Fourth Defendant
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and
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MR ROBERT PIANTA
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Fifth Defendant
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and
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DR MANINDER MUNDAE
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Sixth Defendant
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[1] As detailed in the Statement of Agreed Facts, dated 12 June 2020.
[2] Although there was no formal tendering of documents, in the absence of any formal objection, I have proceeded on the basis that the material in the Joint Court Book is evidence before me.
[3] R v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35.
[4] On the day of the hearing, Mr Dodds was granted leave to amend his Originating Motion, to include as a ground of appeal, the Panel’s answer to question 7. This application to amend was not opposed.
[5] [2016] VSCA 142; (2016) 51 VR 95 (‘Richter’).
[6] Ibid, 114-5 [76]-[77].
[7] [2021] VSC 320 (‘Bainbridge’).
[8] Ibid, [24].
[9] Ibid, [25].
[10] [2021] VSCA 187, [87] (‘Sidiqi’).
[11] Emmelmann v Thomson Geer Services [2020] VSC 801 (‘Emmelmann’); Ayana v Qantas Airways Ltd [2021] VSC 500 (‘Ayana’); Moutray v The Union Pastoral Co [2021] VSC 723 (‘Moutray’); Akbari v Victorian WorkCover Authority & Ors [2022] VSC 84 (‘Akbari’); Miletic v ANZ Banking Group Limited & Ors [2022] VSC 240 (‘Miletic’).
[12] [2021] VSCA 281 (‘Didani’).
[13] Emmelmann (n 11).
[14] Ibid, [39].
[15] Ibid, [40].
[16] Ibid.
[17] Ibid, [44].
[18] Kachoui Didani v Downes-Brydon & Ors [2021] VSC 27 (‘Didani at first instance’).
[19] Ibid, [47]-[48].
[20] Didani (n 12).
[21] [2016] HCA 19; (2016) 257 CLR 468 (‘May’).
[22] [2000] VSC 339 (Ashley J) (‘Calleja’).
[23] May (n 21), 483 [57].
[24] Calleja (n 22), [27].
[25] Didani (n 12), [41].
[26] Ibid, [50].
[27] Ibid, [51].
[28] Ayana (n 11).
[29] Ibid, [18(a)].
[30] Moutray (n 11).
[31] Ibid, [114].
[32] Akbari (n 11).
[33] Ibid, [36].
[34] Ibid, [33].
[35] Miletic (n 11).
[36] Ibid, [8] (citations omitted).
[37] Ibid.
[38] Ibid, [23].
[39] Ibid, [25].
[41] Sidiqi (n 10), [30].
[42] Ibid, [32].
[43] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179 (‘Craig’).
[44] Ryan v Grange at Wodonga Pty Ltd [2015] VSCA 17, [109] (‘Ryan’).
[45] Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259, 271; Dundar v Bas [2019] VSCA 315, [51].
[46] Gruma Oceania Pty Ltd v Bakar & Ors [2014] VSCA 252, [29]; Ryan(n 43), [109]..
[47] Sidiqi (n 10), [37].
[48] Ibid, [58]-[59].
[49] [2013] HCA 43; (2013) 252 CLR 480.
[50] Ibid, 498–9 [47] (citation omitted).
[51] Whittlesea City Council v Mohammed [2019] VSCA 118, [26].
[52] Emmelmann (n 11), [39].
[53] See [25] above.
[54] Bluescope Limited v Clare Burford [2011] VSC 64, [46].
[55] See [25] above.
[57] Minister for Immigration and Citizenship v Khadji [2010] 190 FCR 2010, [57].
[58] Ibid, see also at [61], [63]; Sensis v Jones [2018] VSC 754, [63]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 540 [105].
[59] See Meyrick v Minister for Home Affairs [2020] FCA 677, [98], Singh v Minister for Home Affairs (2019) 267 FCR 200, [34]-[36], Webb v Minister for Home Affairs [2020] FCA 831, [17]-[19].
[60] As required by Richter (n 5).
[62] Ibid, 200 [92].
[63] Didani (n 12), [49]-[53]; Moutray (n 11), [106]-[113]; Miletic and Akbari (n 11).
[64] Didani (n 12), [52].
[65] Ibid, [53].
[66] Didani (n 12), [53].
[67] Didani at first instance (n 18), [47], subsequently approved by the Court of Appeal in Didani (n 12), [52].
[68] Section 325 (2)(b) of the Act.
[70] Ibid, [9].
[71] Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35, [59].
[72] Ibid, [60].
[73] Richter (n 5) [126].
[74] Ibid, [74]-[75].
[75] Ibid, [126].
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