The High Court’s recent decision of Wingfoot Australia Partners Pty Ltd v Eyup Kocak
was eagerly awaited by government lawyers and decision-makers. Although primarily a decision about the interaction between the statutory and common law personal injury regimes, it provides helpful guidance on the standard of written reasons required by different government decision-makers.
Facts and procedural background
The case involved the assessment of the injuries of a worker by a medical panel appointed under the Accident Compensation Act 1985
(Vic) (AC Act
). The panel was referred questions about the worker’s injuries. It then provided a report of its ‘written opinion and a written statement of reasons for that opinion’, as required by s 68(3) of the AC Act.
The worker claimed the reasons of the panel were inadequate.
That claim was rejected by the trial judge but accepted by the Court of Appeal. The Court of Appeal agreed the reasons were inadequate and held that the opinion should be quashed by the remedy of certiorari.
The employer appealed to the High Court, arguing that the reasons given by the panel were adequate in the circumstances and that even if the reasons were inadequate, this should not lead to the opinion being quashed.
The High Court agreed.
Certiorari and its availability
By way of background, the writ of certiorari is a judicial review remedy that sets aside an unlawfully made decision or a decision tainted by an ‘error on the face of the record’. At common law, the ‘record’ of a decision does not include its reasons unless they are incorporated into the order itself. However, in Victoria, the definition of the ‘record’ has been expanded by s 10 of the Administrative Law Act 1978
(Vic) (AL Act
) to include any statement of reasons.
This means the certiorari remedy is available to quash a decision made by a Victorian government decision-maker with inadequate written reasons, so long as the decision continues to have legal effect.
Did the opinion of the medical panel continue to have legal effect? This was the issue of most interest to personal injury lawyers awaiting the decision, as it turned on the use of panel opinions from proceedings under the AC Act in other types of personal injury compensation proceedings.
In this case, the Magistrates' Court had procured the panel opinion for its statutory compensation proceedings.
The question was whether s 68(4) of the AC Act compelled the County Court, in determining its common law compensation proceedings, to adopt the opinion, or whether the opinion had ceased to have legal effect once the Magistrates' Court proceedings were complete.
The Court of Appeal held that the opinion did continue to have legal effect. The High Court, however, disagreed, holding s 68(4) only compelled a panel opinion to be adopted for any further questions arising under the AC Act. This meant the s 68 medical panel opinion had no continuing legal effect to quash, and certiorari was not available.
Thus, the orders made by the Court of Appeal were set aside, and the order of the trial judge (dismissing the worker's application) restored.
Standard of reasons
Despite having allowed the appeal on the above basis, the High Court went on to consider the more interesting issue of standard of reasons.
It started by noting that there is no common law obligation to provide reasons for a decision but, in this case, the panel was obliged by the AC Act to provide reasons for its opinion.
The Court held that where there is such an obligation and the statute is silent on the requisite standard, the standard could be determined by a 'process of implication' from the statute. It identified two considerations to help determine this standard:
- the nature of the function performed by the decision maker in making their decision; and
- the objective, within the scheme of the relevant legislation, of the requirement for written reasons to be provided.
The Court noted that the nature of the function of a medical panel is to form and give its own opinion on the medical question referred for its opinion. In doing so, it will consider the material put forward by the various parties. However, its function is not to make up its mind by reference to competing arguments, but to form and give its own opinion on the medical question referred to it by applying its own expertise.
The objective of the requirement for written reasons is to allow people affected by the opinion to automatically be provided with the statement of reasons, rather than having to request it under the AL Act (as used to be done using the power under s 8). This enables such a person to ask the Supreme Court to remove the legal effect of the opinion if the panel made an error of law in forming the opinion, as the error will appear on the face of the decision.
Combining these considerations, the High Court determined that the medical panel's statement of reasons must explain 'the actual path of reasoning' by which the panel arrived at their opinion, in sufficient detail to enable a court to see whether the opinion involved any error of law. The Court held that the panel’s opinion in this case met this standard.
This can be contrasted with the higher standard that the Court of Appeal required of a medical panel, which was the judicial standard of reasons. This would require the panel to provide an explanation, were it to form an opinion that did not accord with an expert opinion put to it.
Consequences for Victorian government decision-makers
This case did not provide the opportunity to reconsider the position that there is no common law duty to provide reasons, because of the express requirement in s 68 of the AC Act.
However, it does provide government decision-makers with useful guidance on what standard of reasons are required when an obligation does arise, be it through a request under the AL Act or because of an explicit requirement, as here, to provide reasons with the decision.
The Court reiterated that the standard of reasons required for a particular decision turns on the particular statutory context. Decision makers must consider the specific legislation (particularly, the nature of the particular decision and the objective behind the requirement to give reasons) in determining the standard required for the written reasons they provide.
If you are in the Victorian Government and seek further information about this case, please contact:Elsie Loh
t 8684 0419