Georgiou – administrative decision makers and inadequate reasons – whether Act requires reasons – medical panels

Subject: This case concerns medical panels who make determinations under the Wrongs Act 1958.  Only if they determine that a person has suffered significant injury is that person permitted to sue for non-economic loss. The Act does not require panels to give reasons, but the Convenor of medical panels issued directions to panels to give reasons.  The Convenor is empowered by the Act to make directions to the panel as to procedures.  More broadly the case applies to administrative decision makers who are “required” by a direction or perhaps subordinate legislation to give reasons.  Is that “requirement” such that inadequate reasons will constitute error of law?

Case: Georgiou & Ors v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58

Court: Maxwell P, Weinberg JA and Ferguson AJA (joint judgment)

Held: 

(a) the Panel was not obliged by common law to give reasons as they performed a medical function;

(b) the Act imposed no statutory obligation to give reasons;

(c) the Act disclosed a legislative intention that no reasons were required;

(d) the direction of the Convenor was beyond the scope of the power under the Act and is invalid;

(e) the reasons in this case were adequate anyway;

(f) the appeal must be dismissed.

Quote: “A medical panel has the specific function of deciding a medical question – and no more… [I]t is simply not correct to say that an adverse decision by the panel ‘takes away rights’.”at [15].

Quote: “The direction requiring a panel to provide written reasons does go ‘outside the field of operation which the [Wrongs Act] marks out for itself’.” (see Morton v Union Steamship Company in New Zealand (1951) 83 CLR 402) at [38].

Quote: “we accept the first respondent’s argument that, on a proper construction of the Wrongs Act, the Convenor had no power to impose on a panel an obligation to give reasons.  But the argument would fail even if the direction were valid. [35]  There is no basis for the contention that, by conferring on the Convenor a general power to give directions as to procedure, the Parliament expressly intended to give statutory force to every such direction.” [35]-[35].

Comment: This case distinguishes medical panel determinations under the Wrongs Act from those under the Accident Compensation Act.  As to the latter, where the ACA requires reasons, the Court of Appeal decision in Kocak v Wingfoot Australia Partners & Ors [2012] VSCA 259 is relevant (special leave to appeal to the High Court has been obtained in Kocak).