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Keep your eyes on the Bausch

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Cite as: (2003) 77(10) LIJ, p.52

VCAT’s decision in Bausch sets guidelines for the provision of “all relevant documents” for a hearing de novo.

By John Voyage

Any application for review at the Victorian Civil and Administrative Tribunal (VCAT) requires a decision-maker to provide VCAT with relevant documents to enable a hearing de novo.

The provisions of s49 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) are based on the provisions of s36 of the previous Administrative Appeals Tribunal Act 1984. Section 49 requires the decision-maker to file all documents relevant to the review of the decision. Recent decisions have discussed the extent of the responsibility on the decision-maker.

In Transport Accident Commission v Bausch,[1] the Court of Appeal[2] upheld the decision of Eames J which had set aside a decision of the Administrative Appeals Tribunal.

The leading judgment of Tadgell JA commenced:

“This appeal from a judgment of Eames J raises important questions touching the role and responsibility of the maker of an administrative decision when a review of the decision is undertaken by the Administrative Appeals Tribunal. It concerns also the responsibility of the tribunal when undertaking such a review”.

Eames J had held that the decision-maker does not have any discretion to withhold material from VCAT. His Honour stated:[3]

“In my opinion, to allow the Transport Accident Commission (the Commission) to pick and choose between relevant documents as to deliver only those which harmed the interests of the other party would be so unconscionable as to run directly counter to the manifest purpose of s36. The object of s36 must be to ensure, so far as is possible, that the tribunal is placed in a position to determine the correctness of the decision of the decision-maker, having regard to all relevant material”.

It is to be kept in mind that the decision-makers whose decisions will be the subject of review before the tribunal will often be statutory corporations and government agencies with vastly greater resources for information-gathering than the party seeking review, and will be bodies charged with an implied or statutory duty to ensure the fair administration of legislative schemes which greatly affect the rights and wellbeing of citizens.

Tadgell JA stated:[4]

“The statutory compensation scheme which is the Commission’s task to administer is, needless to say, intended to provide a benefit to those members of the community to whom compensation is due. At the same time the scheme provides for a curtailment of common law rights. It should again be unnecessary to say the community is entitled to expect that the scheme will be administered fairly, honestly and impartially and with proper regard to the purposes for which it was established.

“The scheme necessarily carries with it an entitlement on the part of a disappointed claimant to have an administrative decision by the commission properly reviewed by the tribunal. That entitlement carries, of course, a corresponding obligation on the part of the Commission, as the primary administrative decision-making body, to assist the tribunal in making the review: MacDonald v Director-General of Social Security (1984) 1 FCR 345 at 366 per Northrop J.

“The review is in no sense to be treated as raising a lis or amounting to an adversarial contest in which the Commission is entitled to engage in curial tactics. That is not to say that there cannot be disputed issues between the parties raised for resolution, or that the Commission may not seek actively to support before the tribunal its decision which is under review.

“If it does seek to do so, however, it is a fortiori imperative that its reasons for its decision and the material it considered in making it should be squarely and unequivocally revealed to the tribunal. Moreover, subject to certain exceptions which are not now relevant, the tribunal is obliged to ensure that each party to a proceeding before it is given a reasonable opportunity to present the case ... The obligations imposed on the Commission by s36(1) of the Tribunal Act are obviously designed to assist the tribunal to understand how the decision under review was made and the reasons for its making. I have no doubt that the person seeking the review ... should ordinarily be entitled to the same information in order to enable the decision to be investigated and appraised.

“To set out findings of fact, and the basis for them, is but part of the tripartite obligation imposed on the decision- maker by s36(1)(a) to make a statement rendering the decision intelligible and enabling an intelligent criticism of it”.

It was against this background that a group of cases had preliminary issues heard together before Bowman J on 14 and 17 February, 2003.[5]

Again, the extent of the responsibilities of a decision-maker to comply with the requirements of s49 involved conduct by the Commission. The matters were grouped together at the request of the Commission’s solicitors.

Bowman J commenced his judgment by saying that the parties may be disappointed if they expect a ruling or rulings that will have universal application. Each case must be judged on its individual merits. Nevertheless, by agreement each party presented arguments in relation to matters of general principle and then illustrated those arguments by reference to the individual cases. His Honour prefaced his ruling:

“As the matter was argued in this fashion, I shall make some findings of what could loosely be described as general application, but would again emphasise that these findings are extracted to a very considerable extent from the cases that were argued before me and there may be other cases where a different approach might be adopted ... ”.

General findings

His general findings regarding requirements for compliance with the provisions of s49 included:

Identity
His Honour could “see absolutely no reason why the name of the individual who made the decision, as opposed to the entity, is in any way relevant to the review of the decision”.

Legal advice
Section 49(5) of the VCAT Act says:

“This section applies despite any rule of law relating to privilege or the public interest in relation to the production of documents”.

In the course of considering this issue, Bowman J accepted that there is a distinction between TAC and TAC Law Pty Ltd. Counsel for the respondent had argued that the entities are co-located but distinct. His Honour followed the approach adopted by Senior Member Handley in re Thomas Cooke Australia Pty Ltd. and Collector of Customs.[6] His Honour considered that the content of legal advice given to the respondent is irrelevant to a merit review of the decisions of the decision-maker. Bowman J noted that there had been argument concerning the application of s49(5) of the VCAT Act, but based his finding on the issue of relevance. The opinion of a lawyer for one or other party is inadmissible and irrelevant. However, this is not a general rule. There may be a situation, for example, where a claim is rejected on a jurisdictional basis, in which the only material on which the decision-maker has relied is a legal opinion. His Honour leaves open the answer to the question of whether such legal advice should be produced or lodged.

Reasons
The decision-maker may be required to provide a statement of reasons, either under the provisions of s45, s49(1)(a), or both. Bowman J follows the approach of Tadgell J in Transport Accident Commission v Bausch[7] in requiring that the primary decision-maker should ordinarily deal with conflicts of evidence which he has to consider and should plainly state its findings. His Honour refers to the remarks of Lord Lane CJ in R v Immigration Appeals Tribunal; ex parte Khan:[8]

“The important matter which must be borne in mind by tribunals in the present type of circumstances is that there must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence on which they have come to their conclusions”.

Bowman J follows the approach suggested by Tadgell J.

His Honour states:[9]

“I am not suggesting that the reasons given by the respondent should attain the level of perfection, nor have the precision of pleadings. However, whether or not the recipient of the reasons seeks to review the decision, in my view pro forma reasons will frequently not be sufficient. Reasons should ordinarily deal with conflicts of evidence and generally assist in relation to an understanding of how the decision was made and the reasons for its making. As a general rule, pro forma reasons have the potential to fail to be satisfactory in this regard, and accordingly to attract the operation of s49(4) of the VCAT Act.

“In four of the matters before me, the reasons have all the appearances of being constructed on the basis of template or on a pro forma basis. In each instance the reasons could be constructed by a person with the same basic training and who is given a simple chronology, the names of the doctors who examined the applicant (often those who examined on behalf of the respondent), and a copy of the relevant provisions of the Act ... in each instance the reasons are no more than findings of fact which are simply a chronology, a reference to the medical examinations which basically assist the position of the respondent, a verbatim extract from the Transport Accident Act 1986 and a statement that “based on the medical assessments of ... (being the selected medical examiners) ... TAC determined that (finding) ... Thus, the filling in of the blanks above is not a difficult task. All that is required is the names of the medical practitioners and the ultimate determination ... ”.

File notes
Bowman J made two general observations concerning notes from the files of the respondent. He stated that it is not sufficient for the applicant to contend that there is a suspicion that there are further documents in the possession of the decision-maker that may be relevant to the review. Section 49(3) does not require the decisionmaker to reduce to writing, tape or the like the substance of oral discussions. His Honour made further observations:[10]

“If the respondent provides file notes, the providing of them in censored or deleted form immediate attracts attention ... what could be described as the first limb in s49(3) can be immediately satisfied. If entries for particular days are blanked out, it is sometimes obvious that there are further documents in the possession of the decision-maker. It is no longer a question of suspicion or guesswork. The wording of the second limb is different. The first limb requires that there are further documents. The second limb requires that they may be relevant to the review. If a document is lodged with this tribunal and portions of it are deleted, without there being an explanation as to why those portions are so deleted, it seems to me to be quite open to the tribunal to consider that the deleted portions may be relevant to the review. The existence of the documents is virtually beyond dispute. The tribunal could well consider that they may be relevant. The same general approach is open in relation to missing pages or the complete absence of file notes”.

Gamesmanship
His Honour commented that excessive requests and grudging or inadequate compliance with the provisions of the VCAT Act are not to be encouraged.

The considered and powerful judgments of the Supreme Court in Bausch continue to provide important guidance regarding the scope of the responsibilities of decision-makers in complying with s49 of the VCAT Act.


JOHN VOYAGE is a partner at Maurice Blackburn Cashman. He is a longstanding member of the LIV Litigation Lawyers executive and chair of the LIV Transport Accident Committee.


[1] [1998] 4 VR 249.

[2] Tadgell, Batt and Buchanan JJA.

[3] Bausch v Transport Accident Commission (1990) 11 VAR 177.

[4] Note 1 above, at 259.

[5] Filonis & Ors v Transport Accident Commission [2003] VCAT 445.

[6] (1994) Administrative Law Decisions 301.

[7] Note 5 above.

[8] (1983) QB 790 at 794.

[9] Note 5 above, at para 8.

[10] Note 5 above, at para 15.

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