The Obligation Of A Review Panel To Give Reasons

Bojko v ICM Property Service Pty Limited & Ors

[2009] NSWCA 175 (2 July 2009)

Allsop P, Giles JA, Handley AJA

In Brief

The quality and clarity of reasons given by an administrative

law maker continue to be informed by the High Court's decision

in Minister for Immigration and Ethnic Affairs v Wu Shan Liang

[1996] 185 CLR 259 ("MIA v Liang") where a Court should

not be concerned with the "looseness in the language"

invoked by an administrative decision maker.

A statutorily constituted Authority has no duty to provide

cogent reasons as to its decisions unless such a requirement is

contained within the constituting legislation and supporting

regulations.

Background

This decision was handed down by the NSW Court of Appeal on 2

July 2009.

The application before the court was concerned with the

Workplace Injury Management Act 1998 (NSW) and the associated

Workcover Guidelines, and the procedure for medically assessing

workers.

In the first instance the worker sought an order from the

Supreme Court to have the Appeal Panel's Statement of Reasons

dismissed by way of judicial review on the basis that the decision

represented an abridgement of the worker's right to procedural

fairness and the panel had erred in law by operating outside its

jurisdiction in applying the relevant statutory and regulatory

provisions in a discretionary manner.

The worker was unsuccessful at first instance and sought relief

from the Court of Appeal.

Facts

The worker sought a reassessment by an Approved Medical

Specialist. The original assessment had resulted in a Medical

Assessment Certificate which assessed the worker as not exceeding

the relevant statutory threshold, disentitling the worker to

general damages. The Appeal Panel declined to refer the worker to

Approved Medical Specialist as there was sufficient evidence to

make an...