Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156

  1. In the present case the insurer complained, not that the Review Panel had exceeded its authority, but that it had failed to fulfil its statutory function because it had failed to deal with and determine a significant part of the insurer’s “case”. The insurer identified the issues not dealt with by the Review Panel as “the many inconsistencies between what [Mr Milton] now told the Panel and what he (sometimes consistently) told the previous medical experts and assessors.” [4] The obligation of the Review Panel to take that course was said to follow from the reasoning of this Court in Roger v De Gelder [5] where, Gleeson JA (with the agreement of Macfarlan and Leeming JJA) stated that “[w]here a decision-maker has failed to respond to a substantial argument it has been said that there has been a failure to accord natural justice”. That proposition was supported by reference to the judgment in Dranichnikov v Minister for Immigration and Multicultural Affairs [6] of Gummow and Callinan JJ, who noted that, “[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.” [7] 
  2. In this context, a “substantial” argument means one which is clearly material or of undoubted relevance. However, care must be taken to distinguish the scope of any duty imposed on the decision-maker to give reasons from the identification of material matters which must be taken into account. In Minister for Immigration and Multicultural Affairs v Yusuf, [8] the joint reasons of McHugh, Gummow and Hayne JJ rejected the proposition that the obligation imposed on the Refugee Review Tribunal to set out its findings “on any material questions of fact” [9] implied an obligation to make findings on all matters which were “objectively material”. [10] The plurality then noted that some matters might be matters which the Tribunal was bound to take into account. [11] The joint reasons continued:

“[73]   It is, of course, essential to begin by considering the statutory scheme as a whole. To that extent the submission is right. On analysis, however, the asserted duty to make findings may be simply another way of expressing the well-known duty to take account of all relevant considerations. The considerations that are, or are not, relevant to the Tribunal’s task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the Tribunal is called on to consider. …

[74]   This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts.”

42 … the fact that there were inconsistencies in the accounts given by the claimant to different medical practitioners at different times was a factor to be considered by the assessors in reaching conclusions as to his ability to function independently, but did not require the Review Panel to set out in its reasons findings as to the claimant’s “credibility” or “reliability”. [28] The function of the Panel was, as the primary judge stated, to use “their professional judgment to evaluate his level of functioning.”