Case: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Outcome: considered
As to unreasonableness, Mr Bryant submitted that the Tribunal's reasoning, whereby it placed equal weight on sleep apnoea and/or psychological factors as accounting for the Applicant's symptoms, was unreasonable and perverse. It was submitted that no Tribunal acting reasonably could have made that decision or, alternatively the decision was so unreasonable that no reasonable person could have come that decision, and as such the decision was vitiated by what was termed " Wednesbury unreasonableness". 24 The submission in regard to sleep apnoea and psychological factors were put by Mr Bryant in this way. Sleep apnoea was mentioned in the Statement of Facts and Contentions, but was not considered as a possible cause of headaches until Dr Lethlean's report of 3 November 2006. Even then, so it was submitted, it was considered as a possible cause and not the most common cause of headaches. Further, Dr Lethlean was not an expert on sleep apnoea and no evidence was called on the subject. Psychological factors were submitted to be a non-issue. Such factors, it was noted, were not included in the Statements of Facts and Contentions of the parties, were mentioned only once in the transcript and were not the subject of closing address by either counsel. Psychological factors were first raised in Dr Lethlean's report of 3 November 2006. This issue was outside of Dr Lethlean's expertise. 26 The Commission submitted, by reference to the Full Court decision in Minister for Immigration &amp; Multicultural Affairs v Betkhoshabeh [1999] FCA 980 ; (1999) 55 ALD 609 , that the decision of the Tribunal, at most, falls within the scope of a decision where the facts were such that an opposite conclusion would have been open to the decision maker, and as such does not evidence an error of law. The Commission also pointed to the evidence before the Tribunal, particularly that of Dr Lethlean, which questioned the extent of the impairment resulting from the injury and submitted that it was therefore open to the Tribunal to proceed as it did. The Commission sought further to support these submissions by referring to the high threshold for a determination of " Wednesbury unreasonableness", citing Lord Green MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230; and also the observation of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 654, [137] , that it is very difficult to show unreasonableness where the facts are such that reasonable minds could reasonably differ. 52 The submission for Mr Bryant that this constituted " Wednesbury unreasonableness" misconceives the nature of that type of error of law. As Gummow J explained in Minister for Immigration and Multi-cultural Affairs v Eshetu at 649, [124] this descriptor, derived from the decision of the English Court of Appeal in Associated Provincial Picture Houses Ltd v Wednesbury Corporation , refers to that body of administrative law which is concerned with the judicial review of the abuse of discretionary powers. When standing in the Commission's place so as to decide whether Mr Bryant had an entitlement to compensation under s 24 of the SRC Act the Tribunal was not exercising a discretionary power. Neither does s 24 of the SRC Act posit an eligibility test grounded in a state of administrative satisfaction to a state of affairs. The principles attending the judicial review of a decision made under this type of statutory provision were comprehensively discussed by Gummow J in Eshetu's case, but are of no present relevance. That is not to say that no error of law is revealed. If the Tribunal reaches a conclusion critical to its determination without any material to support that conclusion that is an appealable error of law: Secretary, Department of Social Security v Murphy [1998] FCA 809 ; (1998) 52 ALD 268 , at 271-272.