Originally Published by Andrew Gorman and Bethany Mahler on Tuesday, March 9, 2021 12:55:44 PM
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The Court allowed the appeal and reinstated the Proper Officer's decision because there was no error of law or jurisdictional error. The question for determination on the application for judicial review was not whether the opinion was right or wrong, but whether it had been properly formed, or else was vitiated by reviewable error. The Proper Officer had asked herself the precise question posed by s 62(1A), namely whether the new evidence was capable of having a material effect on the outcome of the previous assessment.
The Court explained at [24]:
"That is not a high bar. It does not involve a prediction that the further medical assessment will, more probably than not, lead to a materially different outcome."
On a fair reading of her reasons, the Proper Officer concluded that the matters concerning causation advanced in the new evidence had already been considered and rejected by the review panel, and on that basis she found that they were not capable of changing the outcome of the previous assessment.
The Court added, at [26]:
"It is not for the Proper Officer himself or herself to guess the outcome of any further assessment. But it is necessary for the Proper Officer to form a view on whether the additional information has the capacity to have an effect on the outcome, and whether any such effect is material."
The Court emphasised that its role was not to consider the merits of the evidence but whether the Proper Officer had erred at law, explaining at [104]:
"The language of s 62(1A) might fairly be regarded as calling for an objective approach. …. Judicial review of such a judgment is limited to determining whether the Proper Officer’s opinion has been properly formed according to law. Thus, the characterisation of the additional relevant information is a matter to be considered by the Proper Officer and not one to be determined by a court afresh in a judicial review application."
Final result
The Court of Appeal allowed the appeal and set aside the Primary Judge's orders, therefore upholding the Proper Officer's decision.
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