Ansett Australia Limited v Dominique Scherer

[2002] NSWCA 98

CITATION:	Ansett Australia Limited v Dominique Scherer [2002] NSWCA 98
FILE NUMBER(S):	CA 40470/01
HEARING DATE(S):	4 April 2002
JUDGMENT DATE:	4 April 2002
PARTIES :	Ansett Australia Limited (Appellant) Dominique Scherer (Respondent)
JUDGMENT OF:	Mason P at 1; Handley JA at 16; Stein JA at 2

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	WC 41862/99
LOWER COURT JUDICIAL OFFICER :	Bagnall J

COUNSEL:	J Wynyard (Appellant) G J Parker (Respondent)
SOLICITORS:	Gillis Delaney Brown (Appellant) Deacons (Respondent)
CATCHWORDS:	Appeal from Compensation Court - Compensation Court Act 1984, s 32(1) - whether grounds of appeal raise any point of law - whether adequate reasons - ND
LEGISLATION CITED:	Compensation Court Act 1984, s 32(1)
CASES CITED:	n/a
DECISION:	Appeal dismissed with costs

CA 40470/01

MASON P
HANDLEY JA
STEIN JA

Thursday, 4 April 2002

ANSETT AUSTRALIA LIMITED v Dominique SCHERER

Judgment

1 MASON P: I invite Stein JA to deliver the first judgment.

2 STEIN JA: This is an appeal by Ansett Australia Limited against an award made in the Compensation Court by Judge Bagnall on 22 June 2001. Appeals from the Compensation Court to this Court are confined by s 32(1) of the Compensation Court Act 1984 to a party aggrieved by an award of a Judge in point of law, or on a question as to the admission or rejection of evidence. The second part of s 32(1) is not in issue in this appeal.

3 The notice of grounds of appeal seeks to raise five grounds. At the outset of the hearing this morning, the Court aired with counsel for the appellant, Mr Wynyard, what was the point of law purported to be raised by the grounds of appeal. Mr Wynyard sought to re-state what he said was implicit in grounds 2, 3 and 4 of the notice of grounds of appeal.

4 In my opinion, grounds 1 to 4 inclusive do not raise any point of law. They raise purely factual issues and it follows that the appeal on those grounds is incompetent. I add that in the way that counsel for the appellant sought to re-state the point of law which he submitted was involved in grounds 2 to 4 inclusive, then that reformulation involves only questions of fact and no point of law.

5 The remaining ground is ground 5. This is a ground that contends that the trial judge erred in failing to give adequate reasons in three areas, relating to what is described in the grounds of appeal as the medical issue, the fitness to work issue and in relation to the applicant’s credit, which his Honour accepted. Towards the close of counsel’s address, the ground that I am dealing with relating to failure to give adequate reasons, was narrowed to only the medical issue and the fitness to work issue. Any claim in relation to inadequate reasons relating to the applicant’s credibility was abandoned.

6 The so-called medical issue, in relation to which it is alleged that his Honour failed to give adequate reasons, contends that his Honour found that the applicant still had a diagnosable psychiatric condition but failed to give reasons why he ignored the evidence of Dr Wilkins, the applicant’s treating psychiatrist, in which he agreed that the applicant had fully recovered.

7 The second issue relating to fitness to work in ground 5(b) states that his Honour, having found that the applicant had a diagnosable psychiatric condition which was under symptomatic control, failed to give reasons as to how it was that the partial incapacity that he found arose.

8 It seems to me that particularly since the allegation is that inadequate reasons were given and, bearing in mind the nature of the issues that are being addressed, that the medical issue and the fitness to work issue under 5(a) and (b) should be considered together.

9 The first thing that needs to be said in addressing a ground such as this is that the reasons given by his Honour need to be read as a whole. Care should be taken not to isolate some particular sentence or passage without regard to other reasons given in the judgment.

10 When examining the so-called medical issue, it may be observed that there was ample evidence by Dr Wilkins, as well as the applicant, which his Honour accepted, that would justify the conclusion reached by his Honour on the medical issue. Nonetheless, if one looks at paras 22, 25 and 26 of the judgment and the judgment as a whole in relation to his Honour’s observations about fitness to work, it is plain that sufficient reasons were given for his Honour’s finding.

11 In relation to the issue of fitness to work, there are reasons to be found in the judgment from para 24 through to para 27, as well as para 30 and the Schedule appearing in his Honour’s judgment following the summary of his findings. The Schedule is to be found in Red Appeal Book, pages 26 to 27.

12 Again, the underlying evidence was there which justified his Honour’s finding in relation to partial incapacity for work.

13 I will not set out the paragraphs of his Honour’s judgment which I have mentioned in relation to ground 5 because they are to be found in the judgment in the Red Appeal Book, 25 – 26.

14 In my opinion, the appeal should be dismissed with costs.

15 MASON P: I agree.

16 HANDLEY JA: I agree.

17 MASON P: The appeal is dismissed with costs.

oOo