Barclay Bros Pty Ltd v Liaris, Nicholas

[1981] FCA 155

Re: BARCLAY BROS. PTY. LTD.
And: NICHOLAS LIARIS (1981) 56 FLR 436
No. NTG12 of 1981
Workers' compensation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Deane(1) and Toohey(1) JJ.

CATCHWORDS

Workers' compensation - appeal by way of rehearing from Workmen's Compensation Tribunal to Supreme Court of the Northern Territory - nature of appeal - all evidence before Tribunal put before Supreme Court by consent - oral evidence called in Supreme Court by workman including recall of witnesses before Tribunal - employer not calling or recalling any witnesses - whether Supreme Court entitled to reverse findings of Tribunal based on Tribunal's view of credibility of witnesses - on appeal employer bound by manner in which case conducted before Supreme Court - Workmen's Compensation Act 1949 (N.T.) s.26

Workers' Compensation - Determination by Workmen's Compensation Tribunal - Appeal to Supreme Court - Nature of proceedings on appeal - Hearing de novo - Employer failed to adduce further evidence - Court set aside Tribunal's finding - Whether court entitled to reverse Tribunal's view of credibility of witnesses - Whether employer bound by conduct of case before court - Workmen's Compensation Act 1949 (N.T.), s. 26.

HEADNOTE

The Workmen's Compensation Tribunal dismissed a claim by the respondent for compensation. On appeal to the Supreme Court of the Northern Territory the court had before it in evidence all the material before the Tribunal and further oral and written evidence presented by the workman (respondent). The employer called no evidence. The court set aside the determination of the Tribunal. The employer appealed to the Full Court of the Federal Court of Australia.

Held: Per curiam, the appeal should be dismissed because - (1) An appeal to the Supreme Court from a determination of a Workmen's Compensation Tribunal calls for an exercise of original jurisdiction by the court.

Dare v. Dietrich (1979), 37 FLR 175, followed.

Uranerz (Aust.) Pty. Ltd. v. Hale (1980), 54 ALJR 378, distinguished.

(2) The employer is bound, on appeal, by the manner in which his counsel has conducted the proceedings and the employer cannot properly complain that the judge below failed expressly to forewarn him of the possible consequences of the employer's failure to call any evidence.

McCormack v. Federal Commissioner of Taxation (1979), 143 CLR 284, referred to.

(3) The judge below was required to have regard to the whole of the evidence before him.

(4) In the instant case the principles which the judge below applied in the discharge of his task were correct.

HEARING

Darwin, 1981, July 2; September 25. #DATE 25:9:1981

APPEAL.

Appeal to the Federal Court of Australia from a decision of the Supreme Court of the Northern Territory setting aside a determination of the Workmen's Compensation Tribunal.

J. D. Cummins Q.C. and K. Curnow, for the appellant.

J. B. Waters, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Mildren Silvester & Partners.

Solicitors for the respondent: Waters James & O'Neil.

E. F. FROHLICH

ORDER

Appeal be dismissed with costs.

JUDGE1

The Workmen's Compensation Tribunal dismissed a claim by the present respondent ("the workman") for compensation on the basis of total incapacity. On appeal to the Supreme Court that determination was set aside and a finding made that the workman "remains incapacitated by reason of his injury for work of the nature he performed prior to his injury". The employer appeals against the judgment.

It is important to appreciate the course that the matter took in the Supreme Court. First, however, we set out a passage from the reasons of the Tribunal which contains the crux of its determination.

"I find on the evidence that in fact the Applicant, contrary to his complaints to his treating Doctor, Specialist Surgeons, his legal advisors and the Tribunal, was capable of and did in fact, engage in Greek dancing and is and was capable of almost normal movement. I find that the Applicant consciously attempted to mislead the Tribunal and whilst as I observed he would have had some disability following the laminectomy, I am unable to find what, if any disability he now has for the purpose of the employment for which he was engaged at the time of the accident".

When the appeal began in the Supreme Court, counsel for the workman tendered, by consent, a transcript of the proceedings before the Tribunal and its determination. Counsel then sought to tender a number of medical reports, exhibits from that hearing. Counsel for the employer said that he did not object to the tender but asked that all exhibits before the Tribunal be put before the Supreme Court. His Honour then noted that counsel for the workman tendered nine identified exhibits and that counsel for the employer tendered the balance. This had the effect of putting before the Court all the oral and written evidence from the Tribunal. Later, at the invitation of his Honour, counsel for the employer tendered the application for compensation and the employer's answer thereto.

Against opposition from the employer's counsel, counsel for the workman presented a body of oral and written testimony, both lay and medical, including evidence from the workman himself. The employer called no evidence.

It is now well recognised that an appeal to the Supreme Court from a determination of a Workmen's Compensation Tribunal calls for an exercise of original jurisdiction by the Court and that the rehearing contemplated by s.26 of the Workmen's Compensation Act, 1949 is "a hearing de novo upon which it is for the Supreme Court to pronounce anew on the rights of the parties as disclosed by the evidence before it" (Dare v. Dietrich (1979) 26 A.L.R. 18 per Deane J. at p. 33). As Deane J. went on to say:

" . . . this does not mean that it will be necessary or desirable in every case for the parties to present their evidence afresh to the Supreme Court so that the appeal may be a hearing de novo in every sense. Where questions of law or inferences from undisputed facts are involved, it may well be both convenient and appropriate for the evidence before the Supreme Court to consist of the record (if there be one) of proceedings before the Tribunal". (at p. 33)

It is necessary to point out that material before the Tribunal is not automatically evidence before the Court. It may become so by consent or it may have some evidentiary force of its own because, for instance, it contains admissions or consists of medical reports which are admissible by virtue of some provision of the Evidence Act. But if what otherwise is inadmissible is objected to, evidence before the Tribunal should not be received by the Supreme Court. Where, as in the present case, there are disputed issues of fact, it behoves counsel to give careful consideration to the content and admissibility of material from the Tribunal which is sought to be placed before the Court. If that material is objected to, it can of course be placed before the Court in the ordinary way, by calling the witness.

An appeal to the Supreme Court being by way of rehearing in the sense discussed in Dare v. Dietrich, the parties are free to call such evidence as they wish, subject only to its relevance and admissibility. The objection taken by the employer's counsel in the Supreme Court to the calling of the workman and other witnesses was, as senior counsel who appeared on the appeal acknowledged, not supportable.

Because of the course the hearing took, his Honour was faced with the difficult task of reaching a decision on the basis of a body of oral evidence called before him on behalf of the workman, together with the entirety of the material presented to the Tribunal. In this regard, the present matter is clearly distinguishable from Uranerz (Aust) Pty. Ltd. v. Hale (1980) 30 A.L.R. 193 which concerned an appeal from the Workmen's Compensation Tribunal to the Supreme Court in which no additional material was placed before the Court. The following dictum of Gibbs J. in that case must be read in that context:

"Gallop J. was not entitled to reverse the finding of the Tribunal which was based on its view of the credibility of the witnesses unless it was seen clearly to be wrong on grounds which did not depend merely on credibility - for example, on the ground that the evidence which was accepted was inconsistent with established facts, or was so improbable that no reasonable person could accept it, or that the judgment of the Tribunal disclosed that its conclusion was affected by some error of law or fact" (at p. 199).

Those principles are apt to be applied in the Supreme Court in a case where no additional relevant evidence is presented. In the present case however, a large body of relevant evidence was presented or re-presented, bearing in particular upon the nature and extent of the workman's incapacity and upon the events at a party in which it was said that the workman had engaged in Greek dancing, being the incident referred to in the passage quoted earlier from the determination of the Tribunal.

In these circumstances, his Honour was required to have regard to the whole of the evidence before him. He was not entitled to disregard the evidence presented to the Tribunal. Nor was he entitled to disregard the findings of that body. That material was before him by consent. But he was also entitled, indeed bound, to put into the scales with it the oral evidence which he heard and the assessment which he made of that oral evidence. And this is what he did.

As his Honour pointed out, he was unable to form an independent opinion, based on seeing and hearing him give evidence, of the credibility of Mr. Hayes-Ward, a witness before the Tribunal, who was called by the employer to testify as to the workman's dancing on the occasion mentioned earlier. His Honour said:

"I must therefore determine the matters anew, but in considering the evidence of the witnesses I have not seen or heard I do not ignore the Tribunal's expressed findings as to credibility. But where the evidence before me, or subsequent events, lead to the conclusion that the Tribunal erred, I do not consider the decision of the respondent not to call any evidence requires me to reach a conclusion contrary to the view I formed upon all the material now before me".

In opening his argument on the appeal, senior counsel for the employer formulated his basic proposition in the following terms. On an appeal from the Workmen's Compensation Tribunal, the Supreme Court is not entitled to reverse findings of the Tribunal based on the Tribunal's view of the credibility of witnesses unless (i) that view is seen to be wrong or based on grounds which do not depend merely on credibility or unless (ii) the Court itself hears all of the competing witnesses on credibility and forms a different view.

The first limb of this proposition was said to be derived from Uranerz but, for the reasons given earlier, we do not think that the proposition is supportable when the Court has heard oral evidence bearing upon those matters upon which the Tribunal has expressed a view. As to the second limb, the fact that his Honour did not hear all the competing witnesses was the result of a decision consciously taken by the employer's counsel not to call that evidence. In those circumstances, there is no applicable principle that the Supreme Court is rendered incapable of determining the appeal on all the material before it. The appropriate principle is that the employer is bound, on appeal, by the manner in which his counsel has conducted the proceedings at first instance (McCormack v. Federal Commissioner of Taxation (1978-79) 23 A.L.R. 583 at p. 599 and Uranerz (Aust) Pty. Ltd. v. Hale, supra, at p. 199). In this regard, it is perhaps relevant to mention that, after the close of the workman's case, his Honour specifically drew to the attention of counsel who then appeared for the employer, the question whether he should call Mr. Hayes-Ward.

As the appeal developed, it seemed that the employer was saying little more than that his Honour erred, not in weighing the oral evidence against the record of proceedings but in failing expressly to indicate to the employer's counsel both that this was a course which he might follow and what the outcome of this course might be. In the light of our conclusion that this was the course which his Honour was bound to follow, we are of the clear view that the employer cannot properly complain that his Honour failed expressly to forewarn him of the possible consequences of the employer's own failure to call any evidence before the Supreme Court. Nor was his Honour under any duty to proffer a forecast of what the ultimate outcome of his consideration of the evidence before him might be.

There was pressed upon us the decision of the High Court in McCormack (supra). In that case, a decision of a Taxation Board of Review was challenged before the Supreme Court of Western Australia and the appeal dismissed, the Court having before it no more than the material presented to the Board. The taxpayer's appeal to the Federal Court of Australia was dismissed but was upheld by the High Court. Gibbs J. pointed out the difficulties facing the judge in the Supreme Court in deciding whether the evidence of the taxpayer should be accepted.

"He was exercising original jurisdiction, and was therefore called upon to decide whether the appellant had established her case, and not simply whether it was open to the Board of Review to decide as it did . . . where the board has rejected the evidence of a witness, and its decision can be seen to have been affected by a mistake, the Supreme Court is in a position of great difficulty if the witness is not recalled. The board's assessment of the credibility of the witness cannot stand, yet the Court is not in a position to make its own assessment" (at p. 598).

The High Court allowed the appeal and remitted the matter to the Supreme Court of Western Australia for further hearing. In doing so the Court made it clear that this was an exceptional situation, brought about by a misunderstanding of some evidence by the Board of Review and the absence of any evidence before the Supreme Court other than a record of proceedings.

In the course of his reasons Barwick C.J. said:

"The Supreme Court did not, it seems to me, adopt a correct approach to the appeal before it. It ought to have insisted on hearing the evidence itself and thus placed itself in a position to evaluate the witnesses" (at p. 590).

It is not clear with what authority the Court can so insist or the implication if a party declines to comply with such an insistence. Be this as it may, McCormack's Case has properly been described as a "very exceptional" one (Uranerz per Gibbs J. at p. 199) and is plainly distinguishable from the present case. Indeed, although the above dictum was canvassed before us by counsel for the employer, in the end he did not rely upon it as a distinct ground of appeal. The contention was, as has been indicated, that the learned judge should have made clear to counsel that the course he finally adopted was one that he had in contemplation. That is a matter with which we have already dealt.

In the result, we are of the view that the attack upon the decision of the Supreme Court has not been made good. His Honour was, because of the course which counsel adopted, presented with a difficult task. The principles which he applied in the discharge of that task were, however, correct. It has not been submitted that, if the overall approach adopted by his Honour was properly open to him, there was any basis upon which this Court should interfere with the conclusions which he reached.

In our view the appeal should be dismissed with costs.