Granitto v The Catholic Education Office of WA

[2013] HCATrans 218

[2013] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P4 of 2013

B e t w e e n -

MARK MATTHEW GRANITTO

Applicant

and

THE CATHOLIC EDUCATION OFFICE OF WA

Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 11 SEPTEMBER 2013, AT 12.46 PM

Copyright in the High Court of Australia

MR C.G. COLVIN, SC:   If the Court pleases, with my learned friend, MR T.J. HAMMOND, I appear for the applicant.  (instructed by Bradford & Co)

MR D.R. CLYNE:   If the Court pleases, I appear for the respondent.  (instructed by CCS Insurance Law)

MR COLVIN:   Your Honours, in this case the key finding of the original decision‑maker is at application book 14 at paragraph 36.  The statutory arbitrator found at that point in the reasons that once the applicant’s evidence on a particular point was not accepted, it was impossible for the applicant to succeed in his claim for workers compensation.  That appears from the last three sentences.  It is found that the worker, the applicant, did not hold expectations of dismissal or discipline – sorry, and that therefore it was impossible, he concluded, “that the applicant’s condition was not wholly or predominantly caused by” those expectations.

GAGELER J:   How do you read that word “impossible”?

MR COLVIN:   We read it – and it is essential to the application – as a word that is expressing the view that there is no other evidence that can be brought to bear to assist the applicant.  It is impossible in the sense that there is nothing available.  One does not even need to consider anything more because once you get to that point there is no other possibility.

GAGELER J:   Unless we were to adopt that construction of the word “impossible”, your question of law would fall away, would it not?

MR COLVIN:   We accept that, your Honour, but it must be the construction, in our submission, because of the way in which the reasoning is expressed and because of the nature of the questions that are expressed and what is not then considered thereafter.  That is because there were two issues that were live before the statutory arbitrator at this point.  Firstly, did the applicant have an expectation of dismissal or discipline?  On that issue, it is found that he was not to be believed.  He said he had no expectation of dismissal or discipline and he is not believed. 

Once that position was reached, under the legislation it was necessary to then go on and find, on the basis that there was an expectation of dismissal or discipline, was that expectation the whole or predominant cause of the injury?  Now, what is reasoned here is that because the worker’s evidence that he had no expectation of dismissal or discipline is not accepted, there is then no more reasoning about any other issue other than to say that it is impossible to establish the position on that further conclusion, and there is no consideration elsewhere in the reasons of that issue.

So it is not as if the reference to “impossible” is an adoption of an earlier approach to the reasoning that has been adopted and that is because the structure of the reasoning is, one begins at paragraph 20 by identifying a number of events and circumstances that led to the eventual development of the disease, and they are listed, and then there is a finding that those matters contributed, and contributed significantly, to the contraction of the worker’s found disease.  So all of those factors are relevant.

Then there is a reference to the medical evidence and the medical evidence not being sufficient to deal with the question, but there is no reasoning as to whether all of the factors that are listed as to the number of events and circumstances as to whether, examining those, there is a basis for concluding - or what the answer should be to the question as to whether the expectation of dismissal or discipline was the whole or predominant cause of the injury.  So in the structure of the reasoning, in our submission, “impossible” must mean what we contended.

GAGELER J:   But do we not also have to take into account the nature of the case that your client sought to put before the arbitrator?  That was what was emphasised by the Court of Appeal.

MR COLVIN:   It was, and the nature of that case, although we do not accept that it is fully characterised by the way in which it is summarised by the Court of Appeal, but the nature of the case of the applicant is to say, “I did not have” – his own evidence is “I had no expectation”, but there was not a case abandoned, or the case was not presented on the basis that it stood or fell on whether his evidence was accepted.  So there remained live before the statutory arbitrator and in all stages through the proceedings an issue as to what the predominant cause was and whether that was related to dismissal or discipline. 

So, in our respectful submission, that actually exposes the nature of the error and reinforces the ground that we advance because at paragraph 73 of the reasons of Appeal Justice Murphy, accepted by the other members, at page 92 of the book what is said is that in the last sentence:

Once the arbitrator rejected the employee’s evidence that he had no relevant expectations, the question left for the arbitrator was whether, based on the other evidence in the case, including the medical evidence, an inference should be drawn that the employee’s stress did not predominantly or wholly arise from the relevant expectations.

Entirely correct, in our submission.  The error lay in then finding that because the evidence of the applicant had been rejected that was an impenetrable barrier for the applicant.  In our submission, that means that the matter is treated as standing or falling on the evidence of the applicant about an aspect of the case that does not deal with the key issue upon which the case ultimately turned.

GAGELER J:   But do you suggest that there is any error of principle in paragraph 74 or paragraph 75 of Justice Murphy’s judgment?

MR COLVIN:   The error of principle lies in failing to recognise, in our submission, that there can be a reviewable error of law of this kind.  A decision‑maker looks at the relevant evidence, looks at part of the relevant evidence, and decides by reference to part of the relevant evidence that it is not possible for a party to succeed and, adopting that approach, fails then to undertake any evaluation of the evidence as a whole.

So, inherent in these paragraphs is an adoption or an acceptance that that is the position in relation to the law, that an error of that kind is not sufficient in order to be an error of law, because what the Appeal Court rests on is the consideration solely of the evidence of the employee, not the whole of the evidence, and the Full Court never undertakes the task which was undertaken by Commissioner McCann who, far from concluding that it was impossible, when he looked at the other evidence – and he is the only decision‑maker who has done so – he concluded that on the basis of all the evidence the applicant’s case was established.

The Court of Appeal has not done that because it has said once the evidence of the applicant is not to be accepted, then in effect because the applicant could not lead evidence consistently with his case out of his own mouth that, “Yes, I had an expectation of dismissal or discipline but it wasn’t the predominant thing that was causing me to have the injury”, because that would have been inconsistent with his evidence - that is the reasoning of Appeal Justice Murphy – that limits the consideration of the evidence to what the applicant’s own evidence was.

It is perfectly open to find, “I don’t accept the applicant when he says he had no expectation of discipline or dismissal, but when you look at all of the other evidence I am satisfied, as Commissioner McCann concluded, that you must reach the view that views about discipline were not the predominant reason for this particular injury”.  That appears at 56 of the book in paragraph 49 where the Commissioner undertakes the task which we say should be undertaken if our principal contention about the character of an error of law is right, should have been undertaken, because he says, taking an overarching view:

The first proposition is that the capacity of the factor (stressors) such as (a) and (c) to influence Dr Granitto’s expectations or perceptions of excluded matters . . . must have been substantially mitigated by March 2010 –

being the date on which he is found to have suffered the injury.  So there he finds that they must have been dissipated, but in addition there are other non‑excluded matters included in the list of matters which were found to have contributed to the injury which were operating.  That is the task which neither the Court of Appeal nor the decision‑maker undertook, and it means that by reason of the error no one has properly evaluated the evidence other than Commissioner McCann, and the injustice here is that this applicant comes before the Court and, having succeeded before the only decision‑maker who looked at all the evidence, is left in a position where the applicant is unable to obtain an award and compensation for the injury.

GAGELER J:   At paragraph 72 of Justice Murphy’s judgment, page 92, the focus is not on the evidence presented by the applicant, but the nature of the case the applicant presented.

MR COLVIN:   Paragraph?

GAGELER J:   Paragraph 72, which, as I understand it, introduces paragraphs that you say do not in their terms reveal any error of law.  You say there is something wrong with the characterisation of the case the applicant was presenting.

MR COLVIN:   Yes, we do.  I must say, your Honour’s question exposes an issue, and we do take issue with that characterisation, that is to say, that the case he ran was not one that depended entirely upon whether he was believed about his expectations as to whether he would be disciplined.

GAGELER J:   Why is that a High Court point?

MR COLVIN:   That is a point that goes to special leave.  The High Court point, in our submission, is because of what has been stated in Bond.  Bond of course, in our submission, approved two decisions, Australian Gas Light and McPhee.  In Australian Gas Light the test is that:

a finding of fact . . . cannot be disturbed if the facts . . . are capable of supporting its finding –

So, if that is the correct approach, we have to demonstrate that there was not sufficient evidence to support the actual outcome of the decision, that it does not matter what the process of reasoning has been provided there was sufficient evidence.  McPhee, in our submission, which was also approved in Bond, puts the test differently and that asks the question whether there is evidence of a fact – sorry, I withdraw that.  That approaches the matter by saying:

The question whether there is any evidence of a particular fact is also a question of law –

So that looks at the process of reasoning and says there can be error of law in the process of reasoning if there has never been an evaluation of the relevant facts.  That is because it is a question of law as to whether there is evidence of a particular fact. 

So, in our submission, on the current state - and the judgment of Chief Justice Mason, in our submission, is the principal authority in this area – there are two notions.  One is whether the evidence as a whole, looking at the time of the point of challenge, is such that the evidence is capable of supporting the finding irrespective of the process of reasoning that was undertaken.  You just look and say is there evidence there that is capable of doing it?  It is an outcome‑based approach, whereas in McPhee the test is whether you have properly asked the question whether there is evidence of a particular fact.  If you have not done that properly, then you have not evaluated all of the evidence and there is an error of law that relates to the process of reasoning that has been undertaken.

In our submission, that distinction is at the heart of the case here.  In one sense you can say you are capable of reaching this decision on the evidence, but in our submission the error, particularly in a legislative structure, that provides for a right of appeal if the original decision involves an error of law, a party is entitled to have a decision which evaluates all of the evidence, and a decision‑maker who says, “I’m of the view that it’s impossible for you to succeed” we say that means there is no evidence that you can call in aid, never undertakes that process of reasoning as to whether the evidence supports a particular conclusion or not.  That is the character of the nature of the special question which we say is raised by this application.

In relation to that question, in our submission, it remains open and is not exposed by those authorities that deal with whether a process of reasoning that is undertaken is so unreasonable that no reasonable decision‑maker could reach it.  That again focuses on the outcome.  What we contend for is a rule which requires the process of reasoning that has been adopted to be one that properly evaluates the evidence and does not get distracted from that task by adopting a method of reasoning that says, “It’s impossible for you to succeed”.

We need to say something about what is put against us on the application.  Firstly, it is said that there was a procedural fairness point on

which the applicant – on which the respondent succeeded.  That is true.  In our submission, the procedural fairness point relates just to the question of quantum.

GAGELER J:   We do not need to hear you on that point.

MR COLVIN:   Thank you, your Honour.  The second point is in relation to it is said that there is another ground that could have supported the application that the Court of Appeal did not deal with.  In relation to that, the submission that we make is that before Commissioner McCann, once there was an error or law, we say the error which we contend for, then he had an obligation to undertake a real review of all of the material. 

The third ground is a claim that Mr McCann was bound by the findings of fact by the statutory arbitrator.  We say two things.  One, he did not act inconsistently with the finding of fact in relation to whether the applicant was to be believed on the particular point.  He accepted that.  What he found was that there was not a predominant cause relating to an expectation of discipline.  So we say that.

Secondly, we say that once he had embarked upon the task, he was entitled and obliged to undertake a real review, so therefore there could be no error in the sense that he was bound in some way by the findings that had been made below by the statutory arbitrator.  So we say if our point is available, then it is a point that would be determinative of the appeal.  Those are our submissions.

GAGELER J:   Thank you, Mr Colvin.  We do not need to call on you, Mr Clyne.

The special leave question as formulated by the applicant turns on the construction of particular language used by the arbitrator in the penultimate paragraph of his statement of reasons, read in the context of those reasons as a whole and against the background of the way in which the applicant sought to frame his case before the arbitrator.  We are not persuaded that the case presents a suitable vehicle for the consideration by this Court of any issue of principle.  Special leave will be refused with costs.

The Court will now adjourn to 9.30 am tomorrow.

AT 1.07 PM THE MATTER WAS CONCLUDED