Hale, Juanita May v Uranerz (Aust) Pty Ltd

[1979] FCA 89

HALE v. URANERZ (AUST.) PTY. LTD. (1979) 37 FLR 186
Workmen's Compensation

COURT

FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
Deane(1), Toohey(2) and Lockhart(3) JJ.

CATCHWORDS

Workmen's Compensation - Appeal from tribunal to Supreme Court - Hearing de novo - Appeal conducted as appeal stricto sensu - No evidence of mistake by tribunal - Findings of fact by Supreme Court at variance with those of tribunal - Inferences to be drawn - Principles applicable - Restoration of tribunal's award - Workmen's Compensation Act 1949 (Cth.).

HEADNOTE

Before a Workmen's Compensation Tribunal the appellant established her entitlement to compensation in respect of her incapacity arising out of an injury in the course of her employment. On appeal to the Supreme Court of the Northern Territory the decision of the tribunal was reversed. The appeal. pursuant to s. 26 of the Workmen's Compensation Act 1949 (Cth.) was conducted without viva voce evidence: by consent the evidence of the witnesses taken before the tribunal was tendered to the court, not as evidence, but to enable the court to conduct the appeal as an appeal on the record. On appeal from the decision of the judge, seeking to restore the award made in her favour by the tribunal below,

Held: Allowing the appeal, per Toohey J., Deane and Lockhart JJ. concurring - (1) It is not open to an appellate court, conducting an appeal de novo on the basis of a documentary record of the evidence given in the tribunal below, to make findings of fact at variance with the findings of fact in the tribunal below, except within well-defined limits.

Warren v. Coombes (1979), 53 ALJR 293, and Powell v. Streatham Manor Nursing Home, (1935) AC 243, referred to.

(2) In this case the findings of fact reached by the tribunal derived from an account of events which did not involve a "glaring improbability" and should not have been disturbed.

Voulis v. Kozary (1975), 50 ALJR 59, followed.

Appeal allowed.

HEARING

Sydney, 1979, June 6-7; September 11. #DATE 11:9:1979

APPEAL.

Appeal from a decision of the Supreme Court of the Northern Territory (Gallop J.) reversing a decision of a Workmen's Compensation Tribunal.

L. F. Wyvill, for the appellant.

K. McCarthy Q.C. and G. C. Pelletier, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Howard & Peters.

Solicitors for the respondent: Mildren & Partners.

D. LEVIN

JUDGE1

September 11.

The following judgments were delivered.

DEANE J. I agree with the judgment of Toohey J. (at p185)

JUDGE2

TOOHEY J. In this appeal from the Supreme Court of the Northern Territory (Gallop J.), the appellant seeks to restore an award made in her favour by the Workmen's Compensation Tribunal. (at p187)

1. The tribunal found that on 10th June, 1975, the appellant suffered an injury arising out of, and in the course of, her employment by the respondent and that she was totally and permanently incapacitated as a result of that injury. It made an award of compensation to 12th September, 1977, (the date on which the hearing began) and weekly payments thereafter. (at p187)

2. An appeal against that determination was allowed by the Supreme Court on 4th September, 1978, hence the present appeal. The delay of twelve months between the hearings before the tribunal and the Supreme Court was not explained. This Court was told that the appellant had received no compensation so that, if she is ultimately found to be entitled to an award, she will have been without payment for more than four years, a most unsatisfactory situation. (at p187)

3. In my view the course which the hearing took before the Supreme Court has an important bearing on the outcome of this appeal. It is not necessary to consider at any length the nature of an appeal to the Supreme Court pursuant to s. 26 of the Workmen's Compensation Act 1949. That matter was the subject of a decision by this Court in Dare v. Dietrich: "While the tribunal is, no doubt, under an obligation to act with judicial detachment and fairness, the proceedings before the tribunal are not governed by the ordinary principles relating to the determination of disputed questions of fact by a judicial tribunal. . . . the appeal to the Supreme Court from a decision of the tribunal calls for an exercise of original jurisdiction by the court and was intended, where disputed questions of fact are involved, to provide for a judicial review, conducted in accordance with those ordinary principles, of the decision of the tribunal" (per Deane J. (1979) 37 FLR 175, at pp 180-181 ). An appeal to the Supreme Court from the tribunal is an appeal de novo. The parties may call evidence afresh or they may by agreement tender as evidence material from the tribunal below, supplemented, if thought fit, by further testimony. (at p187)

4. In the present case no oral evidence was adduced before the Supreme Court. Counsel for the parties agreed that the material from the tribunal was not tendered to the Supreme Court as evidence, rather that his Honour was invited to deal with the appeal on the record. As the record included not only the evidence but the determination of the tribunal, this had important consequences. It meant (as counsel agreed) that whatever the true position in law the Supreme Court was invited to deal with the appeal by way of rehearing in the more limited sense and thus was compelled to give such weight to the findings of the tribunal as would ordinarily be given in such an appeal. (at p187)

5. In June 1975 the appellant was forty-one years of age, divorced and with a dependent child. On 6th May, 1975, she had begun work with the respondent, a geological company. She was employed as a housekeeper-cook at the respondent's premises in Alice Springs. Her duties included picking up a weekly order of groceries and she testified that on 10th June, 1975, in company with Mrs. Julie Ferguson who with her husband Mr. Ken Ferguson was her immediate boss, she went to Woolworths to pick up provisions. Mrs. Ferguson drove a Toyota Landcruiser. According to the appellant, while carrying a carton of stores to the vehicle and lifting it over the sideboard she felt a severe pain down her right leg. She told Mrs. Ferguson "I think I have hurt my back" to which Mrs. Ferguson replied "Don't lift any more". She then waited in the Toyota until the rest of the groceries had been loaded and returned to her place of employment which was also her place of abode. The pain continued over the ensuing days but with some difficulty she was able to continue her work. (at p188)

6. Mrs. Ferguson, in evidence, denied that any such conversation had taken place on 10th June or at all while the appellant was employed by the respondent. She also claimed that the appellant continued to do her work as usual, making no reference to any incident or complaint of pain inthe right leg. . . . (at p188)

7. (His Honour considered certain medical evidence given before the Workmen's Compensation Tribunal, and continued:) (at p188)

8. In my view the tribunal's conclusions both as to the injury, the disability it produced and the extent of that disability were warranted by the evidence. (at p188)

9. When the matter came before the Supreme Court, his Honour was conscious of the nature of the appeal required by the Workmen's Compensation Act. In his reasons he expressly referred to an earlier decision of his in which he had emphasized that such an appeal is by way of hearing de novo. According to his Honour's reasons, counsel for the then appellant tendered the transcript of the material in the tribunal and this was done with the consent of the then respondent. Counsel in the present appeal agreed that the material was tendered but also agreed that neither appreciated that the appeal was a hearing de novo in the sense that they were entitled to present evidence afresh. It is clear enough that in their minds they were arguing the appeal on the record rather than presenting evidence. (at p188)

10. The problem is compounded by the fact that, in the course of his reasons, his Honour made several express findings of fact, some of which were at variance with the findings of the tribunal. Had his Honour heard the witnesses afresh, there is no doubt that this approach was not only open but required of him. The same is true had the evidence been presented afresh, not through the mouths of witnesses giving oral testimony but through the written pages of the material before the tribunal. In that latter case the parties would have made the choice to present their evidence in writing. But the parties concur in saying that, so far as they were concerned, they were arguing the appeal on the record and on the basis of those authorities concerned with such appeals; they concur in saying that this is how this Court should approach the matter. Edwards v. Noble (1971) 125 CLR 296 was mentioned in argument before us as an appropriate guide and it too was mentioned in his Honour's reasons. (at p189)

11. Thus the considerations that arose in McCormack v. Federal Commissioner of Taxation (1979) 53 ALJR 436 do not arise. But there is a passage in the judgment of Gibbs J. that has some application here: "No doubt, speaking generally, a Supreme Court, on an appeal from a decision of a board of review, would not be justified in taking a different view of the credibility of a witness from that taken by the board, when the witness was seen and heard by the board, but was not recalled to give evidence before the court" (1979) 53 ALJR, at p 444 . What concerned the court in McCormack's case was that the board of review had rejected the evidence of a witness and, in the view of the High Court, that rejection had been affected by a mistake. The board's assessment could not stand yet neither the Supreme Court nor the other appellate courts involved were in a position to make their own assessment. In the circumstances the High Court thought that the only course open was to remit the matter to the Supreme Court for rehearing. (at p189)

12. In my view none of the findings of the tribunal in the present case has been shown to have been affected by mistake even though in some respects some may be open to criticism. In those circumstances it seems to me that it was not open to his Honour to make findings of fact anew except within the limits open to an appellate court in the light of a line of decisions culminating in Warren v. Coombes (1979) 53 ALJR 293 ; and that is because of the way in which the parties chose to present the appeal to the Supreme Court. (at p189)

13. In the course of his reasons his Honour found as a fact that on 17th June, 1975, there were no complaints made nor were there any findings on examination which would have alerted Dr. Vines to the fact that the present appellant may have been suffering from a prolapsed lumbar disc. There can be no quarrel with that finding. Nor can there be any quarrel with his Honour's comment that there was no report from Dr. Page which would explain how a consultation for urinary tract infection became converted into a laminectomy for a condition which was not obvious on history, symptoms or clinical examination. But, with respect to his Honour, those comments overlook the true nature and perspective of the medical evidence, in particular that of Dr. Watson who found that the lesion of the S1 disc was an aggravation of a pre-existing injury and an aggravation consistent with the appellant's description of what happened on 10th June, 1975. It is clear that his Honour was not impressed with the evidence of the present appellant and no doubt there is much that can be said against her, especially her failure to make any reference to Dr. Vines of the incident on 10th June. But these were all matters urged before the tribunal and taken into account by the tribunal in reaching its decision. (at p190)

14. In Warren v. Coombes Gibbs, Jacobs and Murphy JJ. (1979) 53 ALJR, at p 295 referred with apparent approval to the judgments in Powell v. Streatham Manor Nursing Home as reflected in the headnote to that report: "Where the question at issue is the proper inference to be drawn from facts which are not in doubt, the appellate Court is in as good a position to decide the question as the judge at the trial is. (at p190)

15. "But the appeal, although a rehearing, is a rehearing on documents and not, as a rule, on oral evidence; and where the judge at the trial has come to a conclusion upon the question which of the witnesses, whom he has seen and heard, are trustworthy and which are not, he is normally in a better position to judge of this matter than the appellate tribunal can be; and the appellate tribunal will generally defer to the conclusion which the trial judge has formed" (1935) AC 243 . (at p190)

16. The appellant's account of the accident was accepted by the tribunal. In particular it believed her evidence of what happened while she was loading the Toyota, her immediate complaint of having hurt her back and, by implication, the symptoms she experienced thereafter. I see no reason to disturb those findings of primary facts; the account involved no "glaring improbability" as suggested by the respondent: see Voulis v. Kozary per McTiernan J. (1975) 50 ALJR 59 . (at p190)

17. The tribunal's finding of personal injury by accident involved as well inferences drawn from the medical evidence. For the reasons mentioned earlier, those inferences warrant a finding in favour of the appellant. Once personal injury by accident was established, the extent of the appellant's incapacity was hardly in issue. (at p190)

18. In my view the appeal should be allowed and the determination of the tribunal reinstated. (at p190)

JUDGE3

LOCKHART J. I agree with the reasons for judgment of Toohey J. (at p190)

ORDER

Orders accordingly.