Hettiarachci v RACV
[2016] VSC 97
•30 March 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST S CI 2015 01328
| PATHMAL HETTIARACHCI | Appellant |
| v | |
| ROYAL AUTOMOBILE CLUB OF VICTORIA (RACV) LIMITED | Respondent |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 February 2016 |
DATE OF JUDGMENT | 30 March 2016 |
CASE MAY BE CITED AS: | Hettiarachci v RACV |
MEDIUM NEUTRAL CITATION: | [2016] VSC 97 |
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APPEAL – Entitlement to payments under Accident Compensation Act – Appeal from Magistrates’ Court – Error of law – Whether reasons of Magistrate adequate – Relevant Considerations – Appeal allowed – Remit to Magistrates’ Court – Magistrates’ Court Act s 109 – Accident Compensation Act ss 82, 93.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Uren QC with Ms J Zhu | Nowicki Carbone |
| For the Respondent | Mr S O’Meara QC with Ms M Tsikaris | Clayton Utz |
HIS HONOUR:
Introduction
Mr Hettiarachci lost his claim in the Magistrates’ Court for compensation under the Accident Compensation Act 1985 (the Act). He appeals to this Court on a question of law pursuant to s 109 of the Magistrates’ Court Act 1989 from the orders of her Honour Magistrate McLean made 24 February 2015.
Mr Hettiarachci asked the Magistrate to find that he had an entitlement to weekly payments of compensation for incapacity for work which he alleged resulted from, or was materially contributed to by, a mental injury arising out of his employment, pursuant to ss 82 and 93 of the Act.
The injury – stress and anxiety – was asserted to have occurred as a result of three events in the course of his employment with the RACV Ltd (RACV, the respondent to the appeal) at its Melbourne club in the city (the Club). First, as a result of work from January to November 2013; second, as a result of specific incidents of harassment, bullying, and overwork during 2013; and third, as a result of management action in the form of a performance review in November 2013.
After hearing six days of evidence and oral argument, the Magistrate delivered a seven page judgment, deciding that Mr Hettiarachci was disentitled to compensation on the basis that any mental injury was caused wholly or predominantly by management action taken in November 2013 on reasonable grounds and in a reasonable manner, thus engaging s 82(2A) of the Act. Her Honour rejected the other two alleged causes of the mental injury (the harassment/bullying and work stress and anxiety).
Mr Hettiarachci’s appeal to this Court was confined to her Honour’s decision about the stress and anxiety claim arising out of employment between January and November 2013. His two complaints are that:
(a) the reasons given by her Honour for rejecting this part of his claim did not address, in terms, the account he gave of the development and continuation of symptoms after January 2013. If her Honour ‘impliedly’ rejected Mr Hettiarachci’s account of the development of symptoms in January 2013, and the medical evidence which supported this part of his claim, it should have been stated; and
(b) alternatively, there is specific error in her Honour’s finding that there was no medical material to support the work stress and anxiety aspect of Mr Hettiarachci’s claim.
Background
Before setting out details of the case and the Magistrate’s decision, it is necessary to traverse some background facts.
Mr Hettiarachci commenced employment at the Club as a sous chef on 2 July 2012 and worked in the kitchen until 10 December 2013. He was in charge of 12 staff in the pastry kitchen, providing support and supervision.
His duties included the somewhat artistic roles of menu and recipe creation, as well as ordering stock.
After some problems and discrete incidents – such as the production of sub-standard pastries from his kitchen – Mr Hettiarachci was the subject of a performance management review in the latter half of 2013. This culminated in a performance related meeting in November 2013 with his supervisor, Mr Boyer, and Mr Boyer’s supervisor, Mr Normoyle. Mr Hettiarachci was subsequently given a warning letter.
Mr Hettiarachci stopped work on 10 December 2013.
The Accident Compensation Act
Section 82 of the Act states as follows:
Entitlement to compensation
(1) If there is caused to a worker an injury arising out of or in the course of any employment, the worker shall be entitled to compensation in accordance with this Act…
Section 82(2), however, provides for circumstances in which the worker may be disentitled to compensation:
…
There is no entitlement to compensation in respect of an injury to a worker if the injury is a mental injury caused wholly or predominantly by any one or more of the following—
(a)management action taken on reasonable grounds and in a reasonable manner by or on behalf of the worker's employer; or
(b)a decision of the worker's employer, on reasonable grounds, to take, or not to take any management action; or
(c)any expectation by the worker that any management action would, or would not, be taken or a decision made to take, or not to take, any management action; or
(d)an application under section 81B of the Local Government Act 1989, or proceedings as a result of that application, in relation to the conduct of a worker who is a Councillor within the meaning of section 14AA.
Section 93 reads as follows:
Compensation in weekly payments
If a worker's incapacity for work results from, or is materially contributed to by, an injury which entitles the worker to compensation, the compensation shall be in the form of weekly payments subject to and in accordance with this Part.
Nature of the appeal
Section 109 of the Magistrates’ Court Act reads as follows:
109 Appeal to Supreme Court from final order made in civil proceeding
(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2)An appeal under subsection (1)—
(a)must be instituted not later than 30 days after the day on which the order complained of was made; and
(b)does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3)Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4)An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5)The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court—
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
(6)After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.
(7)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.
In Ericsson Pty Ltd v Popovski, Brooking JA said of an appeal under s 109:
But the appeal given by s 109 of the Magistrates' Court Act is only on a question of law, and it is not enough to show error of law simply to persuade a judge that the magistrate went wrong on a question of fact. The plaintiff accepts this, and acknowledges that it was necessary for her to satisfy the judge, as she did, not only that the finding of the magistrate was wrong in the sense that the judge himself would have come to a different conclusion on the primary facts found by the magistrate, but also that the magistrate was constrained to make the finding which commended itself to the judge. It is a strong thing to reach such a conclusion in a case where the burden of proof lies on the appellant, who is therefore submitting not that an affirmative finding had no evidence to support it, but that the evidence was such as to necessitate an affirmative finding which was not made. It will be impossible to sustain this burden in cases where the refusal to make the finding sought may be grounded in a refusal, open to the tribunal, to accept part or parts of the evidence. I refer to the decisions which I cited as bearing on whether the questions posed in the present case by the Master's order are questions of law. But in the present case the magistrate seems to have accepted the plaintiff's evidence as reliable and it may be said that the question is not whether on the evidence as a whole the magistrate was constrained to make a certain finding, but whether on the findings of primary fact which the magistrate made he was constrained to make that finding. This is, as I shall mention later, subject to the qualification that regard must also be had to findings which it was open to the magistrate to make and which he may, consistently with his reasons for decision, have made, notwithstanding that he did not announce them.[1]
[1]Ericsson Pty Ltd v Popovski (2000) 1 VR 260, [14] (‘Ericsson’).
Ericsson was a case not dissimilar to the present one. The worker had failed in an application for payments under s 82(1) of the Act. Although the appeal to the Trial Division of this Court did not involve an attack on the Magistrate’s reasons, it challenged the findings of the Magistrate which the trial judge held were not open on the evidence. On appeal, Brooking JA acknowledged that he, like the trial judge, would have reached a different conclusion to that of the Magistrate. The important point made by Brooking JA, however, was that there was sufficient evidence to justify the Magistrate’s conclusion – and thus no error of law.
But there is another aspect of the judgment that should be noted. As is clear from the extract, the reasons of the Magistrate enabled the Court to determine what view had been taken of the worker’s evidence – this was a matter of ‘primary fact’. I shall return to this point later.
The case before the Magistrate
Mr Hettiarachci filed his complaint with the Magistrates’ Court on 8 April 2014, with RACV filing its defence on 20 May 2014.
The trial commenced on 18 November 2014. Counsel for Mr Hettiarachci called three witnesses:
(a) Mr Hettiarachci (whose evidence spanned three sittings days and occupies 180 pages of transcript, including 120 pages of cross-examination);
(b) Mr De Souza, a fellow employee; and
(c) Dr Street, the treating psychologist.
Mr Hettiarachci tendered the medical reports of:
(a) Dr Athauda, the treating general practitioner, dated 4 March 2014 and 21 August 2014, accompanied by his clinical records;
(b) Dr Akinbiyi, the treating psychiatrist, dated 18 August 2014, 11 November 2014;
(c) Dr Kaplan, a consultant medico-legal psychiatrist engaged by the solicitors for Mr Hettiarachci, dated 4 August 2014; and
(d) Dr Street.
RACV called:
(a) Mark Normoyle, executive chef at RACV; and
(b) Pierick Boyer, executive pastry chef at RACV.
Counsel for RACV also tendered a number of exhibits. Relevant to this appeal was the report of Dr Wendy Triggs, psychiatrist, of 7 January 2014.
The following evidence was given which relates to Mr Hettiarachci’s symptoms of stress and anxiety which occurred before the management meeting in November 2013:
(a) Mr Hettiarachci said that towards the end of 2012 he felt extremely stressed and anxious and started having problems with making decisions; from January 2013 he experienced numbness, sleeping issues and anger; and these symptoms continued into 2013.[2]
[2]Transcript of proceeding no. E11245445 pp 24, 33, 37, 44.
(b) Dr Athuada, who diagnosed Mr Hettiarachci with anxiety and depression, recorded in his clinical notes (from the first consultation on 6 December 2013) the following:
Has been stressed for the last one and half years
Works as a pastry chef and been in this job for the last one and half years
Worsening stress over the last few months
Feels being bullied at work
Humiliated infront of staff
Work long hours with no support
Feeling depressed and anxious
Tearful
and in his medical reports of 4 March 2014 and 21 August 2014, that Mr Hettiarachci told him:
he had been under stress for one and a half years at work. He works as a pastry chef and stated he was being bullied. He mentioned being humiliated at work and working long hours with no support. These issues have resulted in him feeling depressed and anxious. He is no longer able to work under these conditions;[3]
[3]Exhibit J tendered by the appellant as evidence in proceeding no. E11245445.
and the doctor then opined:
His symptoms of anxiety and depression occurred during the course of his employment. His employment with RACV was a significant contributing factor to his anxiety and depression.[4]
[4]Ibid.
(c) Dr Akinbiyi saw Mr Hettiarachci in August 2014 and diagnosed a major depressive disorder and generalised anxiety disorder. In his medical report of 18 August 2014 the doctor noted that:
Pathmal described that around January 2013 he started developing poor concentration, more forgetful, numbness in the head and right chest.[5]
[5]Ibid.
(d) Dr Triggs, who saw Mr Hettiarachci in January 2014, diagnosed an adjustment disorder, and in her report of 7 January 2014 noted that:
Details regarding his Performance Management culminating in a written warning on 28 November 2013…
… He has been working with this employer for 18 months and said that difficulties started soon after he had started.
He said more recently over 2013 there have been many meetings and he feels that he has been falsely accused of things…[6]
[6]Exhibit 16 tendered by the respondent as evidence in proceeding no. E11245445.
(e) Dr Kaplan, who after seeing Mr Hettiarachci in July 2014 diagnosed an adjustment disorder with mixed anxiety and depressed mood noted in his report of 4 August 2014, that:
Mr Hettiarachchi [sic] became increasingly anxious and depressed as a result of the stresses to which he was subjected in the course of his work at the RACV Club and he eventually decompensated and was forced to cease work.[7]
[7]Exhibit J tendered by the appellant as evidence in proceeding no. E11245445.
I should add, for completeness, that I am not satisfied that Dr Street (a treating psychologist) addressed this issue in either her report of 3 March 2014 or in her viva voce evidence.
Final addresses were made at the conclusion of evidence on the sixth day of the hearing (12 December 2014).
The Magistrate’s decision
On 24 February 2015, the Magistrate handed down her decision. Her Honour identified two issues:
(a) whether Mr Hettiarachci’s injury developed prior to 28 November 2013; and
(b) if not, whether the management action which resulted in his mental injury was undertaken in a reasonable manner.
Her Honour summarised the stress and anxiety part of Mr Hettiarachci’s case as follows: mental injury arising in the course of his employment with the onset of symptoms alleged in January 2013, ‘when on the plaintiff’s evidence he began to experience chest pain, sleep disturbance, mood swings, headaches and other symptoms, consistent with anxiety and/or depression.’[8]
[8]T461.
As to Mr Hettiarachci’s duties at the Club, her Honour noted that:
The plaintiff, in his evidence, stated that shortly after the commencement of his employment he was asked to develop a new tasting menu and this placed him under severe stress. He lacked support and he was, in order to complete the work required, obliged to work excessive hours.[9]
[9]T 462-463.
Her Honour also identified the claim based on instances of bullying and intimidation allegedly carried out by Mr Boyer and said:
… I accept of course that the perceptions of the plaintiff arising from the interactions he has with others are critically relevant. What I must be satisfied of, however, is not whether the plaintiff formed those perceptions as a result of his dealings with My Boyer or indeed others, but whether prior to the commencement of the formal performance process, the management action, the plaintiff was suffering from any compensable injury.
Counsel for the plaintiff submitted that I could be satisfied that such an injury manifested from about January 2013. As I have said, the only basis upon which I could make such a finding is the plaintiff’s own evidence. There is no medical material at all to support that finding. The plaintiff did not consult with his general practitioner on these issues, nor did he report the symptoms he later described to any other person.[10]
[10]T463 (Emphasis added).
Her Honour thus dismissed the claim based upon stress and anxiety in the course of employment from January 2013:
Having carefully considered the evidence and material before me, I cannot find that the plaintiff’s injury manifested as early as January 2013, nor can I find that it manifested prior to the performance issues meeting on 28 November 2013…[11]
[11]T464.
Her Honour went on to say that she accepted Mr Boyer’s evidence and was satisfied that Mr Boyer did not engage in bullying or intimidatory behaviour. Her Honour specifically found that there was no racial slurring or swearing at Mr Hettiarachci in the workplace.
Her Honour then found that Mr Hettiarachci suffered a mental injury arising out of his employment at the Club when under the performance review. However, it was concluded that management action undertaken at the meeting on 28 November 2013 was done in a reasonable manner pursuant to s 82(2A) of the Act:
I am satisfied the defendant has made out the elements of s 82(2A) defence upon which it relies. In my view the plaintiff has suffered a mental injury caused wholly or predominantly by management action taken on reasonable grounds in a reasonable manner by his employer. He is thus disentitled to compensation. Accordingly I dismiss the plaintiff’s claim.[12]
[12]T466.
Thus, the claim failed, as her Honour rejected any manifestation of symptoms prior to 28 November 2013.
Analysis
There are two issues: whether the Magistrate provided adequate reasons,[13] and whether there was an appellable error in the Magistrate’s findings of fact.[14] I will deal with the question of the adequacy of the reasons first.
[13]Grounds of Appeal 3.
[14]Grounds of Appeal 1 and 2.
Adequacy of reasons (Ground 3)
The failure of a judicial officer to provide adequate reasons is an error of law.[15] In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2),[16] the Court of Appeal (Charles, Buchanan and Chernov JJA) discussed the obligation of a judge to provide reasons for judgment in the following terms:
It is well settled that a judge has an obligation to provide reasons for judgment. The obligation to provide reasons is ’a normal not universal’ incident of the judicial process. However, as McHugh JA observed in Soulemezis v Dudley (Holdings) Pty Ltd, ’when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons’.[17]
[15]Ta v Thompson [2013] VSCA 344, [25] (‘Ta’); Hunter v Transport Accident Commission & Anor [2005] VSCA 1 [21].
[16][2002] VSCA 189; (2002) 6 VR, 1.
[17]Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSC 189; (2002) 6 VR 1, [99] (citation in original). Cited with approval in R v Arnold[1998] VSCA 34; [1999] 1 VR 179, 182 (Phillips JA).
The convenient and oft cited starting point for any challenge to a judicial officer’s reasons is the New South Wales Court of Appeal decision of Soulemezis v Dudley (Holdings) Pty Ltd.[18]That was an appeal from a decision of the Compensation Court regarding the applicant’s entitlement to compensation. The Court considered the duty of the Judge in the Compensation Court to provide reasons for his decision in respect of findings of fact following a contested case. It was held that the duty was complied with by giving grounds for his decision; detailed reasoning in support of such a finding was not required. McHugh JA said:
While it is true that his Honour did not expressly give any reasons for the finding, his reasons for judgment show quite clearly in my opinion that he held that the applicant was fit for work because the CAT scan did not reveal any abnormality. It is not to the point that his Honour's finding was erroneous or, as counsel for the applicant claimed, perverse. An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact.[19]
[18](1987) 10 NSWLR 247 (‘Soulemezis’).
[19]Ibid 282 (citation omitted).
Mahoney JA said:
But subject to matters such as these, the basis of a decision of a trial judge or an intermediate Court of Appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it.[20]
and continued:
In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion.[21]
[20]Ibid 271.
[21]Ibid.
Before I go to the substance of Mr Hettiarachci’s argument, I should make a few observations.
First, it is surprising, but not necessarily fatal to RACV, that her Honour’s decision is sparse. The trial went for six days. Some 400 pages of transcript were produced (including over 120 pages of cross-examination of Mr Hettiarachci – primarily on histories he provided to medical practitioners). Dozens of exhibits, including medical reports, were tendered. Her Honour’s judgment makes no specific reference to any of the medical evidence. It says nothing in any detail about the evidence given by Mr Hettiarachci.
I accept, as urged by counsel for RACV, that mere brevity of reasons does not, in and of itself, mean that the issues canvassed at trial have not been appropriately addressed. I also accept that the Magistrates’ Court is an extraordinarily busy court and that magistrates have little, if any, time to reflect ‘at leisure’ on their reasons for reaching a particular conclusion. However, a litigant (and, as a secondary but also important consideration, any reviewing court) is entitled to know the underlying basis for the disposition of the claim.[22]
[22]Woolworths Limited v Warfe [2013] VSCA 22 (‘Woolworths’) [124].
Here, the Magistrate reserved her decision for over two months. This was a case which involved an argument concerning an asserted mental injury. Such cases often raise questions of the accuracy of the account provided by the claimant, as well as opinions of the medical practitioners based on that account. It is singular that in dismissing this claim, her Honour did not specifically refer to any of the medical evidence, nor to her acceptance or rejection of Mr Hettiarachci’s evidence.
A descent into detail was not required. Where a judge’s decision turns upon the acceptance (or otherwise) of a particular witness’ account, the judge’s reasons for failing to be persuaded by that witness may be capable of no greater explanation than a summary statement. In Soulemezis, Mahoney JA said:
The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says.[23]
[23]Ibid 273 (citations omitted).
Second, counsel for RACV placed great store on the decision of the Court of Appeal in Ta.[24] That case was an appeal from the Magistrates’ Court which was subsequently challenged on judicial review both in the Trial Division and the Court of Appeal. The reasons given by the County Court judge were extraordinarily brief. They run for about eight sentences and amount to a rejection of the evidence given by the appellant, Mr Ta. The majority of the Court of Appeal (Osborn and Beach JJA) held that the reasons were adequate in the circumstances of the case – and that is the rub. Reasons, however sparse, need to address the issues in the case. In Ta, the majority held that they did.
[24][2013] VSCA 344.
Given the reliance placed by RACV on this decision, it is necessary to look at exactly what happened at the County Court hearing and the reasons that survived two levels of Supreme Court scrutiny.
The police, while searching Mr Ta's house under a search warrant, found a small quantity (0.1 gram) of heroin in a bag in his bedroom. Mr Ta was subsequently charged with seven offences, including being in possession of a drug of dependence under s 73 of the Drugs, Poisons and Controlled Substances Act 1981. Mr Ta bore the onus of proving that he did not possess the heroin.
Mr Ta was found guilty in the Magistrates’ Court of the possession charge. He then appealed to the County Court. That appeal was a re-hearing. The appeal was dismissed and the charge found proven.
At the hearing, police officers gave evidence that there was no DNA or fingerprints of Mr Ta on the heroin bag and there were unopened beer bottles in the bath at the house.
Mr Ta gave evidence that there was a New Year’s Eve party at his house attended by 15 guests (10 of which he knew) which had spanned two days. He said that the house was in a state of flux following the party; that not everything in the house, including the heroin and unopened beer bottles in the bath, belonged to him; and that he had no knowledge of the heroin contained in his bedroom.
The County Court judge’s reasons – which were provided orally and directly after counsels’ submissions – were as follows:
Right. Now, look, I’ve heard evidence from the appellant about a party and people coming and going and people using his room. He said it was orderly before he ... before the party, and it was not afterwards. Usually ... he said the house was tidy, the whole house was half tidy before the police attended; his own room had not been done. That his evidence is the only evidence that I have; I have no-one there ... anyone to say that it was a party and that people were sleeping all over the place. Simply that I would have to accept his word and in the circumstances, I don’t accept it. And I’m going to find ... I find the charges proved. And I find that he did have knowledge, and therefore I will sentence.
Mr Ta sought judicial review. In the hearing in the trial division of this Court before Whelan J, Mr Ta claimed that there was an error on the face of the record; specifically, that the learned County Court judge failed to give weight to relevant considerations, gave weight to irrelevant considerations, mistook the evidence, and failed to provide adequate reasons.
Whelan J, in relation to a judicial officer’s duty to provide reasons, said:
reasons are a necessary incident of the judicial process and are important not simply as a means of enabling appeals to be properly conducted and determined, but also so as to enable parties to perceive that justice has been done in their case, to enable the public generally to perceive that justice is being done in cases before the Courts, as a means of providing for judicial accountability, and because judgments perform an important educative function.[25]
[25]Ta v Thompson [2012] VSC 446, [22].
In the course of his analysis, in relation to the credibility of a witness, his Honour referred to the statement of McHugh JA in Soulemezis:
Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary ‘for him to go further and say, for example, that the reason was based on demeanour…’[26]
His Honour went on to state:
If there is evidence which is uncontradicted, reasonable and inherently probable, and which goes to the core of the case, a failure to refer to the evidence by the judge has been held to constitute an error as the evidence has either been rejected without any reason being given, or has not been properly considered.[27]
[26]Soulemezis (1987) 10 NSWLR 247, 280 (Citations omitted).
[27]Ta v Thompson [2012] VSC 446, [34].
Whelan J concluded that there was no error of law on the face of the record:
The only issue was, as Mr Ta’s counsel submitted, whether she accepted his assertion that he was ignorant of the presence of the heroin. She did not, and she said so. She could have said more, and perhaps it would have been better if she had, but what she said was enough in the context.[28]
[28]Ta v Thompson [2012] VSC 446, [43].
Mr Ta then appealed to the Court of Appeal, constituted by Osborn, Priest and Beach JJA. The Court of Appeal dismissed the appeal and held that the County Court Judge’s process of reasoning was sufficiently clear in the reasons, as were the grounds of the decision, to enable the Court to assess whether an error of law had been made. In relation to assessing a witness’ credibility, Osborn JA (with whom Beach JA agreed) said that:
Where a judge’s decision turns upon the acceptance or otherwise of a particular witness the judge’s reasons for failing to be persuaded by that witness may be capable of no greater explanation that a summary statement.[29]
[29]Ta [2013] VSCA 344 [52].
Priest JA dissented. His Honour was unable to determine what exactly it was that the County Court judge did not ‘accept’ and he held that these ‘enigmatic’ reasons constituted an error on the face of the record:
… by recourse to the judge’s reasons in this case one cannot discern – except, perhaps, by informed guesswork – the facts she found, or the reasons for her decision.[30]
[30]Ibid [65].
I see Ta as being light years distant from this case: the County Court judge only had to consider whether she accepted the evidence of the appellant on a narrow point – possession of the bag of heroin in the bedroom. Her Honour said in terms that she did not accept Mr Ta’s evidence. By contrast, in this case, it was not just the evidence of Mr Hettiarachci (which was lengthy) which needed to be considered and pronounced upon (even if only in a cursory fashion), but also that of a number of medical practitioners, who had histories consistent with his account and had, based on that history, formed a diagnosis supportive of his claim.
Third, it is established that where there is no right of appeal in relation to factual findings, such as the present case, the requirement for the provision of reasons as to such findings is less rigorous.[31] Nevertheless, as the Court of Appeal observed in Ta, it is still necessary for a trial judge to explain the grounds of his or her conclusion in sufficient detail to enable a reviewing court (in this case the court dealing with the point of law on appeal) to see the grounds upon which the conclusion was based, but without detailed reasoning as to the evidence. Osborn JA said:
If this approach is adopted in respect of the County Court judge’s reasons in the present case then the reasons needed to explain the grounds of her conclusion in sufficient detail to enable this Court to see the grounds upon which it was based but did not require detailed reasoning as to the evidence.[32]
[31]Ibid [42].
[32]Ibid [42].
Bearing in mind these observations, and when considered in the context of a six-day trial with a considerable body of evidence, I think the Magistrate’s reasons in this case are inadequate.
As I have already noted, nowhere in her Honour’s judgment is there reference, in terms, to rejection or acceptance of Mr Hettiarachci’s account of his symptoms of anxiety arising out his employment. Nor is there any finding as to the accuracy (or otherwise) of Mr Hettiarachci’s account to four of the doctors (Dr Triggs, Dr Athuada, Dr Akinbiyi and Dr Kaplan). These accounts were admissible as evidence of his complaints over a period of time and formed the basis of the diagnosis made by the doctors (which I have set out at [21]). Moreover, the reasons simply do not deal with the opinions of the doctors at all. Nothing substantive was required. But nothing at all was inadequate.
As I alluded to earlier, cases involving mental injury are not like those involving physical injury – the latter which, in many cases, can be measured by x-rays, MRIs, CAT scans or physical examination. Invariably, courts are called upon in mental injury cases to determine whether the patient has truly experienced the symptoms of which he or she complains. Assessing the credibility or reliability of the claimant is a basal function of the court in such a claim.[33]
[33]Woolworths [2013] VSCA 22, [132] – [142].
Her Honour was entitled to accept all, part, or none, of Mr Hettiarachci’s evidence. It may be the case, speculating for the moment, that her Honour did not regard Mr Hettiarachci as a credible or reliable witness (particularly given that she rejected his accounts of bullying and harassment). Alternatively, it may be that her Honour accepted his evidence, but concluded that the symptoms did not constitute a compensable injury on the basis that he made no report to a doctor at the time of the symptoms occurring.
Further, this is a case in which a court has, after a lengthy trial, rejected a claim of real significance to a worker. As I mentioned earlier, a reviewing court (and of course the affected parties) is entitled, as a matter of law, to know the basic rationale of the judge which underpins the result.[34] It is not sufficient to read the tea leaves and endeavour to divine what her Honour meant by plucking pieces here and there from the reasons. In this case, the acceptance (or otherwise) of the evidence of the claimant and the medical practitioners was of critical importance and should have been addressed squarely – not left to inferences and the reading in to the reasons of words in an attempt to decipher the basis for the Magistrate’s decision. It was, in my opinion, incumbent upon her Honour to state, in terms (and not by implication), her conclusion as to acceptance or otherwise of the evidence of Mr Hettiarachci and the medical practitioners.
[34]Woolworths [2013] VSCA 22 [124].
Finally, I do not accept the argument of senior counsel for RACV that once the Magistrate determined that Mr Hettiarachci had not sought medical treatment for his anxiety before 6 December 2013, then it can be inferred that her Honour must have necessarily rejected his account of his symptoms commencing in January 2013. The reference to Mr Hettiarachci’s failure to seek medical treatment in the months leading up to December 2013 does not, in and of itself, lead to the conclusion that she rejected his evidence.
The failure by a claimant to seek medical treatment may, of course, be an indication that a person has not suffered an injury. Alternatively, it may be that the injury was minor and did not warrant a visit to a doctor – but it may still be a compensable mental injury. It could also be the case that the injury was significant but that the claimant is of a stoic nature or averse to the ministrations of the medical profession. It is far from black and white. Any of these inferences is capable of being drawn. It is simply not open to draw an inference from her Honour’s reasons that she must have rejected Mr Hettiarachci’s evidence on this issue because he did not seek medical treatment in the months before December 2013.
In summary, Mr Hettiarachci has made out his case that the reasons provided by her Honour were inadequate.
Error of law resulting from a mistake as to the state of the evidence (Grounds 1 and 2)
As stated at [15] – [16], an error by a magistrate as to questions of fact is insufficient to establish an error of law.
In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works,[35] Smith J (with whom Adam J concurred) put that principle as follows:
It would not be enough for the appellant to show that the tribunal's reasons for its decision are so expressed as to suggest the possibility that the tribunal proceeded upon a wrong view of the law. This court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.
[35](1971) 38 LGRA 6, 18.
More recently, in Rugolino v Howard,[36] Bell J considered the authorities concerning a finding of fact and errors of law in the context of a s 109 Magistrates’ Court appeal, and concluded as follows:
… These principles have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held ‘the question whether there is any evidence of a particular fact is a question of law.’ Therefore a finding of fact is open to challenge as ‘erroneous in law’, but only if ‘there is no probative evidence to support it’. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if ‘it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.’ His Honour emphasised that the question was not whether the finding was ‘reasonably open’, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.
S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners’ Board of Victoria, Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was ‘not open’. After endorsingthe decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries that it was ‘critical’ to making findings of fact that they be based on the evidence, but there would be no error of law ‘unless it can be shown that there was no evidence’ to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council. After approving the ‘not open’ test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was ‘any evidence’ to support it.
In State of Victoria v Subramanian, Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.
It follows that, if there is any direct evidence in support of the finding of fact which is under challenge, the court cannot interfere with the finding on appeal, even if it would have made a different finding on the evidence before the magistrate. As we will see, on one view of the evidence in the present case, there was such direct evidence before the magistrate on the issue of the authority of the operator, and that would be enough to dismiss the appeal. On another view, however, the evidence on this subject was all circumstantial and the magistrate’s finding could only have been made by drawing inferences.[37]
[36][2010] VSC 590.
[37]Ibid [10] – [13].
Bell J concluded that:
If there was some evidence in support of the magistrate’s findings of fact, they cannot be challenged as erroneous in law, even if the court would not have made those findings on that evidence. It is only an error of law to make findings which are not open on the evidence in the sense that there is no evidence to support them. To the extent that the magistrate made a finding of guilt based on inferences drawn from the established facts, there will be an error of law if, but only if, an alternative finding consistent with innocence was not only open but was not rationally excludable…[38]
[38] Ibid [20].
Of significance to this appeal is the proposition that it is not merely a question of examining the ultimate decision and determining whether it was open on the evidence to the Magistrate. The question to determine is whether the essential findings of fact made by the Magistrate are underpinned by the evidence.
Here, Mr Hettiarachci alleges that her Honour’s reasons demonstrate a fundamental misconception of the evidence – so fundamental so as to vitiate the judgment. It was said that it was patently incorrect for her Honour to conclude (in relation to the stress and anxiety claim from January 2013) that:
There is no medical material at all to support that finding. The plaintiff did not consult with his general practitioners on these issues, nor did he report the symptoms he later described to any other person.[39]
[39]T463 (Emphasis added).
I accept this submission. Mr Hettiarachci’s case was supported by a body of medical opinion. To suggest otherwise flies in the face of the evidence that I have set out at [21].
Counsel for RACV argued that it was plain that her Honour was referring to contemporaneous medical material, i.e. evidence from the doctors as to complaints made by Mr Hettiarachci to the medicos between January and November 2013. But this was not what her Honour said.
Her Honour’s reference to ‘medical material’ cannot be confined to contemporaneous complaints. It must, on any sensible reading, include the opinions of the doctors who provided reports and the histories recorded in those reports. A number of doctors, either in whole or part, supported the proposition that Mr Hettiarachci’s mental condition was related to his employment during the relevant period (and not just to the bullying/harassment or management action).[40] To say that there was no medical material was an erroneous finding of fact unsupported by the evidence.
[40]See [21] above.
Mr Hettiarachci has established an error of the law on this ground.
Browne v Dunn: a non-issue
Counsel for Mr Hettiarachci also contended that there was a breach of the rule in Browne v Dunn[41] at the hearing: it was not put to Mr Hettiarachci that his account was under challenge, therefore it was more likely that the Magistrate had not rejected it.
[41](1893) 6 R 67.
If it matters, I do not agree. It was not necessary for counsel to challenge Mr Hettiarachci in terms as to the accuracy of his account of the development of symptoms. The putting of the various histories he had given to the doctors was sufficient to make it clear that this was in issue.
I accept counsel for RACV’s submission that if there had been any misconception of the case that was being run by RACV then this would have been raised by Mr Hettiarachci’s counsel at trial. It was not. When one reads the submissions made by trial counsel, there is no suggestion that counsel did not understand the case that her client had to address, nor that she had not had sufficient opportunity to meet that case.
I reject this submission.
Conclusion and consequences
The decision of the Magistrate should be quashed.
I have given considerable thought to what can be done to avoid a full re-hearing of the case, particularly given that the Magistrate reached two unimpeachable conclusions about the other aspects of Mr Hettiarachci’s claim.
In discussion, I suggested that any remitter should relate solely to the decision on the stress and anxiety claim (i.e maintain the Magistrate’s findings in relation to the bullying and harassment and management action aspects of the claim). However, as counsel for RACV pointed out, correctly I think, the three components of the claim are intertwined and trying to dissect one from the other may cause more problems than it solves.
A possible resolution is to remit the matter to the Magistrate who heard the case. Unfortunately, for the reasons set out by Ormiston J in Body Corporate Strata Plan (No 4166) v Stirling Properties Limited,[42] I consider this to be undesirable, although it would be the most pragmatic course.
[42][1984] VicRp 73; [1984] VR 903 at 912.
Ultimately, I have come to the conclusion that:
(a) the appeal be allowed;
(b) the whole of the decision of the Magistrate be quashed;
(c) the matter be remitted to the Magistrates’ Court for hearing by a different Magistrate;
(d) the costs of the first hearing be determined by the Magistrate hearing the remitted proceeding; and
(e) subject to any submissions by RACV to the contrary, RACV should pay Mr Hettiarachci’s costs of the appeal.
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