Mitchell v Canal Rocks Beach Resort
[2002] WASCA 331
•5 DECEMBER 2002
MITCHELL -v- CANAL ROCKS BEACH RESORT [2002] WASCA 331
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 331 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:182/2001 | 11 OCTOBER 2002 | |
| Coram: | TEMPLEMAN J ROBERTS-SMITH J SHEPPARD AUJ | 5/12/02 | |
| 33 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JUSTIN BLAIR MITCHELL CANAL ROCKS BEACH RESORT |
Catchwords: | Workers compensation Appeal from Compensation Magistrate's Court upholding Review Officer's dismissal of claim for total incapacity Whether claim for partial incapacity should have been allowed Onus of proof Whether previous decision of the Full Court of the Supreme Court binding on Review Officer Whether such previous decision should have been followed Precedent Effect of legislative provision that Compensation Magistrate's Court not bound by legal precedent |
Legislation: | Workers' Compensation and Rehabilitation Act 1981 (WA), s 116, Schedule 1, cl 7(1) and (2) |
Case References: | Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Charleston v Smith [1999] WASCA 261 Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 Dew v United British Steamship Co (1928) 139 LT 628 Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 Hood v Royal Perth Hospital, unreported; SCt of WA; Library No 970658; 5 December 1997 In Re Harper v National Coal Board [1974] QB 614 Janus v Queensland Law Society [2001] QCA 180 Jones v Bartlett (2000) 205 CLR 166 Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292 Kuligowski v Metrobus [2002] WASCA 170 Lynn v Bamber [1930] 2 KB 72 Mayne Nickless v Mayne, unreported; SCt of WA; Library No 960736; 19 December 1996 McGinnis v Westralian Forest Industries Pty Ltd, unreported; CM-138/00 McNair v Mayne Nickless Ltd & Anor (1997) 17 WAR 191 Moses v Parker [1896] AC 245 Ory & Ory v Betamore Pty Ltd (1993) 60 SASR 393 Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170 Re Tyler & Ors; Ex parte Foley (1993-1994) 181 CLR 18 Summit Homes v Lucev (1996) 16 WAR 566 Webb v The Queen (1994) 13 WAR 257 Westralian Farmers Cooperative Ltd v Bunce, unreported; FCt SCt of WA; Library No 7691; 31 May 1989 Westralian Farmers Co-Operative Ltd v Raymond George Bunce, unreported; FCt SCt of WA, Library No 7691; 31 May 1989 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MITCHELL -v- CANAL ROCKS BEACH RESORT [2002] WASCA 331 CORAM : TEMPLEMAN J
- ROBERTS-SMITH J
SHEPPARD AUJ
- Appellant
AND
CANAL ROCKS BEACH RESORT
Respondent
Catchwords:
Workers compensation - Appeal from Compensation Magistrate's Court upholding Review Officer's dismissal of claim for total incapacity - Whether claim for partial incapacity should have been allowed - Onus of proof - Whether previous decision of the Full Court of the Supreme Court binding on Review Officer - Whether such previous decision should have been followed - Precedent - Effect of legislative provision that Compensation Magistrate's Court not bound by legal precedent
(Page 2)
Legislation:
Workers' Compensation and Rehabilitation Act 1981 (WA), s 116, Schedule 1, cl 7(1) and (2)
Result:
Appeal dismissed
Category: A
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Mr G R Hancy
Solicitors:
Appellant : D'Angelo & Partners
Respondent : Kott Gunning
Case(s) referred to in judgment(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Charleston v Smith [1999] WASCA 261
Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407
Dew v United British Steamship Co (1928) 139 LT 628
Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177
Hood v Royal Perth Hospital, unreported; SCt of WA; Library No 970658; 5 December 1997
In Re Harper v National Coal Board [1974] QB 614
Janus v Queensland Law Society [2001] QCA 180
Jones v Bartlett (2000) 205 CLR 166
Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292
Kuligowski v Metrobus [2002] WASCA 170
Lynn v Bamber [1930] 2 KB 72
Mayne Nickless v Mayne, unreported; SCt of WA; Library No 960736; 19 December 1996
(Page 3)
McGinnis v Westralian Forest Industries Pty Ltd, unreported; CM-138/00
McNair v Mayne Nickless Ltd & Anor (1997) 17 WAR 191
Moses v Parker [1896] AC 245
Ory & Ory v Betamore Pty Ltd (1993) 60 SASR 393
Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170
Re Tyler & Ors; Ex parte Foley (1993-1994) 181 CLR 18
Summit Homes v Lucev (1996) 16 WAR 566
Webb v The Queen (1994) 13 WAR 257
Westralian Farmers Cooperative Ltd v Bunce, unreported; FCt SCt of WA; Library No 7691; 31 May 1989
Case(s) also cited:
Nil
(Page 4)
1 TEMPLEMAN J: I have had the advantage of reading, in draft, the reasons to be published by Roberts-Smith J, with which I am in general agreement.
2 Counsel for the appellant submitted that cl 7(2) of Schedule 1 of the Workers' Compensation and Rehabilitation Act 1981 (WA) has been repeatedly misapplied in the lower courts because it has been construed in the light of a misapplication of the decision of this Court in Westralian Farmers Cooperative Ltd v Bunce, unreported; FCt SCt of WA; Library No 7691; 31 May 1989.
3 Clause 7(2) provides that the amount of compensation payable to a worker who is partially incapacitated for work, as a result of a disability, will be:
" … a weekly payment during the partial incapacity equal to the amount by which the total weekly earnings of the worker … would exceed the weekly amount exclusive of payments for overtime or any bonus or allowance which he is earning or is able to earn in some suitable employment or business after the occurrence of the disability."
4 Clause 7(2) says nothing about the onus of proof. However, as the learned compensation Magistrate observed in this case, Bunce (supra):
"is commonly cited in this jurisdiction as authority for the proposition that where a worker is partially incapacitated, the onus is on the worker to establish that what he or she is able to earn in some suitable employment is less than the amount payable in respect of total incapacity, so as to give rise to an entitlement to payments as for partial incapacity in accordance with cl 7(2) of Schedule 1."
5 In Bunce (supra) the Workers' Compensation Board ordered weekly payments of compensation to be paid on the basis that the worker:
"has been … and continues to be partially disabled but is fit for light duties."
- However, the Board made no findings of fact about the amount the worker was able to earn in some suitable employment or business. Brinsden J held:
"Because the Board has not given adequate reasons, it is impossible to say whether its failure to state what the (worker)
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- was and is able to earn in some suitable employment or business is because of lack of evidence. As the burden of proof of what the (worker) was or is able to earn in some suitable employment or business is upon the (worker), in the absence of sufficient evidence for the Board to make a finding of his ability to earn in some suitable employment or business, the application would have to be dismissed."
6 In his characteristically lucid way, the learned compensation Magistrate dealt with the appellant's submission (which was repeated in this Court) that the judgment of Brinsden J in Bunce does not constitute a binding ratio decidendi. His Worship said:
"That may well be so, but it does not mean that his Honour's reasoning was incorrect. As Pidgeon J pointed out in Mayne Nickless v Mayne, unreported, FCT SCt of WA; Library No 960736; 19 December 1996, in proceedings under the Act, the normal rule with regard to the onus of proof applies – ie, the person who asserts must prove. Mayne Nickless v Mayne was concerned very specifically with proceedings before review officers and the manner in which they should be conducted. Whether one characterises Brinsden J's reasons in Bunce as ratio decidendi or as obiter dicta, his statement that the burden of proof of what the worker is able to earn in some suitable employment is upon the worker is obviously correct where the worker seeks to rely upon cl 7(2) of Schedule 1 to establish an entitlement to payments on the basis of partial incapacity."
7 I am in complete agreement with that reasoning.
8 Counsel for the appellant sought to distinguish Bunce (supra) on the basis that there, the worker had admitted he was fit for light duties. In the present case, no such admission has been made. However, I do not regard that as a distinction of any substance. As Roberts-Smith J has pointed out, in the present case, the review officer did not accept that the appellant was totally unfit for work. The preponderance of medical evidence established that the appellant was fit for lighter work than his pre-accident occupation.
9 That being so, counsel for the appellant submitted, even though the appellant might have the ultimate burden of proving the extent of his earning ability in some suitable employment, there was an antecedent evidentiary burden upon the respondent to produce medical evidence to
(Page 6)
- the effect that the appellant was capable of working at a particular job or jobs. Only if that were done, the appellant submitted, would the evidentiary burden shift to him, to show that he was incapable of performing the job or jobs identified by the respondent.
10 That submission was made also to the learned compensation Magistrate, who dismissed it. He said:
"With respect, despite its ingenuity, that proposition is in my opinion incorrect. At the hearing of the appellant's application for weekly payments, operation of the normal rule with regard to the burden of proof resulted in the appellant being required to satisfy the review officer that he was:
(1) totally incapacitated and therefore entitled to weekly payments on that basis; or
(2) partially incapacitated, but nevertheless entitled to weekly payments as for total incapacity, either because he had complied with cl 8 of Schedule 1 to the Act or else because he had been able to establish himself as an 'odd lot' – see Ball v William H Hunt & Sons Ltd (1912) AC 496; or
(3) partially incapacitated, and therefore entitled to weekly payments in the amount of the difference between his pre-accident earnings and the weekly amount he was able to earn in some suitable employment or business after his disability, in accordance with cl 7(2) of Schedule 1 (this alternative includes, of course, the situation where there is no suitable employment and the difference is therefore 100% of pre-accident earnings).
The review officer found that the appellant was partially incapacitated. The appellant did not rely on cl 8, or seek to establish himself as an 'odd lot'. The burden was therefore upon him to establish what he could earn in some suitable employment or business, and to demonstrate that it was less than his pre-accident earnings. By reason of Mayne Nickless v Mayne, that seems ineluctably to be the case, no matter how much or how little weight is given to the decision in Bunce."
(Page 7)
11 I am in complete agreement with the learned Magistrate's reasoning and his conclusion.
12 Counsel for the appellant submitted that the inevitable consequence of this conclusion was that a worker would not qualify for compensation payments "unless he can negate all possible hypothetically available and suitable occupations that are open to that worker".
13 The same argument was addressed to the learned compensation Magistrate. He dealt with it in the following way:
"In case it might be thought that such a conclusion would require the appellant to present for the review officer's consideration every conceivable occupation and to eliminate them one by one, and that such a requirement would be to place a burden on the appellant which would be unreasonable, and inconsistent with the remedial and beneficial nature of the Act, I adopt unreservedly the following passages from the decision of the learned Compensation Magistrate in McGinnis v Westralian Forest Industries Pty Ltd, unreported; CM-138/00:
'… if the appellant maintains that there is no suitable employment within the meaning of cl 7(2) and he is therefore entitled to weekly payments equal to the amount as for total incapacity for work then, in my view, he must prove that to be the case (on the balance of probabilities) …
Further, I do not accept the appellant's submission that a worker in his position would need to address every known occupation. What would be required is evidence from the worker on such matters as his employment qualifications and experience, educational qualifications and any other relevant background. A rehabilitation provider could then give evidence, given the worker's evidence and his physical capacity as found by the review officer, as to what, if any, suitable employment would be reasonably open to that worker. It would then be for the review officer, having had regard to that evidence and any evidence adduced by any other party, to make appropriate findings …
At the end of the day, when it is the application of a worker seeking weekly payments, it is for the worker to prove what he is entitled to …'"
(Page 8)
14 Again, I find myself in complete agreement with the learned compensation Magistrate's reasons, which I gratefully adopt. I would add only that although the worker carries the burden of proving an entitlement to compensation, "the review officer is not bound by the rules of evidence and may inform himself or herself of any matter in such manner as the review officer thinks fit": s 84ZD.
15 The evidentiary requirements of the kind identified in McGinnis, as set out in the above quotation, are customarily addressed in cases of this kind. That was, I think, accepted by counsel for the appellant before this Court. But, counsel submitted that that was a legacy of the interpretation of Bunce (supra) in the lower courts.
16 I agree. However, for the reasons set out above, I am satisfied that the approach taken in the lower courts has been correct: and that it was correct in the present case. I therefore agree that the appeal should be dismissed.
17 ROBERTS-SMITH J: The nature of proceedings before a review officer under the Workers’ Compensation and Rehabilitation Act 1981 (WA) ("the Act")is of a curious sort. While the proceedings are adversarial in character, a Review Officer may, in resolving a dispute, inspect any document, question any person or require any person to attend to answer such questions (s 84ZB) The Review Officer is not bound by rules of evidence, but may inform him or herself on any matter as the review officer thinks fit. (s 84ZD)
18 The appellant ("Mitchell") found himself before the Review Officer for determination of liability for weekly payments of compensation and statutory allowances arising out of an injury to his back. His claim was not made under any specific provision of the Act; that was for the Review Officer to determine. Under Schedule 1 of the Act, his situation could be classified as that of total incapacity entitling him to weekly payments under cl 7(1), partial incapacity entitling him to the difference between his weekly pre-accident earnings and the amount he was able to earn in some suitable employment under cl 7(2), or deemed total incapacity under cl 8.
19 The claim was not put on any specific one of these bases, save that Mitchell asserted he was unfit for his former occupation as a gardener and that he was untrained for any other suitable jobs. That put him into the total incapacity basket and it was from there that he maintained his claim. The Review Officer determined that Mitchell was in fact only partially incapacitated, and specifically, that the preponderance of medical
(Page 9)
- evidence clearly established that whilst not fit to return to his pre-accident occupation, he was nevertheless fit for lighter work. He found that a disability with resultant mild or low-grade symptoms does not of itself establish a claim of total incapacity.
20 The learned Compensation Magistrate observed that as the application was made by the worker, the onus was upon him to establish his claim of total incapacity (AB 65). He had not done that and nor had he established that he was unable to undertake other employment which might reasonably be open to him. His Worship dismissed the appellant's claim for weekly payments based on total incapacity.
Background
21 Mitchell was employed as a gardener with the respondent, Canal Rocks Beach Resort ("the Resort"). His duties involved mowing lawns for up to two days each week, planting, weeding, pruning and when asked, some light cleaning work.
22 On 17 March 1998, he was required to operate a large cylinder type lawn mower. Whilst pulling this mower over a low concrete curb, he felt extreme pain in his lower back. He rested for a few minutes and then continued with his duties until lunchtime, whereupon he informed a co-worker and one of the owners of the resort about what had happened. He then went for a swim in the ocean with the intention of easing the pain, and then visited a physiotherapist. He did not return to work that day, but did return on the next.
23 Mitchell continued to work at the Resort until 12 June 1998, when he ceased employment for personal reasons unrelated to his injury. He then commenced work with Caves House as a yardman, but he resigned from this employment after three days because his back was too sore for him to continue.
24 Between 17 March and this time, he had visited his general practitioner Dr Hamdorf a few times but could not recall whether on any of those occasions he had specifically mentioned that he suffered an injury to his back on 17 March. He did recall informing Dr Hamdorf of the injury when he visited him on 15 June and an x-ray was taken a few days after that.
25 Following his resignation, Mitchell left Western Australia to take up residence in Victoria. Prior to his departure, his partner made some
(Page 10)
- enquiries on his behalf to Workcover and discovered that he could make a claim for compensation.
26 On 17 November 1998, Mitchell completed a Form 1 Application Referring Dispute for Conciliation under the Act, wherein his injury was described simply as, "Lower Back". A conciliation conference held on 23 December 1998 concluded without agreement and so, on the request of the applicant, the application was referred to review. Following a preliminary review on 28 January 1999, a review hearing was held before Mr P Brash ("the Review Officer") by way of video conference on 9 April 1999.
27 The application sought a determination of liability to pay the worker weekly payments of compensation pursuant to s 58(1) of the Act. Mitchell claimed weekly payments for total incapacity on the basis he was unable to return to his pre-accident occupation. On 2 June 1999, the Review Officer delivered written reasons stating that orders should issue requiring the respondent to pay Mitchell weekly payments as for total incapacity from 16 October 1998 until 8 January 1999, this being the only period in which Mitchell could produce certification by a medical practitioner of total incapacity for work. He also ordered the Resort pay Mitchell’s statutory allowances and gave liberty to apply in relation to the Mitchell’s entitlements after 8 January 1999.
28 This decision was appealed to the Workers' Compensation Magistrate. On 22 September 1999 her Worship Ms P Hogan SM allowed the Resort's appeal, quashed the Review Officer's orders and remitted the matter back for further consideration. A subsequent review hearing was heard by way of video conference on 9 June 2000.
29 At the review, further evidence was taken from Mitchell who confirmed that video surveillance of him over a number of days in January and February 1999 did depict him repairing his motor vehicle and surfing, but said that his injury did not prevent him undertaking those activities. He also indicated that he was enrolled in a two-year full time course in Natural Resource Management. The Resort submitted that the video surveillance showed Mitchell's claim of continuing total incapacity could not be sustained.
30 In his written reasons delivered on 25 August 2000, and after reviewing the medical evidence, the Review Officer concluded that the claim for total incapacity had not been made out. He found that Mitchell had only ever been partially incapacitated since he ceased employment
(Page 11)
- with the Resort and, after referring to Westralian Farmers Co-Operative Ltd v Bunce, unreported; FCt SCt of WA, Library No 7691; 31 May 1989 ("Bunce"), said at [43] of his reasons [AB 67]:
"Apart from simply stating he has little other skills from those obtained in gardening, Mr Mitchell produced no other evidence to support or establish he was unable to undertake other employment, which might be reasonably open to him. In my view, the authority of Bunce (supra) requires, at the very least, for the worker to produce some evidence that an occupation or a number of occupations, which might be reasonably open to him, are not, in fact suitable employment either vocationally or physically. I do not believe it is sufficient for a worker to simply attest that because he has not worked in other occupations it must follow he is not capable of employment. For example, evidence from a vocational rehabilitation provider may have been useful to better understand the extent of the applicant's vocational skills and whether this, coupled with his physical limitations, make it difficult for him to sustain suitable employment."
He then ordered that the appellant's claim for weekly payments on the basis of total incapacity since July 1998 be dismissed, and that the respondent pay the applicant statutory allowances that to date and continue to do so until further order.
Appeal – Compensation Magistrate’s Court
31 Mitchell appealed pursuant to s 84ZN of the Act against the Review Officer's second decision. The grounds of appeal (which commence from par 3 of the notice) were as follows:
"3. The learned review officer, having found that the appellant had:
3.1 attempted to return to alternative work as a yardman;
3.2 not had any further injury occur whilst working as a yardman;
3.3 left the alternative employment because of his continuing back injury suffered with the respondent
(Page 12)
- erred in law in finding the employment (sic: appellant) had 'produced no other evidence to support or establish he was unable to undertake other employment, which might be reasonably open to him'.
- 4. The learned review officer, having found that the appellant had:
4.1 attempted to undertake his own vocational rehabilitation;
4.2 identified Natural Resource Management as 'suitable' employment;
4.3 identified he did not have the skills for this 'suitable' employment;
4.4 undertaken a course at TAFE to obtain the skills for this 'suitable' employment
erred in law in finding that the appellant had 'produced no other evidence to support or establish he was unable to undertake other employment, which might be reasonably open to him'.
5. The learned review officer having found that Dr Collopy’s views on the appellant's capacity for work 'are not reliable, having been based, it would seem, purely upon viewing a video surveillance tape without a proper clinical examination of the worker since June 1998' erred in law in:
5.1 subsequently giving weight to the report of Dr Collopy dated 8 April 1999 when the position remained unchanged;
5.2 failing to give any proper reasons for changing his earlier findings.
6. The learned review officer erred in relying upon the report of Dr Collopy dated 8 April 1999 having found that:
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- 6.1 Dr Collopy reported that the appellant had 'wholly recovered' solely based on viewing video surveillance film;
6.2 Dr Hooper had examined the appellant on 1 February 1999 and found that he had not recovered;
6.3 Dr Hooper reported on 1 March 1999 and 'his opinion on the matter did not change, even after viewing video surveillance.'
- …
9. The learned review officer misdirected himself as to the issue before him when reviewing the video surveillance film by finding that 'the surveillance does not, in my view, support his claim of total incapacity' when the appellant:
9.1 had conceded to (sic) the activities contained in the surveillance film;
9.2 had made a claim for total incapacity solely based on his lack of vocational skills having identified what he believed to be 'suitable' employment and not on his 'symptomology';
9.3 had been certified totally unfit for work by:
9.3.1.1 Dr M Hamdorf from 22 June 1998 to 23 September 1998;
9.3.1.2 Dr T March from 16 October 1998 to the present and continuing.
10.1 he had before him evidence from the appellant attesting to his vocational skills;
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- 10.2 he had before him evidence from Dr Gray-Thompson on 'vocational rehabilitation' and 'suitable employment';
10.2 'a vocational rehabilitation provider' is funded through cl 17(1a) of Schedule 1 of the Act but this was not available to the appellant as his claim was denied by the respondent."
32 The appeal came before Mr Packington SM for hearing on 4 April 2001. On 15 August 2001, he delivered a written judgment which supported entirely the decision of the Review Officer and dismissed each of the grounds of appeal.
Appeal - Full Court
33 An appeal lies to this court under s 84ZW of the Act by leave. Mitchell now appeals to this Court by Notice of Appeal dated 12 December 2001, pursuant to leave granted on 24 October 2001, seeking orders that the decision of the learned Compensation Magistrate be set aside, the orders made be quashed and the application remitted for rehearing.
34 The grounds of appeal are:
"1. The learned Magistrate erred in law in finding that the Appellant had carried an onus upon him in accordance with Westralian Farmers Co-Operative Ltd v Bunce (Appeal No. 133 of 1998, (sic: 1989), delivered 31 May 1998 (sic: 1989), Full Court of Supreme Court of WA -hereinafter 'Bunce').
Particulars
- a) The Appellant had made a claim for total incapacity based on his lack of vocational skills having identified what he believed to be "suitable" employment;
b) The Appellant had been certified totally unfit for work;
c) The Appellant gave sworn evidence that he had always been a gardener since he was 15 years old,
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- attempted to return to work as a yardman but could not cope, that he was in the process of undertaking course on natural resource management at TAFE (which according to Dr Gray-Thompson merely 'could lead to suitable employment in the future');
- d) The Review Officer correctly found as fact that there was no evidence to show that the Appellant was fit to work in a clerical position or as a nursery hand.
- 2. The learned Magistrate erred in law in holding that Bunce was persuasive or binding authority for the proposition that the Appellant carried the burden of proving what he was able to earn in some suitable alternative employment.
3. Further or alternatively, if Bunce was persuasive or binding authority for the proposition that the Appellant carried the burden of proving what he was able to earn in some suitable employment, then the learned Magistrate erred in failing to find that such burden was discharged in circumstances where the Respondent did not produce any evidence to the effect that the Appellant was capable of working in a specific alternative job or jobs.
Particulars
- a) The Appellant had made a claim for total incapacity based on his lack of vocational skills having identified what he believed to be 'suitable' employment;
b) The Appellant had been certified totally unfit for work;
c) The Appellant gave sworn evidence that he had always been a gardener since he was 15 years old, attempted to return to work as a yardman but could not cope, that he was in the process of undertaking course on natural resource management at TAFE (which according to Dr Gray-Thompson merely 'could lead to suitable employment in the future');
(Page 16)
- d) The Review Officer correctly found as fact that there was no evidence to show that the Appellant was fit to work in a clerical position or as a nursery hand.
- 4. The learned Magistrate erred in concluding that the decision of the Full Court in Mayne Nickless v Mayne was authority for the proposition that the burden was upon the Appellant to establish what he could earn in some suitable employment or business and to demonstrate that this was less than his pre-accident earnings
5. The learned Review Officer misconstrued the evidence of Dr Collopy. The learned Magistrate erred in law in concluding that the Review Officer's error was one going to the weight of evidence.
Particulars
- a) The report of Dr Collopy dated 8 April 1999 did not depart from or invalidate his previous or later opinion. Dr Collopy had not effectively change his opinion;
b) Nowhere had any medical practitioner stated that after viewing the video surveillance the Appellant could return to his pre-accident duties;
c) The Respondent’s own expert witness (Dr Hooper), even after viewing the surveillance film, did not change his earlier opinion;
d) The Review Officer did not make any useful or relevant findings of fact after watching the video surveillance;
e) The learned Magistrate erred in law in failing to conclude that the surveillance film could not in the circumstances be used as an evidential basis to draw an inference that the Appellant could work in an alternative occupation other than his pre-accident occupation;
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- f) The learned Review Officer did not make any useful or relevant findings of fact as to what alternative jobs were physically (or vocationally) open to the worker based on his interpretation of the surveillance film;
g) There was not a shred of medical evidence to the effect that the surveillance film itself proved that the Appellant could work in a specific alternative occupation;
- 6. It was also a ground of appeal to the learned Compensation Magistrate that the Review Officer erred in failing to give adequate reasons for altering his earlier findings, this being an error of law."
Legal Precedent and the Compensation Magistrate's Court
35 Grounds 1, 2 and 3 are put on the basis that the learned Magistrate effected an error of law in his interpretation of legal authority; namely Bunce and Mayne Nickless v Mayne, unreported; SCt of WA; Library No 960736; 19 December 1996.
36 The powers of the Compensation Magistrate are governed by statute. Section 115 of the Act details the jurisdiction of the Magistrate to hear and determine cases, appeals and complaints made under the Act, and then s 116 relates to the principles upon which the magistrate is to make its determination:
"In the hearing and determination of matters referred to in section 115(1)(a), (b) & (c) a compensation magistrate's court is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms and is not bound by legal precedent or its own decisions and rulings in any other matter nor by any rules of evidence but may inform its mind on any matter in such a way as it regards as just." (My underlining)
37 This provision clearly gives the Compensation Magistrate a wide discretion. The question now raised is as to the meaning of the phrase that a Compensation Magistrate's Court is not bound by legal precedent.
38 The South Australian Supreme Court had to consider a similar provision (but which did not contain that phrase) in Ory & Ory v
(Page 18)
- Betamore Pty Ltd(1993) 60 SASR 393. In that case, s 13 of the Commercial Tribunal Act 1982 (SA) provided:
"The Tribunal shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms and, subject to subsection (2) and the provisions of any other Act, is not bound by the rules of evidence, but may inform itself on any matter in such manner as it thinks fit."
"The subsection cannot have the effect of excluding altogether the application of all legal principles which would otherwise be applicable. In the light of the broad range of commercial matters within the jurisdiction of the Tribunal it is highly unlikely that the legislature intended to remove the degree of certainty which the law attempts to bring to such transactions. The relevance of these legal principles is also demonstrated by the Tribunal's power to state a case on any question of law for the opinion of the Supreme Court (s 19) and the appeal as of right to the Supreme Court on a question of law (s 20)."
40 Matheson J, while in agreement with Legoe and Duggan JJ, referred to Moses v Parker [1896] AC 245 in saying that "in some circumstances the presence of this language may indicate that the decision-maker is free from any obligation to apply rules of law so that any decision will be executive rather than judicial and not subject to appeal even if that is otherwise available." [at 413]. That may be so, "in some circumstances," as his Honour said, but the issue will inevitably have to be determined in the particular statutory and factual context.
41 The unfettered nature of the Compensation Magistrate Court’s jurisdiction is supported by s 117 which provides that:
"Subject to this Act, a determination of a compensation magistrate's court is final and conclusive and is not open to question or review in any court, and proceedings by or before a compensation magistrate's court may not be restrained by
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- injunction, prohibition, or other process or proceedings in any court or by removal by certiorari or otherwise in any court."
42 However, the finality expressed in this provision is subject to the provisions relating to appeals mentioned earlier in the Act. There is a right to appeal from a decision of the Review Officer on a question of law to the Compensation Magistrate's Court (s 84ZN(2)). There may be an appeal on a question of law to the Full Court of the Supreme Court by leave of the Supreme Court (s 84ZW, s 84ZX).
43 In Summit Homes v Lucev (1996) 16 WAR 566 this Court held that although a Review Officer is not bound by rules of evidence and has a wide discretion to inform him or herself as they think fit, nothing in the provisions contained in the Act "detract(s) from the general duty of review officers to act judicially" (per Ipp J, with whom Kennedy and Rowland JJ agreed, at 569 and 570). This view was echoed in Mayne Nickless v Mayne (supra) at 19; and in McNair v Mayne Nickless Ltd & Anor (1997) 17 WAR 191 at 198.
44 These authorities makes it clear that a review officer has a duty to act judicially notwithstanding the provisions of the Act: see also the recent decision of the Full Bench of the Full Court in Kuligowski v Metrobus [2002] WASCA 170 at [205].
45 There is a stronger argument that the Compensation Magistrate's Court has that duty. (See s 112(2) of the Act which notes that the court is one of record and has an official seal).
46 In construing an ambiguous legislative provision a construction which would promote the purpose or object underlying it is to be preferred to one which would not do so (Interpretation Act 1984 (WA) s 18).
47 The purposes of the Act are expressed in s 3 as being, briefly stated, to make provision for the compensation of injured workers and their dependants, promote rehabilitation of injured workers, promote safety and, in s 3(d):
"(d) to make provision for the hearing and determination by the dispute resolution bodies of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick."
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48 The words "legal precedent" are not defined in the Act. As Lockhart J pointed out ("The Doctrine of Precedent - Today and Tomorrow" (1987) 4 Aust Bar Rev 1) the requirement that, or the inclination of Judges to, follow the decisions of others where the facts are similar varies greatly from one jurisdiction to another. In some it is merely a preference for the course taken by others; in others, precedents may generally be followed even though there is no legal requirement for that; in others again, where the doctrine of binding precedent applies in its strictest form, lower courts or tribunals are bound to follow the decisions of courts above them in the hierarchy.
49 Construed against this background and in the context of the words used in s 116 itself, it seems to me the phrase "and is not bound by legal precedent…" is not intended to deny the duty of a Compensation Magistrate' Court to comply with the law as that is determined by this Court, but rather to give it the freedom to decide individual cases according to what justice requires in the particular case, whether or not that is consistent with its own decisions and rulings in any other matter or with legal precedents in other cases which it might otherwise follow but which are not binding upon it. Indeed, to hold otherwise would be inconsistent with those provisions of the Act which allow an appeal on a question of law. Such provisions necessarily imply, in my view, that the Compensation Magistrate's Court would be bound in future cases to apply the law as determined on appeal. Likewise, by s 84ZM of the Act, where a question of law arises in the proceedings, a Review Officer may refer the matter to a Compensation Magistrate's Court for determination. This assumes the Compensation Magistrate will make the determination according to law; and furthermore, were it otherwise, it could hardly be said that outcomes would be "fair" or "just". This conclusion allows the certainty of the law which is consistent with authority and the purposes of the legislation, without detracting from the generally unfettered discretion of the Compensation Magistrate's Court to act according to equity, good conscience and the substantial merits of the case and in a manner that is fair, just, informal and quick.
Total Capacity or Partial Incapacity
50 At the hearing of the appeal before this Court, some issue was taken as to whether Mitchell's claim before the Review Officer and Magistrate was one for total or partial incapacity. This became relevant in terms of the burden of proof. Mr Nugawela, who appeared for Mitchell, (see ground 1) asserted that the Magistrate had erred in law in finding that
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- Mitchell bore the onus of proof. The submission was that where a worker claims total incapacity, the onus of proving that is upon the worker. There is no requirement that a worker limit him or herself to a claim specifically under cl 7(1) or cl 7(2) of Schedule 1 to the Act. In those circumstances, the evidential onus (so the submission went) is upon the employer to adduce evidence that the worker has a limited employment capacity. Once that evidential burden is discharged, the ultimate onus of proof would require the worker to prove otherwise.
51 Mr Hancy for the respondent agreed that represents the process, but submitted that to obtain compensation the worker must, in making his application, bring himself within one or other of the sections of the Act by proving the facts that bring him within the section.
52 In asserting that he could not return to his pre-accident employment or any other employment, Mitchell's claim became one for total incapacity. The Review Officer found as a fact that he was only partially incapacitated. That finding of fact cannot now be appealed. The shifting evidential burden to which counsel for the appellant referred, does not arise for consideration. There could be no shifting of the evidential burden unless some evidence had been led to show that he had made efforts to ascertain suitable jobs open to him.
53 This makes sense when one considers the policy of the legislation. It is beneficial legislation; s 3 of the Act, to which I have already referred, makes that clear.
54 It cannot be right, and I do not think support can be found in the terms of the legislation, to adopt the approach that a worker is encouraged to take a passive role in their own application for compensation. If a worker asserts total capacity he or she should be prepared for the possibility that the tribunal of fact may not reach that conclusion, and should therefore endeavour to lead evidence of the sorts of occupations that the worker may be able to find work in should there be a determination of partial incapacity. Public policy dictates that where persons have been injured in the workplace, they should make all reasonable efforts to obtain gainful employment again. This is reflected in s 3(b) of the Act which indicates that one of the purposes of the Act is to promote rehabilitation to enable the worker to achieve that goal.
55 The burden of proof is on the applicant seeking compensation. His or her claim will vary according to the circumstances of the disability, and it will be for the employer to negative that claim with evidence. But the
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- burden of proving the claim in its entirety rests with the applicant seeking compensation for the loss of employment due to disability.
56 I turn now to the specific grounds of appeal. There is a certain degree of overlap between them.
Ground 1
57 The particulars given do not go to the ground - they seem to go rather to a claim that the learned Compensation Magistrate erred in finding the appellant had not made out his claim of total incapacity. That finding, of course, was one of fact which could not be challenged. The ground itself goes simply to the question whether, in light of that finding, there was an onus on the appellant in relation to partial incapacity.
58 Mr Nugawela claims the learned Magistrate erred in law in finding that Mitchell had carried an onus upon him in accordance with Bunce.
59 Wheeler J in Hood v Royal Perth Hospital, unreported; SCt of WA; Library No 970658; 5 December 1997, in discussing the difference between questions of law and fact, referred at 7 to the decision of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 - 356 per Mason CJ:
"The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law." (References omitted)
60 In support of this ground, Mitchell relies on the following particulars:
"a) The Appellant had made a claim for total incapacity based on his lack of vocational skills having identified what he believed to be 'suitable' employment;
b) The Appellant had been certified totally unfit for work;
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- c) The Appellant gave sworn evidence that he had always been a gardener since he was 15 years old, attempted to return to work as a yardman but could not cope, that he was in the process of undertaking course on natural resource management at TAFE (which according to Dr Gray-Thompson merely 'could lead to suitable employment in the future');
d) The Review Officer correctly found as fact that there was no evidence to show that the Appellant was fit to work in a clerical position or as a nursery hand."
61 After discussing the requirements in Bunce and then a decision from his own jurisdiction in McGinnis v Westralian Forest Industries Pty Ltd, unreported; CM-138/00, the Magistrate concluded at [21] of his reasons, (AB 20), that "no evidence was adduced by the appellant which could be regarded as meeting the requirement placed upon the appellant to satisfy the burden of proof." He then adopted the words of the Review Officer at [43] of his report in concluding that there was "no discernible error of law in the review officer's finding". If there be an error of law therefore, it is on the basis that there was no evidence for the Review Officer to make his finding.
62 The Review Officer gave detailed reasons wherein he outlined the evidence before him and his determination. At [8] of his reasons on 25 August 2000 (AB 53), the Review Officer outlined the closing submissions made to him by Mitchell, inter alia, that the appellant:
"… remains(ed) totally incapacitated for his pre-accident occupation and given this is the only work he has undertaken since leaving school and no rehabilitation assistance has been provided to him by the respondent, he should be treated as totally unfit to work."
63 He also acknowledged on AB 52 that Mitchell had been enrolled in a course in Natural Resource Management. As for Mitchell's assertion that he had been certified as totally unfit for work, the Review Officer rejects this at [35] of his reasons on the basis that the preponderance of medical evidence established that Mitchell was fit for work lighter than his pre-accident occupation. The rejection of this evidence followed a considerable outline of the varying evidence before him.
64 I am satisfied that [43] of the Review Officer's reasons was a conclusion available on the evidence. That being so and the claim thereby
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- becoming one for partial incapacity, the Review Officer was correctly of the view that the relevant legal principle as to the onus of proof was that as outlined in Bunce. Ground 1 is not made out.
Grounds 2 and 3
65 The appellant submits that Bunce is not binding nor even persuasive authority for the proposition that Mitchell carried the onus of proving what he was able to earn. It is submitted that Wallace and Brinsden JJ decided that case on the basis of the Board's failure to give adequate reasons (9; 7 & 9 respectively), and that Brinsden J's reasons do not constitute a ratio decidendi binding upon the learned Compensation Magistrate.
66 Lockhart J in "The Doctrine of Precedent - Today and Tomorrow", supra at 11 quotes a description of the term, "ratio decidendi" by Professor Rupert Cross in the latter's work, "Precedent in English Law" (Ch 2):
"The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him, or a necessary part of his direction to the jury."
67 Further on (ibid), Lockhart J states:
"Dicta or judicial dicta (a term sometimes used) means dicta that relate to a matter in issue in the case; obiter dicta are dicta that are more peripheral. Sometimes the expression obiter dicta is, however, commonly used to cover both meanings Dicta may be of considerable persuasive weight but they cannot be binding on any court. This is the generally accepted view."
68 The High Court has in recent years discussed the doctrine of precedent in relation to the determination of ratio decidenda. Gummow and Hayne JJ in Jones v Bartlett (2000) 205 CLR 166 at 224, explained the different approaches which may be taken where a ratio decidendi is not easily discernible. One view, their Honours said, is for the court to make its own determination of the legal issues so long as the reasoning supports the "actual decision" in the earlier case; and cited Lord Denning MR in In Re Harper v National Coal Board [1974] QB 614 at 621 and Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177 at
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- 188. Another view, they said, is that of McHugh J in Re Tyler & Ors; Ex parte Foley (1993-1994) 181 CLR 18 that:
"… where the earlier case lacks a ratio decidendi, a later court is bound to apply the earlier decision if the circumstances of the instant case cannot reasonably be distinguished from those which gave rise to the earlier decision".
70 That case was concerned with an appeal from a decision of the Workers' Compensation Board wherein the appellant was ordered to pay the respondent weekly payments of compensation. The grounds of appeal were framed in these terms, as set out in the judgment of Wallace J at [7]:
"1. The Board found correctly that the Respondent (Applicant) was at all material times partially incapacitated for work. The Board wrongly found as a fact and it was against the evidence and against the weight of the evidence that the Respondent (Applicant's) partial incapacity for work resulted in weekly loss of earnings for the Respondent (Applicant) equivalent to the difference between the award rate for a storeman and the adult minimum wage when it should have found that the Respondent (Applicant) was capable of returning to his pre-accident employment or to employment as a storeman on light duties or a forklift driver or gatekeeper or sewer of wool bales in which case the Respondent (Applicant's) weekly loss of earnings was either nil or less than the difference between the award rate for a storeman and the adult minimum wage.
2. …
3. The Board erred in law in failing to give reasons for its finding that the respondent's (applicant's) partial incapacity resulted in a weekly loss of earnings. Further the Board erred in law in failing to give reasons or failed sufficiently to indicate the basis of its finding that the respondent (applicant) was entitled to weekly payments from 15th May 1981 and continuing calculated at the difference between the award rate and the adult minimum wage from time to time."
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71 Wallace J chose to deal with ground 3 first. He outlined the authorities and then said:
"From all this it is apparent when one has regard to the volume of evidence put before the Board inclusive of the three video films of the respondent's physical activity, and the onus which rests upon the respondent that ground 3 has been clearly established." (My underlining)
72 His Honour then proceeded to outline the particular findings of fact that the Board failed to make, before allowing the appeal. Brinsden J was of the same view, but had more to say on the burden of proof, before also allowing the appeal (p 4):
"Because the Board has not given adequate reasons, it is impossible to say whether its failure to state what the respondent was and is able to earn in some suitable employment or business is because of lack of evidence. As the burden of proof of what the respondent was or is able to earn in some suitable employment or business is upon the respondent, in the absence of sufficient evidence for the Board to make a finding of his ability to earn in some suitable employment or business, the application would have to be dismissed." (My underlining)
73 Rowland J had this to say:
"I am unable to understand why the Board has chosen to calculate the amount payable to the respondent based on the difference between the award rate, for a storeman, and the adult minimum wage. Such a finding must connote that the Board accepted that he was capable of earning at least the adult minimum wage; but the evidence would indicate that he was also capable of returning to his pre-accident employment as a storeman on light duties, or in some such similar capacity which would I assume pay more than the minimum wage. I find it difficult to winkle out from the evidence which was led whether there is anything to support what the true finding should be. The onus was on the respondent and, in the absence of reasons, it is difficult to understand on the evidence how the Board was able to fix on any figure as a reference point." (My underlining)
74 In each of these judgments, their Honours expressed two reasons, in no particular order of relevance, for coming to the conclusion they did. First, the Board had failed to provide reasons for their conclusion and
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- second, the respondent had not discharged his onus of proving what he was capable of earning.
75 Mr Hancy for the Resort concedes (T/s 30) that the comment about the burden of proof in Bunce is obiter, but argues that the dicta concerning onus is clearly correct. I agree, and am of the view that the failure to give reasons is the ratio because it is the error of law that enabled the Court to grant the appeal; the respondent's failure to discharge his onus was ancillary to that fundamental error.
76 In their article "Ratio Decidendi and Obiter Dictum in Appellate Courts" (1947) 63 LQR 461 at 474, Paton & Sawyer quote the judgment of Talbot J in Lynn v Bamber [1930] 2 KB 72, with reference to Dew v United British Steamship Co (1928) 139 LT 628:
"There is no question that the three learned judges who decided that case stated in emphatic and unambiguous language that contributory negligence is a good defence to an action of this class; but it is said that the expression of opinion can be disregarded in this court because it is not necessary for the purpose of deciding that case that that opinion should be expressed. I do not agree, any more than the other members of this court, that that expression of opinion was in fact unnecessary, and it appears to me that it is not legitimate to say that it should be disregarded. … If a judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for decision. It seems to me, however, to be an abuse of language to describe as obiter dicta the deliberate pronouncements in Dew's Case, which were all made expressly as reasons for the decision to which the court there came, and even if I did not assent to them, I should certainly regard these pronouncements as authoritative."
77 Talbot J's words are apposite to this case. It seems to me that the Court's pronouncements in Bunce as to the onus and burden of proof are statements of established law reflecting the principle that he who asserts must prove the case: Mayne Nickless v Mayne (supra); Janus v Queensland Law Society [2001] QCA 180. They amount to persuasive statements of the law to which an equal or lower court in the hierarchy should have regard.
78 The learned Magistrate took the view that Bunce was:
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- "… authority for the proposition that where a worker is partially incapacitated, the onus is on the worker to establish that what he or she is able to earn in some suitable employment is less than the amount payable in respect of total incapacity, so as to give rise to an entitlement to payments as for partial incapacity in accordance with cl 7(2) of the Schedule." (at AB 9)
79 He rejected Mitchell's submission that there was an evidentiary burden on the Resort to produce medical evidence demonstrating a capacity to work in different jobs, and found that the burden was on Mitchell to establish what he could earn: (at AB 19; [19].)
80 I am in agreement with the learned Magistrate's approach. The law is, as he correctly states at [16] of his reasons and AB 17, that it is the person who asserts who proves: Mayne v Mayne Nickless (ibid) per Pidgeon J at 19.
81 In the circumstances the conclusion that Mitchell had the onus, in accordance with Bunce and Mayne, was well founded.
82 While I acknowledge that the Resort has a case which it asserts, and has asserted throughout this process, including the successful appeal against the Review Officer's first decision which had the effect of instituting the second hearing, it is Mitchell who initially brought the claim and Mitchell who was seeking a determination before both the Review Officer, the Compensation Magistrate and seeks orders now from this Court.
83 It is important to appreciate the claim which Mitchell sought to make once that for total incapacity failed, and the rationale behind it. The claim became ex hypothesi, a claim under cl 7(2) for partial incapacity. Such a claim is in effect that the only suitable employment or business which is open to the appellant is such that would give him a weekly income less than weekly compensation payments under Schedule 1. That would allow an award in an amount calculated as the difference between the two. The compensation amount would be predicated on acceptance of the proposition that the income he was able to earn, plus the compensation portion, would equate to the maximum weekly compensation calculated in accordance with Schedule 1. In the extreme situation, a worker who was found to be partially incapacitated might have no suitable employment open to him or her. In that situation, the amount of the compensation would be 100 per cent of his maximum entitlement.
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84 Against this background, it is consistent with principle and the justice of the case that the worker has the burden of proving the case he seeks to establish. The learned Magistrate was correct to uphold the Compensation Magistrate's conclusion that Bunce was persuasive authority for the proposition that the appellant carried the burden of proving what he was able to earn in some suitable alternative employment if he was to obtain an order for partial incapacity. Given the Review Officer's finding that the appellant produced no (sufficient) evidence to that effect, there was no evidentiary onus on the respondent to show that the appellant was capable of working in a specific alternative job or jobs.
85 Grounds 2 and 3 are not made out.
Ground 4
86 I have already stated above that the position is as correctly stated by Pidgeon J in Mayne (ibid). He states:
"Acts of Parliament seldom say on whom the onus lies leaving as a normal rule of proof the proposition that the person who asserts must prove. Normally statutes only refer to an onus of proof where it rests on a party that does not normally carry it. An example of this would be the Criminal Code which does not make provision for the general onus of proof. The Workers' Compensation Act also does not do so and it would appear to me that the onus, both when the Board adjudicated disputes and at present is on the person making the assertion."
87 In referring to Mayne (at AB 17), the learned Magistrate was not stating that that case was authority for the proposition that the burden was on Mitchell to establish what he could earn, as is claimed in ground 4 of this appeal. He merely cited it in support of the above-mentioned proposition that he who asserts must prove, and in doing so, supported the proposition as to the burden of proof expressed in Bunce.
88 Ground 4 is misconceived and is not made out.
Ground 5
89 The appellant claims in his submissions that Mayne is silent on:
(a) who carries the evidential onus in relation to raising hypothetical alternative occupations in the context of cl 7(2);
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- (b) how and when does a worker discharge the ultimate burden of proof under cl 7(2) where (unlike Bunce), there is no evidence of hypothetical alternative occupations.
90 I do not think this bears upon the instant case. As I have said above, Mayne was cited only for the proposition that it is the person bringing a claim who must prove it; it does not go specifically to the onus of proof in relation to hypothetical alternative occupations.
91 To understand ground 5 of this appeal, it is necessary to look at grounds 5 and 6 before the learned Magistrate, which I have set out above.
92 Ground 5 of the appeal before this Court then asserts that the learned Review Officer misconstrued the evidence of Dr Collopy, and that the learned Magistrate erred in law in concluding that the Review Officer's error was one going to the weight of the evidence.
93 The evidence of Dr Collopy played a significant role in these proceedings. At the first review hearing on 9 April 1999, the respondent attempted to tender a report by Dr Collopy dated a day earlier - 8 April 1999. ("8 April report") The applicant objected, and after submissions from both parties, the Review Officer declined to accept the report into evidence. The respondent's appeal to the Compensation Magistrate's Court, which resulted in the matter being remitted back to the Review Officer, was allowed in part on the basis that the 8 April report had not been entered into evidence and that it in fact should be considered by the Review Officer.
94 At the second hearing, the Review Officer viewed the video tape and considered the 8 April report. At [15], he indicated that the report was "of assistance in determining this dispute" and that he accepted Dr Collopy's comments. He then set out an excerpt from the report, including Dr Collopy's opinion that the appellant had "fully recovered from the direct effects of any work-related injury."
95 In addressing grounds 5 and 6 before him, the learned Magistrate did not give lengthy reasons. He simply stated at AB 22 that "grounds 5 & 6 are really just complaints about the weight the review officer gave to the various items of evidence before him, and disclose no error of law." That conclusion was clearly correct.
96 While the High Court has pronounced in Bond (supra) that a finding made in the absence of evidence constitutes an error of law, the comments
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- of Fox, Deane and Morling JJ in Collins v Minister for Immigration and Ethnic Affairs (1981) 58 FLR 407 at 410 - 411 are appropriate here:
"A number of authorities were cited by counsel for the appellant in support of the propositions that the making of a decision against the evidence or the weight of the evidence and the making of an unreasonable decision are errors of law. We find it unnecessary to examine these authorities for the reason that, in our opinion, there is no factual basis to found those propositions. We would, however, comment that the concepts of a decision being against the evidence and of being against the weight of the evidence, belong to appeals from courts of law and have particular application to jury verdicts. Even in that context, they do not involve questions of law. They certainly have no place when the appeal, or review, is of proceedings of an administrative tribunal which is not bound by the rules of evidence and which, subject to the obligation to observe the requirements of natural justice, can inform itself as it chooses (see s 33(1)(c) of the Administrative Appeals Tribunal Act 1975). An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no material before the Tribunal upon which the conclusion could properly be based."
98 A similar situation was analysed by this Court in Kaiser v Burswood Resort (Management) Ltd [1999] WASCA 292, and I respectfully adopt what was said there at [15]:
"The learned Magistrate thought that process of reasoning involved no error of law. We think, with respect, that that is correct. As the learned Magistrate put it, all that had occurred was that the review officer, not being bound to accept all the evidence, had determined to reject a portion of the medical evidence and had given his reasons for doing so. If those
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- reasons were arguably wrong, about which we express no opinion, then that is a contention that an error of fact was made. That could not be a ground of appeal from the review officer to the Compensation Magistrate and it may not be a ground upon which leave to appeal to this Court from the Compensation Magistrate may be granted."
99 There being no error of law, ground 5 must fail.
Ground 6
100 This ground states:
"It was also a ground of appeal to the learned Compensation Magistrate that the Review Officer erred in failing to give adequate reasons for altering his earlier findings, this being an error of law."
101 So framed, this is not a ground of appeal at all. It does no more than state what had been a ground of appeal before the learned Compensation Magistrate. I shall deal with it on the basis that the ground is intended to be that the learned Compensation Magistrate erred in law in not holding that the Review Officer erred in law in failing to give adequate reasons for altering his earlier findings.
102 The law relating to whether an alleged failure to give reasons amounts to an error of law is well established. In Re Croser; ex parte Rutherford & Anor (2001) 25 WAR 170, Olsson AUJ said at 182:
"The essential requirement for the giving of adequate reasons is that they disclose the reasoning processes of the relevant tribunal. This, in turn, should enable the parties and, for that matter, any court of review to determine whether there has been a reviewable error.
Although there has, over time, been some judicial difference of opinion on the point, there is now firm authority for the proposition that the failure of a judicial officer to give adequate reasons for decision will normally constitute an error of law. (Pettitt v Dunkley [1971] 1 NSWLR 376, Fleming v The Queen (1998) 197 CLR 250 at 260 [22]; Papps v Police (2000) 77 SASR 210). The rationale of that conclusion is that, when inadequate reasons are given, the function which the law calls upon the judicial officer to exercise has not properly been
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- fulfilled. (See also the discussion of the relevant authorities by Doyle CJ in R v Keyte (2000) 78 SASR 68 at 77 - 79)."
103 The Full Court in Kaiser v Burswood Resort (Management) Ltd (supra) set out in its judgment at [9] the relevant test to be applied, affirming what was said by the Chief Justice at [36] and [37] in the earlier case of Charleston v Smith [1999] WASCA 261:
"The test is whether the reasons are so deficient as to fail to expose the reasoning of the court in such a way as will enable a party having a right of appeal conferred by statute to challenge the reasoning on appeal. If that is the result, then the deficiency in the reasons itself constitutes an appellable error of law in that the result is effectively to deprive the party of the right of appeal."
- (see also Webb v The Queen (1994) 13 WAR 257).
104 The Compensation Magistrate addressed the Review Officer's change of mind that was the subject of grounds 5 and 6 before him at AB 21-22. He set out the relevant passages from the Review Officer's reasons, being [36] - [38] inclusive, and then at [25] & [26] at AB 22, the Magistrate commented on the basis of the Review Officer's findings being primarily the contents of the surveillance tape.
105 In my opinion, this comment indicates that the learned Magistrate was satisfied legitimately that the Review Officer's reasons were adequate. He had clearly identified the foundation of the Review Officer's reasoning - namely the weight placed on the video tape. That was a matter of fact. There being no error of law, ground 6 must also fail.
Conclusion
106 For the reasons expressed above, I am of the view that grounds 1 - 6 have not been made out and the appeal must be dismissed.
107 SHEPPARD AUJ: I agree with the judgment of Roberts-Smith J and I have nothing further to add.
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