Monroe Australia Pty Ltd v Campbell

[1996] HCATrans 141

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A37 of 1995

B e t w e e n -

MONROE AUSTRALIA PTY LTD

Applicant

and

MALCOLM JOSEPH CAMPBELL

Respondent

Application for special leave to appeal

BRENNAN CJ
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY 24 APRIL 1996, AT 3.19 PM

Copyright in the High Court of Australia

MR D.E. CLAYTON, QC:   May it please the Court, I appear with my learned friend, MR T.R. BRYANT, for the applicant.  (instructed by Finlaysons)

MS E.F. NELSON, QC:   May it please the Court, I appear for the respondent.  (instructed by Hume Taylor and Co)

BRENNAN CJ:   Yes, Mr Clayton?

MR CLAYTON:   This application raises the question of what approach should a primary tribunal adopt when faced with conflicting expert evidence.  In this case, the applicant submits that there was no proper examination of the conflicting evidence as to the ideology of a stroke to determine whether the respondent suffered that stroke in the course of his employment or, more precisely, whether the employment contributed to the stroke.  At first instance the review officer identified the conflict.  He expressed difficulty in resolving the conflict and then he resolved the conflict by accepting the thesis which he said was consistent with the lay evidence of the worker and which made more compelling sense to his lay mind.  The review officer did not examine the merits of the competing thesis.  That fact was acknowledged by the Chief Justice in ‑ ‑ ‑

BRENNAN CJ:   How would the review officer have considered the merits otherwise than be reference to his lay mind?

MR CLAYTON:   If I can take the Court to the application book at page 5, line 22, the basis for the decision is distilled down into two sentences.  The review officer said:

At the end of the day, it is necessary in this matter for me to choose between two schools of thought.  Professor Smith’s evidence was consistent with that of the worker and made compelling sense to my lay mind.

BRENNAN CJ:   Now, just pausing there, the first sentence, is that accurate?

MR CLAYTON:   Yes, your Honour.

BRENNAN CJ:   Now, in making the choice “between the two schools of thought”, I take it the review officer was not an expert medical practitioner?

MR CLAYTON:   No, your Honour, a legal practitioner, I understand.

BRENNAN CJ:   Well then, by reference to his lay mind, he had exhausted his resources in judging between the two schools of thought.

MR CLAYTON:   In my submission, no, your Honour, because the fundamental error which the review officer made ‑ ‑ ‑

BRENNAN CJ:   What else was there for him to do?

MR CLAYTON:   He could have analysed the substance of the conflicting evidence and made a decision on the basis of the merits of the conflicting theses.

BRENNAN CJ:   Medical merits of it?  Scientific merits?

MR CLAYTON:   And the logic and common sense of the actual evidence which was before him.

KIRBY J:   So, your complaint is about the reasons given in this case, is that correct?  Or is it about the approach?

MR CLAYTON:   Both, your Honour, but primarily the approach.

KIRBY J:   You were limited, were you not, in the Full Court, to a point of law? 

MR CLAYTON:   Yes, your Honour.

KIRBY J:   So we are looking to whether this is not just an error of fact or whether we are uncomfortable with it, but whether this is an error of law.  How does the choice between witnesses elevate itself into being an error of law?

MR CLAYTON:   The Full Court of the South Australian Supreme Court decided that such a choice was a matter of law in a case of Pham, which is on my learned friend’s list of authorities, but I submit that the matter becomes a matter of law because the court was concerned to examine the approach which the review officer took when he came to choose between the conflicting schools of expert evidence.

BRENNAN CJ:   Mr Clayton, speaking for myself, I must say that if the review officer’s judgment had started off by a consideration of the development of plaques on the internal walls of arteries and the like, one would wonder whether he had any expertise that would allow him to make a comparative judgment between these two schools of thought.  But if he says, “My lay mind is attracted to that school of thought”, is that not all that he can do?

MR CLAYTON:   With respect, the review officer did not do that.  What he did was, in effect, say that his lay mind was attracted to one witness rather than the other three witnesses.  If the review officer ‑ ‑ ‑

KIRBY J:   This point that you are seeking to raise now is one that has arisen in other places as is pointed out in the submissions.  It arose before me in the Court of Appeal in New South Wales in a case of Ahmedi v Ahmedi and the issue is not without importance, but it would seem to me a better vehicle for bringing it to this Court is a case where we are not limited to the errors of law and it can arise, of course, in an appeal on an error of fact as to whether a judicial tribunal has the same position in choosing between expert evidence as it has in choosing between ordinary lay evidence.  That is quite an important issue, but the problem with this vehicle is it is an appeal limited to a point of law that brings the matter up.  It just does not seem to me that choosing between witnesses is an error of law.  That is just a factual determination.  That problem would not present in a case which is not so limited.

MR CLAYTON:   Yes.  I accept that, with respect, your Honour, but in one way, the fact that the pure question of law is isolated in this case, divorced from any consideration of facts, does make this a better matter ‑ ‑ ‑

KIRBY J:   But on one view, it is just not a point of law.  It is just a choice between factual evidence.

McHUGH J:   If there is an error of law in this case, it seems to me it is a failure to give proper reasons, and you are attempting to dress that issue up as some other question of law which, so far as I can see, plainly is not, but even if there was an error of law by reason of a failure to give proper reasons, that is not a special leave point.  It just means that this particular tribunal failed to give proper reasons.

MR CLAYTON:   It is true that the review officer gave no reasons for his choice, if there was indeed a choice, between the two competing schools of thought, but the review officer did give reasons for preferring Professor Smith over the three witnesses who gave evidence for the applicants.  The real complaint is that the review officer and then the tribunal and, finally, the Full Court, determined that it was appropriate to make a choice between conflicting theses by choosing which of the witnesses was the better witness, and our submission is that each of those tribunals should have found that the choice should have been made by an evaluation of the merits of the thesis rather than on the basis of the merits or the authoritativeness of the ‑ ‑ ‑

McHUGH J:   That simply means that the tribunal failed to give proper reasons for its decision.  That is a well‑established point of law.

MR CLAYTON:   With respect, your Honour, there is the reason at page 5 of the application book, line 24, where the review officer said:

Professor Smith’s evidence was consistent with that of the worker and made compelling sense to my lay mind.

That was a reason expressed by ‑ ‑ ‑

McHUGH J:   I appreciate that; but that is the whole point about a whole series of cases, Pettitt v Dunkley, Soulemezis v Dudley (Holdings), that that is not a sufficient reason in law.  But that is not your point.  There is no reference in your submissions to any of the well‑known cases on inadequacy of reasons.  You are trying to run another point.

MR CLAYTON:  No, we do not make the application on that basis, your Honour.

McHUGH J:   I know.

MR CLAYTON:   The application is made on the basis that the expressed reason, that which I just read, shows an incorrect approach by the review officer.  The decision of the Full Court has the effect of saying that it is appropriate for the tribunal to make its assessment, having regard to the authoritativeness of the witness who gives the evidence.

McHUGH J:   I do not want to give you any judicial advice, but I probably am:  the next time it happens your grounds should be that there has been a failure to give adequate reasons.  You might be on surer ground there.

KIRBY J:   Justice McHugh wrote a very strong judgment in Soulemezis in New South Wales on that.  But you have not put that case.  Your problem is that it is confined to an error of law and this is not a good vehicle for bringing up the point about expert evidence.  That is an important question.  One day it will come, but I do not think this is the proper vehicle.

MR CLAYTON:   Yes.  There have been two prior appeals and the question of adequacy of reasons was not raised in either of those two forums.

KIRBY J:   You have been given a little advice today as to the third case.

MR CLAYTON:   We welcome that too, thank you, your Honours.  Can I just make perhaps one final point.  The judgment of the Full Court has, as I have said, adopted an approach which endorses the acceptance or rejection of expert evidence on the basis of the authoritativeness of the author of the opinion.  That, in our respectful submission, is a relevant criterion, but what the Full Court did not require was that the review officer should have actually considered the merits of the competing opinions.  It is in that respect that we submit that the Full Court fell into error, and in that respect, the decision of the Full Court is in conflict with the decision of the Full Court of the Queensland Supreme Court in the case of Holtman v Sampson, where this matter was dealt with by the Queensland Full Court.  The reference to Holtman v Sampson is (1985) 2 QdR 472. The relevant passage is a short one. Essentially, the court in that case was required to consider a quite similar issue to the one which arises in the present case. The relevant passage appears at page 473 starting at about line 30. The court said:

The appellant’s counsel submitted that the finding of frontal lobe dysfunction was a matter of inference as distinct from a finding of primary fact, and that this court should therefore approach the whole question according to the tests applicable to the drawing of inferences by an appellate court as stated in Warren v Coombes.  Support for the first proposition was said ‑ ‑ ‑

KIRBY J:   This is an appeal against a damages verdict in the Supreme Court, I take it, and that is a general appeal.  This does not run the gauntlet that you have to run of being an appeal limited to a point of law.  I think your client was unlucky to lose at first instance in this case, but you have the burden that you have got to show an error of law.  It was just a question of choosing between two strains of factual evidence, that is not an error of law.  Whereas in this case, Holtman, it is just a general appeal and that presents, that tenders the issue to this Court which you are trying to get up now without the burden of having to squeeze it into an error of law.

MR CLAYTON:   Yes.  In my submission, the question is an error of law because an almost identical issue arose in the case of Pham, which is on the list.  In that case a worker suffered an injury, a head injury, and the question was whether the head injury had caused a psychiatric injury.  The review officer found that the injury at work did not cause the psychiatric injury.  The tribunal confirmed the finding of the review officer and when the matter went before the Full Court of the South Australian Supreme Court, the court held that there was a question of law and the court, in fact, proceeded to consider the merits of the case and substitute findings on its own in place of the findings of the review officer and the tribunal.  The question of whether there was a question of law or not was dealt with by both Justice Olsson and Justice Mullighan who gave reasons.  The reference to the necessity for there to be an error of law appears in Justice Olsson’s reasons on the first page of the report in the Law Society Judgment Scheme at page 241, at the end of the third paragraph on that page his Honour noted:

This appeal concerns an issue of what inferences fairly emerged from the facts as ultimately found.  It is founded upon an assertion that the Tribunal, in considering an appeal by way of rehearing from the determination of the Review Officer, erred in law, in that it approached its task by posing and applying an incorrect test in its assessment of the evidence.

Having identified the issue his Honour Justice Olsson then went on to consider the appeal and allowed the appeal.  Whether there was a question of law was also considered by Justice Mullighan at page 13 of the judgment which is at page 253 of the report in the Law Society Judgment Scheme.  The second to last paragraph his Honour noted:

This is an appeal pursuant to s100 of the Worker’s Rehabilitation and Compensation Act 1986 and by reason of s100(3) is limited to a question of law.  The Tribunal and the Review Officer wrongly decided that inferences could not be drawn from the proven facts so as to conclude that the causal link between the work injury and the psychiatric condition had been established.  Whether an inference can be drawn from proven facts is a question of law.

There is then a reference to Hope v the Council of the City of Bathurst and Australian Broadcasting Tribunal v Bond & Ors and his Honour concluded:

In my view, the inference could have been drawn and the decision to the contrary was an error of law.

In our respectful submission, the present case is on all fours with Pham’s Case and, on the basis of the judgments of Justice Olsson and Justice Mullighan, we would respectfully submit that this matter does raise a question of law.

BRENNAN CJ:   Mr Clayton, what is the question of law as you would express it?

MR CLAYTON:   The question is articulated in our outline, your Honour, in this way.  Where a primary tribunal is faced with conflicting expert opinion evidence, should it base its findings upon a preference for the witnesses who express one opinion over the witnesses who express other opinions, or should the tribunal analyse the actual opinions and base its findings on a reasoned preference for the thesis rather than the witness?

BRENNAN CJ:   It just seems to me that, looking at what was said by the review officer, he made a choice not between witnesses but between evidence of the witnesses.  However, that is ‑ ‑ ‑

KIRBY J:   The notion of what they should do is a question of fact.  It is when it must be something that it is a question of law, it seems to me.  What they should make of particular witnesses or particular evidence is just an evaluation of fact.  You cannot dress that up as a point of law, with respect.

MR CLAYTON:   The point of law, in our respectful submission, if the Court pleases, is the question of what approach should the primary tribunal adopt in the process of evaluating conflicting evidence.

BRENNAN CJ:   Thank you, Mr Clayton.  We need not trouble you, Ms Nelson.

There is no error of law to be apprehended from the finding by the Review Officer that the evidence of Professor Smith should be accepted.  The decision of the Full Court of the Supreme Court of South Australia is therefore correct.  Special leave will be refused.

MS NELSON:   May it please the Court, I seek an order for costs.

BRENNAN CJ:   Do you have anything to say to that, Mr Clayton?

MR CLAYTON:   I cannot resist that application, if the Court pleases.

BRENNAN CJ:   It will be refused with costs.

AT 3.41 PM THE MATTER WAS CONCLUDED