SOLICITORS: Abbott Tout (Appellants) AWM Dickinson & Son (Respondent)
CATCHWORDS: APPEAL – appeal confined to a point of law – whether there was any evidence of a particular fact is a question of law - whether no evidence to support decision-maker’s finding that the parties had entered into a contract in New South Wales CONTRACT – offer and acceptance – in determining existence of a contract it is not necessary to identify precise offer or precise acceptance nor a precise time at which an offer or acceptance could be identified – whether decision-maker erred in finding offer made by appellants and accepted by respondent in New South Wales CONTRACT – terms of contract – contract may be entered into notwithstanding that all terms have not been agreed to provided there has been a manifestation of mutual assent – whether decision-maker erred in finding contract formed between parties in New South Wales WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) s 13 – jurisdiction of Workers Compensation Commission to hear application – whether contract of employment formed in New South Wales so as to allow Commission to determine application for compensation
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Case
[2007] NSWCA 210
Decision Date
CaseChat Overview and Summary
The appeal before the New South Wales Court of Appeal concerned a determination by the Workers Compensation Commission that the respondent, Mr Smith, was employed by the appellants under a contract of employment entered into in New South Wales. This finding was crucial for establishing the Commission's jurisdiction to hear Mr Smith's claim for workers compensation for injuries allegedly sustained between 17 February 1992 and 27 February 1996. The appellants challenged this finding, arguing that there was no evidence to support the conclusion that the contract of employment was formed in New South Wales.
The primary legal issue before the Court of Appeal was whether there was any evidence to support the Workers Compensation Commission's finding that a contract of employment was entered into between Mr Smith and the appellants in New South Wales. This question was framed as a question of law, with the appellants contending that the Commission's decision was made in the absence of probative evidence, which would constitute an error of law. The Court was required to consider whether the evidence presented was capable of supporting the inferences drawn by the Commission regarding the formation of the contract.
The Court of Appeal applied the principle that the question of whether there is any evidence of a particular fact, or whether a particular inference can be drawn from established facts, is a question of law. Citing established authority, the Court affirmed that a finding of fact made in the absence of probative evidence is an error of law. The Court reviewed the evidence to determine if it could support the Commission's finding that an offer of employment was made by the appellants and accepted by the respondent in New South Wales, noting that it is not necessary to identify a precise offer, acceptance, or time of formation for a contract to be found, provided there has been a manifestation of mutual assent.
The appeal was dismissed, with the appellants ordered to pay the respondent's costs.
Orders
Orders of the court
Appeal dismissed, the appellants to pay the respondent's costs.
Background
Background to the litigation
The question on this appeal is whether there was evidence to support a finding made by the Workers Compensation Commission (the Commission) constituted by Acting Deputy President Handley, that the respondent (Mr Smith) was employed by the appellants during the period 17 February 1992 to 27 February 1996, pursuant to a contract of employment entered into with the appellants in New South Wales (the NSW contract). Background to proceedings The finding of the NSW contract founded the Commission’s jurisdiction to determine Mr Smith’s claim for workers compensation for the period 17 February 1992 to 27 February 1996: see s 13(1) of the Workers Compensation Act 1987 (NSW) (the Workers Compensation Act) which provided:“13 Injuries received outside New South Wales(1) If: (a)an employer has a place of employment in New South Wales, or is for the time being present in New South Wales, and there employs a worker, and(b)any such worker while outside New South Wales receives an injury under circumstances which, had the injury been received in New South Wales, would entitle the worker to compensation in accordance with this Act,the injury is an injury to which this Act applies, and compensation is payable accordingly.” On 15 September 2004, Mr Smith lodged claims for workers compensation against Captain Cook Cruises (NSW) Pty Limited (Captain Cook Cruises) and the appellants for a variety of physical and psychological problems that he alleged he sustained due to the nature and conditions of his work on the vessel MV Lady Hawkesbury and as renamed, the MV Reef Escape, between 1988 and 1 May 1996. There is no dispute that Mr Smith, when first engaged in 1988, was employed by Captain Cook Cruises. The question in issue was his employment status between 17 February 1992 and 27 February 1996. Captain Cook Cruises and the appellants contended that they did not employ Mr Smith in New South Wales in that period. They thus brought interlocutory proceedings in the Commission to challenge the Commission’s jurisdiction to determine Mr Smith’s claim for compensation. The matter was first heard by an Arbitrator who found that in respect of that period, Mr Smith was employed pursuant to a contract of employment that had been entered into in New South Wales between the appellants and Mr Smith. She held, therefore, that the Commission had jurisdiction to determine Mr Smith’s claim. The appellants appealed to the Commission constituted by Acting Deputy President Handley, pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Workplace Injury Management and Workers Compensation Act). An appeal from an Arbitrator pursuant to s 352 is by way of review: s 352(5). An appeal by way of review extends to a review of the primary decision on both fact and law. The appeal to the Acting Deputy President proceeded on the papers and was based upon the evidence that was before the Arbitrator. Acting Deputy President Handley confirmed the Arbitrator’s decision.
Evidence
Evidence Before The Court
Having regard to the nature of the appeal to this Court, namely, that there was no evidence to support the Acting Deputy President’s determination of an offer of employment made in Sydney, it is necessary to review the evidence to determine whether, as alleged, there was no evidence upon which the finding of the NSW contract could be made.No evidence as a question of law In this case, the principal basis of error advanced on the appeal was that there was no evidence to support the finding of entry into the NSW contract. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33; Mason CJ stated at 355-56:“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 … 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.” (Citations omitted)His Honour continued at 359:“A finding of fact will then be reviewable on the ground that there is no probative evidence to support it and an inference will be reviewable on the ground that it was not reasonably open on the facts …” Mason CJ, in dealing with the decided cases in this area, referred to The Australian Gas Light Co v The Valuer-General (1940) 40 SR (NSW) 126 at 138, where Jordan CJ said:“…(3)A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences(4)Such a finding can be disturbed only (a) if there is no evidence to support its inferences …” See also McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8; Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483; [1975] HCA 17; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151 per Kirby P and at 155-56 per Glass JA (Samuels JA agreeing); Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 467; [2001] HCA 12 per Kirby J; Roads and Traffic Authority of New South Wales v Mosca (2006) 146 LGERA 335; [2006] NSWCA 159 at [69] per Handley JA (Mason P and Bryson JA agreeing). There has been a long jurisprudential history in this State based on this Court’s decision in Azzopardi that even perverse findings of fact do not give rise to an error of law. That proposition remains good law. However, a decision-maker who acts without probative evidence may be seen as acting without evidence: see Bruce v Cole (1998) 45 NSWLR 163 per Spigelman CJ (Mason P agreeing), where his Honour, in considering the decision of this Court in Azzopardi, stated at 188-89:“… a decision-maker who acts without probative evidence … does not make a valid decision. It is the equivalent of acting without evidence.”See also Skiwing Pty Ltd v Trust Company of Australia (Trading as Stockland Property Management) [2006] NSWCA 276 per Spigelman CJ (Bryson JA agreeing) at [52]-[53].