South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal - [2009] SASC 213

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SOUTH AUSTRALIAN FIRE AND EMERGENCY SERVICES COMMISSION v WORKERS COMPENSATION TRIBUNAL & ANOR
[2009] SASC 213
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Anderson and The Honourable Justice Kourakis)
23 July 2009
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
Application for judicial review of a decision of the Full Bench of the Workers Compensation Tribunal (WCT) – the decision allowed the appeal against a decision of an Auxiliary Judge of the WCT – under s 86 of the Workers Rehabilitation and Compensation Act 1986 an appeal lies against a decision of the WCT constituted by a single member to the Full Bench on a question of law – the plaintiff contends that the Full Bench’s decision was made in excess or want of jurisdiction and seeks declarations that the appeal to the Full Bench is incompetent and an order quashing its decision on the basis that the appeal was not on a question of law.
Held – application allowed – the jurisdiction of the Full Bench is limited to the hearing and determination of only those appeals which are correctly held to be appeals on questions of law – the Full Bench exceeded its jurisdiction by conducting an appeal by way of rehearing of the evidence without addressing or determining any ground raising a question of law – decision of the Full Bench set aside.
Workers Rehabilitation and Compensation Act 1986 (SA) s 2, s 78, s 78A, s 79, s 86, s 88B, sch 1; Worker's Compensation Act 1971 (SA), referred to.
Craig v South Australia (1995) 184 CLR 163; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, applied.
Schwerdt v Safecom (Emergency Services Administrative Union) [2007] SAWCT 55; Schwerdt v Safecom (Emergency Services Administrative Union) [2008] SAWCT 39, discussed.
Roncevich v Repatriation Commission (2005) 222 CLR 115; Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1; Haines v Leves (1987) 8 NSWLR 442; Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300; Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32; Bowen-James v Director-General, Department of Health (1992) 27 NSWLR 457; Wilson v Lowery (1993) 110 FLR 142; Bruce v Cole (1998) 45 NSWLR 163; Ormwave Pty Ltd v Smith [2007] NSWCA 210; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Hope v Bathurst City Council (1980) 144 CLR 1; William v Bill Williams Pty Ltd [1971] 1 NSWLR 547; Geste v Pereira [1991] SASC 3018; Thurston v Todd [1966] 1 NSWLR 321; Chambers v Jobling (1986) 7 NSWLR 1, considered.

SOUTH AUSTRALIAN FIRE AND EMERGENCY SERVICES COMMISSION v WORKERS COMPENSATION TRIBUNAL & ANOR
[2009] SASC 213
Full Court: Doyle CJ, Anderson and Kourakis JJ

DOYLE CJ: I agree with the orders proposed by Kourakis J, and with the reasons that he gives for making those orders. There is nothing that I wish to add to his reasons.
ANDERSON J. I agree that the decision of the Full Bench of the Workers Compensation Tribunal should be set aside for the reasons given by Kourakis J.
KOURAKIS J: This is an application for judicial review of a decision of the Full Bench of the Workers Compensation Tribunal (WCT), which allowed Mr Schwerdt’s appeal against a decision of an Auxiliary Judge of the WCT that the he had not suffered a “transitional disability” for the purposes of the Workers Rehabilitation and Compensation Act 1986 (the 1986 Act). The plaintiff contends that the decision of the Full Bench was made in excess or want of jurisdiction, and seeks declarations that the appeal to the Full Bench is incompetent on the basis that it did not lie on a question of law as required by s 86 of the 1986 Act.[1] I would accept the plaintiff’s contention and set aside the order of the Full Bench of the WCT. For the reasons that follow I have concluded that the Full Bench exceeded its jurisdiction by conducting an appeal by way of a rehearing of the evidence without addressing or determining any ground raising a question of law.
[1] Section 86 of the Workers Rehabilitation and Compensation Act 1986 provides:
86—Appeal on question of law
1) An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal.
2) An appeal under this section must be commenced, heard and determined in accordance with the rules.
Background
The plaintiff is an administrative unit of the State of South Australia. It is liable to make payments of compensation pursuant to the 1986 Act. Mr Schwerdt is a retired fire officer who was employed by the Metropolitan Fire Service (MFS) until 1991.
On 10 April 2000, about nine years after his retirement, Mr Schwerdt made a claim for workers compensation under the 1986 Act against the MFS with respect to a psychological disability described as post-traumatic stress disorder (the stress disorder). Mr Schwerdt also made an alternative claim under the Worker’s Compensation Act 1971 (the 1971 Act) for that same injury.
The 1971 Act was repealed by the 1986 Act. However, a worker’s entitlement to claim under either the 1971 Act or the 1986 Act falls to be determined in accordance with the transitional provision enacted by clause 2 of the first schedule of the 1986 Act. It provides:
2(1) Subject to this clause the repealed Act continues to apply in respect of a disability that is attributable to a trauma that occurred before the appointed day.
(2)This Act applies in relation to a disability (referred to in this clause as a transitional disability) that is partially attributable to a trauma that occurred before the appointed day and partially attributable to a trauma that occurred on or after the appointed day, but does not affect rights (referred to in this clause as antecedent rights) that had accrued before the appointed day in respect of the transitional disability.
The appointed day is 30 September 1987.[2] The applicability of the 1986 Act to Mr Schwerdt’s stress disorder therefore depends on a factual finding that it is “partially attributable to a trauma that occurred before the appointed day and partially attributable to a trauma that occurred on or after the appointed day”. It is accepted by the parties to this appeal that the word “attributable” is to be understood in the same, or at least largely similar, way to the concept of causation in common law injury claims.
[2] South Australian Government Gazette 17 September 1987 p 886.
In his application and supporting statement, Mr Schwerdt identified 21 particularly traumatic incidents that he had experienced in the course of his employment but referred more generally to “numerous other instances especially in motor vehicle accidents”. All but two of the identified incidents predated the commencement of the 1986 Act. Many of the 19 incidents which occurred before the appointed day were nothing less than horrific. In the 1960’s Mr Schwerdt attended a house fire at Alberton from which he recovered the badly burnt body of an elderly lady. He faced similar scenes at other house fires and at a nursing home blaze. In addition, Mr Schwerdt often attended the scenes of suicides. On occasion he also suffered serious physical injuries when fighting fires.
Outside of his work duties, Mr Schwerdt witnessed his father’s suicide in December 1971. Mr Schwerdt had been speaking to his father, who was also a fireman. A short while later Mr Schwerdt heard a gun shot. He rushed back to where his father was to find him dead.
The two incidents which occurred after the appointed day were described by Mr Schwerdt in documents filed in support of his applications as:
1987-Port Stanvac. When I got there everyone else was running away yelling ‘run it’s going to blow’. I was in charge, I went in. Found out what it was quickly-human error-petrol pouring through plant. Tom shut it down. Fourth alarm. Feared for life.
1987/8-Onkaparinga Gorge grass fire-fourth alarm–commendation once again feared for life.
Hearing by the Auxiliary Judge
Both of Mr Schwerdt’s claims were heard together by an Auxiliary Judge in the WCT.
Mr Schwerdt’s evidence
Mr Schwerdt gave evidence before the WCT. He was 61 when he gave his evidence. He had served with the MFS from May 1963 to October 1991.
Mr Schwerdt gave evidence that he had suffered nightmares from the early 1960’s. He experienced what he described as “daymares” from about the time of the Ash Wednesday Bushfires in February 1983. However, he testified that he had never taken any time off work for his stress disorder because he had “tried to fight it off”.
After he suffered a serious injury to his left knee in 1985 Mr Schwerdt consulted the psychiatrist Dr Jagerman for a medico-legal assessment. He claimed in his evidence that he did not know why he had seen Dr Jagerman, but the Auxiliary Judge rejected that evidence. In any event, Mr Schwerdt told Dr Jagerman that he had been happy and easy going before the injury to his knee in 1985, but that his life had been subsequently wrecked.
In September 1988 Mr Schwerdt suffered a further injury to his left knee when he slipped at work. He eventually returned to alternative sedentary duties in January 1990. From that time, while he continued on workers compensation payments, Mr Schwerdt made enquiries about his superannuation entitlements.
On 30 August 1990 a doctor consulted by Mr Schwerdt reported that he appeared to suffer from a stress disorder which was related to two incidents on which Mr Schwerdt attended in the course of his duties with the MFS. Those incidents were a fire in a nursing home and a motor vehicle accident in which a person had suffered severe head injuries. Both incidents occurred before the appointed day.
In early August 1991, Mr Schwerdt resigned after a meeting with a number of people, including Mr Doyle, who was then secretary of the United Fire Fighters Union of South Australia. Mr Schwerdt signed a letter of resignation which Mr Doyle had drafted for him. Mr Schwerdt was thereafter paid sick leave until his retirement on 26 October 1991. Mr Schwert gave evidence that he did not discuss the contents of that letter with Mr Doyle, that he had very little idea of what had transpired at the meeting, and that he was in effect “sacked from the fire service on medical grounds”. However, that evidence was not accepted by the Auxiliary Judge.
After his retirement Mr Schwerdt made several unsuccessful attempts to claim further compensation with respect to his knee injury. The Auxiliary Judge did not accept that Mr Schwerdt had suffered any knee-related incapacity after July 1991. Mr Schwerdt brought civil proceedings in August 1997 against the MFS claiming damages for what he alleged were misrepresentations made at the meeting in August 1991. Those proceedings were also unsuccessful.
In February 1999, about a year before he claimed compensation for his stress disorder, Mr Schwerdt asked his general practitioner to refer him to Professor McFarlane, a senior psychiatrist who has extensive experience in medico-legal assessments and the assessment of post-traumatic stress disorders in particular. Professor McFarlane first saw Mr Schwerdt on 24 February 1999.
In his evidence before the Auxiliary Judge, Mr Schwerdt emphasised three particularly traumatic incidents. The first was a collision between a car and a bus in the late 1970’s from which he retrieved a badly injured woman who died on the following day. The second was a nursing home fire, and the third was a collision between a car and a stobie pole in which the driver suffered severe head injuries. All three incidents had occurred before the appointed day.
Mr Schwerdt was estranged from his three sisters and had endured two matrimonial breakdowns. He was a heavy drinker, but when giving evidence did not agree that drinking about two litres of wine per day was excessive.
The Medical Evidence
In a report dated 17 August 1999 Professor McFarlane said:
On the basis of the history I have obtained, it appears that Mr Schwerdt suffers from a post traumatic stress disorder associated with a major depressive disorder. …
In his experience as a fire officer, Mr Schwerdt was involved in a number of situations that were characterised by death and significant physical injury to others. In these situations he described on occasions having feelings of helplessness and intense distress. …
He describes a pattern of avoidance associated with increasing emotional numbing, interpersonal withdrawal and a foreshortened sense of the future. …
He has times of major despondency of mood, associated with suicidal thinking, sleep disturbance and irritability. …
It is my view that these difficulties have arisen as a consequence of his exposure to extremely traumatic circumstances, including the suicide of his father. It is obvious that a range of events have also occurred to him outside of the fire service, such as the motor vehicle accident and bicycle accidents described. He was also subjected to harassment by a paedophile teacher whilst at school. He also has a family psychiatric history. Whilst these risk factors are all important contributing factors to his vulnerability to psychiatric disorder, the critical determinant of his condition is the exposure to these incidents in the fire service. It is these that have led to the onset of his traumatic memories which played the central role in driving his ongoing distress.
Post-traumatic stress disorder is a condition that's been well characterised historically in medical circles, … The essence of post-traumatic stress disorder is that an individual is exposed to an event that evokes horror, fear or helplessness in an individual and involves the loss of life or threat of loss of life or threat to the individual of such injury. The first, and I guess primary, set of symptoms are the existence of a traumatic memory. … I mean, for example, individuals involved in dealing with dead bodies will often very specifically remember the smells of the burned flesh and the smoke, and they might even remember the sounds of the circumstances; for example, the intensity of the sound of a fire is extreme. Those memories will come back to the individual, they can occur in the form of nightmares in their sleep or they might be triggered by subtle reminders in their day-to-day life. …
[A]nd in the most extreme form, what is called a full-blown flashback, the person will almost become immersed in the memory to the extent where they lose their sense of the present; it has something of the quality of an hallucination. … The second set of symptoms are those of anxiety and obviously individuals who have these distressing memories then develop a series of secondary abnormalities of anxiety where they become much more vigilant of their environment, they become - they can develop an exaggerated startle response which is a very simple neuronal reflex which you can measure quite accurately. They’ll have disturbed problems with their memory and concentration, increased irritability, sleep disturbance. …. The final set of symptoms are essentially a pattern of adaptation that people make to try and sort of contain their distress and the first one is obviously they will try and shut out their thoughts and memories.[3] (underlining added)
[3] Schwerdt v Safecom (Emergency Services Administrative Unit) [2007] SAWCT 55 at [69]-[70].
In February 2006 Professor McFarlane reported:
As outlined in my earlier report, I remain of the view that Mr Schwerdt has suffered from a post-traumatic stress disorder, major depressive disorder and alcohol abuse. …
… As with a combat veteran, an individual in emergency services will more frequently have a number of traumatic incidents that have combined to lead to the onset of their condition. The evidence is that individuals who are repeatedly exposed to trauma have an increasing risk of becoming symptomatic with the passage of time. Whilst many of these individuals have an external demeanour of hardiness, the evidence is that exposure to such events has an accumulative effect. The underlying process of sensitisation and kindling is central to the psychopathological process.
I am uncertain as to the exact date of a number of these events. A significant percentage of them predate 30th September 1987. These include the death by suicide of his father. In my view, witnessing the immediate aftermath of a death by gunshot wound to the head is highly traumatic, independent of whether or not there is any enduring relationship with the individual involved.
The nature of traumatic exposures as with other forms of occupational exposure, is that the individual’s symptoms may not immediately emerge following the exposure to the noxious agent. … In my view, Mr Schwerdt’s PTSD had a delayed onset as a consequence of his cumulative exposures.
Professor McFarlane responded to a number of questions in relation to the onset of the stress disorder and its causes in a further report dated 28 December 2006. Professor McFarlane proceeded on the basis that the stress disorder became manifest by no later than 1990. He answered the question whether employment before and after the appointed day contributed to the stress disorder in this way:
In my view, both events, both prior to and following 1987 are causally linked to his disorder. Not the least of the exposures that Mr Schwerdt experienced was that of the 1983 Ash Wednesday bushfires. Yarrabee Road was the area where most of the people died on Ash Wednesday. As well the intensity of the fire along the summit of Mt Lofty was particularly destructive. I am aware of the circumstances as a consequence of my involvement in the 1983 Ash Wednesday bushfires. I clearly observed a worsening of his symptoms in February on the 20th anniversary of the bushfires, indicative of its continuing importance as a cause of distress. The existence of such triggering is objective evidence of the role of events prior to 1987. Again, the relative importance of events prior and post 1987 can be determined by an objective examination of the logs and events which Mr Schwerdt refers to.
In answer to further questions about the contribution of employment after the appointed day Professor McFarlane responded that the subsequent employment continued to contribute to his reactivity and would have materially increased the risk of the emergence of his symptoms in a delayed onset pattern. Professor McFarlane concluded that “the employment between 1987 and 1991 did have a permanent effect on his condition”.
The MFS arranged for Professor Goldney to examine Mr Schwerdt. In a report dated 21 December 2005 Professor Goldney opined that the most significant of Mr Schwerdt’s traumatic experiences was the suicide of his father, but in his view Mr Schwerdt did not present in a manner which demonstrated a pervasive psychiatric disorder. Professor Goldney concluded:
I consider that Mr Schwerdt has a long standing personality disorder not otherwise specified. The words ‘not otherwise specified’ simply mean that Mr Schwerdt has personality difficulties in a number of different areas and they lead to him experiencing disrupted inter-personal relationships. They also predispose him to experiencing considerable feelings of frustration and anger when his perception of events is not shared by others. …
In addition, he is alcohol dependent, and that raises the question of whether or not some of his particularly sensitive observations about certain areas of his history could be coloured by paranoid thinking caused by his excess use of alcohol. It is pertinent to note that it is not prudent to make definitive psychiatric diagnoses when a person is using alcohol to the extent as described by Mr Schwerdt. Thus it is possible that the alcohol dependence per se is the major problem, and, if he could relinquish alcohol, then he may well be free of distressing symptoms.

Even though Professor Goldney doubted that a diagnosis of stress disorder could be made, he thought that Mr Schwerdt’s stress symptoms were overwhelmingly related to the suicide of his father.
The decision of the Auxiliary Judge
The Auxiliary Judge expressed a number of concerns about the reliability of Mr Schwerdt’s evidence. He found that Mr Schwerdt was prone to exaggeration and that he held a strong grievance against the MFS for his perceived mistreatment over a number of issues. The Auxiliary Judge described Mr Schwerdt’s demeanour as, at times, pedantic and argumentative.
Nonetheless, the Judge was satisfied, even allowing for an element of hyperbole, that the worker had been exposed to a number of traumatic incidents in the course of his employment with the MFS which he had found extremely distressing. The Auxiliary Judge did not find that any of those incidents had occurred after the appointed day. In the context of the remainder of his reasons it is quite clear that the Auxiliary Judge was not satisfied that Mr Schwerdt was distressed by any of the incidents which occurred after the appointed day.
The Judge concluded:
[103]Whilst the opinion of Professor Goldney has it’s [sic] attractions … on a weighing of all relevant considerations I have a preference for the opinion of Professor McFarlane overall insofar as it goes to the diagnosis of delayed onset PTSD. While I have given considerable thought to the opinion of Professor Goldney and confess some attraction in particular to his view that it is not prudent to make definitive psychiatric diagnoses when a person is using alcohol to the extent admitted to by the worker I nevertheless prefer that of Professor McFarlane on the pleaded injury. …
[107]In the result I am persuaded on balance that the worker has at material times suffered PTSD of varying severity (sometimes hereafter referred to as “the injury”).
[108]I add that having regard to my reservations about the worker’s credibility and the general history outlined in these reasons I am not persuaded that the worker suffers a major depressive disorder as a result of his PTSD. In the event a depressive disorder exists I think it more likely that it results from matters such as his non-compensable injuries, his turbulent private life and history as emerges from these reasons, his lack of funds as a result of the running down of his superannuation payment and his unusual (if not dysfunctional) personality. I think Professor Goldney was correct in describing the worker as a man who has “got strong views, strong opinions about himself, ...believes he’s always right, and ...[as such] ... will inevitably get depressed and anxious when things don’t go ...[his] ...way.” Insofar as the diagnosis of alcoholism is concerned again I am not persuaded that it results from or is somehow attributable to the worker’s PTSD or to put it another way is a means of self medication to control PTSD symptoms. It is clear that heavy alcohol consumption has long been a feature of the worker’s life; see eg tr 155, 156.[4]
[4] Schwerdt v Safecom (Emergency Services Administrative Unit) [2007] SAWCT 55.
When the Auxiliary Judge turned to the question whether the 1986 Act was applicable, he observed that there was only a period of about one year in which the worker could have suffered relevant trauma. Ultimately, the Auxiliary Judge was not satisfied that Mr Schwerdt’s stress disorder was attributable to any trauma suffered after the appointed day, and that therefore his stress disorder was compensable pursuant to the 1971 Act, and not the 1986 Act. The Auxiliary Judge said:
[112]It seems to me that what stands out from the primary history of the matter is that the events that the worker’s PTSD resulted from or the trauma to which the PTSD were attributable predated 30 September 1987. Clearly the vast bulk of the incidents outlined by the worker in paragraphs 2 and 3 predated that date. Moreover the events the worker emphasised as causative of his PTSD set out in paras 60, 61 and 62 clearly predated ‘the appointed day’. In that evidence he emphasised the Alberton incident, the bus crash incident and the Port Road incident and placed particular emphasis on the Parkholme incident. Mr Leonard in his report noted in particular the Parkholme and Port Road incidents. In his evidence recited in para 64 the worker’s emphasis again was placed on the Parkholme and Port Road incidents. It is also clear from all of the evidence that the suicide of his father played a substantial role in the worker’s injury.
[113]In a similar vein the incidents described to and reported by Professor McFarlane in his first report of August 1999 all predated the appointed day (para 68, 69) as did the incident he described to Professor Goldney (see para 82 above). The incidents recorded by Professor McFarlane were the Alberton incident, the Ash Wednesday fires, the Parkholme incident and the worker’s father’s suicide. I acknowledge that in his later report Professor McFarlane spoke of a pre-occupation on the part of the worker with ‘the Onkaparinga Gorge Fire, and the oil refinery fire’ (paras 83, 84 and 85) which both post dated the appointed day. I also acknowledge that the worker in his evidence did speak at some length of the oil refinery fire. However I am far from satisfied given inter alia my concerns about the worker’s credibility, the emphasis by the worker on the incidents mentioned specifically above and viewing the vast number of pre-appointed day incidents described by the worker as opposed to post-appointed day incidents that his PTSD was attributable to or results from those trauma.[5] (underlining added)
[5] Schwerdt v Safecom (Emergency Services Administrative Unit) [2007] SAWCT 55.
It is apparent from the underlined part of the passage cited immediately above that the Auxiliary Judge did not accept the opinion of Professor McFarlane that the incidents after the appointed day were distressing, or if they were distressing, that they were sufficiently so to have made a permanent contribution to Mr Schwerdt’s stress disorder. It is also apparent from the reasons of the Auxiliary Judge that the reports and evidence of Professor McFarlane provided an understanding of the nature of the disorder and its aetiology against which the Auxiliary Judge assessed the significance of the traumas experienced after the appointed day in reaching his conclusion.
Hearing before the Full Bench of the WCT
Mr Schwerdt appealed against the Auxiliary Judge’s decision dismissing his claim under the 1986 Act to the Full Bench of the WCT. Mr Schwerdt appealed on a number of differently expressed grounds, but in essence there were just two. They were that the evidence demanded a finding that trauma experienced after the appointed day contributed to Mr Schwerdt’s stress disorder (the first ground), and that the Auxiliary Judge failed to give adequate reasons for not so finding (the second ground).
By majority the Full Bench allowed the appeal and substituted a determination that Mr Schwerdt’s stress disorder was compensable under the 1986 Act.
Parsons DPJ reasoned that: “The acceptance of Professor McFarlane’s evidence necessarily included his evidence about the causal mechanism of PTSD both generally and in the particular circumstances of this case”.[6]
[6] Schwerdt v Safecom (Emergency Services Administrative Unit) [2008] SAWCT 39 at [64].
Parsons DPJ then continued:
[72]Once the learned ADP had accepted that the series of events both before and after the appointed day had occurred and that the appellant found them distressing and once he accepted Professor McFarlane’s evidence as to the causal mechanism of PTSD it was not open to him to arrive at any different conclusion by reference to the appellant’s credit.
[73]The learned ADP does not explain in what way the appellant’s credit influenced his conclusion. … If the learned ADP intended to convey that he did not believe that those events occasioned traumatic memories, which took the form of flashbacks or nightmares, then he did not say so but in any event on Professor McFarlane’s evidence that would not rule out the events as contributing to the PTSD as subsequent exposures feeding into the progression of the condition.
[75]The conclusion that the PTSD was an injury pursuant to the 1971 Act and not a transitional disability pursuant to the 1986 Act was contrary to compelling influences[sic].[7]
[7] Schwerdt v Safecom (Emergency Services Administrative Unit) [2008] SAWCT 39. Parsons DPJ cited Chambers v Jobling (1986) 7 NSWLR 1 as a footnote to that paragraph.
Parsons DPJ found that “the role of the post 1987 events, as subsequent exposures adding to the progression of the condition, is not something that the appellant’s evidence could inform” because that question was related to the “psychopathological process of the condition, a matter outside common experience and within the ambit of Professor McFarlane’s accepted evidence”.[8]
[8] Schwerdt v Safecom (Emergency Services Administrative Unit) [2008] SAWCT 39 at [74].
The reasoning of Olsson AuJ was similar. He first identified the two essential grounds of appeal to be that the “finding” of the Auxiliary Judge was “inconsistent with the manner in which the respondent had conducted its case” and “that the learned ADP failed to express any or adequate reasons justifying a conclusion contrary to the relevant unequivocal and unchallenged medical opinions expressed by Professor McFarlane relevant to the issue”.[9] Olsson AuJ then said:
[184]It seems to me that there is great force in Mr Saies’ contention that, having regard to the nature of the appellant’s condition, the learned ADP was scarcely in a position to make a simple determination of fact based on a commonsense appraisal of the factual evidence. If, having accepted the undoubted occurrence of the various, identified traumatic incidents both prior to and after the critical date, the learned ADP was to reject the unchallenged expert opinion of Professor McFarlane concerning the relevance of the events occurring after such date, it behoved him to express clear and cogent reasons justifying such a course.
[9] Schwerdt v Safecom (Emergency Services Administrative Unit) [2008] SAWCT 39 at [164].
Olsson AuJ accepted the submission put on behalf of Mr Schwerdt that the Auxiliary Judge was hardly entitled to make a “commonsense appraisal” of the evidence in the face of Professor McFarlane’s opinion or at least that he was not entitled to do so in the absence of clear and cogent reasons justifying that course. He continued:
[187]But, once [the Auxiliary Judge] accepted the occurrence of the relevant incidents, then it was not open to him merely to say that he was far from satisfied, given inter alia his concerns about the appellant’s credibility, that the emphasis by the worker on the incidents specifically mentioned by the learned ADP and viewing the vast number of pre-appointed day incidents described by the appellant as opposed to post appointed day incidents led him to the conclusion that the PTSD was attributable to or resulted from the latter.
[188]This was really the crux of his reasoning and, with respect, it failed to either acknowledge the importance of the unchallenged expert medical opinion before him or explain why it was that Professor McFarlane had fallen into error in relying on the impact of the later events.
[189]In truth, the stage had been reached at which the learned ADP was, in effect, assuming the mantle of a medical expert and expressing a contrary opinion in circumstances in which there was no apparent reason to question the validity of what Professor McFarlane had said on this topic. His expressed reasons did not, in my opinion, come to terms with and identify any perceived fallacy in the expert evidence in relation to what was a complex and technical specialist field. They did not indicate how it was that Professor McFarlane's technical opinion based on a very large number of lengthy consultations over a long period as the treating psychiatrist was in discord with the evidence. Mere reference to the comparatively large number of earlier incidents and references to the appellant’s credibility fell short of so doing.
[190]I consider that, once the stage was reached at which the occurrence of the relevant traumatic events was accepted and the learned ADP had also accepted the diagnosis of PTSD as being accurate, this was (to paraphrase a language employed by Wallace P in Thurston v Todd) one of those occasional cases in which it was not legitimate for a tribunal of fact to differ from the unchallenged opinion of a medical expert such as Professor McFarlane as to the technical issue of attributing factors.
[191]There was no logical basis of reasoning or evidence upon which the learned ADP could properly have done so, as a non-medically qualified person. To paraphrase the words of Cox J in Geste v Periera, this was a situation in which, given the basic findings of fact made, the learned ADP found himself in a position in which, by reason of the esoteric subject matter, he was practically dependent upon the expert evidence as to the issue of medical causation. It is not possible to see how that evidence, apparently plausible on the face of it, could simply be put to one side on the basis of a lay assessment, as it was.
[192]That being so, I am of the opinion that the appellant has demonstrated error of law on the part of the learned ADP. The strong inference that arises is that the learned ADP failed to direct attention to or appreciate the significance of and take into account the evidence of Professor McFarlane as to this issue. The impugned conclusion was simply not open to him, given the state of the evidence and his own findings generally.
[193]If I am incorrect in so concluding then it seems to me to be beyond question that the appellant has also demonstrated an error of law in that, as I have demonstrated, the learned ADP did not give adequate reasons for the impugned conclusion.
[194]I consider that the basic findings of fact made by the learned ADP inexorably demanded an ultimate finding that the PTSD suffered by the appellant constituted a transitional disability to which the 1986 Act was applicable.[10] (footnotes omitted)
[10] Schwerdt v Safecom (Emergency Services Administrative Unit) [2008] SAWCT 39.
The application for Judicial Review
The plaintiff seeks judicial review of the decision of the Full Bench of the WCT. It seeks an order setting aside that decision, declarations that the appeal is incompetent and an order requiring the first defendant, the WCT, to dismiss the appeal to it on that basis. The ground upon which it seeks those orders is that the decision was made in excess of jurisdiction, because it did not lie on a question of law as required by s 86 of the 1986 Act.
For the reasons I give below, I have concluded that the first ground of Mr Schwerdt’s appeal, that the evidence required a finding that post-appointed date events contributed to the stress disorder, did not raise a question of law and that the Full Bench had no jurisdiction to hear and determine the appeal on that ground. The second appeal ground of inadequate reasons did raise a question of law. However, in my opinion the Full Bench did not address itself to that question of law and did not determine the appeal on that ground; the Full Bench treated the second ground as no more than an aspect of the first.
The jurisdiction of the Full Bench
An appeal from the WCT constituted by a single presidential member lies to the Full Bench of the WCT constituted by three presidential members[11] on a question of law only. Section 86 of the 1986 Act provides:
(1)An appeal lies on a question of law against a decision of the Tribunal constituted of a single presidential member to a Full Bench of the Tribunal.
(2)An appeal under this section must be commenced, heard and determined in accordance with the rules.
[11] Workers Rehabilitation and Compensation Act 1986 ss 78 and 78A.
The jurisdiction of the WCT is limited to that jurisdiction which is conferred by statute.[12] There is no other relevantly applicable provision which gives jurisdiction to the Full Bench. Accordingly, s 86 confers both an entitlement on persons interested in a determination of the WCT to appeal, and confers jurisdiction on the Full Bench to hear and determine that appeal. Both the entitlement to appeal and jurisdiction of the Full Bench are limited to questions of law.
[12] Workers Rehabilitation and Compensation Act 1986 s 79.
Plainly enough an appellant cannot bring the appeal within the jurisdiction of the Full Bench by self-describing the grounds on which the appeal is brought as questions of law. However, a question arises as to whether a decision of the Full Bench that an appeal is on a question of law is final and conclusive. The Full Bench has, necessarily, jurisdiction to determine whether it has jurisdiction; that is to say the Full Bench can inquire into whether an appeal brought before it is on a question of law. One of the issues on this summons for judicial review is whether a determination of the Full Bench that an appeal is on a question of law is sufficient to bring it within jurisdiction.
In my view, the jurisdiction of the Full Bench is limited to the hearing and determination of only those appeals which are correctly held to be appeals on questions of law. On a proper construction of the Act, the Full Bench has not been authorised to determine for itself the limits of its jurisdiction. I have reached that conclusion for the following reasons.
First, the very existence of this Court as the only superior court of the State suggests that, in the absence of any indication to the contrary, statutorily imposed jurisdictional limits on inferior courts and tribunals are to be enforced by this Court.
Secondly, the Act does not expressly constitute the WCT as a court. On the other hand, I acknowledge that the WCT is empowered to punish contempts by a fine (not exceeding $2,000) but not by imprisonment,[13] but this Court is given a general supervisory jurisdiction of any penalty imposed pursuant to s 88B(3). I also accept that the WCT’s decisions, when made within jurisdiction, are final and conclusive, and that in that sense it exercises judicial power. However, it is of some importance I think that the WCT cannot enforce its own decisions. The procedure for enforcement is provided in Division 11 of Part 6 of the 1986 Act. That Division provides that the Registrar must, on application, issue a certified copy of a judgment or order of the WCT; that certified copy may then be filed in the District Court. On filing of the certified copy, the judgment of the WCT may be enforced as a judgment or order of the District Court. It is unlikely that the question whether a judgment or order of the WCT is valid for the purposes of its enforcement not by it, but by the District Court, was meant to be determined exclusively by the Full Bench’s view of its jurisdiction.
[13] Workers Rehabilitation and Compensation Act 1986 s 88B.
Thirdly, it is, in my view, the clear intention of the 1986 Act to limit litigation over the decisions of the Tribunal. The 1986 Act as a whole provides for the summary and informal hearing and determination of claims for workers compensation. It evinces a purpose to hear and determine claims as efficiently and as cost effectively as possible. The efficient and effective administration of the scheme effected by the 1986 Act and the reduction of litigation and adversarial contests to the greatest possible extent are express objects of the Act.[14] It would be inconsistent with that legislative policy to leave uncorrected erroneous decisions of the Full Bench which expand its jurisdiction to include controversies over factual questions in the face of the clearly expressed parliamentary intention to limit its jurisdiction to questions of law.
[14] Workers Rehabilitation and Compensation Act 1986 s 2.

These indications together persuade me that the decisions of the WCT are final and conclusive when made within jurisdiction but that this Court is the final arbiter of the limits of that jurisdiction.
Jurisdictional Error
In Craig v South Australia[15] the High Court explained that an inferior court falls into jurisdictional error if it misconceives the nature of the function it is performing. The High Court held:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
… Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain.[16] (footnote omitted)
[15] (1995) 184 CLR 163.
[16] Craig v South Australia (1995) 184 CLR 163 at 177-8.
It was an essential condition of the appellate jurisdiction of the Full Bench that it only hear and determine appeals on questions of law.
Mistaken factual findings – no question of law
The next issue which therefore arises is whether the grounds of appeal brought by Mr Schwerdt and heard and determined by the Full Bench were indeed appeals on questions of law. A similar issue has been much litigated in New South Wales on appeals to the Supreme Court of that State from the Workers Compensation Commission on a point of law. In Azzopardi v Tasman UEB Industries Ltd[17] Glass JA with whom Samuels JA agreed said:
[17] (1985) 4 NSWLR 139.
... The first ground challenges the conclusion below that the applicant failed to establish that he injured his knee on a periodic journey on 4 October 1975. There are authoritative pronouncements that such a contention involves no question of law:
The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9. (Emphasis supplied.)
In another workers' compensation case Dixon J, as he then was, put the position in the following words:
‘... the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law.’
Clark v Flanagan (1934) 52 CLR 416 at 428.[18]
[18] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155.
It can be seen that the reasons for decision of the Full Bench are directly inconsistent with the authorities cited by Glass JA.[19] Mr Schwerdt’s contention, which was accepted by the majority, was that the evidence of causation was so overwhelmingly in his favour that it was unreasonable not to so find; the passages cited clearly hold that that proposition does not raise a question of law.
[19] Schwerdt v Safecom (Emergency Services Administrative Unit) [2008] SAWCT 39 at [72]-[73] per Parsons DPJ and [187]-[194] per Olsson AuJ cited in [36] and [39] above.
Glass JA continued:
It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.
A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55. The decision here assailed is not of that character.
To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof.[20] (underlining added)
[20] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6.
The above passages are directly applicable to the first ground advanced by Mr Schwerdt before the Full Bench. They demonstrate why the first ground does not raise a question of law.
Kirby P dissented in Azzopardi and held that where reasons expose “illogicality” or “unexplained perversity” an error in point of law will have been established.[21] Nonetheless, he also accepted that:
Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this [is] even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.[22]
[21] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151E.
[22] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151D.
The decision of the majority in Azzopardi continues to be applied as Kirby J recognised in Roncevich v Repatriation Commission.[23] Indeed, in my respectful opinion the approach in Azzopardi is supported by the decisions of the High Court in Australian Broadcasting Tribunal v Bond[24] and Vetter v Lake Macquarie City Council.[25] In the former case the principle that there is no error of law in “simply making a wrong finding of fact” was affirmed.[26] The issue in the latter case was whether the facts as found concerning a worker’s travel after work came within the statutory words “journey between the worker’s place of abode and place of employment”. Gleeson CJ, Gummow and Callinan JJ accepted, in accordance with earlier authority,[27] that an unreasonable conclusion that the facts as found fall within or outside the ordinary meaning of statutory words is an error of law.[28]
[23] (2005) 222 CLR 115 at 137, [68]. See also Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1 at 5; Haines v Leves (1987) 8 NSWLR 442 at 476; cf at 469-70; Warley Pty Ltd v Adco Constructions Pty Ltd (1988) 8 BCL 300 at 310-11; Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 37; Bowen-James v Director-General, Department of Health (1992) 27 NSWLR 457 at 474-5; Wilson v Lowery (1993) 110 FLR 142 at 146-7; Bruce v Cole (1998) 45 NSWLR 163 at 188-9; cf Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [13]-[15] per Beazley JA. As to the approach taken with respect to irrational or perverse administrative findings in the context of administrative review and to decisions subject to review by way of the constitutional writs: see Bruce v Cole (1998) 45 NSWLR 163 at 188-9; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 359; Roncevich v Repatriation Commission (2005) 222 CLR 115 at 136-139, [66]-[75]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [53]-[60].
[24] (1990) 170 CLR 321.
[25] (2001) 202 CLR 439.
[26] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ.
[27] Hope v Bathurst City Council (1980) 144 CLR 1 at 7 and William v Bill Williams Pty Ltd [1971] 1 NSWLR 547.
[28] Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-1, [24]-[27].
However, the issue before the Full Bench was not whether on the facts as found by the Auxiliary Judge Mr Schwerdt’s injury was attributable to post appointed day trauma. Mr Schwerdt’s complaint was that the Auxiliary Judge had erred in failing to find that his experiences after the appointed day had exacerbated his post traumatic stress disorder. That was a purely factual issue. To use the terminology employed by Glass JA in Azzopardi, the error complained of by Mr Schwerdt was a “first stage error”, namely determining the facts by way of primary findings. Obviously enough a judge makes an error of law in misdirecting himself or herself on the law. It is in the third and final stage of applying the law to the facts as found that an error of law is made if, and only if, the conclusion is unreasonable.[29]
[29] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. On the other hand where the legal standard applied in the third stage involves a term that has a special legal meaning it is an error of law simply to reach the wrong conclusion: Hope v Bathurst City Council (1980) 144 CLR 1 at 7.
I observed in [29] and [32] above that the Auxiliary Judge did not find that Mr Schwerdt found the post appointed day incidents to be distressing. It was open to the Auxiliary Judge to remain unconvinced by Professor McFarlane’s evidence. It cannot be emphasised enough that a trial Judge is not bound by the evidence of an expert witness, even if that evidence is uncontradicted.[30] Leaving aside special statutory provisions for the determination of issues by assessors, arbitrators or medical panels, all factual issues, including those on which expert evidence has been led, are to be decided by the tribunal of fact. The passage from Professor McFarlane’s report extracted in [22] of my reasons explains the nature of traumatic experiences that are the “essence” of a post traumatic stress disorder. With that explanation in mind, it was for the Auxiliary Judge to determine what Mr Schwerdt experienced in the post appointed day incidents, and the significance of those experiences. Having heard Mr Schwerdt examined and cross-examined over three days the Auxiliary Judge was in as good, if not a better, position than Professor McFarlane to assess the effects of those incidents on Mr Schwerdt. It was open to the Auxiliary Judge to remain unconvinced that Mr Schwerdt’s experiences of those incidents contributed to his stress disorder. Indeed, in the course of cross-examination, Professor McFarlane expressly accepted that his opinion that the incidents did contribute to the stress disorder was dependent on an acceptance of Mr Schwerdt’s account of the incidents.[31]
[30] Geste v Pereira [1991] SASC 3018; Thurston v Todd [1996] 1 NSWLR 321.
[31] Transcript pp 231, 260.
For those reasons the Auxiliary Judge’s failure to be persuaded has not been shown to be erroneous and, insofar as it may affect the question whether the reasons disclose an error of law, the reasons have certainly not been shown to be illogical or perverse.
However, what is of present importance is that the reasons of the majority are directed to factual, not legal, questions.
Three observations can be made about the passages I have set out from the reasons of the majority of the Full Bench. First, the majority referred in their reasons to Chambers v Jobling,[32] Geste v Pereira[33] and Thurston v Todd;[34] all three authorities concerned appeals by way of rehearing against findings of fact. Secondly, the reasoning of the majority is replete with expressions indicative of an appeal by way of rehearing of the facts: “not open to him”, “contrary to compelling [inferences]”, “inconsistent with evidence”. Thirdly, Parsons DPJ’s criticism that the conclusion of the Auxiliary Judge was “contrary to compelling [inferences]” clearly demonstrates that her Honour framed the question before her as one of fact rather than law.
[32] (1986) 7 NSWLR 1.
[33] [1991] SASC 3018.
[34] [1966] 1 NSWLR 321.
In my view, the reasons of the Full Bench disclose that it embarked on an appeal by way of a rehearing of the facts. In so doing it has exceeded its jurisdiction by purporting to exercise it in circumstances where an essential requirement, namely an appeal on a question of law, was absent. It has also misconceived the nature of its function under s 86 of the 1986 Act. Even if it were to be accepted that a perverse or illogical factual decision is an error of law, the Full Bench did not determine that question. The reference by Olsson AuJ to “no logical basis” was qualified by the phrase “as a non-medically qualified person”. In context, even in that passage Olsson AuJ was saying no more than that the Auxiliary Judge’s decision was against the overwhelming weight of the expert evidence, which, as has been seen, involves at most factual, not legal, error. Similarly, the reference of Olsson AuJ to the Auxiliary Judge’s failure to “direct attention to or to appreciate the significance of and take into account the evidence of Professor McFarlane” can only, in context, be understood as a finding that the Auxiliary Judge failed to give that evidence sufficient weight, because it was not contended that the Auxiliary Judge had misdirected himself and thereby failed to have regard to the probative force of that evidence. Although the latter may be an error of law the former is most certainly not.
Inadequate reasons
The failure to give adequate reasons is a question of law. However, I am satisfied that the majority did not determine the appeal on that ground.
In Soulemezis v Dudley (Holdings) Pty Ltd[35] McHugh J explained that the adequacy of reasons must be measured against the issue that is determined by them:
[35] (1987) 10 NSWLR 247.
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701, 713). In Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister's duty under the Tribunals and Inquiries Act 1958 (UK) to furnish ‘the reasons for the decision’, declared (at 410) that:
‘... The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.’
The content of the duty of a judge to give reasons is not dissimilar from the duty of a party to give particulars of a claim or defence. In R v Associated Northern Collieries Ltd (1910) 11 CLR 738, Isaacs J said (at 740) that the fundamental principle concerning particulars was:
‘... that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability.’
Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.
In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff's credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff's case, such a simple finding would not be enough.[36]
[36] Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280-1.

The reasons of the Auxiliary Judge for dismissing the claim under the 1986 Act are readily apparent even in the passages that I have extracted above. The Auxiliary Judge plainly accepted that the incidents occurred. However, he was simply unconvinced that the post appointed day traumas were significant enough to have any effect on Mr Schwerdt’s condition because of their nature and duration and the fact that they occurred after a long history of many more serious incidents. It is apparent from the reasons of the Auxiliary Judge that on that issue Mr Schwerdt’s case was simply unpersuasive. Others may have reached a different conclusion, but, at most, that would indicate a factual and not a legal error and certainly does not show a failure to give adequate reasons.
The discussion by the majority of the adequacy of the Auxiliary Judge’s reasons is inextricably related to their finding that only one factual conclusion was reasonably open on the evidence. In effect, their finding was that there was no good reason on the face of the evidence to depart from the factual conclusion to which majority thought the evidence, and in particular the reports and testimony of Professor McFarlane, ineluctably led. The reasons of the majority should therefore be understood as finding that there was no reason in the evidence for not acting on Professor McFarlane’s opinions, rather than a finding that the Auxiliary Judge’s decision was unexplained. That is most evident in paragraph [73] of the reasons of Parsons DPJ and in paragraphs [191]-[193] of the reasons of Olsson AuJ which I have set out above. My reading of their reasons is supported by the following. First, there is the paucity of discussion in the reasons of the majority of that question as a discrete issue. Secondly, the reasons of the Auxiliary Judge so patently disclose his reasons that it is not possible to see how the Full Bench could have allowed the appeal on that ground independently of their conclusion on the first ground. Thirdly, it is evident on the face of the judgments of the majority that they had no difficulty in identifying the reasons of the Auxiliary Judge for the purpose of analysing them. Indeed, they relied on the very reasoning apparent on the face of his judgment to demonstrate error, albeit one which, in my opinion, if error at all, was an error of fact not law.
On this ground of appeal too, the majority of the Full Bench exceeded their jurisdiction because instead of addressing the question of law which it raised, they reformulated and dealt with the ground as if it were no more than an aspect of the first ground.
Conclusion
I would set aside the decision of the Full Bench. The Full Bench did not deal with grounds 5 and 6 of Mr Schwerdt’s appeal which complained of the Auxiliary Judge’s treatment of the issues of partial incapacity and mutuality under the 1971 Act because of its determination that the 1986 Act applied.
It is for the parties and ultimately the WCT to address the final disposition of the remaining grounds of appeal to the Full Bench in the light of this decision.