Wallaby Grip Ltd v Peirce

Case [2000] NSWCA 299

NEW SOUTH WALES COURT OF APPEAL

CITATION:         Wallaby Grip Limited & Anor   v   Peirce & Ors;James Hardie & Coy Pty Limited   v   Peirce [2000]  NSWCA 299

FILE NUMBER(S):
40884/99
40887/99

HEARING DATE(S):          20 September 2000

JUDGMENT DATE:           27/10/2000

PARTIES:
Wallaby Grip Limited and Wallaby Grip (BAE Pty Limited (In Liquidation)   v   Floyd Robert Peirce; F.R. Coule Pty Limited; James Hardie & Coy Pty Limited
James Hardie & Coy Pty Limited   v   Floyd Robert Peirce

JUDGMENT OF: Priestley JA Handley JA Fitzgerald JA   

LOWER COURT JURISDICTION:    Dust Diseases Tribunal

LOWER COURT FILE NUMBER(S):               DDT 195/96

LOWER COURT JUDICIAL OFFICER:          Armitage J

COUNSEL:
CA 40884
Appellants (1 & 2) - F.M. Douglas QC / D.E. Graham
Respondent (1) - A.J. Leslie QC / A.O. Leslie
Respondent (2) - G. Little
Respondent (3) - J.D. Hislop QC / J.S. Drummond
CA 40887
Appellant - J.D. Hislop QC / J.S. Drummond
Respondent - A.J. Leslie QC / A.O. Leslie

SOLICITORS:
Appellants (1 & 2) - Middleton Moore & Bevins
Respondent (1) - Turner Freeman
Respondent (2) - Connery & Partners
Respondent (3) - Phillips Fox
CA 40887/99
Appellant - Phillips Fox
Respondent - Turner Freeman

CATCHWORDS:
Appeal under section 32 of the Dust Diseases Tribunal Act
point of law

LEGISLATION CITED:
Dust Diseases Tribunal Act as amended 1998

DECISION:
Appeals dismissed with costs.

JUDGMENT:

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA         40884/99
  CA        40887/99
  DDT      195/96

PRIESTLEY JA
  HANDLEY JA
  FITZGERALD JA

Friday, 27 October 2000

WALLABY GRIP LIMITED & ANOR   v   PEIRCE & ORS

JAMES HARDIE & COY PTY LIMITED   v   PEIRCE

DUST DISEASES TRIBUNAL - APPEAL UNDER SECTION 32 OF THE DUST DISEASES TRIBUNAL ACT - POINT OF LAW.

Plaintiff (respondent in appeal) brings proceedings in Dust Diseases Tribunal against five defendants - obtains judgment against four - three appeal - appeal, governed by s 32 of Dust Diseases Tribunal Act as amended in 1998, is limited to “point of law” - bulk of appeal grounds limited to matters of fact - some allege error of law on basis that error of law is shown in the same way as error is shown in appeals against discretionary judgments - some allege, so it is argued, absence of evidence to found particular findings. Held: after discussion of authorities, error in exercise of discretion not necessarily error in point of law - no errors of law shown - in each case of claim of absence of evidence, there was some evidence to support finding of judge below - grounds of appeal on fact only not available to appellants - all grounds fail.

AG for New South Wales v X [2000] NSW CA 199
Australian Gas Light Co v Valuer General (1940) 40 SR 126
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348
House v The King (1936) 55 CLR 499
Husher v Husher (1999) 73 ALJR 1414
Planet Fisheries…

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AGLC
Wallaby Grip Ltd v Peirce [2000] NSWCA 299
Case
[2000] NSWCA 299
Decision Date

CaseChat Overview and Summary

The parties to this appeal were Wallaby Grip Ltd and Peirce. The dispute concerned an appeal under section 32 of the Dust Diseases Tribunal Act, specifically on a point of law. The court was the Court of Appeal of New South Wales.

The legal issues before the court were to determine the scope of an appeal brought under section 32 of the Dust Diseases Tribunal Act, which limits appeals to points of law. This involved distinguishing between questions of law and questions of fact, and understanding what constitutes an error of law in the context of findings made by a tribunal.

The court reasoned that appeals under section 32 are statutory and have a limited scope, confining them to points of law and precluding appeals on questions of fact. The court relied on established principles from workers' compensation legislation, particularly the decision in *Azzopardi v Tasman UEB Industries Ltd*, which remains binding. This precedent clarifies that findings of fact that are perverse, against the overwhelming weight of evidence, or that no reasonable person could have made, are errors of fact and not grounds for appeal under a "point of law" provision. An error of law may arise if a judge misdirects themselves on the law, or if an ultimate finding of fact is made contrary to the necessary implication of primary facts, or in marginal cases where the application of law to facts is the only reasonably open conclusion. The court distinguished between errors in determining facts, errors in stating the law, and errors in applying the law to the facts found.

The appeals were dismissed with costs.

Orders

Orders of the court

Appeals dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

“Decision ... in point of law”.In the abstract, it may be difficult to fix a dividing line between questions and points of law on the one hand and questions and matters of fact on the other. However, at a practical level, distinctions of this kind are regularly drawn in statutes which describe rights of appeal from courts of first instance, and are equally regularly given effect. All appeals are statutory and their particular attributes depend on the words of the relevant statute: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1353 (per Gleeson CJ, Gaudron and Hayne JJ). Some appeals are re-hearings in which findings of fact may be made by the appellate court contrary to those of the court at first instance. Others such as that enacted by s 32 have consistently been recognised as having a much more limited scope. Appellate courts have regularly given effect to the clear statutory intention in such provisions to confine appeals about decisions in point of law within bounds which preclude such appeals from becoming appeals on questions of fact. The words in question in s 32 are the same as those which for lengthy periods have governed appeals in cases under workers’ compensation legislation, and have been considered in this court. In an appeal in a workers’ compensation case this court decided what is and is not open to an appellant to argue in an appeal confined and defined by the words set out above: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In the leading opinion in that case (by Glass JA, with which Samuels JA agreed), an earlier case, Australian Gas Light Co v Valuer General (1940) 40 SR 126 although decided on a different statute, was recognised as authoritative. Azzopardi has been criticised, but remains binding in this court; see especially the full discussion by McHugh JA in Warley Pty Ltd v ADCO Constructions Pty Ltd (Kirby P (dissenting), Hope JA and McHugh JA, unreported, 30 November 1988); see also the recent reference by Spigelman CJ to the continuing authority of Azzopardi, in his discussion of “question of law” in AG for New South Wales v X [2000] NSW CA 199 (2 August 2000) in par 123. The rules stated in Azzopardi relevant to the present appeals appear in the following passages from the reasons of Glass JA:“It is clear ... 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 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....It has been suggested that since judges unlike juries are required to give reasons a perversity of result will or may suggest an error at some stage of the reasoning process and the perversity will then rise to the level of an error of law. It is important, I believe, to remember that whether an error is one of fact or law is determined by legal theory and the theory is the same whether the tribunal be divided or undivided. Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found.” (at 155-157)

Ratio Decidendi

Legal Principle Established

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