STATE RAIL AUTHORITY OF NEW SOUTH WALES v ARNAOUT [1990] NSWCA 171

STATE RAIL AUTHORITY OF NEW SOUTH WALES v ARNAOUT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA 28 September 1990, 28 September 1990 [1990] NSWCA 171

WORKERS' COMPENSATION — Appeal from Commissioner to judge of the Compensation Court — stringent requirements of — meaning of point of law. APPEAL — error of law — stringency of test — Held: A Compensation Court judge, confined to correcting errors of law was not authorised to disturb the decision of a commissioner which involved purely a finding of fact, especially as the decision on the facts depended, in part, upon an estimate of credit worthiness of witnesses. Azzopardi v UEB Industries Ltd (1985) 4 NSWLR 139 applied; Hope v Bathurst City Council, (1981) 44 CLR 1 distinguished; Jones v Hyde, (1989) 63 ALJR 349, 351 referred to. LAW REFORM — Need for consideration of "point of law" referred to. Bond and Ors v Australian Broadcasting Tribunal, (1989) 89 ALR 185, 199 referred to. EVIDENCE — presumptions — continuance — Held: The presumption of continuance may operate prespectively and retrospectively. The Cloverdell Lumber Company Pty Limited and Others vy Abbott, (1924) 34 CLR 122, 137 applied. Compensation court Act 1984, s32.

Clarke JA This is an appeal from a decision of his Honour Judge Coleman sitting in the District Court upholding an appeal from the determination of Commissioner Ferris dismissing the respondent's application for compensation which was made pursuant to CL(2)(i) of Schedule 5 of the Transport Authorities Act 1980.

The appeal to Judge Coleman was, and this appeal is, limited to the correction of errors of law. In neither instance could the Court review the facts and correct perceived mistakes of fact.

The respondent had been employed by the appellant to work for it in the classification of Goods Assistant. His Initial work was concentrated upon the unloading of freight wagons but within his work classification there was also the role of cleaner. In other words the classification of Goods Assistant comprised at least the unloaders of freight wagons and cleaners. He gave evidence that on 22 August 1983 he suffered a back injury which was complicated by some depression. He returned to work at Wynyard Station on 19 March 1984. On this occasion he was doing work which was different from the work which he had initially undertaken, but it was that of a cleaner which was, as I have outlined, within the same classification as his original work.