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. He was only able, he said, to remain at work for a short period. We went off work and remained off until 24 September 1984 when he returned to work at Martin Place Station, again as a cleaner, using a sweeping and polishing machine. He then remained at work until November 1984 when he went off work again. It would seem that he did not return to work until 14 July 1987, again as a cleaner. On 17 July he ceased work once again. He was paid compensation in respect of his back injury until 19 March 1984 which, it will be recalled, was the date on which he returned to work as a cleaner. On 17 July he ceased work once again. 2 UNREPORTED JUDGMENTS He was paid compensation in respect of his back injury until 19 March 1984 which, it will be recalled, was the date on which he returned to work as a cleaner at Wynyard Station. His claim before Commissioner Ferris was for compensation in respect of the period between 19 March and the date of the hearing, with the exception of those times at which he was at work, and continuing. The issue that was posed for determination was whether the respondent had established that he was incapacitated for the work of a cleaner which was, as I have said, within his classification. In his concise but adequate judgment Commissioner Ferris outlined the facts and referred to the cross examination of the respondent in terms which indicated that he was not completely satisfied with the respondent's attitude or evidence. I draw the inference that that was the impression created in the Commissioner's mind by his statement that the respondent was very vague as to his answers concerning a number of subject matters, and his later conclusions. The learned Commissioner then noted that he had been presented with diametrically opposed medical opinions as to the condition and fitness for work of the respondent. In the light of that conflict he concluded that he was unable to derive any assistance from the medical evidence. He then said: "In those circumstances his entitlement to compensation depends on whether one accepts the applicant's subjective symptoms or not." I will return in a moment to that sentence. Having posed the question with which he was confronted, the learned Commissioner went on to say: "Having seen the film on the Applicant performing work on his lawn at his home and other activities, undertaken by him, lam of the view, on the balance of probabilities, that whilst the worker sustained an injury to his back in 1983, that any such aggravation has ceased. I am also of the opinion that the "light work provided by the Respondent was such that the Applicant could have performed those duties at his own pace and accordingly I find in favour of the Respondent." I should pause here to consider what the Commissioner was referring to when he spoke of the applicant's subjective symptoms. They, in my opinion, can only have been his complaints of pain or disability because upon the analysis carried out by the Commissioner he was, in every sense, determining whether it was proper to accept that they were genuine complaints of pain or disability. Having posed for himself the question whether one should accept the applicant's evidence concerning his symptoms, the Commissioner observed that having seen the film, the earliest of which was exposed on 7 October 1986, he was of the view that the incapacity which the respondent had suffered had ceased. J interpolate the observation that the Commissioner used the word "aggravation" but, as Judge Coleman pointed out, he clearly meant "incapacity". The Commissioner then drew attention to the light work, which was clearly the work as a cleaner at the railway station, and determined that the respondent could have performed that work and, inferentially, did not leave his employment on the relevant occasions because of any incapacity. His finding was, so it seems to me, essentially a factual one. If his Honour's view was correct then it may be that the learned Commissioner did make a factual error in relying upon the film as showing no incapacity two years prior to its exposure. But it is very much a question of degree and questions of degree are usually, and in this case are, questions of fact. Certainly, the film would have provided or was capable of providing a basis for a conclusion that URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v ARNAOUT (Clarke JA) 3 there was no incapacity on the day prior to the taking of the film and some days prior thereto. (See in this respect The Cloverdell Lumber Company Pty Ltd and Others v Abbott, 34 CLR 122, per Isaacs J, at 137.) When the appeal came before Judge Coleman his Honour did not expressly identify any error of law which had been made by the Commissioner; nor did he indicate what was suggested to be the clear error of law which justified his intervention. His Honour said that it was clear to him that the learned Commissioner had based his decision on the films of the applicant taken between 7 October 1986 and 29 July 1987. This statement was, in my opinion, erroneous. The Commissioner used the film to determine whether he accepted the evidence of the applicant before him. Having seen it he rejected the applicant's evidence. The award for the respondent flowed from that rejection. That was the true basis of his conclusion. Insofar as his Honour reached a different conclusion it is clear that his judgment cannot stand. But that is not all. Having laid the basis his Honour proceeded to say: "Whilst it was open for the Commissioner to find no capacity existed after 7 October 1986 he as precluded on the basis of those films from determining incapacity between 19 March 1984 and 7 October 1986. During the hearing of the appeal I indicated that I had some difficulty in understanding the precise thrust of this statement. The reason for my difficulty is that I do not quite understand why it was that the fact that the very last film was exposed on 7 October 1986 would preclude a finding of incapacity on an earlier date. However, on reflection and after hearing argument, I have reached the view that his Honour was simply stating that the earliest film taken on 7 October 1986 provided no basis for a determination that there was no relevant incapacity between March 1984 and that date. It is on the basis of that understanding of his Honour's statement that I proceed. Leaving to one side for the moment whether his Honour was correct to reach that conclusion I am of the opinion that the error which he ascribed to the learned Commissioner was not an error of law. It may have been, in his Honour's view, an unwise decision or even a perverse one but the determination that a film exposed on 7 October 1986 justified conclusions as to incapacity at prior times was not a conclusion that involved an error of law. For instance, if a man claimed to have been crippled for three years extending twelve months past date A, a film taken on that date showing him doing energetic gymnastics would provide evidence from which one could conclude that he was not crippled on date A and afterwards and also for some time before date A. That, it seems to me, is a matter of commonsense. Accordingly, even accepting the basis for the decision, his Honour was wrong to conclude that an error of law had been shown. I would, however, primarily base my conclusion upon the fact that his Honour himself misconceived the real basis of the decision of the Commissioner; that was that the determination of the case depended upon an acceptance of the evidence of the respondent, who was the applicant before the Commission. If he was accepted, then his claim was made out; if he was not accepted then he had failed to discharge the onus. It is clear to me, from those passages in the Commissioner's judgment which I have cited, that the learned Commissioner came to the conclusion that he could not accept the evidence of the respondent. In that respect he was making a finding which was essentially one of fact and, indeed, not only was it one of fact but no error has been shown in respect of it. 4 UNREPORTED JUDGMENTS My conclusion is that there was no error of law justifying his Honour Judge Coleman interfering with the decision of the Commissioner and allowing the appeal. For those reasons I would uphold the appeal to this Court. I would order that the award of his Honour Judge Coleman be set aside and in lieu thereof would reinstate the award made by the learned Commissioner. I would also set aside his Honour Judge Coleman's award of costs in favour of the respondent. The costs in this case should be paid by the respondent, who should have a certificate under the Suitors' Fund Act. Kirby P I agree. His Honour Judge Coleman was confined, as this Court is in these proceedings, relevantly to an appeal in point of law. That expression has been explained in many cases. Nowhere more clearly than in Azzopardi v Tasman UEB Industries Ltd, (1985) 4 NSWLR 139, where the relevant authorities were discussed in some detail. One day it may be necessary in another context, to return to reconsider the stringent test explained in Azzopardi. It was a test from which I dissented (see ibid, 149). Analogous tests have been criticised in legal literature, see eg J Beatson, The Scope for Judicial Review for Error of Law (1984) Oxford J Leg Studies 22; CJ Emery and B Smythe, Error of Law in Administrative Law (1984) 100 LQR 612. It has also been criticised in court decisions including a relevant recent decision of the Full Federal Court in the context of judicial review. See Bond and Ors v Australian Broadcasting Tribunal (1989) 89 ALR 185, 199f. However, it is the law which is binding on this Court in a case such as the present. It was binding on Judge Coleman. No application has been made in this case to reargue the holding in Azzopardi. Nor would this case have been an appropriate vehicle to do so, as s32 of the Compensation Court Act has now been amended. The amendments themselves followed criticism of the consequences of the Azzopardi test by some members of this Court. However that may be the decision was the state of the law when Judge Coleman had to consider the appeal from Commissioner Ferris. The holding in Azzopardi (at 156) allowed one exception in respect of errors of law, said to be found in application of a legal standard to be the facts. That was the exception earlier exposed by the High Court of Australia in Hope v Bathurst City Council (1981) 144 CLR 1, where a finding of fact itself was held, in some circumstances, to indicate an error of law in the application of a statutory test. However, that was not the error of law which it was suggested Commissioner Ferris had made in this case. By the standards of Azzopardi, as Glass JA pointed out in the majority opinion in that case, findings of fact may not be disturbed in a jurisdiction confined to appeal on errors of law, even if they are errors which appear to involve a perverse finding on the facts proved. I can understand the consideration which was of concern to Judge Coleman. There are dangers in reasoning from films of activities taken in 1986 and 1987 respectively to the state of a person's capacity or rather incapacity for work in 1984. Back injuries are notoriously variable in their symptoms. Especially, is this so, one might say, in persons who are vulnerable to subjective symptoms. However, as Clarke JA has pointed out, the presumption of continuance may properly, as a matter of law, have retrospective operation. To infer that the condition of the worker shown in the film was the same as it had been earlier was a decision of URJ STATE RAIL AUTHORITY OF NEW SOUTH WALES v ARNAOUT (Handley JA) 5 fact. It was not a decision of law. It may not have been a decision or a process of reasoning which I would have taken. But it was clearly open to Commissioner Ferris. In my opinion it even falls short of being a perverse decision. Yet even if it had been a perverse decision it would have been immune from review by Judge Coleman, as his jurisdiction was to review the decision on points of law only. Furthermore, it is plain in the context of the conclusion that Commissioner Ferris relied in part upon an opinion which he had reached about the credit-worthiness of the respondent worker. This was certainly in issue before the Commissioner as the worker was claiming continuing incapacity, including at the time that the film was exposed. The High Court has cautioned repeatedly against the disturbance by appellate courts of decisions made by trial judges based upon the assessment of the credit-worthiness of witnesses. This caution has been expressed to apply in cases where the trial judge has stated expressly that a decision is based upon an opinion of credit-worthiness. However, it also applies where a decision of credit-worthiness was inherent in the first instance tribunal's decision. See the judgment of McHugh J in Jones v Hyde (1989) 63 ALJR 349 at 351. How much more careful must an appellate tribunal be not to disturb such conclusions where it is confined to a jurisdiction limited, relevantly, to correcting decisions in point of law. Most careful of all must an appellate tribunal be in circumstances where its intervention would involve it substituting a conclusion different from that which was made at first instance, which decision depended in part upon an impression of credit-worthiness of witnesses. Yet, that is what Judge Coleman did. Accordingly, his Honour did not confine his exercise of his appellate jurisdiction to that which is proper to an appeal confined to points of law. This was, itself, an error of law. It therefore, warrants the interference of this Court. I therefore agree with the orders that Clarke JA has proposed. Handley JA I also agree. The claim by the present respondent before Commissioner Ferris was for salary pursuant to CL2(1) of Schedule 5 of the Transport Authorities Act 1980 in respect of broken periods after March 1984 and continuing. that claim was wholly dismissed by Commissioner Ferris. The appeal to the Compensation Court, which was only available in respect of questions of law, came before his Honour Judge Coleman. His Honour allowed the appeal in part. He did not disturb the decision of Commissioner Ferris that the respondent was not incapacitated for work after the date of the earliest film shown in evidence, which had been exposed on 7 October 1986. However, he reversed the decision of Commissioner Ferris and allowed the applicant's claim for all periods prior to that day. This shows that his Honour was of the view that the film provided no evidence whatever of the worker's condition at any time prior to the date it was exposed. He set aside the award of the Commissioner and, surprisingly, did not order a new trial but substituted an award in favour of the applicant, who bore the legal onus of proof, for the periods covered by the claim up to the date of the earliest film. The Commissioner's award refusing the claim stood, as I have said, as from the date of the earliest film. In setting aside the Commissioner's award in part on the basis that there was no evidence to support it his Honour committed an error of law. It is well established that proof of the existence of the same fact both before and after that 6 UNREPORTED JUDGMENTS date (See The Cloverdell Lumber Company Pty Ltd and Ors v Abbott (1924) 34 CLR 122 per Isaacs J at 137-138 and the cases there referred to). Whether any such evidence should be accepted as establishing the existence of the same fact at earlier and later dates is itself a question of fact and not one of law. I agree, therefore, with the orders proposed by Clarke JA. The appeal is upheld. Order that the award of his Honour Judge Coleman be set aside and in lieu thereof reinstate the award made by the learned Commissioner. Set aside his Honour Judge Coleman's award of costs in favour of the respondent. The costs in this case to be paid by the respondent, who should have a certificate under the Suitors' Fund Act. Counsel for the Appellant: PR Sternberg Solicitors for the Appellant: FD Thompson Counsel for the Respondent: P Menzies QC and J Wynyard Solicitors for the Respondent: Constantine Christopher and Assoc