GARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR [1992] NSWCA 158

GARY JOHN MINTER v POLICE TRIBUNAL OF NEW SOUTH WALES and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and SHELLER JJA 14 February 1992, 21 May 1992 [1992] NSWCA 158

Prerogative relief — (per Mahoney JA) — when granted incidental error of law insufficient. Interference with discretion of Police Tribunal — refusal to rely on psychologists note not refusal to take account of evidence but rather finding that it was inappropriate to do so (per Mahoney JA) or not persuasive (per Clarke JA, Sheller JA agreeing).

Error of law — no error if Judge correctly sets out applicable test, even if reasoning unsound — Azzopardi v Tasman-UEB Industries Ltd (1985) 4 NSWLR 139, discussed (per Clarke JA, Sheller JA agreeing). Fact finding — credibility — demeanour — ability to put aside such findings limited — test whether demeanour appropriate based on "ordinary human experience" — this normally question of fact not law — Tribunal not in error in its use of demeanour (per Mahoney JA). Inferences — defendants answers to questions — issue of fact not law — goes to credibility (per Clarke JA, Sheller JA agreeing). Tribunal's reasons — circular or faulty — finding of fact not law (per Mahoney JA) conclusions based on "human experience" may involve intuition rather than Aristotelian logic — judge's reasons not plainly wrong.

Review Division — non-consideration of arguments — arguments at first instance based on conflicting evidence — detailed discussion of evidence in Tribunal judgment — no need for Review Division to give detailed reasons on the evidence and arguments if it agreed with Tribunal's reasons (per Clarke JA) greater detail of.dissenting Review Tribunal judgment irrelevant (per Sheller JA) dissenting judgment a virtual retrial: Misconception of jurisdiction to review — no evidence of misapplication of Abalos v Australian Postal Commission, 65 ALJR 11 — no error in Tribunal's finding of assault — no finding that Tribunal's decision was glaringly improbable possible (per Clarke JA, Sheller JA agreeing).