STEWART v MAITLAND SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and SHELLER JJA 1 May 1995, 1 May 1995 [1995] NSWCA 456 WORKERS COMPENSATION — FINDINGS OF FACT OF TRIAL JUDGE FACTS: Appellant challenged trial judge's finding of fact concerning injuries allegedly occurring during employment. HELD: (1) Where a party has the onus of proving a situation and is disbelieved by a trial judge, this is sufficient for a finding of fact. ORDERS: (1) Appeal dismissed with costs. Meagher JA In this matter the worker, Mr Vivian Gene Stewart appeals from a determination of Burke CCJ who rejected his application for workers compensation. Before his Honour the appellant had alleged four injuries allegedly suffered in the respondent's employment. Three of them were frank injuries allegedly occurring on 28 July 1986 and the fourth was a general nature and conditions of his employment between April 1986 and July 1986. As to the last of those four, that is the general employment between April 1986 and July 1986, which the employer denied, there is simply no evidence of any such injury. As to the earlier three, the happening of each injury was a question of fact, and the onus of proof was on the appellant. His Honour disbelieved the appellant. His Honour's finding in this respect is an extremely strong finding. His Honour said of the appellant these things: "He has obviously been dishonest in his dealings with a variety of people. He has obviously been, in my view, dishonest in his evidence in Court. I do not accept him as a witness of fact. The totality of the facts proved tends to suggest that he probably did not have the injury." In those circumstances it is extremely difficult for Mr Callaghan of Senior Counsel, who appeared and said everything that could be said for the appellant, to argue that his Honour was wrong. Mr Callaghan is restricted to questions of law and insofar as his Honour made findings of fact and to my mind the whole of his Honour's judgment consists of findings of fact, there is just no appeal. In these circumstances Mr Callaghan sought refuge in the argument that there was a point of law in that his Honour did not give reasons for his findings. This is unacceptable. If an applicant has the onus of proving a situation and the judge says - I cannot believe the applicant - that is a sufficient finding of fact. The details minutia do not matter. In my view the appeal should be dismissed with costs. Clarke JA I agree and would only add that Mr Callaghan sought to rely on evidence given by a number of doctors on behalf of the appellant as supporting the case on appeal. He did so by suggesting that his Honour erred in failing to give detailed consideration to their opinions. The difficulty that I have with that 2 UNREPORTED JUDGMENTS submission is that the doctors' opinions were all based upon the history given by the appellant who was found to be not only an unreliable historian but a dishonest person. Once the underlying premise for the opinions was gone there remained very little of the doctors' evidence. In these circumstances once the judge had said he could not accept the appellant in his accounts about the incidents and what followed, it was virtually inevitable that he would find an award for the respondent. I agree with the orders proposed. Sheller JA For the reasons given by the other members of the Court I agree that the appeal should be dismissed with costs. Clarke JA The orders of the Court will be the appeal is dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: PR CALLAGHAN/GH JOHNSON Solicitors for the appellant: ORR AND CO Counsel for the respondent: GB BEAUCHAMP Solicitors for the respondent: STATE COMPENSATION BOARD