COCKATOO DOCKYARD PTY LTD v ATAMIAN [1995] NSWCA 80

COCKATOO DOCKYARD PTY LTD v ATAMIAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 11 May 1995, 11 August 1995

[1995] NSWCA 80

WORKERS COMPENSATION — REVIEW BY JUDGE OF DECISION OF COMMISSIONER- REVIEW FINDING OF CREDIBILITY — JURISDICTION — REHEARING OF EVIDENCE

FACTS: A worker employed by the appellant as a fitter alleged that he had suffered injury in the course of his employment on 3 November 1988, when he dropped a Stillson wrench on his left foot. At the hearing before Commissioner Ashford the principal issue was whether the worker had suffered the injury. The appellant denied injury, the existence of any incapacity in the worker, and any causal connection between injury and incapacity, if either existed. The appellant sought to rely on evidence to demonstrate that the respondent was an unreliable witness. Commissioner Ashford made an award in favour of the worker.

The respondent worker's evidence contained many inconsistencies, of which several were identified by Burke CCJ on appeal by way of review under s36(1) of the Compensation Court Act. Burke CCJ did not disturb the Commissioner's award, stating that he was constrained to accept the Commissioner's finding that the worker was a credible witness, and that he was therefore implicitly constrained to accept the Commissioner's finding that the worker was injured as alleged.

The appellant filed an Amended Notice of Appeal setting out their grounds of dissatisfaction with the decision of Burke CCJ.

HELD:

(1) (By Meagher JA) The principles which govern the review of a decision of a Workers Compensation Commissioner under s36(1) of the Compensation Court Act 1984 are: (i) on a review, all questions of fact and law are capable of being reagitated if the Judge conducting the review wishes; (ii) the Compensation Court's powers in this regard are discretionary; (iii) if a Commissioner makes a finding of fact based on the credibility of a witness, the principles of Abalos v Australian Postal Commission (1990) 171 CLR 167 apply, so that a Judge sitting on a review of the case cannot, except in the most unusual circumstance, reverse such a finding if the review is conducted on a written transcript of the evidence;