BASILI v STATE RAIL AUTHORITY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and MEAGHER JJA 8 September 1995, 8 September 1995 [1995] NSWCA 40 WORKERS COMPENSATION — APPEAL FROM REVIEW — AMBIT OF REVIEW — COCKATOO DOCKYARD v ATAMAIN (NSW Court of Appeal, 11 August 1995, unreported) APPLIED — WHETHER DECISION AGAINST WEIGHT OF EVIDENCE — NO — COURT BOUND BY COMMISSIONER'S FINDING ON CREDIBILITY Clarke JA George Basili (whom I will call the worker) brought proceedings against his employer, State Transport Authority of New South Wales, seeking weekly compensation from 7 April 1990 for a finite period and continuing into the future. He claimed that he sustained an injury to his back, spine, right shoulder and right elbow region, which was complicated by an emotional stress reaction, nervousness, depression and anxiety. These are conditions said to result from incidents at work on 4 July 1986, and 19 August 1987. He was terminated from work in 1990. His claim was heard by Commissioner Turner who made an award in his favour upon the basis of partial incapacity for the period from 7 April 1990 to 7 November 1990 but declined to make an award for any later period. The reason why the Commissioner did not make an award after 7 November 1990 was because he accepted evidence given by a number of doctors called by the employer that the worker had by that time recovered from any aggravations of pre-existing degenerative conditions and was not incapacitated for work. The worker filed a notice of motion for review on 26 May 1992 which was 7 days after the determination of Commissioner Turner and in an affidavit supporting that notice of motion it was said only one ground of review was relied on. That was that the decision was against the weight of the evidence. It has been said many times in this Court that the ground which there appears is an appropriate ground in an application for a new trial from a verdict of a jury. In that context it is a well established manner of asserting that the jury's verdict was essentially perverse. Notwithstanding, the ground is often, erroneously in my view, raised in appeals to this Court from decisions of judges. I do not complain about that but it does seem to introduce an element of vagueness in the ground relied upon. In the present case, I would understand the worker to have been asserting that the Commissioner came to an erroneous conclusion on the evidence adduced in the case. Such a ground would require a broad assessment of the evidence given before the Commissioner in order to determine whether the decision was erroneous as suggested. As has been said in a number of cases dealing with reviews, a judge would only interfere with a review on this ground if satisfied that an error had been made of the Commissioner's decision indicates the Commissioner's reliance upon evidence which was objected to and inadmissible". 2 UNREPORTED JUDGMENTS It is apparent from that passage (and in the reasons) that the worker went beyond the ground relied upon and asserted that the Commissioner had wrongly relied on inadmissible evidence which had been objected to. Her Honour went on to reject the specific ground and held that she was bound to accept the Commissioner's findings of credibility in the circumstances of the review conducted by her. She concluded that the Commissioner reached a decision that was open to him and gave adequate reasons to support that decision. In this Court there have been three grounds relied upon, although at various stages during the argument there have been suggestions of an attempt to widen the area of inquiry by this Court. This was so notwithstanding that no formal application was pursued for an amendment to the notice of appeal, except in the one instance to which I will refer. The three grounds which are relied upon encompass the two originally brought before the reviewing judge and a third ground, added by leave, that her Honour failed to carry out the review in a proper manner. Shortly after leave had been granted to counsel to add to the third ground and to assert that her Honour had not carried out the review properly, counsel's attention was drawn to a recent published decision of this Court in Cockatoo Dockyard v Atamian (NSW Court of Appeal, unreported, 11 August 1995). It was put to counsel that it was difficult to maintain the added ground in the light of that decision. As a consequence, and after counsel had time to consider his position, counsel put submissions, which I think could properly be described as formal submissions, to protect his position. These submissions were that Cockatoo Dockyard was inconsistent with the decision of the High Court in Harris v Calladine (1990-1991) 172 CLR 84 and that the application of Cockatoo Dockyard would effect a procedural injustice when the review under consideration was conducted years before the decision had been handed down. The formal submission is noted and in accordance with the requirements that this Court carry out its function in the light of the law as it is at the present time, and being of the view that there is no basis in the complaint of procedural injustice, I would be disposed to reject the additional ground of appeal. That brings me back to the two grounds which were articulated before the judge and raised again before us. The first is that the Commissioner, and later her Honour, were in error in relying upon inadmissible evidence which had been objected to. It was said that her Honour erred in not setting aside the decision for that reason. The evidence to which our attention is directed was evidence from the Randwick maintenance manager of the employer. He was asked whether he observed anything about the way in which the worker went about rehabilitation work that he was asked to do. He gave an answer which ended with the part sentence, "I found that Mr Basili did not want to participate in that...". There was then an objection and I think it is true to say the effect of what then occurred is that that particular part of the sentence was rejected, although the rejection does not formally appear in the transcript. The witness went on to give a description of what Mr Basili, the worker, did which, according to her Honour, conveyed or was capable of conveying the inference that the worker was not genuinely participating in the rehabilitation programme. Quite apart from that evidence the witness was asked, without objection, the following question and gave the following answer: "Q. Did you observe the way in which he worked? Was he industrious to your observation or what did you see? URJ —BASILI v STATE RAIL AUTHORITY OF NEW SOUTH WALES (Clarke JA) 3 A. I considered Mr Basili was not participating in the rehabilitation programme.' From my reading of the whole of the evidence, excluding the interrupted sentence, I would conclude that the inference was properly open that the witness was saying that the worker was not genuinely participating in, and carrying out, the rehabilitation programme. The relevance of the evidence lay in the fact that the Commissioner used that evidence in assessing the worker's credibility. It was not the only matter on which the Commissioner relied but he took account of that factor together with the worker's demeanour whilst giving evidence, the reservations of the employer's doctors as to the worker's bona fides and the absence of any signs of drug intake in the urine sample taken by Dr Shand. In the light of those factors, the Commissioner said that he entertained grave doubts as to the worker's bona fides. The finding on credibility could hardly have been more adverse but it was not based either wholly or partly on evidence which had been rejected. There was, in my opinion, sufficient material in the evidence that was admitted without objection to support Mr Wetherby's expressed conclusion and, taken with the other matters to which the Commissioner referred, there were available reasons for rejecting the worker as a witness of credit. Accordingly, in my opinion, there was no basis for setting aside the Commissioner's award on that ground and her Honour was correct not to accept the invitation by the worker to review the award. I should interpolate here reference to a side issue that entered the appeal, although not the subject of a ground for review or appeal. That was that the manner in which the worker went about his performance of the rehabilitation programme was not put to him in cross-examination; in other words, he was not confronted with the substance of Mr Wetherby's evidence. I do not believe that that ground is presently open to the worker having regard to the course of the litigation but even if it were, I would reject it for the simple reason that the confrontation which did occur was sufficient, in my opinion, to comply with the obligations of procedural fairness to which the rule in Browne v Dunn ([1894] 6 R 67) gives effect. The final ground was that her Honour erred in not deciding that the Commissioner got it wrong on the evidence and, more particularly, in having determined the case upon the basis that the Commissioner's conclusions were open to him upon a consideration of the whole of the evidence. I would emphasise that at no stage did the worker seek a hearing de novo. In those circumstances her Honour was, in my opinion, bound, as she said, to accept the Commissioner's findings on credibility. This was a case which depended in very large measure upon the acceptance of the worker as a witness of credit, as her Honour pointed out. Indeed, she went further and said that in her opinion for the worker to succeed, he would have to have been accepted as a witness of credit. There is substance in that conclusion but I would put my judgment on the wider basis that there was a deal of evidence which supported the conclusion that the worker was suffering from no incapacity since 1990 and was, essentially, feigning disability. In the light of that evidence and the rejection of the worker as a witness of credit, it would seem to me that he bore a very heavy onus in seeking to set aside the award in the review and that her Honour was correct in determining that he had not discharged that onus. In my opinion the appeal should be dismissed with costs. 4 UNREPORTED JUDGMENTS Priestley JA I agree. Meagher JA I also agree. 5 Priestley JA: The Court's order is that the appeal be dismissed with costs. COUNSEL: Appellant: GB HALL QC AND DW ELLIOTT 10 Respondent: MW ROBINSON SOLICITORS: Appellant: MALOUF, SOLICITORS, PARRAMATTA 15 Respondent: ASTRIDGE AND MURRAY