BAILEY v SYDNEY ELECTRICITY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, COLE and BEAZLEY JJA 29 August 1997, 29 August 1997 [1997] NSWCA 37 Workers Compensation — Worker's appeal — Whether failure to give adequate reasons — Rule in Soulemezis v Dudley (Holdings) Pty Ltd — No evidence — Whether there is a duty to ensure there is evidence upon which findings are made. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Devries v Australian National Railways Commission (1993)177 CLR 472 Beazley JA This is an appeal against an award having been entered in favour of the respondent employer. The issue raised on the notice of grounds of appeal was the trial judge's failure to give any or any adequate reasons for what might be taken as four critical issues in the trial: 1. The appellant's medical evidence tendered in the proceedings; 2. The particular behaviour of the appellant during the course of the hearing as compared to the video footage tendered in the proceedings; 3. The appellant's medical evidence in support of a psychiatric condition; and 4. The appellant's evidence in the original proceedings not being specifically referred to. During the course of argument no reference at all was made to the fourth of these matters and I take it that it is not pressed. Also during the course of argument, a further additional matter was raised to which no objection was taken, namely, that there was no evidence upon which his Honour could base one of his critical findings, namely in relation to the observation of the appellant's activities over a long period of time as displayed in the video evidence. It is convenient if I deal first with the grounds based upon his Honour's failure to give reasons. It is true that the trial judge did not, except to a limited extent, refer to the content of the appellant's medical evidence. However, the principles enunciated in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 do not necessarily require the degree of exactitude that it was submitted was necessary in order to fulfil the principle. What is necessary is that the essential steps in the decision-making process are disclosed in the trial judge's reasoning. In this case the appellant's credit was at the forefront of the issues in the trial. That is clear from the trial judge's reasoning. His Honour found adversely to the appellant on that matter. He expressed his basis for so doing. He had heard and observed the appellant in the witness box and he contrasted the appellant's evidence with the extensive video evidence tendered in the respondent's case. He held that the appellant's evidence of gross incapacity and disability could not be accepted. There was no challenge to that aspect of the finding, as there could of not be. See Devries v Australian National Railways Commission (1993) 177 CLR 472. 2 UNREPORTED JUDGMENTS His Honour's rejection of the appellant's medical evidence sprang from his rejection of the appellant's evidence. This, too, is clear from his Honour's judgment. He says at page | of his judgment that: "The medical evidence which is based upon of acceptance of the applicant's complaints (cannot) be accepted." He continued on the following page that, having seen the video evidence, he preferred to accept the evidence of Dr Bryan and Dr Bodel who were both called for the respondent: "For I consider their evidence to be much more acceptable and their opinions much more likely than the opinions expressed in the applicant's medical case." These statements of his Honour related to both aspects of the claim brought by the appellant; that is that brought on orthopaedic and other physical grounds, and that based upon a psychiatric claim. His Honour dealt separately with the psychiatric condition at page 2 of his judgment, but the overall structure of his judgment makes it clear that he rejected the appellant's psychiatric medical evidence for the same reason that he had rejected all the applicant's medical evidence in this case, namely that it could not be accepted because he did not accept the appellant's evidence. Psychiatric evidence, of course, is peculiarly dependent upon the complaints made and history given by a patient. His Honour's reasoning is brief, and one might indeed say sparse, but it is succinct and clear. His Honour did not, in my opinion, offend the rule in Soulemezis v Dudley. The no evidence point which was taken during the course of the argument must also fail. There were four videos exposed during the course of the hearing and the appellant was cross-examined extensively on them. In the course of the cross-examination, counsel for the respondent employer put to the appellant the dates upon which the alleged activity was said to be taking place. When the videos were tendered in evidence there was no additional evidence tendered to indicate what those dates were. It was submitted, therefore, that the respondent had not proved that these videos had been taken on the dates which had been suggested during the course of cross-examination, such that there was no evidence upon which his Honour could find that his activities had been observed over a long period of time. There are a number of problems with this submission, the first of which is that the point was not taken in the court below. Counsel for the appellant sought to counter that problem by saying that questions do not provide evidence and it is the court's statutory duty, including this Court's statutory duty, to ensure that there is evidence upon which findings are made. It seems to me, however, that the real answer to the matter is this: the court is a busy court, judges express reasons succinctly and without embellishment. Likewise, counsel in the jurisdiction often tend to run cases economically. A trial judge is entitled to act upon the way the cases are conducted by the legal representatives before them. In this case it was patently obvious from the transcript that counsel for the appellant accepted the dates which were asserted by counsel for the respondent during the course of cross-examination. From time to time both in re-examination and during the course of cross-examination of the respondent's witnesses, he used those dates for his own questioning. In those circumstances I am of the opinion that the appeal should be dismissed with costs. Meagher JA I agree with her Honour. URJ BAILEY v SYDNEY ELECTRICITY (Meagher JA) 3 Cole JA I also agree. Meagher JA The order of court therefore will be that the appeal is dismissed with costs. 5 The appeal is dismissed with costs. Counsel for the appellant: M J Joseph SC Solicitors for the appellant: White Barnes Counsel for the respondent: G R Graham Solicitors for the respondent: Bartier Perry Purcell