Tiver Constructions Pty Ltd v Stephen John Clair [FLR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Gallop J,Martin,Mildren JJ
• Judgment Date: 22 October 1992
• Docket Number: No. AP 1/1992
• Date: 22 October 1992

(1992) 110 FLR 239

IN THE FULL COURT OF THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

Gallop (1), Martin (2) and Mildren JJ (3)

No. AP 1/1992

Tiver Constructions Pty Ltd

and

Stephen John Clair

ANZ Executors and Trustees Pty Limited v Nader Jones (unreported, Supreme Court of the NT, Asche CJ, 12/8/86), applied. Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139, applied. Bill Williams Pty Ltd v Williams (1972) 126 CLR 146, applied. Dennis v AJ White and Co (1917) AC 479, applied. Edwards (Inspector of Taxes) v. Bairstow (1956) AC 14, applied. Fenton v Thorley (1903) AC 443, applied. Harris v Associated Portland Cement Manufacturers Ltd (1939) AC 71, applied. Hope v Bathurst City Council (1980) 144 CLR 1, applied. Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, applied. J and P Hutchison v McKinnon (1916) 1 AC 471, applied. John Holland Constructions Pty Ltd v Hall (1987) 45 NTR 11, applied. Lancashire and Yorkshire Railway Co v Highley (1917) AC 352, applied.

Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139 , applied. House v R (1936) 55 CLR 499, applied. Michaelis Hallenstein v Lewis (1944) 68 CLR 613, applied. Darling Island Stevedoring v Jacobsen (1945) 70 CLR 635, referred to. Haines v Leves (1987) 8 NSWLR 442, referred to. Sharp v Wakefield (1891) AC 1731, referred to. Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247, referred to. Watkins v Renata (1984) 29 NTR 38, referred to.

Hatzimanolis v ANI Corporation Ltd (1992) 106 ALR 611 , discussed. Harris v Associated Portland Cement Manufacturers Ltd (1939) AC 71, applied. Hatzimanolis v ANI Corporation Ltd (1992) 106 ALR 611, discussed.

Hatzimanolis v ANI Corporation Ltd (1992) 106 ALR 611 , discussed.

Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139 , applied. Harris v Associated Portland Cement Manufacturers Ltd (1939) AC 71, applied. Hatzimanolis v ANI Corporation Ltd (1992) 106 ALR 611, applied. Humphrey Earl Ltd v Speechley (1951) 84 CLR 126, applied.

Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139 , applied. House v R (1936) 55 CLR 499, applied. Michaelis Hallenstein v Lewis (1944) 68 CLR 613, applied. Darling Island Stevedoring v Jacobsen (1945) 70 CLR 635, referred to. Haines v Leves (1987) 8 NSWLR 442, referred to. Sharp v Wakefield (1891) AC 173, referred to. Soulemezis v Dudley (Holdings) (1987) 10 NSWLR 247, referred to. Watkins v Renata (1984) 29 NTR 38, referred to.

Workmen's Compensation Act (NT),s26. Supreme Court Act (NT),s51.

Workmen's Compensation Act (NT),ss7,10 and Schedule 2.

Workmen's Compensation Act (NT),s7.

Workmen's Compensation Act (NT),s7.

Workmen's Compensation Act (NT),ss7,8

Appeal and new trial — Appeal — General principles — In general and right of appeal — Appeal from workers compensation Court and Supreme Court — Nature of — Questions of law only — Finding that injury arose out of or in course of employment question of fact or law — Determinative tests discussed.

Appeal and new trial — In general and particular grounds — Review of quantum of award — Weekly payments — Redemption by lump sum — Error of law — Failure to properly exercise discretion.

Statutes — Operation and effect of statutes — Judicial pronouncements not to be construed in same way as Acts — Predominance of legislation over general law.

Statutes — Operation and effect of statutes — Workers' compensation - Interval or interlude — Journey — ‘Gross misconduct’ — ‘Serious and wilful misconduct’ — Abandonment and resumption of employment.

Workers' compensation — Entitlement to and liability for compensation - Whether injury arose out of or in course of employment — Interval or interlude — ‘Gross misconduct’ — ‘Serious and wilful misconduct’ — Journey — Abandonment and resumption of employment.

Workers' compensation — Assessment and amount of compensation — Redemption of weekly payments — Lump sum — Review of error of law — Failure to properly exercise discretion.

JUDGE1

Gallop J

1 2. I wish only to add a few observations of my own in relation to the nature of the proceedings before the Supreme Court and the nature of the appeal to this Court.

2 3. The appeal from the magistrate to the Supreme Court was brought pursuant to s26 of the Workmen's Compensation Act as amended by Act No. 47 of 1984 which provides for appeal ‘on a question of law’. As was pointed out by Asche CJ in (Nader Jones v. ANZ Executors and Trustees Ltd unreported, 12/8/86) the provisions of s26 as they were before the amendment constituted an appeal by way of a hearing de novo. The amendment did away with a hearing de novo and confines an appeal to a ‘question of law’. But the borderline between questions of law and questions of fact is notoriously difficult to delineate. Asche CJ went on to consider the grounds of appeal in that case and concluded that they lay well within the boundaries of the expression, ‘a question of law’.

3 4. It follows that on the appeal from the magistrate to the Supreme Court, the appellant had to identify an error of law upon which the decision appealedfrom was based (see Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 54 FLR 334; Director-General of Social Services v Hangan (1982) 45 ALR 23; 70 FLR 212). The Court must be careful to avoid elevating a disputed finding of fact into a question of law (see Blackwood Hodge (Aust) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131; 3 ALD 707; Federal Commissioner of Taxation v Swift (1989) 18 ALD 679; Bill Williams Pty Ltd v Williams (1972) 126 CLR 146).

4 5. The appeal from the Supreme Court to this Court is not confined to a question of law. The right of appeal is given by s51(1) of the Supreme Court Act, which reads:

‘51. RIGHT OF APPEAL

(1) Where the jurisdiction of the Court in a proceeding or a part of a proceeding was exercised otherwise than by the Full Court, the Master or a referee, a party to that proceeding may, subject to this Act, appeal to the Court from a judgment given in that proceeding or part, as the case may be.’

5 6. Section 54 provides that this Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence. Those powers are prescribed by s55 and are quite extensive, and include the power to grant a new trial.

6 7. Those provisions, in my opinion, grant a right of appeal not confined to questions of law and really amount to an appeal by way of rehearing. The nature of the appeal so provided certainly appears to provide for an appeal other than an appeal in the strict sense.

7 8. It is important to identify the nature of the appeal from the Supreme Court to this Court because that is the appeal under consideration. In other words, this Court is required to review the decision of the Supreme Court, not to entertain a rehearing of the case before the magistrate. The distinction is important. An appeal by way of rehearing is generally speaking, a trial over again on the evidence used in the court below (per Dixon J, as he then was, inVictorian Stevedoring and General Contracting Co. Pty Ltd and Meakes v. Dignan (1932) 46 CLR 73 at 107–110, citing Jessel MR in Quilter v. Mapleson (1882) 9 QBD 672 at 676). The reason it is important to identify the nature of the appeal by way of review of the decision of the Supreme Court is that even though some of the magistrate's findings of fact were challenged before the Supreme Court, they were accepted and acted upon by the Supreme Court, because there was evidence to support them. This Court should not review them.

8 9. Senior counsel for the respondent submitted that the conclusion by the magistrate that the respondent suffered injury arising out of or in the course of his employment was a conclusion of fact not of law, which could not be disturbed on appeal to the Supreme Court, and that even if the conclusion was a question of law, the decisions of the Courts below were correct.

9 10. My brethren in this matter have expressed the opinion that the conclusion that the respondent suffered personal injury by accident in the course of his employment is a question of law and they cite the authorities. I find myself of a different opinion. The primary facts as found by the magistrate required an ultimate decision whether the respondent suffered personal injury byaccident arising out of or in the course of his employment. The magistrate made the decision in the respondent's favour and the legal consequence was an award of compensation. The case on appeal to the Supreme Court was not that there was no evidence to support the decision made, or one in which the evidence was inconsistent with and contradictory of the decision, or one in which the true and only reasonable conclusion contradicted the decision. If any of those alternative sets of circumstances had existed, it would be correct to say that the decision was a question of law (Edwards (Inspector of Taxes) v. Bairstow (1956) AC 14 per Lord Ratcliffe at 36). The decision of the Supreme Court did not involve a determination of whether there was evidence upon which the learned magistrate could competently find that the injuries arose out of or in the course of employment. It involved a determination whether the magistrate correctly found as a matter of law that the respondent was entitled to compensation.

10 11. The observations of Glass JA inAzzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139, with whom Samuels JA agreed, are in point and mirror the role of the Supreme Court in this matter:

‘An erroneous conclusion that facts properly determined fail to satisfy a statutory test eg injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory...