Eiken v Housing Guarantee Fund & Beca [2001] VSC 23

Supreme Court of Victoria|2001-02-16|Before: Eames J

The application for leave to appeal was brought by originating motion issued on 24 August 2000. Rule 4.09(1) of Chapter II of the Supreme Court Rules provides that the Master may grant or refuse leave to appeal. Rule 4.09(2) provides that the Master may refuse leave to appeal if satisfied that the applicant does not have a prima facie case on appeal, or that to refuse leave would impose no substantial injustice. As was noted by Phillips JA in Secretary to the Department of Premier and Cabinet v Hulls[1] Rule 4.09 does not provide a test by which leave should be granted, but simply grants power to the Master to refuse leave in certain circumstances. That Rule says nothing as to the criteria which should be applied in granting leave or refusing leave. The appeal to me from the decision of the Master is a re-hearing de novo (Rule 77.05(7) of RSC).

In the decision of the Court of Appeal in Hulls the relevant principles to be applied on an application for leave to appeal were discussed at some length by Phillips JA, (with whom Tadgell and Batt JJA concurred). With respect to an application for leave to appeal pursuant to s. 148(1) of the Victorian Civil and Administrative Tribunal Act ("the ") the first requirement for leave to appeal is that the appeal be on a question of law. As Phillips JA noted, at 335, it follows that if leave is to be granted the applicant must at least identify a question of law as distinct from a question of fact and, as his Honour added, it must be: "a question of law which is important to the appeal succeeding or failing". His Honour observed that if the would-be appellant seeks to have the order below set aside and reversed then "the question of law must bear upon the granting of that relief. The question of law must be such that, if there is shown to be error in respect of the question, the appellant's claim to relief will thereby be advanced."

"On the other hand, on an application for leave to appeal it cannot be expected that error below be established: that is for the appeal itself. Something less must be sufficient on the application for leave to appeal and ordinarily the applicant will be required to show that there is a real or significant argument to be put that error exists. In other contexts, this has sometimes been called `a prima facie case', or `an arguable case', but these are no more than attempts to describe the degree to which an applicant must satisfy the court from which leave is sought that there is a real or significant argument, in favour of the applicant, on the question of law which is identified. (Contrast in a different context Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 620, per Kitto J.) It is not possible to lay down in advance any standard of satisfaction, for much may depend upon the importance of the question of law to the remedy to be sought. What is peripheral may be thought less persuasive, in relation to leave to appeal, than an issue which is central."

Phillips JA observed that it may be that in a given case the identified question of law raises a question of general public importance sufficient to justify a grant of leave. As I will later discuss, Mr Scarfo, counsel for the appellants, submitted that this was such a case.

As to the degree of satisfaction which the court should require before leave to appeal was granted his Honour favoured retention of the standard adopted in Niemann v Electronic Industries Ltd[2], namely, "that the decision below should be attended by sufficient doubt to justify the grant of leave to appeal". Once a question of law has been identified (as distinct from mere questions of fact), once that question is shown to directly bear upon the relief which is sought on the appeal itself, and once it has been shown that there is sufficient doubt attending to the decision by reference to the question identified, so that the circumstances would seem to justify a grant of leave to appeal, then, as Phillips JA observed, it ordinarily would follow that leave to appeal would be granted, especially when the decision under challenge was a final decision (as was the case in the present matter). In all of those circumstances, Phillips JA observed, a refusal to grant leave would be likely to result in an injustice to the applicant, in that the party was being bound to comply "with an order that ought not to have been made as a matter of law"[3].

His Honour summarised the situation as follows:

"When leave is sought to appeal under s. 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible."

It has long been the practice of the Court of Appeal not to give reasons for granting or refusing leave on an application for leave: see Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd[4]; Lucas v Public Transport Corporation Victoria[5]; X v DPP[6], and that approach has been adopted by some Trial Division judges, also: see Department of Human Services v Thwaites[7]; Commissioner of State Revenue v Bogong Ski Club Inc[8]; NC Scandi Pty Ltd v Wright[9]. However, whilst it may not be necessary and, indeed, may be inappropriate in many cases (as Fullagar J observed in Leighton Contractor's case), for reasons to be given on an application for leave to appeal it is appropriate that I depart from that practice in the present case - to a limited extent, at least - given the comprehensive and careful arguments which were addressed to me by counsel and given the fact that in the event that leave to appeal is refused one significant consequence which flows for the appellants is that my decision would itself not be subject to further appeal[10]. I have regard also to the fact that one issue giving rise to the application was the suggested inadequacy of the reasons for decision given by the Tribunal.

The first task which I must address is to consider whether the proposed grounds of appeal raise any questions of law.

The voluminous grounds of appeal and suggested questions of law which were identified by counsel for the appellants invite criticism not merely on account of their prolixity but by virtue of the fact that for the most part they amount to no more than particulars of broader questions which might more appropriately have been identified in the notice of appeal. In their particularity as to precise findings made in the reasons for decision of the Tribunal they also invite the accusation that they identify issues of fact rather than issues of law and, in many cases, amount merely to an assertion that the Tribunal should have come to a different decision on the facts of the case - a proposition which would not justify a grant of leave to appeal and would not constitute the contention as relating to a question of law: see Transport Accident Commission v Hoffman[11]. Although counsel addressed the various items in the notice of appeal point by point, it seems to me that for consideration of the application for leave to appeal consideration of the threshold question - namely, whether there were identified questions of law raised by the grounds of appeal - it might more easily be addressed by grouping the various items under broader headings. Thus, I would identify the questions of law which were claimed on behalf of the appellants as falling under the following headings:

(a) Whether the Tribunal applied the wrong standard of proof, in particular requiring the appellants to prove their case to a level of certainty. (b) Whether the Tribunal adopted an improper approach as to the onus of proof when evaluating the appellants' claim, in particular, by failing to have regard at all, or properly, to the need to conduct an evaluation of the weight of evidence. (c) Whether the Tribunal in reaching its decision failed to properly apply the principle of Jones v Dunkel[12]. (d) Whether the reasons for decision of the Tribunal were so inadequate as to constitute a failure to comply with the obligation to give reasons.

Counsel for the parties all agreed that my reformulation of the claimed questions of law appropriately identified the real questions of law which the appellants rely upon for the grant of leave. There were discrete questions of law raised in the notice apart from the topics addressed above, but it was agreed by counsel that those were subsidiary questions which would not fall for consideration if the appellants failed in their contentions under the above four headings.

I deal first with the question whether the Tribunal applied the wrong standard of proof.

For the appellants' claim to succeed it was necessary to first establish the cause and origin of the fire. Only then could the appellants' seek to identify any negligence on the part of the second respondent with respect to the damage caused by the fire. Neither the manufacturer of the transformer nor the manufacturer of the downlight were parties in the proceedings heard by the Tribunal.

The claim asserted by the appellants against the respondents was that the fire arose as a consequence of the negligent installation of a downlight and transformer in the first floor ceiling on the premises, the installation being contrary to a certain Australian Standard. The downlight was connected to the transformer which was recovered from the fire, by Mr Cahill. Mr Cahill, who had no qualifications as an electrician, examined the transformer and then disposed of it, after he had concluded that there had been no malfunction of the transformer. Notwithstanding that conclusion, he attributed the fire to the heat of the transformer which, he opined, caused a flame to erupt in plastic material in the heating duct which was adjacent to the location of the transformer and downlight.

Other witnesses in the case, however, discounted the transformer as a possible cause of the fire and suggested (I use that word advisedly, because there is real dispute as to whether, on the evidence, the witnesses were doing no more than speculating as to this) that the downlight might have been the cause of the fire, provided that the downlight was of a particular type and produced a particular amount of heat, and if other circumstances justified that conclusion and eliminated alternative explanations for the fire.

As to the cause of the fire, the appellants' case was primarily that it was due to proximity of the transformer (and its heat) to combustible material, although the manner in which the case was pleaded and contested, would have enabled the appellants to rely on the opinions of other witnesses in preference to that of Mr Cahill, in the event that the Tribunal concluded that it was the downlight itself, and not the transformer, which produced the flame.

As to the origin of the fire, Mr Cahill was qualified to give an opinion based on his examination of the scene after the fire had concluded. His examination led him to conclude that by virtue of the charring which he observed (and which he photographed) the fire had commenced in the ceiling on the first floor.

There was some evidence which, if accepted, suggested that the fire commenced not on the first floor but in the ceiling space above the second floor. If that was the case then no cause was identified for that fire; in particular, no cause relating to any possible failure on the part of the electrician in the installation of any lighting on the second floor.

Given that only Mr Cahill and the fire officers who attended at the time of the fire made observations at the scene, all other witnesses who gave evidence as to the origin or cause of the fire (apart from the appellants) were dependant on information and photographs provided by Mr Cahill, or in the MMFB report, supplemented to a limited extent by the evidence of Mrs Stojanovic and others. For the appellants to prove their case they had to establish, on the balance of probabilities, that the fire was caused by the negligence of the second respondent and that the first respondent, in consequence, had a liability also arising from that negligence. In order to prove negligence the appellants sought to do so, in part, by direct evidence of the observations and opinions of Mr Cahill and, in part, by inferences to be drawn from that evidence, and from other evidence as to the happening of the fire. In the alternative, the case was sought to be established by application of the doctrine of res ipsa loquitur.

At the hearing, the appellants gave evidence, and they called as witnesses Mr Cahill, Mr Raymond Johnson (an electrician), Mrs Stojanovic (one of the builders), Mr Russell Lee (an electrical and lighting expert), Mr Glen Pratt (an assessor and building adviser employed by the RACV Insurance Company) and a loss adjuster, Mr Reg Woods. The first respondent called evidence from Mr Peter Mansourian, a consulting engineer. In all cases, the witnesses had supplied witness statements, and other material was tendered in the case, including the AIRS Incident Report.

The Tribunal was, therefore, called upon to make an evaluation of the evidence so as to determine, if it was able, what were the place of origin and the cause of the fire. In his reasons for decision the Deputy President said:

"I have paid due regard to the evidence given by each of these witnesses. I have considered the various items of documentary evidence including the reports of the experts. I have also considered the terms of Australian Standard 3000: 1991 and the SECV information sheets which (despite the debate) I accept would have been circulated amongst electricians. As well I have taken into account the submissions of respective counsel. I paid particular regard to those of Mr Scarfo. In the end, however, I am very clear about the decision I must make."

In the reasons for decision which then followed, the Deputy President set out case law relating to the onus of proof and the standard of proof and observed that the case was to be decided according to the preponderance of probability, that being, "if the evidence is such that the Tribunal can say `we think it more probable than not' the burden is discharged, but if the probabilities are equal, it is not" (citing Miller v Minister of Pensions[13]). The Tribunal observed that the onus of proof was on the appellant. The Tribunal then continued, in a passage which was particularly identified by counsel for the appellants as betraying errors of law which should give rise to leave to appeal:

"Bearing these matters in mind, I turn to the central issue in the case. I can be satisfied, on the evidence, that a fire took place at the premises of the Applicants in the early hours of 29 March 1997. However, what I cannot be satisfied about, on the evidence, and what I am unable to make any finding of fact about, is what caused that fire to occur. I am not even certain where the fire originated. Mr Cahill's view, which I have mentioned, is that the origin of the fire was in the ceiling space on the ground floor outside the study. He based this, amongst other things, on his own observations and experience. But, in contrast, I have already referred to what the Applicants themselves believed. They were actually in the house, of course, when the fire started. There is an issue about whether their evidence in this regard should be preferred or not to that of someone else coming along eight or nine hours later and making judgments with the benefit of hindsight. I should mention here the AIRS Incident Report which gives this as the description of the incident: `fire started in the roof space and burnt through roof and down into Upper Level'. Indeed, as I recall, Mr Mansourian may even have said that it is possible for a fire to start somewhere else and be transported via duct-work to an area (such as the study area - I interpolate) where items are damaged in a kind of chimney effect."

Counsel for the appellants submitted that the statement that the Tribunal was "not even certain" where the fire originated betrayed that the Tribunal was not applying the standard of the balance of probabilities, but was requiring certainty. Counsel for the appellants submitted, further, that the passage disclosed that the Tribunal failed to adopt an appropriate judicial task as to the evaluation of evidence, in that it unreasonably discounted the expert opinion of Mr Cahill as to the origin of the fire by saying that it was the evidence of "someone else coming along eight or nine hours later and making judgments with the benefit of hindsight". That comment, it was submitted, betrays a failure to appreciate and weigh the expert evidence of a witness who was qualified to examine a scene of a fire so as to determine the origin of a fire. That failure to give proper weight to the evidence of that witness, so it was submitted, constituted not merely an error of fact, but an error of law. Furthermore, the error was compounded by virtue of the fact that the Tribunal posited that there was a conflicting body of evidence as to the origin of the fire, that being, firstly, the opinion of the appellants, themselves, that the fire had started in the ceiling of the second floor, and, secondly, the AIRS Report of a fire officer who attended the scene.

Counsel for the appellants submitted that although such a contrary opinion had been expressed by the appellants, it was inconsistent with the evidence of Mr Cahill and should have been discounted by a Tribunal conducting its evaluation in a proper manner, because for the appellants' evidence to have been correct the fire would have had to travel in a path down from where it originated, whereas the scientific evidence was that it would travel upwards, in the opposite direction. A proper weighing of evidence, so it was submitted, would have regarded the appellants' evidence as being tentative and uncertain, and as being inferior to the expert evidence of Mr Cahill. Instead, the Tribunal gave the evidence equal weight to that of Cahill, or failed entirely to address the question of the respective weight of the evidence.

Counsel for the respondents submitted that these complaints placed too great a reliance on the use of the word "certain" by the Tribunal member, and that in context, although use of the word was unfortunate, it was not used advisedly, and did not qualify the sentences which preceded it, in which the Tribunal made it clear that it was applying the proper standard of proof. The Tribunal was entitled to have given weight to the evidence of the appellants because they had actually seen the fire when it started and their opinions were supported by the AIRS Incident Report. Furthermore, counsel for the respondents submitted, the Tribunal was entitled to have regarded the evidence of Cahill to have been unimpressive, generally. He was qualified to give an expert opinion as to the origin of fires, but he had very limited experience, having attended only a couple of electrical fires and having conducted such expert analysis in only a handful of fires. His methodology was criticised by other witnesses, and his opinion as to the transformer being the source of the fire (although he said that he was not an expert in this area) was expressed firmly, and was regarded by all other expert witnesses as being completely wrong, so it was submitted.

In later passages, the Tribunal addressed the question of the cause of the fire. At paragraph 13 the Tribunal stated that he was not able to make any findings of fact about the mechanisms by which the fire started. In paragraph 13 and 14 the reasons for decision continue as follows:

"13. Nor am I, on the evidence, able to make any findings of fact about the mechanisms by which the fire occurred. In the Fire Investigation Report Mr Cahill said that he believed that heat generated by the downlight transformer in the ceiling space on the ground floor outside the study was the ignition factor `which subsequently ignited the plastic wrapping and heating duct materials.' This, however, was not the view of Mr Lee who said that the ignition factor, rather than being the transformer, was `most likely the heat radiation emitted from the rear of the downlight' and that the material which was first ignited `was the plastic sheath of the ventilation duct.' Nor did Mr Johnson share Mr Cahill's view: he would appear to lay blame for the fire on the heat produced generally by luminaries: `the temperature at which ELV luminaires operate could cause unprotected combustible material to ignite unless appropriate clearances as required by AS 3000 (The Wiring Rules) are maintained.' In cross-examination Mr Cahill repeated his view that he was confident that it was the transformer which was at fault in causing the fire and that the downlight had nothing to do with it but, at the same time, it was his evidence that upon examination it was clear to him that the transformer (which he removed from the premises as the suspect one) had not malfunctioned. The experts, I think, would have benefited from being able to examine that item for themselves but, as I say, he discarded it shortly after examining it. As regards Mr Mansourian, I should add, he would put the risk of the transformer becoming a source of ignition to be `extremely low'. It was his view that it was the downlight itself which `presents the highest risk as a source for ignition of surrounding material' all other things being equal. 14. There is, thus, disagreement between witnesses about matters which are vital in the Applicants' case. It is fundamental, I consider, that I should be able to say where in the premises the fire originated and what caused it to take place. Yet the state of the evidence is such that I am unable to make any positive finding about either such issue. This, it seems to me, is critical. If I am unable to make any positive finding about either such issue, then I do not see how I can at all hold anyone liable for the fire. For, from an inability to make a finding about what caused a fire or where it originated, I cannot identify what someone may have done, or failed to do, that brought the fire about. If this is so, the Applicants' case fails entirely at the outset and would fail no matter who was sued. If the evidence remained the same, no matter who was sued, I would still be unable to make relevant findings of fact."

As to the second question of law, which I recast above, Mr Scarfo submitted that in considering the origin and cause of the fire the Tribunal failed to evaluate the evidence in a way which accorded with principle, because no proper evaluation of the evidence took place, and instead, the Tribunal simply abandoned responsibility for decision-making as soon as it appeared that at some point there was a disagreement amongst witnesses on any particular item of evidence. Mr Scarfo submitted that had there been a proper evaluation of the evidence the Tribunal must have concluded that the appellants had made out their case.

Counsel for the first and second respondents took me through extracts from the evidence given before the Tribunal as to a range of important factual matters, and submitted that there were, indeed, significant gaps in the evidence presented by the appellants. Counsel for the appellants sought to counter that contention by referring to other parts of the transcript. Whilst the review of the transcript demonstrated that the appellants may, arguably, have closed some of the gaps, I have no doubt that there remained significant gaps in the evidence; indeed, some of the witnesses emphasised the uncertainties when giving their evidence, and by virtue of those uncertainties heavily qualified their evidence. It was certainly open to the Deputy President to reach the conclusion that both as to the origin and as to the cause of the fire the appellants had failed to prove their case on the balance of probabilities.

Notwithstanding the looseness in expression at times employed in the reasons for decision, and the fact that the Tribunal did not comprehensively compare and contrast the evidence of the many witnesses, it does not seem to me to be arguable that the Tribunal adopted an erroneous standard of proof, or evaluated the evidence (or failed to conduct an evaluation at all) in a manner which disclosed error in principle as to the reasoning process. There was, therefore, no error in principle betrayed in the reasons for decision with respect to the first two identified questions of law

I turn, next, to the contentions concerning the principle in Jones v Dunkel.

In his reasons for decision the Deputy President devoted two paragraphs (pars 20-21) to the rule in Jones v Dunkel. The Tribunal was addressing submissions made on behalf of the appellants that unfavourable inferences should be drawn against the second respondent by virtue of his failure to give evidence. The Tribunal observed that a party was not obliged to help his opponent prove his case. In paragraph 21 of the reasons, the Tribunal observed that Jones v Dunkel might be applied on both sides, and that to do so might raise the question why Mr. Stojanovic was not called by the appellants, nor John Beca nor Hayden Beca nor Brandt Beca. Mr Scarfo, for the appellants, submitted that the Tribunal was not merely failing to properly apply the principle in favour of the plaintiffs but was applying the principle against the appellants, and was doing so in an erroneous manner.

In O'Donnell v Reichard[14] Newton and Norris JJ held, as to the application of Jones v Dunkel, that the purpose of the rule was that:

"Where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury might not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case if the jury draws that inference, then they may properly take it into account against the party in question for two purposes namely: (a) in deciding to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as witness could have spoken."

If in paragraph 21 of the reasons for decision the Tribunal was purporting to apply the principle of Jones v Dunkel against the appellants in the decision-making process, then the reasons do not disclose any discussion as to whether there was any reasonable explanation why the potential witnesses might not have been called by the appellants. But on closer examination, I agree with counsel for the second respondent that the Tribunal was not, in fact, purporting to apply Jones v Dunkel against the appellants, at all. It is apparent that the Tribunal was responding to submissions on the topic but did not state that reliance was being placed on that principle in reaching a decision adverse to the appellants.

Insofar as counsel for the appellants sought to have the principle applied in favour of the appellants, by reference to the failure of John Beca to give evidence, I am not persuaded that any error in approach has been shown to have been adopted, nor that it is arguable that that was the case. There were a range of issues on which the Tribunal was entitled to conclude the appellants had failed to prove critical facts which they had to prove in their case against Beca. In those circumstances it does not seem to me that the respondents might reasonably have been expected to call John Beca, and there was no reason why the Tribunal was obliged to apply the principle of Jones v Dunkel in favour of the appellants. But even if the principle had been applied in favour of the appellants, the principle could not have overcome the deficiencies in the case which had been identified by the Tribunal, so as to alter the outcome of the appellants' claim for relief.

I turn to the complaint as to the adequacy of the reasons for decision.

Section 117(1) obliges the Tribunal to give reasons for any order it makes in the proceeding and s.117(5) requires that those written reasons "must include ... its findings on material questions of fact."

In Soulemezis v Dudley (Holdings) Pty Ltd[15] McHugh, JA held that the giving of reasons for a judicial decision serves at least three purposes. First, to enable the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision, secondly, to further judicial accountability and thirdly, to enable interested persons to ascertain the basis on which like cases will probably be decided in the future. As was observed by Gray J in Sun Alliance Insurance v Massoud[16] the simplicity of the context of a case or the state of the evidence may be such that a mere statement of the judge's conclusion may be sufficient to indicate the basis for decision. In such circumstances the foundation for the judge's conclusion will be indicated as a matter of necessary inference.

The fact that limited reasons for decision are given by a Tribunal should not lead to the conclusion that the Tribunal, therefore, failed to give consideration to relevant matters which it was obliged to address, or to arguments of counsel, or to evidence: see Body Corporate Strata Plan No 4166 and Ors v Stirling Properties Ltd (No.2)[17] and see Harrison v Mansfield[18]. It may well be that the reasons for decision of a specialist tribunal, especially a busy one, should not be required to provide the same comprehensiveness of analysis as might be required of superior courts and, as Fullagar J held in Michaelis Bailey (Vic) Pty Ltd v MMBW [19], the decisions of such a tribunal should "not be set aside by over legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated". As Stephen J observed in Spurling v Development Underwriting (Vic) Pty Ltd[20]:

"In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to enquiring whether on any reasonable view of the evidence the [tribunal] decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this tribunal decide a particular matter of fact as it has."

There is no doubt that an appellate court must give weight to findings of fact made by the primary decider of facts, particularly where those findings derive from a conclusion based on the credibility of witnesses: see Dawson v Westpac Banking Corporation.[21] Although the Tribunal did not expressly state that the credibility of witnesses played a part in the decision, it is likely that the finding that the evidence was not persuasive was based, in part, on the observations of the witnesses, especially Cahill. In addition to the findings expressly announced in the reasons for decision of the Tribunal, regard must also be had to findings which were open to the Tribunal to make and which, consistently with the published reasons for decision, the Tribunal may well have made, notwithstanding that they were not expressed in the reasons (see Ericsson (Aust) Pty Ltd v Popovski[22]).

Reasons must contain a sufficient degree of particularity: see Gamser v The Nominal Defendant[23]; Dessent v The Commonwealth[24] and the reasoning must adequately deal with those matters on which issue has been joined at trial: see Soulemezis v Dudley (Holdings) Pty Ltd[25]. Where the analysis of evidence is so deficient as to demonstrate a lack of logic or a failure in the process of reasoning the analysis would constitute an error of law[26], but the mere fact that the appellate court regarded the conclusion reached to be wrong would not establish error of law, provided that there was a rational basis on which the Tribunal could have reached its conclusion[27]. The question whether the evidence adduced was sufficient to establish relevant facts to the satisfaction of the Tribunal is not a question of law, save for the exceptional situation where it is demonstrated that the body of evidence was so overwhelming in proof of a fact that failure to accept it was perverse, and amounted to error in law[28].

It should not be taken that I regard the reasons as being exemplary. I do not. The language used was in many respects loose, ambiguous and unhelpful in providing parties with information as to the reasoning process of the Tribunal. For example, when referring to the evidence of Mr Mansourian the Tribunal used the expressions "as I recall . . .may even have said", which might reasonably suggest to a party that the Tribunal has not gone to the trouble of actually checking the transcript. I note, however, that there were substantial deficiencies in the transcript in this case and it may have been impossible to check all evidence, but even if that were not the case the defect is one of form only, the particular issue as to Mr Mansourian's evidence on that point could not have affected the outcome of the case. Another example of looseness in expression was the use of the phrase "benefit of hindsight" with respect to Cahill's examination of the scene; once again, an unfortunate use of language. But I agree with counsel for the respondents that these inappropriate phrases do not betray error in law. What the Tribunal was intending to say, by the reasons, was that the Deputy President was simply unable to reach a conclusion, on the balance of probabilities, in favour of the appellants. However inelegantly, that is what was stated.

On an application for leave to appeal it is not necessary, as I have stated, for the appellants to persuade me that the Tribunal has fallen into error: it is sufficient to persuade me that it is arguable that such an error of principle occurred and that that may have affected the outcome of the case. However, whilst I am satisfied that the grounds of appeal sought to be raised by the appellants do properly identify four questions of law as reflected by the questions of law that I have mentioned above, I am not persuaded that the decision of the Tribunal is attended by sufficient doubt with respect to the issues raised by those questions of law so as to justify the grant of leave to appeal. If I am wrong as to that, and it is arguable that the Tribunal in evaluating the evidence had erred in law in its approach to its task in any of the respects identified in the four questions of law, then I am not persuaded that the outcome of the case would have been any different had the error of law been corrected. Nor do I consider that if the suggested errors of law were corrected as a result of a successful appeal and the evidence was then reconsidered with the proper application of legal principle that the appellants' claim for relief would have any different outcome. In other words, it was open to the Tribunal to conclude that on a proper review of the evidence the appellants had failed to prove their case on the balance of probabilities. I conclude, therefore, that the decision of the Tribunal is not tainted by sufficient doubt to justify a grant of leave to appeal.

As earlier noted, in the decision in the Hulls case, Phillips JA, observed that leave to appeal might more readily be granted when the question of law raises a question of general public importance. Mr Scarfo submitted that this was such a case, and that the issue of general importance is the need for the Tribunal to provide reasons which clearly demonstrate that a proper evaluation of evidence has occurred, especially where the cases under consideration might involve such significant sums of money as was the case here. The appellant's claim was for a sum in excess of $200,000, and an indemnity costs order was also made against the appellants. However, as Phillips JA noted[29], the factor of public importance could not justify the grant of leave when the decision was not attended by sufficient doubt to otherwise justify the grant of leave. In my view, no question of public importance is raised by the case, but, rather, it concerns the evaluation of facts in an individual case. But even if there are issues of general importance, the decision has not been shown to have been attended by sufficient doubt so as to justify the grant of leave, nor would correction of any suggested errors of law produce a different outcome in the case.

The appeal against the decision of the Master to refuse leave to appeal will therefore be dismissed.

[7] [1999] VSC 163 per Beach J

[8] [2000] VSC 520, per Hansen J. (Balmford J has advised me that it is also the approach adopted by Her Honour in the Victorian Compensation and Planning List).

[9] [2000] VSC 254 per Eames J

[10] Rabel v Eastern Energy Ltd [1999] VSCA 103; [1999] 3 VR 45

[13] [1947] 2 All ER 372 at 374 per Denning J

[17] [1984] VicRp 73; [1984] VR 903, at 913-4 per Ormiston J

[21] [1991] HCA 52; (1991) 66 ALJR 94 at 105 per Dawson and Toohey, JJ.

[22] [2000] VSCA 52; (2000) 1 VR 260, at 265, per Brooking, JA

[26] Watt v Thomas [1947] AC 484, at 487.

[27] Ericsson (Aust) Pty Ltd v Popovski, supra, at 265, per Brooking JA.

[28] McPhee v S.Bennett Ltd (1934) 52 WN(NSW) 8, at 9, per Jordan CJ, cited by Kirby P in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, at 147.

[29] Sec of Dept of Premier v Hulls, supra, at 336.

At a glance

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Judgment (78 paragraphs)

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Cases Cited (10)