Legal principles governing appeal to Deputy President
13Before the Deputy President, Inghams challenged the factual findings of the arbitrator that the claimant had suffered any injury whilst employed by Inghams and in apportioning any liability to Inghams. There was also a challenge to the finding of total incapacity and a claim that, by way of alternative, the arbitrator should have found that any injury in fact suffered by the claimant was a temporary aggravation of an injury suffered whilst working for Integrated, that her condition involved a disease and that Inghams was not the last employer who had employed the claimant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, within the terms of s 16(1) of the Workers Compensation Act.
14The scope of an appeal to a Deputy President of the Commission is governed by s 352 of the Workplace Injury Act. Relevantly for present purposes, that section provides:
352 Appeal against decision of Commission constituted by Arbitrator
...
(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.
...
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
15The language of s 352(5) and (6) was amended with effect from 1 February 2011. Prior to that amendment, s 352(5) had provided that an appeal under the section was to be "by way of review of the decision appealed against." The amendment to subs (6), by adding the last sentence to that provision, restricted the scope of any further evidence which could be given on appeal. It may be accepted that the Legislature, in requiring that an appellant identify "error" and by stating that the appeal was neither a "review" nor a "new hearing" was intending to constrain the scope of an appeal.
16The High Court requires caution in determining the scope of such provisions. In relation to a provision under a different statute, the court has stated, "it is not useful to attempt to chart the metes and bounds of the task given to the [appellate court] and to attempt to do so is dangerous": Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [88] (Hayne, Heydon, Crennan and Kiefel JJ). Further, as the High Court also noted in Kostas, it may be misleading to seek to determine the limits of a particular provision by reference to similar language in other statutes: at [89]. If "metes and bounds" identify the outer limits of a power, it may not be necessary to chart those limits in order to decide, as required by the present case, whether the appellate body has imposed a level of self-constraint inconsistent with the full exercise of its function. Further, although it is not necessarily useful to consider the scope of other statutory provisions, subs (5) is based on an assumption that a requirement to identify "error" distinguishes such an appeal from one by way of "review or new hearing."
17As explained in the joint reasons in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [11], there is "no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another": per Gleeson CJ, Gaudron and Hayne JJ. The footnote to that proposition referred to the judgment of Glass JA in Turnbull v NSW Medical Board [1976] 2 NSWLR 281 at 297-298. (It is not necessary in the present context to repeat the six categories of appeal or review identified in Turnbull.)
18It has been accepted (or assumed) that the amendments to s 352(5) were designed to override a broad form of internal merits review identified as appropriate under the old provision in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 at [22] and [30] (Spigelman CJ) and at [63]-[66]: see Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 at [46] (Sackville AJA). As explained in Heggie, "[t]he power to admit additional evidence indicates that the appeal under s 352(5) is not an appeal in the strict sense, where a court is limited to determining 'whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given': Coal and Allied Operations ... at [12]": Heggie at [66].
19In the present case, no additional evidence was admitted and there was no relevant change in the law between the date of the decision of the arbitrator and hearing before the Deputy President. Accordingly, the appeal proceeded on the basis that it was necessary to identify error of fact, law or discretion on the part of the arbitrator. Relevantly, Inghams relied only upon factual errors.
20Inghams' challenge in this Court was that the Deputy President had failed to engage with the task of identifying whether the errors of fact alleged by Inghams were made out. Each of the following passages in the reasons of the Deputy President was said to demonstrate abdication of the appellate function.
(1) At [50] the Deputy President noted the evidence of a number of medical witnesses and stated:
"The expert medical witnesses nominated by the Arbitrator each provide sufficient evidence to permit the conclusion reached by the Arbitrator, and the reasons for her conclusion have been plainly stated. No factual error has, in my opinion, been established by Inghams." (Emphasis added.)
(2) The Deputy President then noted criticisms made by Inghams of the medical evidence relied on by the arbitrator and continued at [52]:
"That criticism goes to the weight of that evidence and, whilst such argument may be relevant to a review of the Arbitrator's determination of factual matters, such argument has little or no force in circumstances where the present task on appeal is to determine the commission or otherwise of relevant factual error." (Emphasis added.)
(3) The Deputy President further stated at [56], that the arbitrator's finding of incapacity as a result of injury suffered whilst employed both by Integrated and by Inghams, "was open to her and that the reasons stated by her for that conclusion had been plainly and sufficiently expressed by her."
(4) Noting that the appeal was not by way of review, the Deputy President stated at [58]:
"The Arbitrator has, as I have earlier stated, addressed the totality of the evidence. In my view, she has sufficiently expressed her reasons for the acceptance of Ms Sok's evidence ...." (Emphasis added.)
(5) Finally, the Deputy President stated at [61], referring to the conclusion that the disease provisions of the Workers Compensation Act had no relevance, that such a conclusion was "supported by the evidence; her reasons for that conclusion were, again, plainly stated and no relevant error is made out." (Emphasis added.)
21Inghams submitted that each of these statements revealed that the Deputy President was limiting his assessment to identifying errors of law. Thus, if there was "sufficient evidence to permit" a particular conclusion, there could be no error of law, as there would be if it could be said there was "no evidence" to support the conclusion. Similarly, statements that reasons had been given were apt, but as a basis for rejecting an error of law which would arise if there were an absence of any or adequate reasons. The same error is said to be revealed by the refusal to assess the weight of the evidence, the reference to a particular conclusion being "open" and apparent reliance on the fact that the arbitrator had not ignored material evidence. The converse of each of these propositions would have been the commission of an error of law. Similarly, each of them revealed the Deputy President eschewing any assessment of whether there had been factual error.
22There are two premises underlying Inghams' submissions which should be accepted. First, the law draws a distinction between errors of law and errors of fact and the language adopted in the passages set out above is redolent of search for the former. That is not to say that the passages necessarily demonstrated error: identification of errors of law were part of the appellate function of the Deputy President. Secondly, the language of the statute requires, where an appellant raises such matters, an assessment of the factual findings to see if they can properly be described as erroneous, by reference to the evidence upon which they were based. Nevertheless, despite acceptance of these premises, Inghams' submissions require careful consideration for three reasons.
23First, whilst the distinction between error of law and error of fact is accepted, the boundary is by no means easy to establish in any particular circumstances. Thus, whilst it is convenient to say that assessment of the weight of evidence does not raise a question of law, whereas an allegation of "no evidence" does, to classify specific reasoning by reference to that distinction is a fallible process.
24Secondly, the concept of "error" itself has no clear boundaries. Linguistically, according to authority, it is not sufficient for the appellate court to say it "prefers" a different conclusion, but it is sufficient for the appellate court to say that the trial judge's conclusion is "wrong". This too, involves no bright line boundary.
25The blurred nature of the distinctions in this area of discourse can be illustrated by reference to the comment of the Deputy President that a particular criticism went "to the weight of that evidence": at [52]. In Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 a Full Court of the Federal Court (Hill, Weinberg and Dowsett JJ), after referring to authorities relating to an appeal by way of rehearing from a judge sitting without a jury, continued at [224]:
"Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his findings of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance."
26In applying that standard, the Full Court continued at [226]:
"The conclusions reached by French J regarding the weight to be accorded to the evidence given by the appellants' experts were all properly open on the evidence. For the reasons given by his Honour the views expressed by these witnesses were in various ways tainted or to be accepted only with reservations. We do not accept that his Honour failed to accord proper weight to that evidence. Nor do we consider that any of his Honour's findings of fact relating to that evidence were in any way incorrect."
27If the approach adopted by Inghams in the present case were correct, references to "weight" and to what was "properly open" to the primary judge would have been indicative of an error on the part of the appellate court. That conclusion would, however, be false. The proper conclusion is that identification of error by the Deputy President in the exercise of his appellate function must depend upon a consideration of his reasons taken as a whole, and not be limited to the use of particular words or phrases. Errors of approach are not identified by reference to linguistic niceties, particularly where the language used has no precise meaning.
28Thirdly, the appellate body's reliance on reasons may have relevance to both factual and legal questions. The requirement that a decision-maker give reasons is based on the need for a person affected to understand how a particular conclusion was reached. The reasons given may be persuasive or they may reveal error. For the appellate body to say that the reasons are persuasive or demonstrate no error may be sufficient to establish, at least on one basis, that there was no legal or factual error. For an appellate judge simply to adopt the reasoning of the first instance decision-maker may indicate a failure to address adequately the grounds of appeal. So long as that does not happen, there would be no necessary error in an appellate body accepting the reasons of the first instance decision-maker as a basis for dismissing a claim of factual error.
29The exercise necessary to establish that the Deputy President neither misunderstood his function, nor failed to carry it out, requires reference to a number of further aspects of his reasons. It is not necessary to be comprehensive with respect to each ground of appeal, nor to repeat the process with respect to all grounds, as there was significant overlap.
30The starting point is to note that the Deputy President addressed the nature of the appeal, setting out (correctly) the full terms of s 352(5) and seeking to identify the challenges raised by Inghams. He noted that there had been a complaint of error of law, but stated that the "suggested error is not identified in the submissions": at [48]. There is no challenge to that statement. The Deputy President expressly identified by the nature of his function at [49].
"The arguments advanced by Inghams represent a more concise presentation of those arguments advanced before the Arbitrator. A question raised is whether the appellant has, on appeal, established error of fact. Such an error will be made out in those circumstances addressed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (at 506), that is where:
'... material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong.'"
31Having correctly identified the scope of his function, the Deputy President may be seen to have exercised it in full. Thus, he referred, at least in outline, to the large volume of evidence (all documentary) obtained from treating doctors and experts who were qualified for the purposes of the litigation: at [15] and [16]; [25]-[28]. He noted at [29]:
"It is common ground among the medical practitioners whose evidence is before the Commission, with the exception of Dr Edwards, that Ms Sok suffers significant disability by reason of the abnormalities demonstrated at the level of the lumbar spine by the various radiological studies and that such disability is work related. There is some divergence of opinion as to what particular work activities have caused the relevant injury and there are also differing views as to whether Ms Sok suffers or has suffered from relevant disease at that level of her spine. It is not proposed to summarise that evidence, which was addressed with particular care by the Arbitrator in the course of her Reasons, but reference will be made to that material, where relevant, in the course of discussion which appears below."
32The Deputy President then turned to the submissions before the arbitrator and summarised her determination: at [30]-[42]. He described the arbitrator (whose reasons extended to 185 paragraphs) as giving a "thorough summary of the evidence" and addressing each of the issues raised, "giving attention firstly to the question of the occurrence of injury" at [36]. The critical question before the arbitrator was whether the claimant had suffered a further injury whilst working for Inghams. There was no suggestion that the arbitrator had not correctly identified the issues, nor was it demonstrated to this Court that her summary of the medical evidence was inaccurate.
33After referring to Whiteley Muir (see above) the Deputy President then made findings at [50] about which complaint has been noted at 20 above. To understand the context of the words complained of, it is desirable to set out the paragraph in full:
"I have earlier made reference to the Arbitrator's careful attention to the evidence as summarised by her. The Arbitrator's Reasons demonstrate that her conclusion concerning the disputed finding of injury was founded upon the opinions as expressed by Dr Holman, the AMS, Dr Chau, Dr Houston and Dr New. The expert medical witnesses nominated by the Arbitrator each provide sufficient evidence to permit the conclusion reached by the Arbitrator, and the reasons for her conclusion have been plainly stated. No factual error has, in my opinion, been established by Inghams. The submission that the Arbitrator had erred in finding the occurrence of injury, which was described by her (at [144] of Reasons) as being '... as a result of repetitive traumata caused at work in the performance of her duties with [Inghams] between 18 November 2002 and 15 June 2004', must be rejected."
34To say that each of five separate witnesses provide "sufficient evidence" to support the finding made, is not to state merely that there is some evidence to support the finding: it is a statement that there is evidence which, several times over, would be sufficient. Absent some error in accepting each of those witnesses, a challenge alleging factual error cannot be made good. That passage disposed of ground (a) identified by Inghams below. It did not demonstrate a failure to address the allegation of factual error.
35The Deputy President then turned to ground (b) alleging that the arbitrator had made a finding that the injury received arose out of the "nature and conditions" of the claimant's employment: at [51]. The Deputy President accepted that the criticism of that basis of injury was "well founded", but referred back to a separate finding that the injury was "a result of the repetitive traumata experienced in the course of her employment with [Inghams]": at [38]. The Deputy President then concluded that Inghams' submission that the arbitrator had failed to address the question of injury was itself erroneous and must be rejected. Following that conclusion, but still addressing the same ground, the Deputy President used language said to be indicative of error at [52], which should now be read in context:
"I have earlier summarised the Arbitrator's approach to the evidence, her reasoning and her conclusion concerning injury. I have found no error as suggested. It is for those reasons that Inghams' challenge under ground (b) must be rejected. The criticism made of the medical evidence relied upon by the Arbitrator must, likewise, be rejected. That criticism goes to the weight of that evidence and, whilst such argument may be relevant to a review of the Arbitrator's determination of factual matters, such argument has little or no force in circumstances where the present task on appeal is to determine the commission or otherwise of relevant factual error."
36Ground (c) purported to challenge the finding that the claimant was "totally incapacitated or totally [sic] as a result of any injury with [when employed by?] the appellant." As the Deputy President fairly noted, the submissions in support of that ground had a somewhat different focus. They commenced:
"If it is found that the worker was injured with the appellant (which is not admitted) the appellant submits that any such injury did not result in incapacity, either total or partial. Any incapacity that the worker suffers is due to the injury on 21.10.02 or factors that are not related to her employment with the appellant."
37The Deputy President understood that the challenge was to a finding of causal nexus between the incapacity as found and the work performed at Inghams: at [55]. Somewhat ironically, given its present complaints about the reasoning of the Deputy President, Inghams' submissions (RB 505) before the Deputy President stated that "it was not open to arbitrator to find that the worker became incapacitated some 7 years after leaving the employ of the appellant." (Emphasis added.) The reasoning at [56] rejected that submission in its terms.
38Ground (f) challenged a finding that any such injury (that is an injury suffered whilst working for Inghams) resulted in "further pathology in her lumbar spine", necessitating an operation. The Deputy President dealt with this ground at [58], noting that Dr New had expressed the opinion that surgery was required due solely to the injury in October 2002. Inghams submitted that Dr New was "in the best position to form an opinion on causation, being the worker's treating doctor and having examined the worker on a number of occasions since 03.05.11." The submission further stated that the approved medical specialist (Dr Holman) had also expressed the need for surgery, but his opinion was said to be "compromised" for a number of reasons and that the arbitrator erred in failing to prefer the evidence of Dr New. The Deputy President addressed those submissions squarely, but noted that they "failed to acknowledge the view expressed by Dr New in his report dated 7 June 2012 that 'the nature of [Ms Sok's] work from 2002 to 2004 would certainly aggravate and exacerbate her low back pain and sciatica and lead her to the point when I feel that she would require surgical intervention'."
39It was only after identifying that as a basis for rejecting the error alleged by Inghams that the Deputy President went on to make the remarks identified at 20 above. That reasoning, to be set out in full, was as follows:
"The appeal is not by way of review of the Arbitrator's determination of the dispute. The Arbitrator has, as I have earlier stated, addressed the totality of the evidence. In my view, she has sufficiently expressed her reasons for the acceptance of Ms Sok's evidence concerning the history of symptoms experienced whilst working with Inghams, and that of the expert medical witnesses whose opinions inculpate that work as being, in part, causative of the need for the surgery in question. Ground (f) is rejected."
40Finally, with respect to the question of injury, the Deputy President addressed grounds (g) and (h) which alleged error in failing to find that the injury was "an injury by way of disease" and that Inghams "was not the last employer" for the purposes of s 16(1)(b) of the Workers Compensation Act. The submission stated that it was made "in the alternative only." The Deputy President dealt with this ground and the supporting submissions at [60] in the following terms:
"These grounds require determination on appeal as to whether any relevant error has been established concerning the Arbitrator's findings as to the disease provisions of the 1987 Act as expressed between [121] and [142] of Reasons. Following consideration of relevant authority and the expert medical evidence, the Arbitrator found that Ms Sok had not contracted a disease, expressed by her as being one of 'gradual onset', within the meaning of s 4(b)(i). The Arbitrator also found that Ms Sok's injury did not consist in the aggravation, acceleration, exacerbation or deterioration of a disease: ss 4(b)(ii). The argument advanced concerning the disease provisions was put on behalf of Integrated. Had such argument prevailed the provisions of ss 4, 15 and/or 16 would apply, so it was argued before the Arbitrator, to relieve Integrated of any liability. Any such liability found would thus devolve upon the last relevant employer. That argument was countered by Inghams in the course of submissions before the Arbitrator. However it was, in the alternative, faintly argued that, should relevant disease be found, Inghams were not the last relevant employer."
41That was the reasoning which preceded the last paragraph of which specific complaint is made, namely [61], which, in full, reads as follows:
"The Arbitrator's conclusion that the disease provisions have no relevance on the present facts was supported by the evidence; her reasons for that conclusion were, again, plainly stated and no relevant error is made out. It is thus unnecessary to address argument, such as it is, that Inghams were not the last relevant employer. Grounds (g) and (h) are rejected."
42Once the language used by the Deputy President is placed in its context (both legal and factual) within the reasons, the submission that the Deputy President either failed to understand his proper function or failed to exercise it to its full extent must be rejected.