Malek v Remondis Australia Pty Limited [2015] ACTSC 135

Malek v Remondis Australia Pty Limited [2015] ACTSC 135 - ACTSC 2015 case summary — Zoe

[37]

And, although the appeal is by way of rehearing, the appellate does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute: Fox 214 CLR at 127-128 [27] per Gleeson CJ, Gummow and Kirby JJ.
Ordinarily, if there has been no further evidence admitted and no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on part of the court below: Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at 203 [14] per Gleeson CJ, Gaudron and Hayne JJ. Here, the admission of evidence by consent, which simply confirmed what was before his Honour, thus required the appellant to demonstrate error in the discretionary judgment.
I am of opinion that the nature of an appeal under Div 3.10.2 is of an appeal by way of re-hearing on the evidence below, together with such further evidence as may be admitted under s 214 of the Magistrates Court Act. Such a 're-hearing' does not involve a completely fresh hearing by the Supreme Court on appeal. The Court would ordinarily proceed on the basis of the record in the court below, together with any additional evidence that is admitted under s 214.
Where no oral evidence was given below, or the trial judge's findings based on oral evidence are not challenged, the Supreme Court on appeal is in as good a position as the Magistrate to decide the proper inference to be drawn from the undisputed facts which were in evidence. In deciding the proper inference to be drawn, the Supreme Court must give respect and weight to the conclusion of the Magistrate, but, once having reached its own conclusion, must give effect to it: Fox 214 CLR at 126-127 [25] per Gleeson CJ, Gummow and Kirby JJ, applying Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; see too CGU Insurance Ltd v Porthouse [2008] HCA 30; (2008) 248 ALR 240 at 252-253 [69]; [2008] HCA 30; 82 ALJR 1135 at 1144 [69] per Gummow, Kirby, Heydon, Crennan and Kiefel JJ.

[142]

(a) The learned Magistrate erred in finding that the appellant sustained an injury to his left knee by means other than during the course of his employment on 18 February 2013.

(b) The learned Magistrate erred in rejecting the medical evidence which supported the appellant's allegation that he injured himself during the course of his employment on 18 February 2013.

(c) The learned Magistrate erred in finding that the appellant's evidence that his reasons for initially lying about the circumstances of the injury, namely that he thought he would lose his job, were not substantiated.

(d) The learned Magistrate erred in finding that the appellant had financial motivation for 'concocting' a story to obtain workers compensation benefits in the absence of any evidence that the plaintiff would be in a better financial position were he to receive workers compensation benefits.

(e) The learned Magistrate erred in finding that the appellant 'concocted' his story in relation to the work injury in circumstances where he was not cross-examined as to a large number of salient facts surrounding the incident.

(f) The learned Magistrate erred in failing to accept the appellant's evidence that his fear of losing his job was heightened by the fact that he had been advised that a worker employed by the respondent had been dismissed from his employment following a work accident when there was no challenge to the appellant's evidence in this regard.

(g) The learned Magistrate erred in failing to find that the evidence of the three witnesses called by the respondent were consistent with and not mutually exclusive of the evidence of the appellant and that the evidence showed that the appellant had a significant left knee infection at least by 21 February 2013.

(h) The learned Magistrate erred in considering that the appellant may have injured his knee as a result of a forklift accident in circumstances where he was not cross-examined as to that possibility. Further, injury as a result of a forklift accident used in the course of his employment with the respondent would entitle the appellant to an award for workers compensation.

(i) The learned Magistrate erred in failing to apply the appropriate standard of proof when finding that the appellant 'concocted' his story in relation to the work accident.

(j) The learned Magistrate erred in equating the opinion of Dr Stephenson that the introduction of the infection by way stab wound was 'unusual' with his opinion that the introduction of the infection by way of a twisting fall was 'unlikely'

At a glance

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Judgment (208 paragraphs)

Malek v Remondis Australia Pty Limited [2015] ACTSC 135 (29 May 2015)

Parties

Legislation Cited (6)

Cases Cited (8)