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[2009] AIRCFB 94
respondent. Leave to appeal refused; Full Bench upheld the Commissioner's credibility-based findings and affirmed the dismissal of the unfair dismissal application (see [40]).
The Full Bench refused leave to appeal an unfair dismissal decision where the primary Commissioner accepted a supervisor's account that the employee engaged in extreme verbal abuse and threats in a private office. Applying established appellate principles, the Bench found no basis to disturb the credibility-based findings, held the employer had discharged the evidentiary onus to prove misconduct, found no procedural fairness breach, and concluded the dismissal was not harsh, unjust or unreasonable.
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1,767 words · generated 13/07/2026
This dispute arises from an unfair dismissal claim brought by Michael Patrick Hinchey after his employment at North Goonyella Coal Mines Pty Ltd was terminated for alleged misconduct. The operative events occurred on 24–25 January 2008. On 24 January, supervisors observed Mr Hinchey without safety glasses and reminded him of the requirement ([3]). On the morning of 25 January, Mr Hinchey raised maintenance and tooling concerns at a performance board meeting ([4]). Shortly afterwards, a confrontation occurred between Mr Hinchey and his immediate supervisor, Mr Peter Sinclair. The accounts diverge. Mr Hinchey maintained there was a brief, routine discussion and that Mr Sinclair had been aggressive towards him ([5], [10]). Mr Sinclair alleged that Mr Hinchey followed him into his office, engaged in extreme verbal abuse and threatened Mr Sinclair and his family, with the most serious abuse occurring in Mr Sinclair's office in the absence of independent witnesses ([6], [14]).
1 cited instrument linked from this judgment.
Mr Sinclair made contemporaneous informal reports and followed up with emails that same day and later statements ([8]). Mr Hinchey gave a short handwritten statement at about midday on 25 January denying the allegations but admitting he had been to Mr Sinclair’s office earlier that morning ([9]). Both employees were stood down pending investigation; following an investigation, Mr Hinchey's employment was terminated for misconduct ([11]). Commissioner Bacon, after hearing the evidence, accepted Mr Sinclair's account of key aspects of the incident (notably the abuse and threats in the office), rejected Mr Hinchey's conflicting account and dismissed the unfair dismissal application ([14]). The appellant sought leave to appeal to the Full Bench under s.120; the Full Bench refused leave and affirmed the Commissioner's decision ([1], [40]).
The Full Bench's decision turned on appellate principles concerning the review of primary findings of fact, particularly credibility findings. The bench reiterated established High Court authority that an appellate court must give due deference to a trial judge or tribunal member who has seen and heard the witnesses. That deference yields to appellate intervention only where it can be shown the trial judge failed to use or palpably misused the advantage of seeing witnesses, acted on evidence inconsistent with incontrovertible facts, or reached a finding that was glaringly improbable or contrary to compelling inferences ([16]–[21], [24]). The Full Bench applied those principles to the Commissioner's reasons and to the evidence before him.
The Full Bench considered the appellant's submissions that the Commissioner erred by preferring Mr Sinclair's evidence despite inconsistencies and that certain contemporaneous statements or witnesses undermined Mr Sinclair's reliability. The Bench observed that:
On these grounds the Full Bench was not persuaded the Commissioner had palpably misused his advantage, nor that the finding was inconsistent with incontrovertible facts or glaringly improbable. The Full Bench also addressed procedural fairness: while it recognised that failure to put matters to a party can amount to a denial of natural justice in some cases, it concluded the inconsistency relied upon was not of such significance that it required the Commissioner to have expressly raised it with the appellant before relying upon it ([36]–[37]). The Full Bench also concluded the employer had met the evidentiary burden in the Commission context to show misconduct and that the s.652(3) factors did not make the termination harsh, unjust or unreasonable ([13], [35]).
Before this Full Bench decision, the controlling principles on appellate review of credibility findings were well established in High Court authority cited in the decision: SS Hontestroom v SS Sagaporack (the 'failed to use or palpably misused advantage' formulation), Jones v Hyde, Abalos, Devries, and the High Court's joint judgment in Fox v Percy refining the balance between deference and appellate duty ([16]–[21]). Full Benches of the Commission had applied these principles previously and the decision here follows that established line.
After this decision, the Full Bench reaffirmed the established approach in the Commission context: respect for a primary factfinder's credibility assessments remains the starting point; appellate intervention is justified only on specified grounds. The Full Bench also clarified application of procedural fairness and the rule in Browne v Dunn in matters where contemporaneous written statements exist and where the adversarial dispute over credibility was plainly known to both sides ([36], [39]). The decision thus consolidates pre-existing authority rather than reshaping the law.
Paragraph [16] (quoting Hontestroom): "An appellate judge is usually at a disadvantage compared with a trial judge who has seen witnesses; the appellate court should not reverse credibility-based findings unless the trial judge has failed to use or palpably misused that advantage." Plain English: If the person who heard the witnesses believed one side, an appeal court should not reverse that conclusion unless the trial judge clearly misapplied their advantage of seeing witnesses or made some obvious error.
Paragraphs [19] and [21] (citing Devries and Fox v Percy): "If a trial judge's finding depends substantially on credibility, it stands unless the judge misused their advantage, or the finding conflicts with incontrovertible facts or is glaringly improbable." Plain English: Even if the appeal court thinks the probabilities point the other way, it must uphold a credibility-based finding unless clear and exceptional flaws exist.
Paragraph [27]: "The Commissioner took account of inconsistencies in Mr Sinclair's evidence and nevertheless accepted relevant portions of it." Plain English: The Commissioner recognised some slip-ups in the supervisor's story but considered the important parts believable and relied on them.
Paragraph 29: "Mr Phie (a new employee) observed Mr Sinclair as 'shaken and pale' and later angry when discussing the matter." Plain English: An independent witness who had no prior relationship with either man saw Sinclair upset immediately after the alleged incident, which supports the employer's version.
Paragraph [35]: "To the extent there was an onus on the employer to establish misconduct, the onus was discharged." Plain English: The employer provided enough evidence for the Commission to find the misconduct happened.
This decision is most directly instructive where:
In such fact patterns an appellate body should approach the appeal with deference and will not overturn the primary finding unless the strict circumstances for doing so are met.
This Full Bench decision is declaratory and conservative in approach. It reinforces the established High Court authorities (Hontestroom, Jones v Hyde, Abalos, Devries, Fox v Percy) and the Commission's own prior Full Bench rulings. Later tribunals and courts considering similar credibility disputes in dismissal contexts would treat this decision as a reaffirmation of the limits on appellate re-examination of demeanour-based findings: the decision does not expand appellate intervention but confirms the standard and illustrates its application in a workplace-misconduct dismissal. It also stands as authority within the Commission for a pragmatic approach to Browne v Dunn where contemporaneous written statements exist and where the central dispute is already plain to the parties ([39]).
Practitioners should expect tribunals to apply the same analytical steps: identify whether the primary decision relied on demeanour, check for incontrovertible contradictory facts or glaring improbabilities, and look for contemporaneous materials that may support or weaken the credibility assessment.
Degree of weight to be attached to contemporaneous informal reports. The decision accepts Mr Sinclair's informal report and emails as supportive. It remains context-dependent how strong such informal contemporaneous reports need to be to displace an applicant's denial when primary evidence conflicts and where no independent eyewitness accounts of the core events exist ([8], 29).
The precise boundary where an inconsistency becomes so material as to require being put to the party before being used by the decision-maker. The Full Bench held the particular handwritten inconsistency did not require pre-use confrontation ([36]–[37]). But the judgment leaves open how apparent and material an inconsistency must be to engage procedural fairness in other factual matrices.
The interplay between 'demeanour weight' and modern caution about the unreliability of detecting truth from appearance. The Full Bench cites the joint judgment in Fox v Percy noting scientific scepticism about gleaning truth from demeanour ([21], paras 30–31 of the cited High Court passage). Yet the Full Bench still applied the traditional deference doctrine. How tribunals should proportion the weight given to demeanour versus contemporaneous documentary or neutral evidence remains a practical question in close cases.
Application of the Browne v Dunn rule in contexts involving multiple written statements, informal contemporaneous notes and limited oral testimony. This decision indicates a restrictive operation of Browne v Dunn in Commission matters with written statements. The precise contours of that limitation and the extent to which failure to test a written assertion will amount to a denial of natural justice may require further delineation by later Full Bench or higher court decisions.
Practical takeaways for practitioners: when defending or challenging an adverse credibility finding, focus on producing incontrovertible contemporaneous material or highlighting glaring improbabilities, ensure important inconsistencies are put and tested if they are to be relied upon, and remember appellate courts will defer to first-instance credibility assessments unless exceptional criteria for intervention are shown (see particularly [16]–[21], [24], [29], [35], [36]–[37]).
s.120 - Appeal to Full Bench
Appeal - termination of employment - appeal against finding of fact based on an acceptance of the evidence of a witness.
[1] This is an application for leave to appeal and, if leave is granted, an appeal against a decision of Commission Bacon [1] dismissing an application for relief against termination of employment by the appellant, Mr Michael Hinchey.
[2] The respondent operates a coal mine in Queensland. Mr Hinchey was employed as a tradesman in the mechanical workshop at the mine. Mr Peter Sinclair was the manager of that workshop. Mr Sinclair reported to Mr Allen McFadzen, the respondent's Engineering Manager. Mr McFadzen reported to Mr Jim Randell, the respondent's General Manager.
[3] On 24 January 2008 Mr Sinclair and Mr McFadzen were walking through the mechanical workshop and noticed that Mr Hinchey was not wearing his safety glasses as required by company policy. They approached Mr Hinchey and reminded him of the requirement to wear safety glasses.
[4] The following day, 25 January 2008, shortly after the commencement of the day shift at 7.00am, Mr Hinchey attended a performance board meeting chaired by Mr Mark Scully, the respondent's Mechanical Superintendent, during which Mr Hinchey raised problems with maintenance on a particular piece of plant and the lack of certain tools in the workshop. After the meeting Mr Scully had a discussion with Mr Sinclair in which he reported the issues raised by Mr Hinchey. A short time later Mr Sinclair went to the workshop for the purpose of talking to Mr Hinchey about the questions raised at the performance board meeting.
[5] At this point the versions of the parties diverge dramatically. Mr Hinchey's version is that there was a brief discussion about the issues he had raised and that there was no further contact between he and Mr Sinclair after this short discussion. He says that he went to Mr Sinclair's office to discuss the provision of a toolbox to an apprentice but that Mr Sinclair was not in his office at the time.
[6] Mr Sinclair's version, in summary, is as follows. Mr Sinclair says that after indicating to Mr Hinchey that the would respond to the questions raised by Mr Hinchey in the performance board meeting Mr Hinchey asked him to come outside and, once outside, used abusive language in demanding that Mr Sinclair follow him towards the water treatment plant. Mr Sinclair says that Mr Hinchey's tone was aggressive and that he seemed agitated. Mr Sinclair declined to follow Mr Hinchey and proceeded to walk back inside the workshop. Mr Hinchey followed and Mr Sinclair claims there was some physical contact between them as he entered the workshop. Mr Sinclair proceeded across the workshop and up the stairs into his office. Mr Hinchey followed Mr Sinclair across the workshop and into Mr Sinclair's office and closed the door behind him. Mr Hinchey proceeded to engage in extreme verbal abuse towards Mr Sinclair and made serious threats to both Mr Sinclair and his family.
[7] The Commissioner put the time of this incident as being after 8.00am and probably between 8.20am and about 8.30am.
[8] Shortly after 9.00am, Mr Scott Atkins, a training coordinator, arrived at the workshop with a new employee, Mr Gary Phie, to show him around the workshop. A short time later, Mr Atkins spoke to Mr Sinclair who told him about the incident. Mr Atkins reported the matter to his superiors. Mr Randell was informed and he instructed Mr McFadzen to undertake an immediate investigation. In addition to the verbal report to Mr Atkins, Mr Sinclair sent an email at 10.40am which briefly summarised the incident. He also sent an email at 12.17pm based on the first email but with some additional elaboration in the second paragraph. Mr Sinclair sent a third email on 5 February 2008 which contained further elaboration of the incident. On 6 May 2008 he made a statement for the purposes of the proceeding in the Commission.
[9] Mr Hinchey provided a brief written statement at about midday on 25 January 2008. That statement was as follows:
I have been asked to make this statement in response to some allegations that have been made against myself. The first I heard of any alleged incident was when I was contacted by Shane Brunker at around 11.00am.
This morning at the start of shift talks I raised a couple of issues regarding an EIMCO that is in the workshop that were addressed by Mark Scully. I also spoke to Mark about some issues with tools in the workshop.
I went to the workshop to receive my instructions for the day. I had a brief discussion with Peter Sinclair who clarified some of the issues that I had raised with Mark Scully earlier.
It has been alleged that I went to Peter Sinclair's office, in fact, I did, as do (sic) sometimes up to a dozen times a day in relation to diesel equipment on site. I went to Peter's office this morning to ask a question regarding one of the apprentices but he was not in his office.
I refute the allegations that I have been made aware of today.
[10] Mr Hinchey made a statement for the purposes of the proceeding in the Commission in which he gave an account of the conversation with Mr Sinclair. On that account Mr Sinclair used abusive language to Mr Hinchey about the issues raised in the performance board meeting.
[11] Mr Hinchey and Mr Sinclair were both stood down pending the outcome of the investigation. When the investigation was completed Mr Hinchey's employment was terminated for misconduct constituted by the matters alleged by Mr Sinclair.
[12] Subject to a qualification to which we will return, on Mr Sinclair's version of events the misconduct occurred in the absence of witnesses. Mr Hinchey flatly denied the alleged misconduct. Indeed, on Mr Hinchey's version of events, on the day in question his only interaction with Mr Sinclair was one in which Mr Sinclair was aggressive and used abusive language.
[13] At one level this is a simple case. The respondent alleged serious misconduct in the form of inappropriate physical contact, verbal abuse and threats to a manager (and, in the case of the threats, to the manager's family as well). The appellant denied that any such conduct occurred. It is common ground that if the misconduct found by the Commissioner occurred then such misconduct constituted a valid reason for termination. The various other factors specified in s.652(3) were not such as to permit a conclusion that the termination was harsh, unjust or unreasonable if that valid reason was established. The appellant was notified of the reason for his termination (s.652(3)(b), he was given an opportunity to respond to that reason (s.652(3)(c); the termination related to misconduct rather than unsatisfactory performance (s.652(3)(d)); the respondent is a large organisation with dedicated human resources staff (s.652(3)(e) and (f)) although, on any view, a thorough investigation was undertaken before the decision to terminate was made. Finally, other relevant matters (s.652(3)(f)) such as the appellant's 12 years of service with the respondent were not such as to the render the termination, harsh unjust or unreasonable in the event that the valid reason for which the respondent contended was established. In other words, the case turned fundamentally on whether the Commissioner was satisfied that the misconduct alleged by Mr Sinclair occurred.
[14] The most serious misconduct alleged against the appellant, the threats to Mr Sinclair and his family and the extreme abuse that accompanied those threats, were alleged to have occurred in Mr Sinclair's office in the absence of witnesses. In other words, the Commissioner could only be satisfied that that misconduct occurred if he accepted the evidence of Mr Sinclair and positively preferred it to the evidence of the appellant. In Messrs Hinchey and Sinclair the Commissioner was confronted with two witnesses who gave divergent accounts of events on the day in question. The Commissioner delivered lengthy reasons in which he undertook a detailed, not to say, painstaking analysis of the evidence. In the end the Commissioner accepted the evidence of Mr Sinclair in relation to key aspects of the alleged misconduct. Critically, he accepted Mr Sinclair's evidence as to Mr Hinchey's conduct while he was in Mr Sinclair's office and found that Mr Hinchey had engaged in extreme verbal abuse of Mr Sinclair and had made threats to Mr Sinclair and his family. In so doing he must be taken to have rejected the evidence of Mr Hinchey. [2] He considered each of the matters specified in s.652(3) and concluded that the termination was not harsh, unjust or unreasonable and dismissed the application for relief.
[15] Necessarily, the Commissioner's finding of misconduct against Mr Hinchey must have been based on a relative assessment of the credibility of the Mr Hinchey and Mr Sinclair. Thus, the present appeal calls for an application of the principles governing appellate review of findings of fact made by a judge or judicial officer at first instance on the basis of conflicting oral testimony.
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge's conclusions of fact should, as I understand the decisions, be left alone.
It is true that the learned judge did not expressly rely on the demeanour of the plaintiff in making his findings of primary fact. But this does not mean, as Mr Ellicott submitted, that an appellate court is in as good a position as the trial judge to determine the primary facts of the case. When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. It does not follow that, because the learned judge made no express reference to demeanour and credibility, they played no part in his conclusion: cf. Martin v. Option Investments (Aust.) Pty. Ltd. (No. 2) [1982] VicRp 45; (1982) VR 464, at p 468. I do not accept that in this case the learned trial judge's observations of the demeanour of the plaintiff and the defendant and their manner of giving evidence played no part in his findings. I think that they almost certainly did. In accordance with the rules relating to the review of findings of fact based in whole or in part on demeanour, those findings are not open to review in an appellate court.
... where a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion."
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact ((12) See Brunskill [1985] HCA 61; (1985) 59 ALJR 842; 62 ALR 53; Jones v. Hyde [1989] HCA 20; (1989) 63 ALJR 349; 85 ALR 23; Abalos v. Postal Commission [1990] HCA 47; (1990) 171 CLR 167.). If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" ((13) S.S. Hontestroom v. S.S. Sagaporack (1927) AC 37, at p 47.) or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" ((14) Brunskill (1985) 59 ALJR, at p 844; 62 ALR, at p 57.).
[20] In State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) [11] Gaudron, Gummow and Hayne JJ, after citing this passage, noted with apparent approval[12] that "Deane and Dawson JJ pointed out in the same decision that no short exhaustive formula, such as "glaringly improbable", meets every case [(1993) 177 CLR 472 at 480]."
[21] These statements of principle, which have been adopted and applied by Full Benches of the Commission [13], should be seen in the broader context provided by the discussion on the nature of appellate review of fact finding in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy.[14] That case involved a personal injuries claim arising from a collision on a narrow road between a motor vehicle and horses ridden by the plaintiff and a companion. The critical issue was whether the vehicle was on the wrong side of the road at the time of the collision. The trial judge made a credibility-based finding on the evidence of the plaintiff that the vehicle was on the wrong side of the road. A diagram of skid marks drawn by a police officer who attended the scene of the accident showed the vehicle to have been on the correct side of the road. The High Court overturned the decision of the trial judge on the basis that the finding of the trial judge was inconsistent with the position of the skid marks. Gleeson CJ, Gummow and Kirby JJ regarded the location of the skid marks and vehicle as incontrovertibly established by virtue of them being "illustrated in an uncontested, contemporary document that verified the police evidence which the primary judge accepted as truthful"[15]. It is desirable to set out the observations in the joint judgment at some length. After noting the statutory provisions governing appeals to the NSW Court of Appeal, their Honours continued:
22. The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23. The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
24. Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons.
25. Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect". In Warren v Coombes, the majority of this Court reiterated the rule that:
"[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it."
As this Court there said, that approach was "not only sound in law, but beneficial in ... operation".
26. After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.
27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
29. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Soci�t� d'Avances Commerciales (Soci�t� Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.
[22] The decisions in Earthline and Fox v Percy involve a reaffirmation of the established principles in relation to challenges to findings of fact on appeal [16] albeit that they are also a reminder that the mere fact that a judge has made a credit based finding of fact does not render that finding immune to attack on appeal and that appellate bodies must not be over-ready to reject an appellate challenge to a finding of fact simply because the finding was based on assessment of competing oral evidence.
[23] The appellant's challenge to the Commissioner's decision in this case attracts the operation of these principles.
(i) the Commissioner "failed to use or has palpably misused his advantage" in seeing the witnesses give their evidence;
(ii) the key findings of the Commissioner as to misconduct are inconsistent with facts "incontrovertibly proved", nor is it one of those "rare cases" where "although the facts fall short of being 'incontrovertible', an appellate conclusion may be reached that the decision at trial is 'glaringly improbable' or 'contrary to compelling inferences' in the case".
[25] The appellant attacked both the correctness and the weight attaching to inconsistencies in the evidence of Mr Hinchey identified by the Commissioner. The appellant also argued that there were many more, and more significant, inconsistencies in the evidence of Mr Sinclair and contended that the Commissioner failed to take account of inconsistencies in the evidence of Mr Sinclair or to attach appropriate weight to those inconsistencies.
[26] We note that the appellant's case was essentially one of denial of any incident with Mr Sinclair of the sort alleged by the respondent. It is unremarkable that there was less scope for inconsistency in the evidence of the appellant: he maintained his denial of the alleged misconduct throughout. Moreover, the process of fact finding on the basis of conflicting oral testimony does not proceed in any mechanical fashion that involves counting inconsistencies and preferring the evidence of the witness with the fewest inconsistencies. In some cases this may be the result but in others it may not.
[27] We do not accept that the Commissioner failed to take account of the inconsistencies in the evidence of Mr Sinclair that were identified by the appellant. The language of the decision at paragraphs [19] and [58] makes it clear that Commissioner took account of the inconsistencies identified by the appellant (even if he did not expressly deal with each of them) and was nevertheless prepared to accept relevant portions of Mr Sinclair's evidence notwithstanding those inconsistencies.
[28] We accept that several of the inconsistencies in the evidence of Mr Sinclair and highlighted in cross-examination were significant and that another member may well have taken a different view of the credibility of Mr Sinclair on the basis of those inconsistencies. However, it is well established, and senior counsel for the appellant did not seek to argue otherwise, that a judge or judicial officer is entitled to reject some parts of a witness' evidence while accepting other parts of that witness' evidence. We note that the Commissioner did not accept all of Mr Sinclair's evidence. In particular, he declined to find, on the basis of inconsistencies in Mr Sinclair's evidence, that there was any physical contact between Mr Hinchey and Mr Sinclair sufficient to justify or lend weight to a decision to terminate Mr Hinchey's employment. We are not persuaded that the inconsistencies relied upon by the appellant are such as to lead to a conclusion that the Commissioner "failed to use or has palpably misused his advantage" in seeing the witnesses give their evidence and consequently that the inconsistencies in Mr Sinclair's evidence provide a sufficient basis to disturb the findings of the Commissioner.
[29] Moreover, we should record that we agree with the Commissioner's ultimate conclusion on whether the misconduct occurred and would be inclined to reach the some conclusion ourselves. In addition to paying due respect to the Commissioner's apparent view that relevant portions of Mr Sinclair's evidence were credible, the most significant of the factors in forming that view are as follows:
(a) The absence of any plausible or compelling motive for Mr Sinclair to fabricate the allegations. If Mr Hinchey's evidence is to be accepted then Mr Sinclair simply fabricated the serious allegations of misconduct that he made against Mr Hinchey. There was no evidence of any history of tension or animosity between the two. Indeed, Mr Hinchey gave evidence of the absence of any such history. Moreover, Mr Sinclair did not seek to lodge a formal complaint against Mr Hinchey. It was Mr Atkins who reported the allegations to senior management resulting in Mr Randell instructing Mr McFadzen to undertake an investigation. Mr Atkins, whose evidence the appellant agrees should be accepted, records Mr Sinclair as having said: "There's not much I can do about it, it's my word against his." This does not strike us as the response of a person who had maliciously fabricated the allegations against Mr Hinchey: why fabricate such allegations but then take the view that there not much that can be done about them?
(b) Plausible motive for Mr Hinchey to be angry with Mr Sinclair. On Mr Sinclair's evidence Mr Hinchey was angry that Mr Sinclair had, the previous day, brought Mr McFadzen over to remonstrate with him about not wearing safety glasses. It is entirely plausible that Mr Hinchey would seek to take issue with Mr Sinclair over that incident (as claimed by Mr Sinclair) which could be seen as undermining Mr Hinchey in the eyes of the senior boss responsible for the workshop. It is entirely plausible that Mr Sinclair's refusal to engage with Mr Hinchey caused Mr Hinchey's anger to increase leading him to say things that he immediately realised could land him in trouble and that he then increased the abuse and threats in Mr Sinclair's office in a foolish attempt to avoid disciplinary repercussions.
(c) Contemporaneous complaint. Mr Sinclair made an informal report of the alleged misconduct by Mr Hinchey to Mr Sinclair within an hour of the incident. He gave a fuller account to Mr Phie only minutes later.
(d) Mr Phie's observations of the physical appearance of Mr Sinclair shortly after the alleged incident. Mr Phie is the closest thing in this case to an independent witness. He was a new employee who had no knowledge of, or prior dealings with, either Mr Hinchey or Mr Sinclair. Mr Phie gave evidence that he paid no particular attention to the conversation between Mr Atkins and Mr Sinclair until he heard Mr Sinclair make reference to threats to his family. He then paid more attention to what Mr Sinclair was saying and observed that Mr Sinclair was "shaken and pale". He then had a conversation with Mr Sinclair in his office in which Mr Sinclair elaborated on what had occurred. Mr Phie observed that Mr Sinclair's mood changed to anger as he recounted Mr Hinchey's behaviour and the threats to himself and his family. Mr Phie adhered to this evidence in cross-examination. Mr Phie's acknowledgement in cross examination that Mr Sinclair's appearance was equally consistent with him having fabricated the allegations does not render his observations irrelevant. We note that Mr Atkins gave evidence that Mr Sinclair was not "shaking" at the time of the relevant conversation. However, this is not inconsistent with the evidence of Mr Phie: a person can appear shaken without shaking. The evidence of Mr Atkins (Mr Sinclair was not shaking nor was his voice quivering) is not inconsistent with the evidence of Mr Phie: Mr Phie described Mr Sinclair as "shaken" rather than "shaking" and did not make any observation about Mr Sinclair's voice at the time of the conversation with Mr Atkins.
(e) Mr Hinchey recanting this claim to have visited Mr Sinclair's office "sometimes a dozen times a day". In his short hand written statement made at about midday on the day of the alleged incident Mr Hinchey noted the allegation that he went to Mr Sinclair's office and stated: "[I]n fact I did [go to Mr Sinclair's office] as [I] do sometimes up to a dozen times a day in relation to diesel equipment on site." Mr Hinchey attached that hand written statement to his formal statement of evidence filed in the proceeding before the Commission without retracting or qualifying the assertion as to the regularity of his visits to Mr Sinclair's office. The respondent filed a statement from a witness contradicting that assertion. In oral evidence Mr Hinchey withdrew the assertion about sometimes visiting Mr Sinclair's office a dozen times a day and acknowledged that it was not true. The appellant characterised this matter as "trivial". We disagree. At the time that Mr Hinchey made his hand written statement he would not have been sure whether or not he had been observed by others going the office of Mr Sinclair at the time alleged by Sinclair. In this context an admission that he went to Mr Sinclair's office is significant. The retracted assertion conveyed the impression, which Mr Sinclair must be taken to have known was false, that this was not unusual. Seen in this light, we agree with the Commission that the retraction was a matter of some significance.
[30] We agree with the Commissioner that the evidence of Messrs Newsome, Johnson and Knobloch did not have any material bearing on the outcome of the matter. Both Mr Hinchey and Mr Sinclair gave evidence of a brief conversation between them in the vicinity of Mr Hinchey's tool box. Those witnesses each observed the conversation but saw or heard nothing untoward (if anything, this counts against Mr Hinchey who claimed that Mr Sinclair was aggressive and used abusive language to him). Evidence in the form of short handwritten statements provided to the respondent's investigation by two apprentices, Messrs Martin and Burgess, is another matter. Mr Sinclair gave oral evidence in cross-examination to the effect that, in addition to abuse outside the workshop and in his office, Mr Hinchey continued to abuse him as Mr Hinchey followed him across the workshop after he returned inside. The two apprentices, unlike the other witnesses referred to at the beginning of this paragraph, were working on a piece of plant which, on the evidence, was proximate to the path followed by Mr Sinclair when he went back inside the workshop followed, on his version, by Mr Hinchey. If Mr Hinchey had been abusing Mr Sinclair as Mr Sinclair claimed then it is possible, if not probable, that one or both of the apprentices would have heard that abuse.
Working on EIMCO 508 at end bay of workshop, notice Mick [Hinchey] and Peter Sinclair having a chat near Mick's toolbox. As I only turned my head for a second to notice it. And it was a normal conversation and I turned my head back into the 508 and continued working.
On Friday morning Terry and I were getting our tooling ready to undertake work on 508. When I was walking back to the machine I noticed Mick, Scott and Peter having a conversation in the tool box area. I then returned to the 508.
[33] Each of these statements is addressed exclusively to a conversation at the toolbox that both Mr Hinchey and Mr Sinclair agree occurred and have the flavour of being responsive to a particular request. They are silent on any other matter including on whether or not any other interaction between Mr Hinchey and Mr Sinclair was witnessed. The statements were tendered on behalf of Mr Hinchey but neither party sought to call either Mr Martin or Mr Burgess to give oral evidence. We are not persuaded that these statements obliged the Commissioner to reject Mr Sinclair's evidence about what occurred in his office.
The conversation between the appellant and Mr Best
[34] A significant topic in the arguments on appeal was the Commissioner's finding that Mr Hinchey had a discussion with the site delegate Mr Adrian Best at around 9.00am on the day of the incident in which verbal abuse of Mr Sinclair by Mr Hinchey was discussed. Mr Hinchey and Mr Best each gave evidence of the content of that conversation. On their evidence that matter was not discussed. For the reasons given by the Commissioner, we agree with the Commissioner's assessment that Mr Best's evidence on the content of that discussion was implausible. However, the Commissioner made it clear that his ultimate conclusion on whether there was misconduct of the sort alleged by Mr Sinclair did not depend on his finding as to the conversation between Mr Hinchey and Mr Best and that he would still have reached the same conclusion even if he proceeded on the basis that the conversation between Mr Hinchey and Mr Best was as described by Mr Best. For this reason it is unnecessary to consider the appellant's arguments challenging the Commissioner's finding in relation to that discussion.
[35] The appellant contends that the Commissioner erred "in failing to apply the onus that was on the respondent to establish that the alleged misconduct took place". There is some Full Bench authority that the principles relating to onus of proof applied in the courts do not apply fully in proceedings in the Commission. [17] What is clear is that pursuant to the terms of the Act a remedy for unfair dismissal cannot be given unless the Commission is affirmatively satisfied that the termination was harsh, unjust or unreasonable[18] and that a remedy provided for in the Act is appropriate[19]. In this way, there is, for practical purposes, ultimately an onus on an applicant to satisfy the Commission that the termination was harsh, unjust or unreasonable and that it is appropriate that a remedy be ordered. In cases of alleged misconduct, the Commission is concerned with whether the alleged misconduct occurred rather than whether it was reasonable or open for the employer to reach the conclusion that the misconduct occurred.[20] Thus, where a termination is based on misconduct and the misconduct is denied there is, for practical purposes, what may best be described as an evidentiary onus that shifts to the employer to call evidence to establish the misconduct. That is what occurred in this case. In finding that some of the alleged misconduct occurred, the Commissioner accepted that the evidence led by the employer established such misconduct notwithstanding the evidence led by the employee. To the extent that there was an onus on the employer to establish that misconduct took place, the onus was discharged. We are not satisfied that the Commissioner erred in the manner for which the appellant contends.
[36] The Commissioner took the view that there was an inconsistency between Mr Hinchey's hand written statement prepared on 25 January 2008 and his statement prepared for the proceeding in the Commission. The hand written statement records that Mr Hinchey "had a brief discussion with Peter Sinclair, who clarified some of the issues that I had raised with Mark Scully earlier". Mr Hinchey's witness statement in the Commission given an account of the conversation in which Mr Sinclair talks to Mr Hinchey in an aggressive and abusive manner. We agree with the Commissioner that, given the context in which the hand written statement was prepared, Mr Hinchey might have been expected to advert to this in his handwritten statement if Mr Sinclair had behaved in that fashion. The appellant argues that there was a denial of procedural fairness because this "inconsistency" was not raised in cross-examination or submissions and was not raised with Mr Hinchey by the Commissioner during the hearing.
[37] We accept that there will be cases where a failure to raise a matter relied upon by a judge or judicial officer adversely to a party will involve a denial of procedural fairness. However, it is not the law that the basis for every adverse observation made by a judge or judicial officer must have been put to the party against whom the observation is made. We are not persuaded that that the inconsistency referred to in the previous paragraph was a matter of such significance that procedural fairness required it to be put to the appellant before reliance was placed upon it.
[38] For the reason already given, it is unnecessary to consider the appellant's argument that there was a denial of procedural fairness in relation to the Commissioner's finding in relation to the discussion between Mr Hinchey and Mr Best.
[39] The rule in Browne v Dunn was considered at some length by a Full Bench in Huang v Rheem Australia Pty Ltd. [21] The scope for the operation of the rule in cases where written statements is filed is limited. We agree with the Commissioner's conclusion that the rule in Browne v Dunn did not require Mr Hinchey to be challenged in cross-examination on his version of the events on the day in question. Mr Hinchey well knew that the respondent challenged that account and, indeed, that whether his account or Mr Sinclair's account was accepted was the central issue in the case.
[40] This is not a case that raises issues of such importance that, in the public interest, leave to appeal should be granted. Having formed that view, the question of leave to appeal falls to be determined pursuant to s.120(1) and is discretionary with such discretion being exercised by reference to the usual considerations. For the reasons we have given we are not satisfied that the decision is attended by sufficient doubt to warrant its reconsideration nor are we satisfied that a substantial injustice will result if leave to appeal is refused. In the exercise of our discretion we refuse leave to appeal.
Mr S Crawshaw SC of senior counsel for the Appellant.
Mr A Herbert of counsel for North Goonyella Coal Mines Pty Ltd.
Printed by authority of the Commonwealth Government Printer
Michael Patrick Hinchey
North Goonyella Coal Mines Pty Ltd - Full Bench [2009] AIRCFB 94
(1985) 59 ALJR 842
(1989) 63 ALJR 349
(1990) 171 CLR 167
(2005) 141 IR 310
(1993) 177 CLR 472
Leave to appeal refused; Full Bench upheld the Commissioner's credibility-based findings and affirmed the dismissal of the unfair dismissal application (see [40]).