[56] In Vetter v Lake Macquarie City Council [2001] HCA 12,, 8 March 2001, the majority did not find it necessary to consider this question but Kirby J, without referring to the decision of this Court in North Broken Hill v Tumes , came to the same conclusion."
52 In Roads and Traffic Authority of New South Wales v Perry (2001) 52 NSWLR 222 the appeal again lay under s 57 of the LEC Act. Handley JA, with whom Powell JA agreed and Hodgson JA generally agreed, held that the appeal should be allowed and that, because it was necessary to find further facts, even on undisputed primary facts, remission to the Land and Environment Court was necessary. His Honour said -
" [63] … The primary facts derived from the records of the RTA, and the evidence of Mr Stevens, which the judge accepted, were undisputed. However our jurisdiction is limited to deciding questions of law, and we cannot make findings of fact: see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 463-464, per Kirby J and Maurici v Chief Commissioner of State Revenue (2001) 51 NSW 673 at 686 [55]-[56]."
53 In Seltsam Pty Ltd v Ghaleb the appeal was brought under s 32 of the DDT Act. Basten JA referred at [162]-[166] to Vetter v Lake Macquarie City Council, noting at [163] in relation to Krew v Federal Commissioner of Taxation that the question raised by the tax cases may involve different considerations because of the terms of s 196 and 199 of the ITA Act and the particular statutory context. His Honour said at [165] that although the DDT Act did not share the legislative history of the CC Act, the principle enunciated by Kirby J in his [69] in Vetter v Lake Macquarie City Council was applicable to the DDT Act.
54 SIFC submitted that the view taken of s 32 of the CC Act by Kirby J in Vetter v Lake Macquarie City Council had been qualified by his Honour's concurrence in the unclarity voiced in Amaca Pty Ltd v New South Wales. The words in the later case were "may not be clear", and in my opinion they accommodated continuance of his Honour's view. SIFC submitted that s 32 of the DDT Act did not share the legislative history of s 32 of the CC Act, which is correct; but the legislature chose to frame s 32 of the DDT Act in the same terms as s 32 of the CC Act, and the preferable view is that s 32 of the CC Act as construed in the light of its legislative history was taken up for s 32 of the DDT Act.
55 SIFC accepted that s 32 of the DDT Act did not permit this Court to make its own findings of fact. It said that it did so because the legislative history of s 32 of the DDT Act included amendment from unfettered appeal to appeal only for error in point of law, and thus the legislature had indicated that it did not intend the Supreme Court to determine questions of fact but intended that questions of fact should be left to the Tribunal as a specialist tribunal. I do not adopt that reason for the acceptance, since amendment itself does not mean that the Supreme Court could not enter upon questions of fact: the error in point of law might be a jurisdictional gateway, but once through the gate the powers are broad, as postulated (but not accepted) by Kirby J in Vetter v Lake Macquarie City Council at [64]. In the construction of s 32 it is nonetheless material that the legislature created the Tribunal as a specialist tribunal and, by confining appeal to error in point of law, gave primacy to the Tribunal's position as fact-finder.
56 I remain of the view that, if it finds error in point of law, this Court cannot make for itself findings of fact necessary for disposal of the proceedings. That does not mean that, if error in point of law be established, remission to the Tribunal must always occur. The error may be such that, upon correction, this Court can dispose of the proceedings, for example if it be held that as a matter of law the appellant did not owe a duty of care to the respondent. If the findings of fact already made are sufficient for the purpose and there is no question of finding other facts, this Court can pronounce the result in law correct on those facts. If there be error in the admission or rejection of evidence, it may be that this Court concludes that the error did not affect the outcome, and accordingly the appeal is dismissed. These and like possibilities readily explain why s 32 provided that the Supreme Court "may" remit the proceedings to the Tribunal for determination and "may make such other order in relation to the appeal as [it] seems fit". They warrant reading "and" between the two limbs of s 32(2) as "or", and the congruence with s 57(2) of the LEC Act to which Handley JA referred in Maurici v Chief Commissioner of State Revenue. But the power to make such other order in relation to the appeal as the Court sees fit does not carry with it making findings of fact.
57 Having accepted that s 32 of the DDT Act did not entitle this Court to make its own findings of fact, SIFC submitted that making a fresh apportionment was in a different position because this Court would be making a normative decision based on the facts found by Duck J. It submitted that principles of finality of litigation supported that course, really meaning the desirability of having litigation brought to a conclusion in an expeditious and cost-effective manner. It said that this would be promoted if this Court made a fresh apportionment rather than remitting the proceedings for a fresh apportionment in the Tribunal.
58 The submission encounters the difficulty that in Vetter v Lake Macquarie City Council Kirby J posed at [63] whether the Supreme Court could "reconsider the facts found by the Compensation Court and reach its own conclusion about such facts", and at [70] described its powers as limited to "correcting decisions on a 'point of law' or on a question as to the admission or rejection of evidence". Making a fresh apportionment goes beyond correcting the judge's decision on a point of law. Other difficulties are that in Maurici v Chief Commissioner of State Revenue Handley JA excluded from this Court's powers a re-exercise of discretion, to which determining a just and equitable contribution under s 5 of the LR Act is analogous; and that in Roads and Traffic Authority of New South Wales v Perry Handley JA excluded from this Court's powers making findings of fact even where the primary facts were undisputed.
59 In my opinion, SIFC's the submission should not be accepted. The legislature's commission to the specialist Tribunal of proceedings in relation to dust-related conditions or deaths, including claims between defendants responsible in law for the conditions or deaths, pointed to primacy of the Tribunal not only in finding the primary facts but also in making decisions such as upon assessment of damages, negligence and determination of just and equitable contribution. By the body of experience built up in the Tribunal those decisions were to be informed and consistent, and supervision through appeal for error in point of law was not intended to extend to replacement by this Court of the Tribunal's decisions in those respects.
60 The nature of the Tribunal and the primacy of its position as fact-finder are material to whether alleged error in a process of evaluation or an exercise of discretion can be error in point of law, see Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653 at [28] per Spigelman CJ. It was there held that a balancing of conflicting public interests was not of itself determination of a question of law, but whether the result was reasonably open could raise a question of law. In the same way, the nature of the Tribunal and the primacy of its position as fact-finder is material to whether these evaluative or normative exercises are fact-finding left to the Tribunal.
61 Assessment of damages will ordinarily not be a decision on a question of law, see for example Wallaby Grip Ltd v Peirce [2000] NSWCA 299; Amaca Pty Ltd v Karakash [2004] NSWCA 79. It is important, here and in what follows, to distinguish between the nature of the decision and error of law or in point of law in coming to the decision. There may be error of law or in point of law in the course of a process of evaluation or an exercise of discretion, but for the particular enquiry (here the division of functions between the Tribunal and the Supreme Court on appeal) the decision made without error is a decision on a question of fact.
62 In relation to s 32 of the CC Act, the well-known discussion by Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-7 included the following pertinent observations -
"Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error, illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage any error made will by definition be an error of law. At the third stage when the law correctly stated is applied to the facts found in order to produce a conclusion error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the course of employment, substantial interruption to journey, or failure to provide suitable employment will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open: Hope v Bathurst City Council (at 10); Australian Gas Light Co v Valuer-General (at 138; 55). Accordingly this Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." (emphasis added)
63 Similarly, a conclusion on the application of a normative test will ordinarily be a decision on a question of fact, although if the conclusion was not open to be reached there may be error of law in coming to the decision.
64 In a jury case, whether the defendant has been negligent is a question of fact for the jury notwithstanding that it involves application of a legal standard of reasonableness with a normative content: see Tobin v Murison (1845) 5 Moo PC 110; 13 ER 431; Municipal Tramways Trust v Buckley (1912) 14 CLR 731 at 737-8 per Isaacs J; Swain v Waverley Municipal Council (2005) 213 ALR 249 at [6]-[8] per Gleeson CJ. In Naxakis v Western General Hospital (1999) 197 CLR 269 at [39] McHugh J stated that whether a defendant has been negligent is a question of fact, without limitation to a jury case. The nature of the application of the standard by a judge in the Tribunal in my view is the same; although of course there may be error in point of law if on the evidence it is not open to the judge to find negligence (cf Swain v Waverley Municipal Council at [8]).
65 As was said by McHugh J in Warley Pty Ltd v Adco Constructions Pty Ltd (CA, 30 November 1998, unreported), if a finding of fact involves the application of a legal standard it is possible that the reasonableness of the finding may indicate that the tribunal of fact has misdirected itself as to the standard applicable. But the finding on the correct legal standard remains a finding of fact, and his Honour went on -
"In my opinion no assistance in this area of law is obtained by reference to the approach in appeals against discretionary judgments. They are not appeals on questions of law. They are appeals on questions of fact or perhaps more accurately on questions of opinion. Where a discretionary judgment is involved, the same body of evidence may reasonably lead different persons to opposite conclusions. Consequently, appellate courts have imposed upon themselves the rule that they will not interfere with a discretionary judgment unless it is the product of error (fact or law) or is plainly wrong. But that class of appeal does not concern and in my opinion does not provide any analogy with appeals on questions of law."
66 Determining a just and equitable contribution under s 5 of the LR Act is in my view in a similar position. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-4 the High Court adopted the description of a finding on a question of apportionment as a finding upon a "question not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may be differences of opinion by different minds". There is the application of a legal standard with a normative content, but in the division of functions between the Tribunal and the Supreme Court on appeal it is in my view a decision on a question of fact. It is not open to this Court to make for itself such a decision in substitution for that made by Duck J.
67 That it is correctly seen as a finding of fact is underlined by the following. The primary facts before Duck J were the affidavit of Mr Dankworth and, through s 25(3) and perhaps s 23B(1A) of the DDT Act, facts in Gibson's case and perhaps other cases. I have set out the matters of fact in para [12] of the reasons of Duck J. It is very difficult for this Court properly to understand what is clearly a summary by his Honour, without regard to the underlying facts, which must have come from Gibson's case and perhaps the other cases. This Court could not satisfactorily make a fresh apportionment simply upon what is stated in his Honour's para [12], without a more full understanding of the primary facts. Further, this Court would be arriving at the just and equitable contribution to be made by Patrick in respect of 75 per cent of Mr Dankworth's damage, with an altered bearing of the facts on the critical elements of blameworthiness and causal potency of the negligence of each party. It would be making a wholly fresh apportionment on facts going beyond those stated by Duck J. That is a task for the Tribunal. Even if there were power in this Court to undertake it, I do not think it should do so.