Ground H (1) - Pleading E (f)
65There appeared to be two bases upon which the appellant contended that the Commissioner's decision that the directions were unreasonable represented a decision on a question of law.
66First, the appellant contended that the determination that the directions were unreasonable could be so categorised because the Commissioner posed for himself the wrong question as part of applying the wrong (punitive) test.
67Secondly, the appellant contended that the Commissioner made errors in the finding of facts which underpinned his ultimate finding of unreasonableness. This was reflected in par E (f), whereby it was pleaded that the determination by the Commissioner that the directions were unreasonable itself constituted a decision on a question of law. Further, in the 'bracketed section of par E (f)', it was further pleaded that "in coming to this decision on the question of law" the Commissioner:
(1)Had regard to irrelevant considerations; and
(2)Failed to take into account or give sufficient weight to relevant considerations.
68This challenge to the Commissioner's primary findings of fact took two correlated forms. First, there was a challenge to his central reasoning process by which he found, in essence, that the directions were unreasonable because there was no "functional requirement" to seek a medical assessment in the circumstances, given the respondent was not suffering from an ongoing psychiatric condition and the Department had no intention of compelling her to resume work in the CPD. Secondly, the appellant posited an alternative hypothesis that, contrary to the Commissioner's decision, there was, in fact, a legitimate basis upon which to direct the respondent to attend a medical assessment.
69The appellant submitted that the Commissioner's "cumulative misunderstanding of the evidence" led him to err "on a number of findings". The appellant contended that, in consequence of those errors, the Commissioner reached a finding which was not open to him or was not available on the evidence. It was submitted that, had he engaged in a proper consideration of the evidence, the Commissioner would have necessarily found that the directions were reasonable for the following reasons:
(1)The respondent had an existing psychiatric condition, which was evidenced by her continued incapacity to work in her substantive role in the CPD (as certified by her treating doctor and the fact that her treatment plan, which included review by a psychologist, was current).
(2)A medical assessment, given the respondent's restrictions with respect to her psychiatric condition as well as her RSI, would assist the Department to place her in suitable duties. The business records of the Department demonstrated that the medical assessment was sought for these purposes.
(3)It had been several years since the respondent's last independent medical assessment and it was the Department's responsibility to have this assessment updated.
70However, the appellant did not explain with any precision how the Commissioner's findings as to such matters constituted a decision on a question of law.
71The respondent contended that both the primary and ultimate findings of the Commissioner in that regard were findings of fact. This contention was supported by the authority in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; 113 IR 461 at 476 ('Blackadder'). In Blackadder, Madgwick J found that the question of whether it is reasonable for an employer to direct an employee to attend a medical assessment "will always be a question of fact" (at 476).
72The first basis by which the appellant contended that the Commissioner's determination that the directions were unreasonable cannot be accepted. It wrongly conflates two distinct issues, namely, whether the Commissioner was in error in confining his attention under s 100C to whether the misconduct was made out and whether the Commissioner erred in determining that the Director-General had invalidly exercised (putting aside the notice of contention) his undisputed common law power to issue a direction to attend a medical assessment due to the direction being unreasonable. It was the former and not the latter question that resulted in the Commissioner posing the wrong question (resulting in a decision on a question of law).
73As to the second basis, the manner by which the appellant advanced that its case, and the rejoinder by the respondent, necessarily called attention to the judgment of the Court of Appeal in Azzopardi (although that authority was not addressed in the submissions of the parties).
74In Azzopardi, the Court considered an appeal against a decision of the WCC refusing compensation on two grounds; the first of which was whether the Commission had come to a conclusion that was not open to it. That ground was particularised as follows:
1. It was not open to him to find that the applicant had not suffered an injury to his right knee.
75It was contended that there were no objective factors in evidence sustaining the conclusion reached by the Commission in that respect.
76A question before the Court was whether an appeal lay to the Court of Appeal under s 37(4)(a) of the Workers' Compensation Act 1926, which limited appeals "in point of law or in relation to the admission or rejection of any evidence".
77Glass JA (with whom Samuels JA agreed) concluded that an appeal to the Court upon that (first) ground of appeal was not open as it did not concern a point of law. After reference to a line of authority commencing with McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8, Glass JA gave the following reasons for his conclusion (at 155 - 157):
Although the two grounds were simultaneously expounded in this manner and used to buttress each other it is necessary to consider them separately in order to determine whether a question of law has been raised. If it is not, this Court has no jurisdiction since the power of the Workers' Compensation Commission to determine the facts affecting any claim is made exclusive and its determination of them is final, Workers' Compensation Act 1926, ss 36, 37. The first ground challenges the conclusion below that the applicant failed to establish that he injured his knee on a periodic journey on 4 October 1975. There are authoritative pronouncements that such a contention involves no question of law:
The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111. But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it."
McPhee v S Bennett Ltd (1935) 52WN(NSW) 8 at 9. (Emphasis supplied.)
...
It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.
A finding of fact in the Commission may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57WN53 at 55. The decision here assailed is not of that character.
...
To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence.
...
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 cause 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.
...
Returning to the first ground of appeal in the light of these considerations, it follows that no question of law is disclosed. As it happens, the three objective facts on which reliance was placed in making the finding below are in my opinion capable of being supported by evidence which the trial judge did not misapprehend. But I do not propose to quote chapter and verse in support of this opinion since this would involve a resort to the evidence to answer a question which not being a question of law cannot be raised and calls for no answer.
78Kirby P dissented in Azzopardi. His Honour did not consider that perverse decisions on questions of fact or decisions demonstrably manifesting error or illogicality of process should be beyond the reach of appellate review concerning a point of law (at 148). However, his Honour did, nonetheless, consider that the challenge permitted in an appeal on a point of law must be tightly restrained (at 151):
The court is limited, relevantly, to points of law. The finding of what
have been called the primary facts of a case does not, in itself; expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence. Where the evidence points
only in one direction, and, as in Poricanin the trial judge nonetheless states that he disbelieves it, the onus being upon that person, the court, on appeal, may not intervene.
79In Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 ('Roncevich'), some twenty years after his dissent in Azzopardi, Kirby J observed that, since the judgment in Azzopardi (which affirmed Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426), it had been "repeatedly held that even perverse or unreasonable findings of fact do not constitute errors of law" (at [67]). More recently, in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 ('AB v DPP'), Sackville AJA (with whom Adamson J agreed) stated (at [69]) that Azzopardi "continues to be applied in New South Wales and remains good law in this State unless and until overturned". (It may be noted that the judgment in Azzopardi has been the subject of judicial consideration in the context of judicial review with respect to the 'no evidence' test, where a broader formulation may be adopted: see discussion in CA Ford Pty Ltd v Comptroller-General of Customs (1993) 46 FCR 443 at 446. This does not impact upon the influence of that authority for present purposes.)
80Although the judgment in Azzopardi concerned a different form of statutory appeal (and not one confined to a 'decision on a question of law'), there is nothing in that judgment which would properly distinguish its applicability to the present matter. There are three reasons for this view.
81First, the reasons for the judgment of the majority and minority in Azzopardi do not turn upon the meaning of the expression 'point of law' but deal more generally with appeals upon a question of law (see, for example, the judgment of Glass JA at 155).
82Secondly, Azzopardi has been applied in the context of appeals under s 54 of the GREAT Act (the counterpart of s 197B): see Donlan (at [14]) and Lambert (at [69]).
83Thirdly, and without seeking to engage in taxonomy (see Kostas at [89]), the jurisdictional ambit in the present matter, namely, a 'decision on a question of law' would seem to be a narrower class of appeal than that considered by the Court of Appeal in Azzopardi (see Lambert at [58] and [59]), thereby permitting a comfortable margin for applying those principles to the aspects of the Commissioner's decision presently under consideration.
84It follows from the principles stated in Azzopardi that a primary finding of fact will not be amenable to appeal under s 197B(1), even if it may be said to be against the weight of or not reasonably open on the evidence (including where the competing evidence is strongly against the finding made below) or if it is infected by unsound reasoning (such that no reasonable person may have reached the conclusion). So, too, are perverse primary findings of fact protected from review under statutory appeals limited to questions of law.
85It might be noted that this appeal did not attract a submission that a finding of fact by the Commissioner was perverse as such (although the appellant did make a submission of that character with respect to what the appellant contended was the Commissioner's finding of an alternate motive for requiring the respondent to submit to a medical assessment). In this respect, reference may be made to Kirby J's observation in Roncevich (at [68]), "if 'perverse' findings of fact are protected from disturbance by courts limited to a jurisdiction confined to correcting errors on questions of law, a conclusion which is far from 'perverse' is even more obviously protected from disturbance".
86Upon the authority in Azzopardi, an ultimate finding of fact may nonetheless reveal an error of law in the following circumstances:
(1)Where it appears that the trial judge has, in an ultimate finding of fact, "defined otherwise than in accordance with law the question of fact which he has to answer".
(2)Even in the absence of misdirection of that kind, an ultimate finding of fact may reveal an error of law if the primary facts found "are necessarily within or outside a statutory description and a contrary decision has been made". However an erroneous conclusion that facts properly determined fail to satisfy a statutory test will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not as a matter of law because no other application is reasonably open. It would appear that the same principle may be applied in relation to a common law test such as is found in the present case.
(3)Where a party not bearing the onus of proof on a question establishes there was no evidence of a primary fact in issue.
87Accordingly, the IR Act does not allow this Court to correct an error of fact under s 197B, except to the extent the finding of an ultimate fact below reveals an error of law in the manner contemplated above.
88With these principles borne steadily in mind the second basis of the appellant's contentions may be evaluated.
89The starting point for that analysis is a recognition that the appellant did not contend that the Commissioner erred in his conclusion that the Director-General may, at common law, make a direction to attend a medical assessment and that the validity of the exercise of that power was dependent upon the reasonableness of the direction.
90In my view, and in that context, the proper characterisation of the Commissioner's determination of the reasonableness of the directions is that of a finding which involved the application of the law (in this case the agreed common law principles) to primary facts in order to reach an ultimate conclusion of fact (see Azzopardi at 157). Thus, the determination of reasonableness was the ultimate finding of fact in relation to the legal question resolved by the decision referred to in par E (e) of the Notice of Appeal.
91The veracity of this conclusion (as to the nature and character of the subject decision by the Commissioner) is implicitly recognised by the inclusion in the bracketed section of par E (f) of the Notice of Appeal to which I referred above. As the appellant's submissions demonstrate, this pleading was plainly in reference to primary findings of fact.
92This conclusion is supported by the authority. First, there is the judgment of Madgwick J in Blackadder to which I have referred above. Secondly, by analogy, in Collector of Customs v Agfa-Gervaert Limited [1996] HCA 36; (1996) 186 CLR 389 (at 395-396), it was held that "when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or not is one of fact".
93This conclusion does not, in itself, dispose of the appellant's second contention. As I will find at the conclusion of the discussion, the principles in Azzopardi preclude from a statutory appeal confined to decisions on a question of law an appeal against primary findings of fact, per se, however those challenges are advanced in argument so as to appear as questions of law. Nevertheless, upon the principles in Azzopardi, the ultimate finding of fact as to reasonableness may reveal an error of law, even though, the application of such principles to the second basis advanced by the appellant in the present case ultimately supports no such finding. The reasons for that conclusion appear below.
94First, in Azzopardi, Glass JA found that an error of law may be revealed where a decision-maker has misdirected himself by defining otherwise than in accordance with law the question of fact which must be answered (at 156). As mentioned above, it was not argued here that the Commissioner applied the wrong test as to whether the validity of the exercise of the common law power to direct an employee was dependent on the reasonableness of the direction. The Commissioner did not, therefore, define otherwise than in accordance with law the question of fact he had to answer.
95Secondly, in the absence of a misdirection of the kind referred to in the previous paragraph, Glass JA found that an ultimate finding of fact may nevertheless reveal an error of law "if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made" (at 156). No such issue arose in the present matter.
96Even if the Commissioner reached an erroneous conclusion that the primary facts (properly determined) failed to satisfy that a common law power to direct (vis á vis the reasonableness of the direction) was invalidly exercised, that determination would only represent an error of fact. It could not be (and was not) contended that an alternative finding to that made by the Commissioner was the only one available. As will be later discussed, the Commissioner addressed "relevant indicium" in order to make a determination of the issue which was before him.
97At first instance, the Commissioner found, in essence, that the directions were unreasonable because there was no "functional requirement" to seek a medical assessment in the circumstances, given that the respondent was not suffering from an ongoing psychiatric condition and the Department had no intention of compelling her to resume work in the CPD. The finding that the directions were unreasonable was an available conclusion upon those findings.
98Thirdly, there was no suggestion here that there was no evidence whatsoever to sustain the Commissioner's findings.
99It follows that, in accordance with applicable principles, the decision of the Commissioner as to the ultimate fact (qua the reasonableness of the directions) does not reveal an error of law and, by dint of that conclusion, is not a decision which is amenable to appeal under s 197B of the IR Act.
100I have earlier set out in [93] of this judgment why the manner by which the appellant formulated the remainder of the challenges to the Commissioner's decision was impermissible, having regard to the limitation of the statutory appeal under s 197B of the IR Act, as they represented attacks upon the primary fact finding of the Commissioner which, to use the words of Glass JA in Azzopardi (at 155), relied upon "various pejorative expressions" possessive of a single and interchangeable meaning to denote an erroneous finding of fact. As Glass JA observed at 155 to 156:
To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways...any argument that the finding of a Workers' Compensation Commission judge is vitiated in [that] way discloses no error of law and will not constitute a valid ground of appeal.
101The aptness of Glass JA's description of challenges to findings of fact to the appellant's contentions may be readily demonstrated in the present case.
102The appellant's contention that the Commissioner 'misunderstood' the evidence is, in substance, a submission that the Commissioner's findings were contrary to the overwhelming weight of the evidence, primarily, in that respect, it may be presumed, his finding that, based upon the medical evidence, the respondent was not suffering from an existing psychiatric condition.
103The remaining challenges variously contended that the findings were made against the weight of the evidence, lacked probative force, or failed to take into account particular aspects of the evidence, such that the assessment of the evidence was unreasonable.
104This may be illustrated by reference to the appellant's submissions as summarised in [69] of this judgment.
105The challenge outlined above in [69(1)] seeks to contradict a finding made by the Commissioner that the respondent was not suffering from an existing psychiatric condition. Having regard to the medical evidence, the appellant contended that the Commissioner's conclusion was against the weight of such evidence.
106By the submissions outlined in [69(2)] above, the respondent contended that the Commissioner ignored the probative force of the evidence and pointed to an alternative hypothesis as to why a medical assessment was sought (although it might be noted that the Commissioner's conclusions were predicated upon the fact that an assessment of such suitable duties was unwarranted because of the absence of an ailment requiring assessment by a psychiatrist and the prior determination of the Department that it was unnecessary to place the respondent in the CPD).
107As to [69(3)] the contention seems to be that the Commissioner did not make a reasonable assessment of or properly understand the basis upon which a medical assessment may be sought (although similar observations may be made as with respect to [69(2)] above.
108According to the principles in Azzopardi, these elements of the appellant's case demonstrate that the appellant's contention merely sought to vitiate the decision at first instance by means of the correction of errors of fact and not law.
109For completeness, it might be noted that the appellant did not support, by submission, that component of the bracketed section of par E (f), which pleaded that the Commissioner had taken into account irrelevant considerations.
110A further matter is appropriate to mention in this respect.
111The appellant contended that the Commissioner found that the Human Resources branch of the Department may have sought a medical assessment of the respondent by a psychiatrist "because of the extreme and colourful nature of her allegations of corruption", rather than as a result of any "ongoing psychiatric illness" (by reference to [148] of the decision below). However, this contention misunderstands the conclusion of the Commissioner in this respect. True, it is, the Commissioner contemplated the motivations of the Department in directing the respondent to attend a medical assessment in circumstances where, upon his findings, there was no reason to do so based on the materials provided by the respondent's doctors. Nevertheless, he expressly eschewed drawing a conclusion of the kind contended for by the appellant because of his prior determination that such issues, which related to the correspondence sent by the respondent to the Director-General, particularly the December and January letters, were irrelevant to the disposition of the appeal below (due to his findings as to the test or the relevant questions applicable to the exercise of his power under Pt 7 of the IR Act). In fact, the Commissioner stated that, if the HR branch was motivated by the respondent's correspondence it would be "not at all to the point". Whilst this is further suggestive of the Commissioner's erroneous approach in excluding from consideration the December and January letters, it is not reflective of a ruling of the character the appellant sought to impugn.
112There are two final considerations with respect to par E (f).
113First, I note that counsel for the respondent submitted that, at worst for her case, the question of the reasonableness of the direction represented a mixed question of fact and law. Some support for that contention lies in authority concerning unfair dismissal matters (see Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 ('Burge') and Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at pp 181 and 182) and, for that reason, may not be apposite in the present context.
114In any event, if a decision as to the reasonableness of the directions issued by the Director-General did constitute a mixed question of fact and law, it would nonetheless not be amenable to an appeal brought under s 197B. A mixed question of fact and law would be amenable to review where the statutory gateway for an appeal concerned "a question with respect to a matter of law" (see Kostas at [25]) but would not, in my view, extend to the present class of statutory appeal. This is because, as the Court held in Kostas (at [24]), the "extent of the term "a question with respect to a matter of law" is controlled by the words 'with respect to'", whereas a 'decision on a question of law' is, by contrast, more strictly limited by its terms, as earlier discussed in this decision.
115Secondly, as to the Commissioner's determination that the directions issued by the Director-General were unreasonable, it may be recalled that in Azzopardi (at 157), Glass JA concluded the following as to the first ground of appeal in that case (which was extracted above):
...As it happens, the three objective facts on which reliance was placed in making the finding below are in my opinion capable of being supported by evidence which the trial judge did not misapprehend. But I do not propose to quote chapter and verse in support of this opinion since this would involve a resort to the evidence to answer a question which not being a question of law cannot be raised and calls for no answer.
116That same conclusion is available in the present case. To use the language of Kirby P in Azzopardi (at 152), the considerations entertained by the Commissioner as to the conclusion that the directions were unreasonable appear to be "relevant indicium" to determine the central question that he posed for himself, namely, whether the respondent's direction to attend a medical assessment by the Director-General was reasonable.
117The Commissioner concluded that there was no warrant to direct the respondent to attend a medical assessment as, relying on the evidence of or inferences drawn from the report of Dr Dowda and the certificates provided by Dr Nguyen, both of which attested to the respondent's fitness for work outside of the CPD, she was not suffering an existing psychiatric condition. In fact, Dr Dowda expressly stated that the respondent was "medically...fit for work" and was able to work within both her substantive position of Senior Business Support Officer and in the position that she temporarily occupied in the Crown Solicitor's Office "without restriction or limitation", yet recommended that she not resume work in the CPD due to the "unresolved interpersonal/human resources issues that have apparently festered on from the time of instigating the workplace grievance". In circumstances where the appellant had expressly disavowed an intention of challenging the only relevant restriction on the respondent undertaking her duties, which was an incapacity to work within the CPD or the building in which it was located, there was, therefore, evidence to sustain the Commissioner's conclusion that for the Director-General to direct the respondent to a medical assessment was unreasonable. Each of those indicia constituted evidence supporting the hypothesis that the Commissioner came to in his decision.
118It cannot be said, in my view, that the Commissioner's reasoning was unreasonable, irrelevant or illogical. It is irrelevant, upon the authority in Azzopardi, whether any other conclusion, even if demonstrably preferable, may have been reached from those findings of fact.
119In my view, as observed above, the decision relied on by the appellant in par E (f) of the appeal (to sustain ground H (1)) does not represent a decision on a question of law and is not amenable to the jurisdiction of the Court.