[36] It was common ground that the appeal to this Court from the decision of the primary judge was confined to a question of law. The relevant principles as to what constitutes a question of law were articulated by Glass JA, with whom Samuels JA agreed, in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-157. They were summarised by Clarke JA, with whom Hope and McHugh JJA agreed, in Randwick Municipal Council v Manousaki (1988) 66 LGRA 330 at 333-334. In both those cases reliance was placed upon the following statement of Jordan CJ in McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8 at 9 where his Honour said (omitting citations):
The question whether there is any evidence of a particular fact is also a question of law. 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.
[37] Furthermore, perverse or unreasonable findings of fact do not constitute errors of law: Azzopardi at 155-157; Randwick Municipal Council v Manousaki at 333; cf Hill v Green (1999) 48 NSWLR 161 at 209-210. That proposition is only subject to the exception that the court will correct perverse or unreasonable applications of the law to the facts found: Azzopardi at 157; So v So [2004] NSWCA 67 at [31]. However, the present is not such a case. Although the appellant challenges the primary judge's ultimate finding of fact that the respondent's injuries arose out of the course of his employment, the success of the challenge depends upon the appellant's attack upon his Honour's primary finding of fact (which underpinned his ultimate finding of fact) that, at the time of the assault, he had in his possession $8,000 in cash which he intended to use for the purpose of paying himself and the appellant's employees. In this context, in Azzopardi Glass JA observed (at [156]):
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 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.
[39] In Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697 at 711 ([46]), Hodgson CJ in Eq (with whom Sheller and Beazley JJA agreed on this point) noted that in Glass JA's judgment in Azzopardi:
A clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and a situation when the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence, which if fully accepted could properly base the finding of fact.
17 Their Honours drew attention to So v So where Santow JA [with whose reasons Meagher and McColl JJA agreed] had made the following observations: