Workers Compensation - Proceedings to obtain compensation - Determination of claims - Appeals, judicial review, stated cases - Question of law - Particular cases - Whether appeal grounds errors of fact or law - Whether failure to give adequate reasons for determination and to make findings an error of law.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss25, 63.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Hanlon v McKay Investments Pty Ltd & Another [2001] TASSC 37; (2001) 10 Tas R 247, followed.

Pataki v University of Tasmania [2000] TASSC 144; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, referred to.

Judgment Number: [2007] TASSC 108

1 From 2003 to 2006, Carole Ann Hughes ("the respondent") was employed by Youth & Family Focus ("the appellant") as a mediator in Devonport. In May 2006, she made a claim for workers compensation arising out of what was described as a stress injury at work. She was initially paid benefits which I infer were stopped at some point. On 7 August 2006, her claim for compensation was referred to the Workers Rehabilitation and Compensation Tribunal ("the tribunal") pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s42, for determination of inter alia "A claim for reinstatement of sick leave entitlements ...". The reference to the tribunal ultimately resulted in a hearing. The appellant disputed liability, relying on the Act, s25(1A)(c). The tribunal found in favour of the respondent and it is from that decision the appellant now appeals. The respondent has cross-appealed.

2 The Act, s25(1) and (1A)(c), relevantly provides:

(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A)-

his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants.

25 (1A) Compensation is not payable under this Act in respect of a disease which is an illness of the mind or a disorder of the mind and which arises substantially from-

(c) reasonable administrative action taken in a reasonable manner by an employer in connection with a worker's employment;"

"any ailment, disorder, defect, or morbid condition, whether of sudden or gradual development;"

(b) the recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease where the employment was the major or most significant contributing factor to that recurrence, aggravation, acceleration, exacerbation or deterioration;"

4 The respondent had the onus in the tribunal of satisfying it that:

- she suffered an injury which was a disease, and

- it was a disease to which her employment contributed to a significant degree.

Once the respondent had discharged that onus, the appellant became liable to pay her compensation. However the appellant sought to rely on s25(1A)(c) to avoid payment of that compensation. In those circumstances, once the respondent had discharged her onus, the onus moved to the appellant to satisfy the tribunal that:

- the disease from which the respondent suffered was an illness or disorder of the mind (a matter which the respondent in all likelihood had already proved to the satisfaction of the tribunal);

- that disease arose substantially from administrative action by the appellant;

- that administrative action was reasonable; and

- the administrative action was taken in a reasonable manner.

The respondent also sought a finding that her illness was a recurrence of one suffered in 1998, rather than a new condition, because she sought to argue that in such circumstances, s25(1A)(c) did not apply at all.

5 The tribunal found that the illness of the respondent was a new condition and not a recurrence of an earlier one. It then found that the action of the respondent's direct supervisor, Mr Gaffney, and hence the appellant, was reasonable administrative action, but that it was not taken in a reasonable manner. These findings resulted in an order that the appellant pay compensation to the respondent.

6 The appellant's grounds of appeal were as follows:

"1 The learned Commissioner erred in law in finding that it was unreasonable for the Appellant to speak to the Respondent in a direct and uncompromising way."

2 The learned Commissioner erred in law in failing to give any or any adequate reasons why it was unreasonable for the Appellant to speak to the Respondent in a direct and uncompromising way.

3 The learned Commissioner erred in law in failing to make positive findings of fact regarding what evidence, and from which witness/s, he accepted in holding that the Appellant spoke to the Respondent in a direct and uncompromising way."

4 The learned Commissioner erred in law in failing to make any or any appropriate findings as to whether or not the Appellant was aggressive in the circumstances.

5 The learned Commissioner erred in law in failing to give any or any adequate reason as to what conduct of the appellant was aggressive.

7 [sic] The learned Commissioner erred in law in failing to make positive finding of fact as to what conduct of the appellant was aggressive.

8 The learned Commissioner erred in law and failing to make any or any adequate positive findings of fact regarding the reliability of the Respondent's and other witnesses' evidence concerning what conduct of the appellant was aggressive and/or direct and uncompromising.

9 The learned Commissioner erred in law in holding that it was not reasonable for the Appellant to choose the kitchen as the venue for the meeting with the Respondent.

10 The learned Commissioner, having held that the Respondent's injury arose out of the meeting on 10 May 2006, erred in law in failing to make any or any positive finding as to what aspects of the meeting, namely the location of the meeting, the manner in which the Appellant spoke to the Respondent, whether the Appellant was direct and uncompromising or aggressive and/or the Appellant presenting its decision as a fait accompli or some other cause including the change to the Respondent's day off each week, were causative of the Respondent's injury, prior to considering whether the injury arose out of reasonable administrative action that was taken in a reasonable manner.

11 The learned Commissioner erred in law in holding that it was unreasonable for the employer to present its decision as a fate accompli.

12 The learned Commissioner erred in law by having regard to irrelevant considerations in holding that the Appellant's reasonable administrative action was taken in an unreasonable manner by the Appellant, namely the location of the meeting in the kitchen and the Appellant presenting the decision as a fait accompli, as the Respondent's injury did not arise substantially from these considerations."

7 The cross-appeal by the respondent was in the following terms:

"1 The learned Commissioner erred in law in finding that the disease presenting in 2006 was not a recurrence of a disease suffered in 1998 as the Respondent had made full recovery from the 1998 (sic) disease, had not required any treatment for the disease for several years prior to May 2006, was not taking any medication, was asymptomatic and was able to function normally in all aspects of her life including her employment."

8 Pursuant to the Act, s63(1), a party aggrieved by a decision of the tribunal may challenge, by way of appeal to this Court, "any determination, order, ruling, or direction of the Tribunal, in point of law." Such a party may not assert an error of fact by the tribunal as a ground of appeal.

9 The respondent submitted that the errors asserted by the appellant were errors of fact, not law, and, as such, not appealable errors. Were that argument to succeed it would largely dispose of the appellant's appeal. An issue raised by the appellant in a number of its grounds was the adequacy of reasons of the tribunal. A consideration of that issue could also have a major impact on the outcome.

10 The issue of what constituted an error of law was canvassed in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 where Glass JA, with whom Samuels JA agreed, said at 155 -156:

"... it is necessary to consider [the grounds of appeal] 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) 52 WN (NSW) 8 at 9_._ (Emphasis supplied.)

In another workers' compensation case Dixon J, as he then was, put the position in the following words:

'... the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law.'

Clark v Flanagan (1934) 52n CLR 416 at 428.

The juristic status of the first ground of appeal is also illuminated by the following two passages:

'... Indeed, more often than not, it is a question whether, having regard to the great probative force of the evidence, the Court in Banco, in the exercise of its control, ought to set aside the verdict as perverse.'

Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 379:

'... If the jury find for the plaintiff, and the Full Court rules that the rebutting evidence is overwhelming, it is expressing the opinion that the defendant was, as a matter of fact, not of law, entitled to a verdict.'

De Giola v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 5; 59 WN 22.

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] HCA 69; (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] HCA 16; (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126, at 138; 57 WN 53 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. Finally, the burden of proof to which the applicant is subjected cannot be masked by the use of double negatives. A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof."

11 In Hanlon v McKay Investments Pty Ltd & Another [2001] TASSC 37; (2001) 10 Tas R 247, Evans J quoted the above passages from Azzopardi and then said at par15:

"The decision of Glass JA in Azzopardi was applied by the Full Court in Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12 with respect to the issue of whether the appeal raised matters 'in point of law' as required by the Justices Act 1959, s123(1). Wright J said, at par33:

'It is easy enough to dress up questions of fact as though they were questions of law, and it is apparent that there has been an attempt to do this in the present case. It is important, therefore, to bear in mind the decision of the Court of Appeal in New South Wales in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. In that case, the court was considering a provision in the Workers Compensation Act 1926 (NSW), s37(4)(a) which provided that a party aggrieved in proceedings before the Workers Compensation Commission might appeal to the Court of Appeal upon motion in relation to a "point of law" or "in relation to the admission or rejection of any evidence" - limitations similar to those finding expression in the Justices Act, s123(1). The majority of the court held that the relevant section did not allow the Court of Appeal to correct errors of fact and any argument that a finding of fact was perverse, contrary to the overwhelming weight of the evidence, was against the evidence or the weight of the evidence, or that it ignored the probative force of the evidence, which is all one way, or that no reasonable person could have made that finding, or that the reasoning by which the court arrived at the finding was demonstrably unsound, did not disclose a valid ground of appeal because such contentions did not disclose any error of law. As Glass JA observed at 156:

"A purported ground of appeal which submits that there was no evidence that or it was not open to find that the applicant was not injured constitutes a futile attempt to convert a question of fact into a question of law by inverting the onus of proof."

This observation has direct application to some of the grounds which were argued before this Court. The New South Wales Court of Appeal acknowledged that the question whether there is any evidence of a particular fact is a question of law, but pointed out if there is evidence of the fact, the question whether or not 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.'

The members of the Full Court in Hosken did not advert to any distinction between the position of an appellant attacking an adverse finding on a matter as to which the appellant bore no onus of proof and the position of an appellant attacking a failure to make a finding in the appellant's favour on a matter as to which the appellant bore the onus. Accepting that the position of these appellants differs in the manner identified by Hodgson CJ in Ambulance Service of New South Wales v Daniel, the distinction is of no consequence in this instance. The appellant challenges the Commissioner's failure to make a finding in the appellant's favour on a matter on which he bore the onus of proof. The full force of the decision of Glass JA in Azzopardi applies to such a challenge and the appellant must overcome the obstacle presented by the principles there enunciated."

"The appellant challenges the Commissioner's failure to make a finding in the appellant's favour on a matter on which he bore the onus of proof. The full force of the decision of Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) applies to such a challenge and the appellant must overcome the obstacle presented by the principles there enunciated."

"(1) The issue for determination by the Commissioner was whether the disease arose out of and in the course of the appellant's employment and to which his employment contributed to the requisite degree; that was a question of fact, not a question of law.

(2) An error of law is made out if it is established that although there was evidence relevant to the matter, even if fully accepted, it could not properly support the finding.

(3) However, where the error asserted is a failure to be satisfied of a matter on which an appellant bore the onus of proof, no error of law is involved, as the issue raised is not as to the insufficiency of evidence to support the finding.

(4) An assertion that it was not open in this case for the Tribunal to find that the appellant's disease was not work caused, was a futile attempt to convert a question of fact into one of law."

13 I agree with the conclusions reached by Evans J.

14 Counsel for the respondent also referred directly to the words of Glass JA in Azzopardi's case (supra) where, at 156 - 157, he said:

"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."

15 In the present case, counsel for the respondent submits that the appellant bore the onus of proof of satisfying the Court about the matters I identified in par4. The challenges to the tribunal's findings are largely that it erred by failing to be satisfied that the appellant had made out its case by reference to s25(1A)(c). As such, these challenges were to findings of fact and could not constitute errors of law. Counsel for the appellant did not address the submissions as to the law on this issue to any significant degree.

16 Counsel for the appellant submitted in support of a number of grounds of appeal (grounds 2, 3, 5 and 8) that the tribunal failed to give adequate reasons and that these failures amounted to errors of law. Two issues arise from these grounds. Firstly, does a failure to give adequate reasons amount to an error of law? If so, what constitutes adequate reasons?

17 In Pataki v University of Tasmania [2000] TASSC 144, Cox CJ dealt with an appeal pursuant to the Act, arising out of a decision of the tribunal where a defence pursuant to s25(1A)(c) was relied on. At par14 his Honour said:

"In Attorney-General for Tasmania v Smith A87/1994, Zeeman J said at 8 - 9:

'The appellant has raised as a ground of appeal what is said to be an error of law on the part of the Commissioner in failing to give any sufficient or adequate reasons. As Underwood J has recently explained in Australian Securities Commission v Schreuder A79/1994, it is "an incident of judicial duty to give adequate reasons for judgment and that a failure to do so constitutes an error of law." His Honour was speaking of the common law duty. The Act, s61(3) imposes an express obligation on the Commissioner to provide a written statement of his reasons for making a determination which is given effect to by an order in respect of a claim for compensation. The principles expressed by Underwood J are of equal application to the statutory duty imposed by s61(3). An application of those principles required that the Commissioner:

1 make findings with respect to the essential facts relied upon by the parties relevant to the references before him;

2 where the evidence with respect to any fact was in dispute or unclear, state the basis for making a particular finding in respect thereof;

3 where appropriate, state the inferences drawn from the facts found and, where necessary, the basis for drawing such inferences;

4 expose the reasoning process which resulted in his determination to the scrutiny of the parties and any appellate court.'

See also Burgess v Umina Park Homes for the Aged (1993) 2 Tas R 246; Gulf Industries Pty Ltd v Barnett (1996) 6 Tas R 142; McCain Foods (Aust) Pty Ltd v Williams 25/1997; Roberts Ltd v Barker 137/1998; Barnett v Gulf Industries Pty Ltd [1999] TASSC 4. In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Kirby P said at 258:

'This is a consideration of particular importance in the instant case because of the fact that appeals are limited to questions of law. That does not exempt the judge from logical and reasoned decisions on questions of fact duly justified where they have been contested. On the contrary, because the judge is in this respect the final arbiter, and is not a juror, the duty to expose his or her reasons, however briefly, is enhanced, not diminished.'

'This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues. Only if this is done can this Court discharge its functions, if an appeal is brought to it. Where nothing exists but an assertion of satisfaction on undifferentiated evidence the judicial obligation has not been discharged. Justice has not been done and it has not been seen to be done.'"

18 Counsel for the respondent submitted that there was a line of authority in the South Australian courts to suggest the issue of whether a failure to give reasons amounted to an error of law or fact was still open for debate despite authorities such as the above. Her argument as a consequence was that the grounds of appeal raised by the appellant in relation to adequacy of reasons were asserted errors of fact not law and as such not appealable errors. Alternatively, if that were not accepted, she submitted that the reasons of the tribunal in this case were not inadequate, and, even if it could be said they were, the error did not amount to a miscarriage of justice such as to warrant the appeal in this matter being upheld.

19 In Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444, Meagher JA said about the result of an inadequate statement of reasons:

"It does not automatically follow that because the reasons for decision are inadequate then an appealable error has occurred. Examination of nearly any statement of reasons with a fine-tooth comb would throw up some inadequacies. Indeed, an appeal court will reserve any intervention to those situations in which it is left with no choice: where no reasons have been given in circumstances where there was an obligation to provide them and in circumstances where a statement of reasons is so inadequate as to constitute a miscarriage of justice. In other words, the statement of reasons must be looked at as a whole and the material inadequacies identified and considered."

Blow J referred to this same passage in Fruin v White [2005] TASSC 25 in the context of a review of a decision of a magistrate.

20 Both issues were dealt with in Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247 at 259 where Kirby P said:

"The absence of proper reasons constitutes, as has been pointed out, an error law. It authorises the intervention of this Court. The decision does not mean that the limitation of appeal on factual questions laid down by the Act and reinforced by Azzopardi, Guven and Ladado Pty Ltd v Krinis is circumvented. If a judge of the Compensation Court, by indicating even in brief terms, his processes of reasoning to a conclusion on disputed facts, this Court may not interfere. But where he does not do so, or where the inferences from his given reasons establish or suggest a misapplication of the statute, the Court may intervene for then an error of law is shown. This much was allowed for in Azzopardi (see at 156) and noted by Hope JA in Mahoney v Industrial Registrar of New South Wales (1986) 8 NSWLR 1."

There followed the passage quoted by Zeeman J, which was referred to by Cox CJ in Pataki's case (supra) which is set out in par17 of these reasons.

21 Crawford J, in James v Eyles [2007] TASSC 55, said at pars25 and 27:

"25 Counsel for the applicant relied on a statement of Evans J in a workers compensation case of Roberts Ltd v Barker unreported 137/1998 at 12 that the Commissioner, from whose decision the appeal in that case was brought, had 'at no point confronted and dealt with the general credibility of the worker'. That was not a statement of law but a statement of fact. Rejection of a witness' evidence will not be based necessarily on the demeanour of the witness or the content of, or manner in which, the evidence is given by the witness. The evidence of a witness may be rejected for no reason other than that other evidence, that is in conflict with it, is more compelling and accepted. There is little in Roberts Ltd v Barker that assists the applicant."

"27 At 11, Underwood J said: 'There is a clear obligation upon a judicial officer to deal with relevant submissions made by parties to litigation. If this is not done, the parties are denied their proper rights of appeal and justice does not appear to have been done.' I agree with two reservations. The first is that the submissions must be material and not merely relevant. The duty to give reasons does not impose an obligation to deal with every argument or to discuss all possible permutations of fact or law to which the magistrate could have adverted. Kain v Glamorgan Spring Bay Council A19/1996 at 13. The second is that a failure to deal expressly with such a submission may not breach the requirement to state reasons. So long as the reason for rejecting a material submission can be found upon a consideration of all of the reasons for the decision, that will be sufficient. Further, a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process is not required. Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259."

22 I accept that a failure to give adequate reasons may amount to an error of law. However, what might constitute such a failure, and the consequences of such failure, are matters to be determined in each case.

23 At pars2 - 9, the tribunal set out the respondent's evidence. At pars10 - 17, it set out a summary of the evidence given by Ms Newlands, Ms Clayton and Mr Gaffney. Having then dealt at pars18 - 23 with medical evidence, the tribunal began its "Evaluation" at par24. In pars24 and 25, the tribunal dealt with the issue of whether or not the condition was a recurrence and made a finding. It then moved to consider the argument raised by the appellant pursuant to the Act, s25(1A)(c ).

24 At par27, the tribunal accepted that the respondent's condition was an illness or disorder of the mind and that it was substantially caused by her meeting with Mr Gaffney on 10 May. It then identified that the issue was "whether that meeting, including its content, constituted administrative action which was both reasonable and taken in a reasonable manner by the employer?" It identified that the appellant bore the onus of proof as to these matters. At pars28 - 29, it accepted that by reference to Mr Gaffney's role as chief executive officer of the appellant, his actions taken to convene a meeting and address issues such as days off were administrative actions and that it was reasonable action.

25 It then needed to consider whether the action was taken in a reasonable manner. For that purpose it needed to resolve some factual issues. There was a conflict on the evidence as to precisely who was present during the course of the interaction between Mr Gaffney and the respondent. As to that, there was the evidence of the respondent, Mr Gaffney and two other workers at the premises, Ms Newlands and Ms Clayton. In very brief terms, Mr Gaffney and Ms Clayton said she was present and Ms Newlands was not, and the respondent and Ms Newlands said the opposite. The tribunal determined the issue of who was present primarily by reference to the evidence of Ms Newlands and Ms Clayton. For the reasons it expressed, it preferred the evidence of Ms Newlands, and concluded that Mr Gaffney was mistaken when he said Ms Clayton was present and Ms Newlands was not. However it also accepted that, while Ms Clayton might not have actually been in the kitchen at the time of the meeting, she heard the exchange between Mr Gaffney and the respondent from the hall outside.

26 The tribunal then identified another factual dispute which was that relating to Mr Gaffney's demeanour at the meeting. Again, the evidence of Ms Newlands and the respondent was largely consistent and was that Mr Gaffney was aggressive. Mr Gaffney did not accept that and Ms Clayton said he seemed nervous. The tribunal made an observation as to the demeanour of Mr Gaffney in the witness box, saying of him that he was "quietly spoken and presented as having a gentle disposition. He certainly did not impress as having an aggressive or bullying personality."

27 The tribunal went on to describe the context in which the meeting occurred. At par31 it said:

"At the staff meeting held just a week or so previously it had been made abundantly clear to Mr Gaffney that a number of employees were dissatisfied with aspects of his management. As he himself acknowledged some personnel had urged him to make decisions if they were within his capacity. It is clear that Mr Gaffney, prior to the meeting on 10 May, had made the management decision to require the worker to nominate a fixed day to have off each week. When he attended the meeting he was intent on imposing his decision upon the worker as a sign to himself and others that he was prepared to act and make decisions."

Then came the conclusion about which complaint is made effectively in grounds 1, 2 and 3 of the notice of appeal. The tribunal said:

"As a consequence I am satisfied that Mr Gaffney, in a manner which was perhaps out of character, spoke to the worker in a direct and uncompromising way. I accept that the worker interpreted his demeanour as being unusually aggressive and confrontational. It was, in my view, unreasonable for Mr Gaffney to present in this manner."

28 The tribunal, at pars32 and 33, then canvassed other aspects of Mr Gaffney's approach to the situation he faced and dealt with the context of the meeting and the way in which Mr Gaffney approached the issue he dealt with. It made two findings, one relating to the fact that the meeting was in the kitchen and the other relating to the fact that Mr Gaffney had presented a decision he had made to the respondent as a "fait accompli". It then said at par35:

"For the foregoing reasons, I am not satisfied that the employer's administrative action, namely the meeting of 10 May 2006, was taken in a reasonable manner by the employer. It follows that s25(1A)(c) is not available to the employer to enable it to avoid liability for the worker's claim. I determine accordingly."

29 The appellant was an organisation which provided a number of services to the public. At the relevant time its Chief Executive Officer was Mr Wayne Gaffney and it operated out of premises in Devonport. Each of the services was largely autonomous in the sense that its co-ordinator organised the day-to-day delivery of services. There was a central receptionist. Mr Gaffney was responsible for the overall organisation of service delivery. He organised the funding through grants and determined what staff were needed to deliver the various services and could be afforded within funding constraints. One of the services offered was a mediation service. The respondent was employed as a mediator on a full time basis working 5 days a week from 2003. The respondent had previously worked as a mediator with the Community Mediation Service of Tasmania ("the CMST"). In 1998, while employed by CMST, she made a workers compensation claim of the same type she has now made, arising out of difficulties within her employment structure. She did not, as a consequence of that claim, work for between one and two years.

30 Some time after her employment with the appellant began, the respondent, having developed the service to a successful level and having available sessional mediators to cover her non-availability, approached Mr Gaffney and proposed she reduce her working hours to 4 days a week and have each Wednesday off. He agreed, provided it did not interfere with the provision of service. It was subsequently found that the fixed day off arrangement was not ideal, and the respondent agreed with Mr Gaffney that while she would work 4 days a week, her day off would be a floating one.

31 It was initially planned that the appellant would hold regular staff meetings to discuss staff and management issues. However, they occurred only occasionally and one such meeting occurred early in May 2006. The meeting resulted in Mr Gaffney walking out and absenting himself from work for the rest of the week. The remaining staff took a decision to implement a formal grievance process because they believed there were issues involving the services which needed to be resolved, and about which Mr Gaffney was not making decisions. They prepared a letter which was ultimately sent to the appellant's board.

32 Mr Gaffney returned to work the following Monday. On the Wednesday there was a meeting arranged to be attended by Mr Gaffney, the respondent and one of the sessional mediators to discuss a fee for service arrangement proposed for the mediation service. On that morning, the sessional mediator said she could not attend and the meeting was cancelled. Some time later in the morning Mr Gaffney and the respondent met in the kitchen of their workplace. Words were exchanged. It is that meeting which it is agreed resulted in the illness the subject of the respondent's present claim. The import of what Mr Gaffney said to the respondent at that meeting was that he directed her to return to a fixed day off each week arrangement, as opposed to having a floating day off. The respondent's complaint was not that her illness was caused by the content of that direction, but that it resulted from the manner in which the direction was communicated to her by Mr Gaffney. There was a factual dispute as to how the meeting came to occur, what actually happened at that meeting, and who was present. The tribunal's findings about those matters impacted on its ultimate findings.

33 For the purpose of this appeal, there was no dispute that the respondent suffered from a disease which was an illness or disorder of the mind and that her employment with the appellant contributed to a substantial degree to that disease.

34 As to ground 1, the tribunal identified that it needed to determine whether the action taken by Mr Gaffney was taken in a reasonable manner. It approached that task by evaluating the evidence in relation to how the meeting came to occur, where it occurred, Mr Gaffney's demeanour during the course of the meeting, and how he communicated what he did to the respondent during that meeting. It reached conclusions about each of these, determining whether each action was reasonable or not. It then drew the ultimate conclusion that the administrative action of Mr Gaffney, namely the meeting, was not taken in a reasonable manner. Grounds 1, 2 and 3 deal with two findings made during this process, firstly, that Mr Gaffney spoke in a direct and uncompromising way and, secondly, that to do so was unreasonable. It is useful to look at the appellant's written submissions in relation to this ground. In those, counsel referred to a number of pieces of evidence before the tribunal. He also referred to findings it said the tribunal did not make and argued, by reference to those, that it was not open to the tribunal to make the findings it did.

35 The tribunal was the arbiter of the facts. It was for the tribunal to decide what evidence it accepted and what it did not. It was for the tribunal to decide how it characterised certain behaviour. This is not a case where it could be argued there was no evidence from which the tribunal could conclude as it did. There was such evidence. These were positive findings of fact made by the tribunal after canvassing the evidence. The submissions of counsel for the appellant were directed to pointing out evidence which might support findings other than those made by the tribunal and ones more favourable to the appellant. That reinforces the view that the findings challenged were findings of fact which, adopting the approach of Evans J in Hanlon's case (supra) on the basis of the authorities to which he referred, cannot be errors of law. Ground 1 cannot, in the circumstances, succeed.

36 As to grounds 2 and 3, these raise the issue of the adequacy of the tribunal's reasons. The findings that Mr Gaffney spoke in a direct and uncompromising way, and that it was unreasonable for him to do so, were findings of primary facts used by it to reach its ultimate conclusion. In par30, the tribunal quite clearly stated in relation to the evidence of Ms Newlands and Ms Clayton that where their evidence was in conflict, it accepted that of Ms Newlands. In so doing it identified that Ms Newlands' evidence was that Mr Gaffney was aggressive. While it did not say that it found Mr Gaffney's behaviour to be aggressive, it clearly accepted that he behaved aggressively, which, it accepted, was out of character but described his manner as direct and uncompromising rather than aggressive. Hence it identified whose evidence it accepted and why, and in par31, it identified the context in which the meeting came to occur as supporting its conclusion.

37 Grounds 2 and 3 cannot, in the circumstances, succeed

38 These grounds also deal with the issue of Mr Gaffney's behaviour and how the tribunal characterised it or failed to characterise it. With respect, the grounds are misconceived. There was no obligation on the tribunal to make a finding that Mr Gaffney was or was not "aggressive" or to identify any conduct which might lead it to one conclusion or the other. The appellant had the onus of satisfying the tribunal that Mr Gaffney's administrative action was taken in a reasonable manner. The tribunal made primary findings of fact about a number of aspects of the circumstances surrounding the meeting and concluded the action was not taken in a reasonable manner. It was not required to find that Mr Gaffney behaved in an aggressive manner before it could reach its ultimate conclusion. It cannot be an error to fail to make a finding about something it was not required to make a finding about.

39 As a matter of fact however, as I set out in relation to grounds 1, 2 and 3, the tribunal accepted evidence of Ms Newlands that Mr Gaffney was aggressive, but chose to characterise it as his being direct and uncompromising.

40 These grounds cannot succeed.

41 This has already been dealt with in the context of the earlier grounds and for the same reasons must fail.

42 At par33 of its reasons, the tribunal explained why it concluded that the kitchen was not the appropriate venue for the meeting between Mr Gaffney and the respondent. However, for the same reasons set out in par34 and 35 of these reasons, the finding about the kitchen was a finding of fact open on the evidence and, as such, is not an appeallable error. This ground must fail.

43 Counsel for the appellant identified this ground as its most substantial. To consider it, it is necessary to repeat the relevant aspects of just what the appellant had to satisfy the tribunal about if it were to avoid an obligation to pay compensation. It had to satisfy it that:

- the respondent's disease arose substantially from administrative action by the appellant;

- that administrative action was reasonable; and

- the administrative action was taken in a reasonable manner.

44 As I understand the ground, it asserts that the tribunal erred in that it failed to make positive findings as to what aspects of the meeting of 10 May 2006 were causative of the respondent's injury, before it considered whether the injury arose out of reasonable administrative action taken in a reasonable manner. The appellant appears to be suggesting that it was not sufficient for the tribunal to identify the meeting on 10 May 2006 between Mr Gaffney and the respondent as the cause of the respondent's injury. What it was required to do was identify what aspect or aspects of that meeting were the cause, and that this should have been done independently of a consideration of those aspects in the context of whether the action was taken in a reasonable manner.

45 The tribunal in the introduction to its reasons said:

"The employer accepts that the worker suffers from a psychiatric illness ... . It acknowledges that her current condition has resulted from a meeting on 10 May but says that it should be absolved from liability to pay compensation because the meeting constituted reasonable administrative action on the employer's part, carried out in a reasonable manner."

The tribunal therefore proceeded upon the basis that there was no dispute as to what was said to be the administrative action sought to be relied upon, that is the meeting, or that the respondent's condition was caused by that meeting. The dispute was as to whether that action was reasonable and taken in a reasonable manner. There was no challenge to that position on this appeal, and in fact it is consistent with counsel's closing address at 214 of the transcript in the appeal book. With respect, the tribunal was never asked to do what it is now suggested it should have done.

46 In support of its contention, counsel for the appellant referred to M v Healthscope (Tasmania) Pty Ltd [2007] TASWRCT 29 and quoted some remarks of Commissioner Carey in that case, which were in the following terms:

"The worker bears the onus of establishing an entitlement to compensation by satisfying s25(1)(b). That done, the employer then has an evidentiary burden of establishing those circumstances it says bring into effect the exculpatory circumstances in s25(1A) ...

It only becomes necessary to dissect the evidence and apportion causation amongst various issues when considering the applicability of s25(1A)(c)."

With respect, I agree with that statement. However it needs to be read in the context in which it was made and that is that a worker's onus is simply to satisfy the tribunal that he has a disease to which his employment contributed to a substantial degree. It is only once that onus has been discharged that it becomes necessary for there to be an examination of what aspects of the employment were causative of the disease. It is that examination to which the learned commissioner was obviously referring. I do not accept that the learned commissioner's remarks, if applied to the present case, required the tribunal, once it had identified the meeting as the cause of the disease, to dissect the meeting of 10 May and identify what aspects of that meeting in themselves were or were not causative of the respondent's condition.

47 Nor would the words of Bleby J at 19 and 33 in a decision of the Full Court of the Supreme Court of South Australia in Keen v Workers Compensation Rehabilitation Commission Corporation [1998] SASC 6519 to which counsel referred me, persuade me that the approach suggested by counsel is required. Were it the case that the cause of the disease was in issue, I would accept that the tribunal would need to be satisfied that there was a causal link between the disease and an aspect of the employment. However no such issue arose in the present matter.

48 Ground 10 in my view must fail.

49 At par34 of its reasons, the tribunal outlined its reasons for reaching the conclusion challenged by this ground. The conclusion was open on the evidence. This ground fails for the same reasons as grounds 9 and 1, and I do not pause to repeat those.

50 As I said at par34, the tribunal identified that it needed to determine whether the action taken by Mr Gaffney was taken in a reasonable manner. It approached that task by evaluating the evidence in relation to how the meeting came to occur, where it occurred, Mr Gaffney's demeanour during the course of the meeting, and how he communicated what he did to the respondent during that meeting. It reached conclusions about each of these, determining whether each action was reasonable or not. It then drew the ultimate conclusion that the administrative action of Mr Gaffney, namely the meeting, was not taken in a reasonable manner. The cause of the respondent's condition was accepted as the meeting. Once the onus moved to the appellant to satisfy the tribunal its action was taken in a reasonable manner, the tribunal was entitled to consider matters going to that issue. The considerations identified were such matters. This ground must therefore fail.

51 A finding in respect of the cross-appeal will have no impact on the outcome of this matter, given the findings I have made as to the appellant's appeal, and it is therefore unnecessary to consider it. However, for completeness, I will do so. The respondent made much, in her submissions in respect of the appellant's grounds of appeal, of the argument that asserted errors of fact are not appealable errors. With respect, the cross-appeal will fail on that basis. The tribunal considered the evidence before it as to whether the condition of the respondent was a new or recurring condition. It made a finding of fact, open to it on the evidence, that it was a new condition and not a recurrence. The ground would fail for that reason.

52 The cross-appeal was pursued principally in the event the appellant succeeded because the respondent argued that, if the condition were a recurrence, s25(1A)(c) did not apply at all. It is unnecessary to consider that argument in the context of this appeal.

53 The order of the Court will be that the appeal and cross-appeal be dismissed.