Davidson v Blackwood [2014] ICQ 8

 

The President made it clear the way an appeal under s.561 of the Workers’ Compensation and Rehabilitation Act 2003 is to be approached:

[7] The respondent relies on the following statement of Hall P in Q-COMP v Ungerer:[3]

“ … it is not necessary for Counsel for the Appellant to identify an error of law. The Appeal at s. 561 of the Act is not confined in the same way as an appeal at s. 341(1) of the Industrial Relations Act 1999. The Appeal is by way of rehearing of the evidence of proceedings at first instance, see s. 561(3) of the Act. Neither must the Appellant satisfy the criteria of House v The King. The question whether Mr Ungerer suffered an over time injury, may be answered ‘yes’ or may be answered ‘no’. There is no discretion to exercise. However, I do accept appeals are about the correction of error. Where the Commission’s reasons are sufficiently comprehensive as to expose the basis of the Commission’s decision and the Commission’s findings are reasonably open, this Court should not intervene.”

[8] Section 561 of the Act provides:

“(1) A party aggrieved by the industrial magistrate’s or the industrial commission’s decision may appeal to the industrial court.

(2) The Industrial Relations Act 1999 applies to the appeal.

(3) The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.

(4) The court’s decision is final.” (emphasis added)

[9] The powers of the Court on appeal are found in s 562:

“(1) In deciding an appeal, the industrial court may—

(a) confirm the decision; or

(b) vary the decision; or

(c) set aside the decision and substitute another decision.

[10] These provisions are of similar effect to those considered by the High Court in Allesch v Maunz.[4] In considering the difference between an appeal by way of rehearing and a hearing de novo it was emphasised that, in the former type of appeal:

(a) the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, and
(b) an appellate court can substitute its own decision based on the facts and the law as they then stand.[5]

[11] Further consideration was given to the characteristics of an appeal by way of rehearing in Fox v Percy.[6] In the joint judgment of Gleeson CJ, Gummow and Kirby JJ the following is said:
“[22] … The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. …
[23] … On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.


[25] … the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect””

[12] Neither of the appellant’s submissions set out above are correct. First, this Court considers the Commission’s decision, not that of Q-COMP. Secondly, this is an appeal by way of rehearing, not an appeal de novo.
[13] As for the respondent’s reference to the decision in Ungerer, the correct statements of principle are those contained in Allesch v Maunz and Fox v Percy as set out above.

 

David Cormack – Brisbane Barrister & Mediator

 

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