Lang v Hawker Pacific Pty Limited [2016] HCATrans 287 (18 November 2016)

Last Updated: 22 November 2016

[2016] HCATrans 287

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry



Perth No P3 of 2016

B e t w e e n -

MARY COLLEEN LANG

Applicant

and

HAWKER PACIFIC PTY LIMITED

Respondent

Application for special leave to appeal

KIEFEL J



GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO PERTH

ON FRIDAY, 18 NOVEMBER 2016, AT 11.48 AM

Copyright in the High Court of Australia

MR B.L. NUGAWELA : Mr Nugawela appearing for the applicant. (instructed by Shine Lawyers)

MR G.R. HANCY : I appear for the respondent. (instructed by WHL Legal Pty Ltd)

KIEFEL J: Yes, Mr Nugawela.

MR NUGAWELA: Your Honours, the applicant described or accepted as a genuine historian by the tribunal of fact gave two important bits of evidence. Firstly, that prior to July 2007 she had no problems in her left wrist and no pain in the left wrist and that sometime after July 2007 but well prior to the hole punching in 2009 she developed wrist instability and pain.

It is that evidence entirely overlooked by the honourable Court of Appeal that supported the concurrent findings below of the tribunal of fact and of the District Court that there was a continuum of related symptoms and pathology from about October 2007 to the present. That is at 35 of the District Court decision.

KIEFEL J: Now, the Court of Appeal gave detailed consideration to the medical evidence. It detailed this in its reasons. Can you point to precisely what evidence there is to show the causal connection?

MR NUGAWELA: Yes, your Honour Justice Kiefel. May I just conclude immediately that last point? The fiat that the court thought it had for intervening in this factual finding is found at paragraph 70 of the reasons and it is pivotal to its understanding of the medical evidence and the history taken by the doctors. At 70, contrary to the accepted finding of fact and the evidence of the witness, it concluded that the wrist problems in 2007 were numbness of the ring finger and little finger, that there was nothing about wrist problems in 2007 and that the arbitrator’s own finding the respondent first experienced left wrist pain only after July 2009. That was contrary to the concurrent findings below.

GORDON J: Where do we find that evidence? Where do we find the evidence of wrist injury in 2007 to which the Court of Appeal have omitted to any reference?

MR NUGAWELA: Absolutely. Your Honours, in the summary of argument – which starts on page 82, if one goes to paragraph 8(a) and footnote 1, the sentence appended to footnote 1 is directly a reproduction of a witness statement tended at the arbitration hearing. It is a direct quote from that. Now, that was material that was before the District Court judge but it was omitted from the green appeal book in the Court of Appeal but it was handed up to the honourable Court of Appeal but the court made no reference whatsoever to that important evidence. Perhaps it overlooked it. Perhaps it is understandable that between the time of the hearing and the delivery of reasons it might have been misplaced.

KIEFEL J: Is the critical evidence in relation to whether or not her symptoms resulted from the 2007 incident that of Mr Ecker?

MR NUGAWELA: As well as that of Dr Kennedy as we put at paragraph 8(b).

KIEFEL J: Is not the critical point that the Court of Appeal is making that when Mr Ecker said that her symptoms – that she became symptomatic, he was referring to the 2009 event and not the 2007 event? Is that not the clincher really?

MR NUGAWELA: Well, there was ambiguity in what – there is no doubt that there was ambiguity in the pathologies that were referred to by Mr Ecker and there was no ambiguity, however, in what the witness statement was, that she developed wrist pain prior to July 2009. It must be remembered that Mr Ecker only got involved after 2009. So, his difficulty was retrospectively relating all her symptoms to whether it was 2007 or 2009. He was non-committal. There was ambiguity.

The problem with the Court of Appeal’s approach was that it simply rewrote the facts to say that there was no complaint, no continuum of complaint of wrist pain until after the carpal impaction and on that basis it entered this ambiguity, in the evidence of Mr Ecker, no ambiguity whatsoever in the evidence of Dr Kennedy, as we pointed out at paragraph 9(b) of our reasons, none whatsoever. Then, said that, well, given that factual error it was entitled to intervene on a question of law.

KIEFEL J: Could I ask you also whether in the Court of Appeal was it simply accepted that leave to appeal to the District Court was in order because there was a question of law involved?

MR NUGAWELA: Yes, it was.

KIEFEL J: What was the question of law?

MR NUGAWELA: Adequacy of reasons of the Tribunal which was foreclosed against the respondent in the District Court and not re-agitated in the Court of Appeal.

KIEFEL J: But that is not the question of law that the Court of Appeal was focused on here.

MR NUGAWELA: That is quite correct.

KIEFEL J: This is insufficient – it is said to be no evidence but it is really an insufficiency of evidence case, is it not? It is not a no evidence case.

MR NUGAWELA: We entirely embrace that observation, your Honour, insufficiency of evidence, as we say, is not a ground for appellate intervention.

GORDON J: What were they doing at 77 when they were looking at the probative value of the evidence? Is that a correct approach?

MR NUGAWELA: In our respectful submission, no. It was effectively – it is the cutest way, your Honour, of saying that they did not accept Dr Kennedy’s clear evidence because it was not probative.

GORDON J: It was three steps, it seems to me. In 77, they say they did not rely upon the reports from Kennedy. That is the first matter identified. Then they said there was no evidence to support them in 79. Do you challenge both of those propositions?

MR NUGAWELA: Well, the 79 we have challenged by our attack at paragraph 70, of course.

GORDON J: Is 77 right, that the arbitrator did not rely upon Dr Kennedy?

MR NUGAWELA: Well, we do not know what the arbitrator – whether she rejected it. She did not expressly reject it. Can I describe the circumstance? I mean, the arbitrator’s reasons by any account are not objectively a model for reasons for decision by common law standards if such standards exist. But, can we say, that section 213 of the Act underscores the legislative policy that in this jurisdiction you just state the facts and some of the evidence that you rely on, not all of the evidence.

The question of adequacy of the arbitrator’s reasons were foreclosed a long time ago. So to say, as the honourable court below said, or assumed that the arbitrator ruled out Dr Kennedy’s reports as not probative, whatever that word means, again is an erroneous approach. It is stepping into an area where the privative provisions prevents an appellant court at that level of the judicial hierarchy from interfering with the findings below. But, as I say, your Honour, the great difficulty arises from paragraph 70 of the Court of Appeal’s reasons which then had a downstream effect in its construing of the expert opinion and its rejection of Dr Kennedy’s evidence.

GORDON J: My problem in relation to paragraph 70 of the Court of Appeal is what is set out in paragraphs 12 and 13 of the arbitrator’s reasons and I wonder whether that may explain it? At 12, the arbitrator explains the evidence of Mrs Lang and talks about the loss of feeling in the fingers and then the injury to the elbow. In 13, the finding seems to be it is not until July 2009 she began to experience, “began to experience” pain in the left wrist.

MR NUGAWELA: I understand that infelicity but can I say that matter was tidied up in the District Court where the learned judge, on a review of all the materials, and the appeal book in the District Court went in excess of 700 pages. The green appeal book in the Court of Appeal only went to 323 and omitted the document from which we extract and relied upon in the District Court, namely her statement made as footnoted at footnote 1.

The respondent does not take issue with the accuracy of that in its replying summary of argument before the Court today. So, whilst the arbitrator’s reasons were a shorthand, by any account, a very shorthand summary of the evidence and her findings of fact, the concurrent findings below, particularly of the District Court, was that there was a continuum of wrist symptoms well prior to the hole punching episode in July 2009 directly contrary to what the Court of Appeal assumed at paragraph 70.

Your Honours, that illustrates then this question of appellate restraint and the uncertainty principle and the authorities we relied upon in page 90 of the appeal book, JLT Scaffolding International Pty Ltd (in liq) v Silva unreported 30 March 1994. President Kirby, as his Honour then was, who noted that:

A generalist appellate court like the Court of Appeal . . . ought to exercise “a degree of care” in substituting its opinion on questions of medical causation and the aetiology of incapacity for that of a specialist tribunal like the Compensation Court –

As your Honour Justice Bell pointed out, why was Dr Kennedy’s report, in any event, considered not probative, we ask rhetorically. So it raises that and it also raises the Rajalingam point that we point out, in our submissions, at paragraph 13, Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at 257 which underscores this uncertainty principle, a fortiori, we say, where a specialist tribunal is involved.

The search for objective cogency in the reasoning of the arbitrator, particularly against the legislative policy underlying section 213, the obligation to give reasons, creates a real risk that the superior appellate court will substitute its own view of the merits of the case for that of the Tribunal with the result of converting what was a doubtful finding of fact, see its reference to no probative value to Dr Kennedy’s report, into an error of law.

Your Honours, that is the first part of the application. The second part is the remitter point and we have cited the authority of Kostas on the remitter point; Kostas v HIA Insurance Service Pty Limited [2010] HCA 32. The point here is this that if there was self-expressed doubt in the understanding of the medical evidence by the Court of Appeal, and there is no doubt that there was difficulty on their part, then the safe course would have been to remit this matter to the Tribunal for determination rather than what occurred in this case which, in fact, was a dismissal. There might appear to be to your Honours an inconsistency between the orders made and if I can take your Honours to the orders of the Court of Appeal which appears at - - -

GORDON J: Appeal book 75, I think.

MR NUGAWELA: Yes, 75, if one considers 74, your Honour Justice Bell.

KIEFEL J: Justice Gordon, Mr Nugawela.

MR NUGAWELA: My vision is so bad, I do apologise, your Honour. At 105, 5(c), what the court proposed was the application to work cover, that is, be dismissed. That is not reflected at page 75 but I hope the communication to the Court yesterday has established that what appears on page 75 were not the final orders made and the final orders made by the Court of Appeal subsequent to 19 January were, in effect, in accordance with paragraph 105, 5(c).

So, your Honours, the remitter point, again, is that if there is doubt, do not dismiss the application, remit it to the Tribunal and the legislative policy that underlines these disputes, for determination disputes, is shown in sections like 217A where new information comes to hand after decision is made or even section 189 of the Act, as we say, which provides that even if a matter is not before the arbitrator, the arbitrator can determine a dispute provided natural justice is observed and deal with all matters in one hit. Of course, in this case, there were only two candidates, the 2007 and the 2009, and all the evidence below addressed it and this would have been a suitable matter for remitter.

Your Honours, the third and last point, of course, is in the alternative to the other two and that is the nature of the dispute below. We contend, as we do in our written submissions, in the alternative, that the July 2009 matter was a live matter before the arbitrator. All that was abandoned as the

fall in 2010 because that had been the subject of a res judicata, that was all that was abandoned.

The dispute was, was it 2007 and 2009? Was it work related or not work related and the form, which is not a form of pleading because matters are very informal in that jurisdiction, stipulated everything from July 2007 up to and including the 2009 incident. So, if the point was seriously to be pursued below, then it should have gone back and it would have gone back under section 189 of the Act to the arbitrator.

But that submission, of course, was in the alternative to our primary submission as to why special leave should be granted in this case. It is a suitable vehicle. There are no adverse credibility findings against the applicant. It was found to be a genuine story. May it please the Court, those are our submissions.

KIEFEL J: Yes, thank you. We do not need to trouble counsel for the respondent.

We do not think that there is sufficient reason to doubt the decision of the court below. Special leave is refused with costs.

The Court will now adjourn to 2.15 pm on Monday, 5 December in Canberra.

AT 12.06 PM THE MATTER WAS CONCLUDED