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Error of law

L&B Linings PL v Workcover [2011] NSWSC 474. Rothman J.

5 I therefore approach the task before the Court on the basis that the determination should be quashed (or is invalid) if error of law is disclosed or there has been jurisdictional error in the determination or in the process of reaching the determination.

6 Thus, relevantly, error will be disclosed at least where Workcover has:

not taken into account a criterion required by law;

or taken into account an irrelevant criterion;

utilised, or asked itself the wrong test or question;

or misapprehended the nature or limits of its powers as a consequence of which it has performed an act or made a decision (or not done so), which is not sanctioned by authority:

see, inter alia, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24.

Further, jurisdictional error will have occurred if there has been a denial of procedural fairness.

Error of law will be dealt with later in these reasons but, relevantly, includes, if there be an obligation to provide reasons, insufficiency of reasons.

Lastly, in the case of both jurisdictional error and error of law, I accept the legal foundation that the plaintiff alleges, namely, that, even if identifiable error were not disclosed, the determination may be quashed for manifest unreasonableness, being a decision so unreasonable that error is manifest and, for jurisdictional error, such that no reasonable decision-maker could have to come to it: see Peko-Wallsend, supra, at 41-42.

NRMA Insurance Ltd v Ainsworth [2011] NSWSC 344. Rothman J.

39. A wrong conclusion of fact, so long as there is evidence of the fact, is not an error of law. There is said to be a distinction between a lack of logic and an error of law, to which distinction the High Court referred in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. In that case Mason CJ said:

[88] But it is said that 'there is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Regina v The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:

'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'

[89] Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Glass JA (at 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.

"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.

"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."

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[60] Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 observed at 728, that the failure of a court to give attention in a decision to the evidence on an issue that is contrary to an assertion of fact made by one party so as to indicate the basis for rejecting the evidence, tends to deny both the fact and appearance of justice having been done. In such a case, such failure will have worked a miscarriage of justice and have produced a mistrial which constitutes an error of law which is reviewable on appeal: Hall J, Daoud v GIO General [2011] NSWSC 1001.

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Shao Wen Zheng v Guo Yong Yang & Ors [ULIS] [2008] NSWWCCPD 144. Roche DP. 16.12.08. A failure to determine disputed issues on the basis of the facts and arguments presented at arbitration constitutes an error: see Najdovski v Crnojlovic [2008] NSWCA 175 at [21].

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Clarence River Fisherman's Co-op [QBE] v Swain [2008] NSWWCCPD 2. Keating P. 08.01.08: At [64], the President: "The making of a finding unsupported by the evidence constitutes an error of law: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6. There was no evidence for the arbitrator to make the finding that the worker was fit for work at restricted hours to support the award of $350 or that he was fit for 23 hours at $15 per hour and in so finding the arbitrator erred."

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Bi-Lo PL [Self] v Saunders [2007] NSWWCCPD 235. Keating P. 30.11.07. [51] In my view the statement of opinion expressed by Dr Nguyen amounted to a bare ipse dixit, of the kind referred to in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [131]), and offered no evidentiary support for the arbitrator's conclusion." Then [55], "The drawing of the inference by the arbitrator ..., in the absence of any factual or medical evidence to support it, constitutes an error of law."

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