Paper by The Honourable Justice Stephen Campbell at the Twilight Lecture Series

Personal Injury Commission Twilight Lecture Series

Paper delivered by The Honourable Justice Stephen Campbell, Common Law Division, Supreme Court of New South Wales

Thursday 9 March 2023

OBSERVATIONS ON PRIMARY DECISION MAKING^[1]

Introduction

As the title to my talk gives away, its content is mainly addressed to the non-presidential members.  The presidential members may therefore feel free to practise their skills by marking my homework.

Forgive me if my remarks seem too basic.  My own experience is that going back to basics sometimes serves to re-focus the mind on the fundamentals of the task of decision-making.

The most important task for trial judges like me, and I think, for decision-makers like you, is finding the facts.  When we are appointed we are, already, very experienced lawyers.  This means we are likely to have an ingrained knowledge of the legal principles to be applied in quelling the controversy assigned to us for determination.  Even in new or unfamiliar areas we are likely to know how to find relevant law.  What we cannot know when the case is first  assigned to us is the facts.  Absent agreement about them by the parties, we are required to find them and, as I say, this is our most important task because once we have found the facts in appropriate and relevant detail, the case will often decide itself.  Another reason why this is our most important task is that careful attention to it will make the work of the Court of Appeal or, in your case, the presidential members so much the easier.  Doubtless we are all in favour of that.

The process of fact finding – the statutory context

The process of fact finding depends upon the alignment of the key aspects of adjectival law which govern the work of the court or tribunal involved.  An appreciation of these matters provides the context in which the decision is made.  These key aspects include: the powers conferred by the governing statute; the court or tribunal’s case management practices for the exchange and filing of evidence or materials by the parties; the range of materials to which the court or tribunal may have regard; the incidence of the burden and standard of proof; the overarching obligation to afford natural justice or procedural fairness; the availability of permissible inferential reasoning processes; and the manner and mode of the expression of the final decision in a statement of reasons. I propose to say something briefly about most of these key considerations informing the process of fact finding.

The Personal Injury Commission of New South Wales (the Commission) is established by s 6 of the Personal Injury Commission Act 2020 (NSW) (PIC Act). The jurisdiction of the Commission is described by s 12 in general terms as establishing a Workers Compensation Division and Motor Accidents Division.

The Commission’s jurisdiction is principally conferred by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIMC Act) (s 105), the Motor Accident Compensation Act 1999 (NSW) (the MACA) (s 90) and Motor Accident Injuries Act 2017 (NSW)
(MAI Act) (Divs 7.4; 7.6).

The Commission’s decisions are final and binding on the parties (s 56 PIC Act). The supervisory jurisdiction of the Supreme Court to review the Commission’s decisions for jurisdictional error is not limited (s56(3); Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531).

The width of this power is, of course, qualified by the internal right of appeal to a presidential member conferred by s 352 WIMC Act, the ability to refer questions of law, with leave, for decision by the President, or upon his Honour’s delegation (exercisable in limited circumstances by a Deputy President; s 351 WIMC Act).  The Commission, for both its divisions, enjoys the wide power of reconsideration formerly exercisable by its predecessors, the Compensation Court of New South Wales, and the original Workers Compensation Commission of New South Wales (s 57 PIC Act).

Section 42 PIC Act provides a case management principle, in part set out below:

42 Guiding principle to be applied to practice and procedure

(1)  The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.

…..

Section 43 is a central provision, part of which is set out below:

43 Procedure before Commission generally

(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.

(2)  The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

(3)  The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

This provision is, of course, familiar to you. Like provisions have been very familiar in Australian administrative law for over a quarter of a century.  It is trite to say that a purpose of provisions like s 43 (and  s 42) PIC Act is to encourage the determination of proceedings in an informal, expeditious and inexpensive manner. Please forgive me for stating the obvious, s 43, and like provisions, do not entitle the tribunal to decide proceedings arbitrarily or capriciously.  Bearing in mind that the provisions of the WIMC Act permit questions of law to be referred to the President, provide for an appeal to a presidential member, and ultimately, on a point of law, to the Court of Appeal under s 353 WIMC Act, s 57 PIC Act does not release the Commission from the obligation to apply the law in making its decisions:  Qantas Airways Limited v Gubbins (1992) 28 NSWLR 26 at [29]; Italiano v Carbone [2005] NSWCA 177 at [70].

Section 43 PIC Act is, of course, intended to be facultative, not restrictive.  It may be said that one purpose is to free the Commission, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to tribunals: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [49].  Freedom from application of the rules of evidence is an example of this.  Again, however, this freedom was not a license. The general context of the legislation is that the Commission’s powers are judicial rather than administrative. Its role is to quell existing controversies in workers compensation and motor vehicle matters by finding facts, applying the existing law to the facts found, and, by that process, making a decision. Notwithstanding in the Workers Compensation Division the power of the member to whom the hearing of the matter is assigned to use his or her best endeavours to bring the parties to a settlement (Sch 3, s 6 PIC Act), and perhaps to conduct the hearing or conference in a somewhat inquisitorial manner (Sch 3, s 7 PIC Act), parties to the dispute have a right of legal representation, and the Commission is bound to take into account written submissions advanced by a practitioner appearing on behalf of the party (s 48 PIC Act). All of these provisions suggest that the proceedings before the Commission are closer to the judicial model than an inquisitorial model and bearing in mind the exercise of the s 43 powers, in a real sense, involves the trial of issues between parties in an essentially adversarial context.

These principles apply equally to the Commission’s claims assessment (Div 7.6 of the MAI Act) and merit review of a statutory benefit claim (Sch 2; Div 7.4 MAI Act).

Procedural fairness

These considerations, in my view, inform the content of the Commission’s obligation to accord procedural fairness to the parties.  And it must always be borne in mind that natural justice is concerned with practical justice (or injustice). There are few, if any, absolutes. The actual practical content of the obligation varies according to the statutory context in which the question arises.  As Basten JA said in Italiano (at [102]):

The minimum requirement of fairness, consistent with a legal exercise of power, will depend not only on the circumstances of the case, but also on the statutory regime.

Moreover, the requirements of natural justice may be modified from time to time “to meet the particular exigencies of the case”:  Kioa v West [1985] HCA 81; 159 CLR 550 at 615 per Brennan J. Fundamentally what is required is stated by Gaudron and Gummow JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [40]:

Procedural fairness, which was one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it.  The opportunity to answer must be a reasonable opportunity.

One should also bear in mind the statement of principle of Bryson JA in Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4DDCR 358 at [25]:

The requirements of the rules [of the Workers Compensation Commission] for information to be lodged in advance and for statements revealing the case of the parties be made in advance, taken with the width of the sources of information by which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not [be] readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way.

His Honour’s reference to the “sources of information by which the  Commission is authorised to act” is, of course, a reference to the predecessor provision of s 43(2) PIC Act (being the now repealed s 354(2) MACA).  Nonetheless, as I have said before, the Commission is not authorised to act in an arbitrary or capricious manner.  It follows that although freed from the rules of evidence the Commission may only act on materials which are rationally probative and they are unlikely to be rationally probative unless they are also, upon mature examination, reliable.  I venture to suggest that the material relied upon to found a fact must be logically and rationally probative of that fact: Rule 73 Personal Injury Commission Rules 2021 (NSW) (PIC Rules).

In State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DVCR 286 at [65] Basten JA said:

The precise scope of a provision such as s 354 [the predecessor to s 43] will depend upon the circumstances in which its operation arises. No doubt the Commission is required to apply substantive rules of law applicable to its jurisdiction and to comply with rules of procedural fairness, although the content of the latter may be affected by the terms of the provision.  [Citations omitted]

Onus and standard of proof

In my view, there cannot be any serious question given the nature of the powers exercised by non-presidential members, the nature of the function they perform, and the essentially adversarial context in which the parties bring their dispute for resolution, something akin to the usual civil burden and standard applies.  For example, a merit review requires determining the ‘correct and preferable decision’ (s 7.13(1) MIA Act)’. The burden generally is on the moving party:  he who asserts must prove. And the standard of proof is on the balance of probabilities. So much, it seems to me arises out of the decision of Finkelstein J in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397; 47 ALD 555.  That decision concerned the functions of the Refugee Review Tribunal which proceeding were not adversarial for the simple reason there was no contradictor.  His Honour said:

One consequence of a proceeding not being adversarial is that an applicant does not carry any burden of proof ….   I use the term burden of proof to refer to an obligation to prove or disprove a fact. This is sometimes referred to as an evidential burden. … Thus, the tribunal must simply listen to all of the evidence and decide the case on the basis of that evidence. …  Most usually the evidence will be adduced by an applicant, but the tribunal has power to require the secretary [of the Department] to provide it with information … and can also inform itself of relevant facts.  In considering the evidence the tribunal is “under a duty to arrive at the correct or preferable decision in the case”.  … Ordinarily such a duty would be imposed by the common law or as a necessary incident of the legislation that establishes a tribunal but in the case of this tribunal [the Act] would also be a source of that obligation. [Citations and references to statute omitted]

His Honour continued:

When deciding a case the tribunal must have regard to what is an appropriate standard of persuasion. In Sodeman v R (1936) 55 CLR 192 at 216 Dixon J said that the common law only knew of two such standards, that applicable to criminal cases, beyond a reasonable doubt, and that applicable to civil cases, the preponderance of probability. However, Dixon J pointed out that  “questions of fact vary greatly in nature and, in some cases, greater care in scrutinising the evidence is proper than in others, and a greater clearness of proof may be properly looked for”. In [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (at 282 – 3)], the High Court observed that the decision-making processes that are applicable to civil litigation, such as notions of burden of proof and the like, are not always applicable to administrative decision-making.  … In some contexts, such as when the tribunal is seeking to determine what might happen in the future or even what has already happened, the use of the term “burden of proof'’ might be misleading. But when the tribunal is required, as a step in the process of arriving at its decision, to determine whether a fact does or does not exist generally the civil standard should be held to apply to its decision-making with due regard being paid to serious issues.  … Unless the tribunal is required to apply some standard of proof it is not easy to see how the tribunal should direct itself in determining whether the evidence before it permits it to make a particular finding of fact. On one view the tribunal could approach the matter solely by reference to “natural justice and common sense” … but this does not give a sufficiently clear guide to the tribunal in my opinion. It is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate. [Some citations omitted; emphasis added]

The expression “correct and preferable decision” is commonly employed to describe the duty of tribunals charged with undertaking merits review of the decisions of administrators (see again s 7.13(1) MIA Act).  It has been applied to the predecessor to the Commission’s Workers Compensation Division, especially in the context of reviews under s 352 of the WIMC Act before its amendment in 2011: see Sapina v Coles Meyer Ltd [2009] NSWCA 71; 7DDCR 54 at [56]-[57].  However, in my view, it is probably inapt in the case of the primary decision-making of the Commission, especially given the largely adversarial nature of the proceedings before them.  Whether I am right or wrong in this, I am of the view that the relevance of the civil standard remains, as explained by Finkelstein J.

Lay evidence

Modern case management in the Common Law Division generally requires that witness statements of proposed lay witnesses, including the parties, be exchanged in advance of the trial and, subject to the discretion of a trial judge, the contents of the statement stand as the evidence-in-chief of the witness.  It is my understanding that case management in the Commission is to a similar effect (see  rr 34 and 67 PIC Rules).  It is also my understanding that, generally, in the Commission, the bulk of the evidence will consist of documents with limited oral examination and cross-examination of the witnesses (see Zheng at [20]).  These procedures, of course, deprive the decision-maker of the advantage of forming an impression of the reliability of witness testimony by reference to the “subtle influence of demeanour”:  Jones v Hyde [1989] HCA 20; 63 ALJR 349.  This may be just as well, given that demeanour based credibility, or reliability, findings are decidedly out of favour in both Australia and the United Kingdom; so much so that even on appeal to the Court of Appeal from courts of ordinary jurisdiction what might be referred to as the rule in Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 or Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 is well and truly swamped by the exceptions to it.

In evaluating evidence, it is, I think, well for all primary decision-makers to bear firmly in mind the observations of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at [31]:

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. [Footnotes omitted]

Many similar statements have been made in recent years in the United Kingdom.  In Gestmin SGPSSA v Credit Suisse (UK) Limited [2013] EWHC 3560, Leggatt J (at [22]) said:

In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

For those interested in further reading on this topic, I commend the paper by the Honourable Mr Justice Moyson of the Family Division of the High Court of England and Wales at (2015) 12 TJR 359.

There is the difficulty, of course, perhaps more pronounced in tribunals than in courts where there is little time and scope for oral examination of witnesses, that their evidence is wholly contained in a written statement prepared by a lawyer for one or other party often months or years after the salient events occurred and when the competing interests of the parties in the litigation are likely to be obvious.  Regrettably these statements often fall into two categories.  The first is the slipshod-rattled-off first draft full of conclusionary statements rather than matters seen, heard or otherwise perceived by the witness.  The second category tends to be that which is the product of many conferences where the witness’s account has been teased out by long interrogation and by reference to contemporaneous documents of which he or she may not have been the author.  The statement is then “settled” within an inch of its life so that any authenticity it may have evinced as an accurate account given by a person who actually had something useful to say about the issues has been wrung out of it.  Either way the value of the statement is doubtful and in these circumstances reversion to “contemporary materials, objectively established facts and the apparent logic of events” must be, for the decision-maker, irresistible.

Expert evidence

Although the Commission is not bound by the rules of evidence, there is a long line of authority encouraging predecessors to the Commission, at least, to evaluate expert evidence by reference to the rules of evidence governing the admissibility of expert evidence in the ordinary courts (s 79 Evidence Act 1995 (NSW)).  This process started with the judgment of McColl JA in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at 455.  By reference to the equivalent of Rule 73 then in force, and s 43 PIC Act, her Honour said (at 455 [131]):

… the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354 [WIMC Act], as the rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”.

In Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 Beazley JA (as the President then was) at [82] pointed out that:

Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence.

Her Honour relied upon the judgment of Hodgson JA in Brambles Industries v Bell [2010] NSWCA 162; 8 DDCR 111 at [19].  There his Honour said that the question is whether the expert opinion is “of no rational probative value, and as such, as a matter of law, of no weight”.

In Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 Allsop P (as the Chief Justice then was), to similar effect, stated ([3]):

… when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.

McColl JA adhered to the view she had expressed in Edmonds, but, by reference to Kostas v HIH Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [17] cautioned “it is nevertheless necessary to be alert to the fact that “the rules of evidence, excluded by statute, [should not be allowed] to ‘creep back through a domestic procedural rule’”” (at [59]).

Basten JA said at [82] and [83]:

… there is no warrant … in the statute or general law relating to procedural fairness, to import into the legally mandated procedures of the Commission, the limitations on the material which can be considered, derived from the rules of evidence.

Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself.  Indeed, once inadmissible evidence is before a court without objection being taken the question for the court is merely one of weight. [Citation omitted].

As the rules of evidence do not apply, they should not be re-introduced contrary to the statute by the adoption of unauthorised rules of practice by the Commission. Nonetheless, those rules may offer a yardstick by which questions of weight, including reliability and probative value may be measured.

It seems obvious that the most common type of expert evidence which the Commission will be called upon to evaluate is medical evidence.  As expert members of a specialist tribunal this should present little difficulty.  However, a further factor which needs to be borne in mind is the danger of unqualified opinion of a type where the expert arrogates to himself or herself the completion of the decision-making task which the law vouchsafes to the tribunal.

Bearing these considerations in mind, especially the requirement to avoid the subconscious application of the rules of evidence, the statement by the High Court on the common law requirements of the admissibility of expert opinion in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [31]–[32] may serve as a useful yardstick of not admissibility, but reliability:

[31] Section 76(1) expresses the opinion rule in a way which assumes that evidence of an opinion is tendered “to prove the existence of a fact”. That manner of casting the rule does not, as might be supposed, elide whatever distinction can be drawn between “opinion” and “fact” or invoke the very difficult distinction which sometimes is drawn between questions of law and questions of fact. It does not confine an expert witness to expressing opinions about matters of “fact”. Rather, the opinion rule is expressed as it is in order to direct attention to why the party tendering the evidence says it is relevant. More particularly, it directs attention to the finding which the tendering party will ask the tribunal of fact to make. In considering the operation of s 79(1) it is thus necessary to identify why the evidence is relevant: why it is “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.That requires identification of the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving.

[32] To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence “has specialised knowledge based on the person’s training, study or experience”; the second is that the opinion expressed in evidence by the witness “is wholly or substantially based on that knowledge”. The complaint which Dasreef made at trial, on appeal to the Court of Appeal and on appeal to this court was that Dr Basden did not express an opinion about the numerical or quantitative level of exposure to respirable silica encountered by Mr Hawchar in working for Dasreef that was an opinion based on any specialised knowledge Dr Basden had that was based on his training, study or experience.

I would especially emphasise the basic need to focus on why the expert opinion is evidence that if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceedings.  One may also wish to have regard to what is said at the end of [37] about the evidence of a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation posing little difficulty in most cases.

Reasons

The giving of reasons, of course, is the culmination of the process of fact finding. And the decision the final point of the judicial, or administrative, process. There is an express requirement that a decision-maker provide reasons for a decision in Commission and merit review proceedings (r 78 PIC Rules and impliedly by s 58 PIC Act). Moreover, in the Workers Compensation Division, the provision of a wide avenue of appeal against primary decisions of the Commission to a presidential member for error of fact, law or discretion also suggests that the giving of reasons is an incident of the exercise by non-presidential members of their statutory powers to resolve disputes under the PIC Act and WIMC Act.  Certainly having regard to the judicial nature of the powers exercised by the Commission, the obligation to give reasons will be implied by the general law by parity of reasoning with Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372.

One may expect that the main audience for one’s reasons will be the parties, especially the losing party, and the presidential members in the event of an appeal.  This practical consideration can be borne in mind in addition to the paramountcy of the matters at r 78(2) PIC Rules, and provides a guide as to what might constitute an adequate discharge of the duty to provide reasons.  It should not be overlooked that the provision of adequate reasons is sometimes characterised as an aspect of natural justice, particularly in the extended sense of justice being seen to be done:  Dean v Stockland Property Management Pty Ltd [2010] NSWCA 66 at [52] per Whealy J.  Although dealing with the judicial obligation to give adequate reasons for decisions, likely to be more onerous than that of the Commission, the distillation of the salient principles as given by Whealy J bear repeating:

[52] The principles underlying the need to give reasons and the various circumstances in which a critical failure may occur warranting a new trial are set out in a recent decision of this Court in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. The principles are comprehensively stated in the judgment of McColl JA (with whom Ipp JA and Bryson AJA agreed). Since those principles are thoroughly stated in McColl JA’s decision, I will simply distil the principles that are most relevant to the present matter: -

1. The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and “denies both the fact and the appearance of justice having been done”, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale v Government Insurance Office (NSW)(1997) 48 NSWLR 430 (at 444) per Meagher JA.

2. The extent and content of reasons will depend upon the particular case under consideration and the matters critically in issue. While a Judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point or points critical to the contest between the parties. The reasons must do justice to the issues posed by the parties’ cases: Moylan v Nutrasweet Company [2000] NSWCA 337 per Sheller JA (Beazley and Giles JJA agreeing).

3. The nature of the matters in issue in a particular contest will normally determine the extent to which there is an obligation on the trial Judge to refer to the evidence and to make findings of fact in relation to evidence in contest. Failure to do so may promote a sense of grievance in the adversary and create a litigant who is entitled to feel a sense of legitimate grievance (Mifsud (at 728) per Samuels JA; Sun Alliance Insurance Ltd v Massoud (1989) VR 8 (at 18 per Grey J).

4. Because a primary Judge is bound to state his or her reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Where it is apparent from a judgment that no analysis has been made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it will be apparent that the process of fact finding has miscarried. The reasons must reveal why it is that the evidence which has been accepted was preferred to that of other witnesses; Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57 ; [2005] 79 ALJR 1816 [at 130]–[131] per Hayne J (with whom McHugh J [AT 26] and Gummow J [at 27] agreed); See also Najdovski v Crnojlovic [2008] NSWCA 175 [at 21] per Basten JA (Allsop P and Windeyer J agreeing).

At a practical level, consideration of the main audience provides some pointers to the likely adequate content of a statement of reasons.  The losing party, naturally enough, will want to know why he, she or it lost; why was the evidence relied upon rejected; and why were the arguments advanced not accepted.  This will necessarily involve setting out, at least succinctly the findings of fact actually made and the material accepted by the tribunal upon which those facts are founded.  Arguments seriously advanced will need to be acknowledged and dealt with.

From the point of view of the presidential member who may be called upon to decide an appeal, a non-presidential member’s statement of reasons must explain the actual path of reasoning by which the member arrived at the conclusions he or she made. They must explain that actual path of reasoning in sufficient detail to enable the presidential member to see whether the decision is or is not vitiated by any error of fact, law or discretion.  As is well known, in this area of discourse the failure of a statement of reasons to meet this standard is itself an error of law justifying intervention by a presidential member: cf Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [55].

Although the presidential member considering an appeal ought to take a benign approach to the statement of reasons provided at first instance, that is to say, they should be read fairly and as a whole without an eye too finely tuned to the detection of error (Liang 271-2; 291-3), it is also salutary, I think, for primary decision-makers to bear in mind the observations of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALRJ 1816 at [129] – [130]. His Honour said:

... because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error and the process of fact finding.  In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.

A benign or beneficial approach to the decision makers reasons does not permit the presidential member to fill in any gaps in the reasons stated.

Conclusion

Decision-making in the 21^st Century requires the appreciation and application of these things: statutory requirements as to power including the available means of the Commission informing itself as to the facts; the practical requirements of the rules of natural justice; burden and standard of proof; appropriate evaluation of lay and expert evidence to found primary facts and available inferences; and the provision of an adequate statement of reasons for arriving at the decision reached.

^[1] Revision of a paper first published in 2015. I thank Fabrice Empeigne my Tipstaff/Judicial Clerk for his contribution to this revision.