Housden v Boral Australian Gypsum & Anor; Boral Australian Gypsum & Anor v Victorian WorkCover Authority & Anor

[2015] VSCA 162

Victorian Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Rehearing
3. › Review of findings of fact
4. › Findings based on credibility of witnesses
5. › Whether findings glaringly improbable or contrary to compelling inferences
6. › County Court Act 1958 (Vic), s 74(1)
1. Appeal
2. › New point on appeal
3. › Whether new point raised which was not taken at trial
4. › Consideration of conduct of trial
5. › Whether new point could have been met by further evidence at trial
6. › Whisprun Pty Ltd v Dixon [2003] HCA 48 applied
1. Accident Compensation
2. › Workplace injury
3. › Method of work
4. › Whether dominant manner of cutting plasterboard horizontal or vertical
5. › Factual finding not disturbed on appeal
1. Practice and Procedure
2. › Trial judge's duty to determine all issues
3. › Whether trial judge should decide issues beyond the decisive issue
4. › Desirability of making findings on all issues to avoid remittal

Quick Take

An appellate court will not disturb a trial judge's findings of fact based on credibility assessments where the findings are not glaringly improbable or contrary to compelling inferences, even where documentary evidence might support a different inference. A party will not be permitted to advance on appeal an alternative factual case that was not run at trial where it cannot be said that the alternative case could not possibly have been met by further evidence. Trial judges in lengthy cases should consider deciding all issues, not just the decisive one, to avoid the need for remittal.