Allsop P at [1]; Giles JA at [1]; Tobias AJA at [1]
Decision:
1. Appeal allowed.
2. Orders of the District Court made on 4 August and 3 September 2010 be set aside.
3. There be a new trial.
4. The costs of the District Court proceedings to date abide the outcome of the new trial and be dealt with by the District Court.
5. The respondent pay the appellants' costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
APPEAL - civil - fact-finding based on credibility - breach of rule in Browne v Dunn - failure to object to breach of rule does not amount to waiver of it - primary judge erred in assessment of factors fundamental to adverse finding of credit of witness.
EVIDENCE - proof - inferences - allegations of dishonesty - need to prove allegations to Briginshaw standard - Evidence Act 1995 (NSW), s 140 considered - inference of dishonesty or deliberate concealment of error not able to be drawn to Briginshaw standard in circumstances where witness not cross-examined on issue.
PROCEDURE - Court of Appeal - filing of supplementary material after hearing beyond terms of leave - Court entitled to disregard supplementary material.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bale v Mills [2011] NSWCA 226
Case
[2011] NSWCA 226
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between Bale and Mills, heard in the Court of Appeal of New South Wales. The primary judge had made adverse findings of credit against the appellants, which formed a fundamental basis for the decision.
The central legal issues before the Court of Appeal were whether the primary judge had erred in their assessment of the credibility of a witness, particularly in light of a breach of the rule in *Browne v Dunn*, and whether inferences of dishonesty or deliberate concealment could be drawn to the *Briginshaw* standard when the witness had not been cross-examined on those specific issues. The Court also considered its entitlement to disregard supplementary material filed after the hearing, beyond the terms of leave granted.
The Court found that the primary judge had erred in their assessment of factors fundamental to the adverse finding of credit. It held that a failure to object to a breach of the rule in *Browne v Dunn* does not amount to a waiver of the rule. Furthermore, the Court determined that an inference of dishonesty or deliberate concealment of error could not be drawn to the *Briginshaw* standard in circumstances where the witness was not cross-examined on the relevant issue. The Court also noted its entitlement to disregard supplementary material filed beyond the terms of leave.
Consequently, the appeal was allowed, the orders of the District Court were set aside, and a new trial was ordered. The costs of the District Court proceedings were to abide the outcome of the new trial, and the respondent was ordered to pay the appellants' costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Orders of the District Court made on 4 August and 3 September 2010 be set aside.
3. There be a new trial.
4. The costs of the District Court proceedings to date abide the outcome of the new trial and be dealt with by the District Court.
5. The respondent pay the appellants' costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]