Ball v McInerney

In *Ball v McInerney*, the appellants appealed to the Court of Appeal of New South Wales against a decision of the primary judge. The dispute concerned findings of fact made by the primary judge, and the appellants sought to challenge these findings on appeal.

The legal issues before the Court of Appeal included whether the primary judge's reasons for judgment failed to reach the minimum acceptable level to constitute a proper exercise of judicial power, and whether the primary judge's findings of fact, particularly those based on an assessment of witness credit, were demonstrably wrong. The court also considered whether the primary judge's conduct during cross-examination indicated an apprehended bias, and whether any such bias, or the primary judge's permitting reliance on an unpleaded issue (which had been particularised in a Scott Schedule), constituted a substantial wrong or miscarriage of justice.

The Court of Appeal applied the principles established in *Fox v Percy*, emphasising the due weight to be given to a trial judge's advantage in assessing witness credit. The court found that the primary judge's findings were not inconsistent with incontrovertible facts or uncontested testimony, nor were they glaringly improbable or contrary to compelling inferences. Regarding the alleged apprehended bias, the court noted that the appellants had failed to object at trial, suggesting a waiver of that objection. The court also determined that the reliance on the unpleaded issue, having been particularised in a Scott Schedule, did not occasion a substantial wrong or miscarriage.

Leave was granted to the appellants to amend their notice of appeal to include a ground concerning the insufficiency of reasons. However, the appeal was ultimately dismissed, and the appellants were ordered to pay the respondent's costs.