Costa v The Public Trustee of NSW - [2008] NSWCA 223

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Costa and Another v The Public Trustee of NSW [2008] NSWCA 223

HEARING DATE(S): 11 July 2008

JUDGMENT DATE:
17 September 2008

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 31; Basten JA at 53

DECISION: (1) Appeal allowed.
(2) Declaration that the deceased intended:
(a) the informal document referred to in the judgment to constitute his last will; and
(b) the informal document to revoke his will made on 12 September 1995.
(3) That probate of the informal document be granted to the appellants according to the tenor of the informal document.
(4) That the application be remitted to the Registrar to complete the Grant.
(5) That the costs of the Public Trustee be paid out of the estate of the deceased.

CATCHWORDS: APPEALS – Appeal by way of rehearing – Question of fact – inference from undisputed written evidence – Whether necessary for appeal court to find error – Discussion of principles. Supreme Court Act 1970 (NSW) s 75A - SUCCESSION – Informal document – Whether document purported to convey testamentary intentions – Whether deceased intended document to be his will. Wills Probate and Administration Act 1898 s 18A

LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), s 6(1)
Conciliation and Arbitration Act 1904 (Cth) s 88F
Supreme Court Act 1970 (NSW) s 75A
Supreme Court Rules Pt 78 rr 8, 34E, 34F, 34H, 34I
Wills Probate and Administration Act 1898 s 18A

CATEGORY: Principal judgment

CASES CITED: Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 46 ACSR 504; 21 ACLC 1,810; 179 FLR 1
Allesch v Maunz [2000] HCA 40; 203 CLR 172
Atlantic Civil Pty Ltd v Water Administration Ministerial Corporation (1992) 39 NSWLR 468
Attorney-General v Sillem (1864) 10 HLC 704; 11 ER 1200
Azzopardi v Tasman UEB Industries Ltd (1985-1986) 4 NSWLR 139
Biogen Inc v Medeva plc [1997] RPC 1
Branir v Owston Nominees (No 2) Pty Limited [2001] FCA 1833, (2001) 117 FCR 424
Benmax v Austin Motor Co Ltd [1955] AC 370
Bova v Locke [2005] NSWCA 226
Cabal v United Mexican States [2001] FCA 427; 108 FCR 311
Cashman v Kinnear [1973] 2 NSWLR 495
CGU Insurance Limited v Porthouse [2008] HCA 30
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194
Re Coldham; Ex parte Brideson [No. 2] [1990] HCA 36; 170 CLR 267
The Commonwealth v Reeve [1949] HCA 22; (1949) 78 CLR 410
CSR Limited v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458
R v Cutter [1944] 2 All ER 337
Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; 124 CLR 192
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317
Duralla Pty Ltd v Plant [1984] FCA 146; 2 FCR 342
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 82 ALJR 669
Edwards v Noble [1971] HCA 54; 125 CLR 296
Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
R v Gallagher [1998] 2 VR 671
Giannarelli v The Queen [1983] HCA 41; 154 CLR 212
Glass v The Commonwealth [2003] ACTCA 8
Hawker Noyes Pty Ltd v New South Wales Egg Corporation (Supreme Court of NSW, Brownie J, 11 November 1988, unreported)
House v the King (1936) 55 CLR 499
Imbree v McNeilly [2008] HCA 40
Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; 116 CLR 200
Jones v Bradley [2003] NSWCA 81
Kouris v Prospector’s Motel Pty Ltd (1978) 19 ALR 343
Livingstone v Halvorsen (1979) 53 ALJR 50
Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
Nudd v The Queen [2006] HCA 9; 80 ALJR 614
O’Neill v Chisholm (1973) 47 ALJR 1
Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404
Pahlow-Silady v Siladi [1997] NSWCA 241
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743
Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72
Ruthol Pty Ltd v Mills [2003] NSWCA 56; 11 BPR 20,793
S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 168 ALR 396
Shi v Migration Agents Registration Authority [2008] HCA 31
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Western Australia v Ward [2002] HCA 28; 213 CLR 1
Whiteley Muir and Zwanenberg Ltd v Kerr (1965-66) 39 ALJR 505
Williams v Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Rep 81-578
Wilson v Peisley (1975) 7 ALR 571
WMC Resources Limited v Leighton Contractors Pty Ltd [1999] WASCA 10; (1999) 20 WAR 489
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460

PARTIES: Alexander COSTA (First Appellant)
Doreen Leonie COSTA (Second Appellant)
THE PUBLIC TRUSTEE OF NSW (Respondent)

FILE NUMBER(S): CA 40826/07

COUNSEL: L J ELLISON SC (Appellants)
P BLACKBURN-HART SC (Respondent)

SOLICITORS: The Charlestown Law Firm (Leon Sokulsky) (Appellants)
Anthony Lentini, Solicitor for Public Trustee NSW (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 104938/07

LOWER COURT JUDICIAL OFFICER: Windeyer J

LOWER COURT DATE OF DECISION: 12 November 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Alexander Costa & anor v The Public Trustee in the Estate of Robert Costa aka Wayne Geary Coaster [2007] NSWSC 1271

CA 40826/07
SC 104938/07

HODGSON JA
IPP JA
BASTEN JA
17 SEPTEMBER 2008

Alexander COSTA and Another v THE PUBLIC TRUSTEE OF NSW

CATCHWORDS

APPEALS – Appeal by way of rehearing – Question of fact – inference from undisputed written evidence – Whether necessary for appeal court to find error – Discussion of principles. Supreme Court Act 1970 (NSW) s 75A

SUCCESSION – Informal document – Whether document purported to convey testamentary intentions – Whether deceased intended document to be his will. Wills Probate and Administration Act 1898 s 18A

HEADNOTE

FACTS

The deceased, Robert Costa, committed suicide. A hand-written document was found in his bedroom, written in the form of a poem. The document was addressed to his mother and father. Included in the poem were the words, “I think I’m dying” and “I want you to have my house”. The deceased’s house was his only valuable asset.

The deceased’s parents, Mr and Mrs Costa, sought the grant of probate. The issue was whether the deceased had the intention for the document to constitute a will. The primary judge dismissed the claim, holding that there was no such intention. The parents appealed from that decision.

ISSUES

(ii) Whether on an appeal by way of rehearing it is necessary for the appellate court to find error before disturbing the conclusions of the primary judge on questions of fact, or mixed fact and law.

HELD (allowing the appeal):

( Per Hodgson JA )

(a) For discretionary decisions, the appeal court will be satisfied of error if the decision is clearly outside what could normally be justified by correct reasoning: House v King (1936) 55 CLR 499.

(b) For a factual question depending on assessment of oral evidence, that the decision is very clearly wrong: Fox v Percy (2003) 214 CLR 118.

(c) Where there is not one correct answer, such as a decision on an amount of non-economic loss, the appeal court will be satisfied of error if the decision is outside the reasonable range.

( Per Hodgson JA, Ipp JA agreeing )

(2) Giving weight to the primary judge’s opinion and recognising the appeal court’s fallibility, nonetheless the preferable view is that the deceased did in fact intend the document to govern the disposition of the house after his death.

( Per Ipp JA )

(a) Where the credibility or demeanour of witnesses has played an essential part, an appellate court will only interfere if the trial judge has failed to use or has palpably misused his or her advantage, or has made findings inconsistent with incontrovertible facts, or has acted on glaringly improbable evidence, or has made findings contrary to compelling inferences: Fox v Percy (2003) 214 118.

(b) Where the decision is based on the exercise of a judicial discretion, there will be error where the judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the decision, mistakes the facts, does not take into account some material consideration, or if the result is unreasonable or plainly unjust: House v King (1936) 55 CLR 499.

(4) In the present case, there can be only one unique answer to the question whether a particular intention is to be inferred from the proved primary facts. If the appellate court comes to a different conclusion to the primary judge, the appellate court may intervene.

( Per Basten JA )

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc

Warren v Coombes [1979] HCA 9; 142 CLR 531 applied.

Attorney-General v Sillem

Allesch v Maunz

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission

CSR Ltd v Della Maddalena [2006] HCA 1; 80 ALJR 458; Imbree v McNeilly [2008] HCA 40; Shi v Migration Agents Registration Authority [2008] HCA 31 referred to.

Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359 and Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 not followed.

Jacob v Utah Construction and Engineering Pty Ltd

Farah Constructions Pty Ltd v Say-Dee Pty Ltd

Warren v Coombes

House v The King

Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd

WMC Resources Ltd v Leighton Contractors Pty Ltd

In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill

Pahlow-Silady v Siladi

CA 40826/07
SC 104938/07

HODGSON JA
IPP JA
BASTEN JA

17 SEPTEMBER 2008

Alexander COSTA and Another v THE PUBLIC TRUSTEE OF NSW

Judgment

1 HODGSON JA: On 12 November 2007, Windeyer J made an order dismissing a statement of claim by which the appellants Mr and Mrs Costa had sought the grant to them of probate of a document written by their son Robert (the deceased), who had died in July 2006.

2 The appellants appeal from that decision.

Facts

3 The facts giving rise to the appellants’ claim were set out as follows by the primary judge, in a way not subject to challenge:

MUM AND

DAD I THINK

I M DYING

PLEASE

LOOK

AFTER

ALL

MY

GOOD

WRITING.

THERE

MIGHT

BE

SOME

MORE

IN

THE DRAWER

TAKE CARE OF ‘EM

I WANT YOU

TO HAVE MY HOUSE

[8] The handwriting is that of the deceased. The evidence is clear that “Mum and Dad” refers to the plaintiffs. In her affidavit sworn 26 July 2007, Mrs Costa, one of the plaintiffs and the deceased’s mother, said, “Robert was fond of writing down compositions, poems and his thoughts. He saved most of what he wrote. He often called what he had written his ‘good writing’.”

[9] On the evidence the only asset of the deceased of value was his house, 14 Beckett St, Gillieston Heights. I should state that I have some difficulty with the evidence of assets. There must have been some contents in the house, but perhaps they had no value.

Decision of primary judge

4 The question to be determined by the primary judge was whether or not the document satisfied the test laid down by s 18A of the Wills Probate and Administration Act 1898, which was in the following terms:

18A Certain documents to constitute wills etc

(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will or the revocation of such a will if the Court is satisfied that the deceased person intended the document to constitute the person’s will, an amendment of the person’s will or the revocation of the person’s will.

(2) In forming its view, the Court may have regard (in addition to the document) to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the deceased person.

5 The primary judge gave the following reasons for his decision:

[11] For the requirements of s 18A to be satisfied there must be (i) a document; (ii) which purports to embody the testamentary intentions of the deceased; and (iii) which the deceased intended without more to constitute his will ( Hatsatouris v Hatsatouris [2001] NSWCA 408 which really only states what the legislation requires). All the cases on the section and its equivalent in other states depend upon their own facts.

The Public Trustee would not enter an appearance and act as contradictor without funds and he would require the plaintiffs to pay $5,000 and an indemnity against further costs before taking part.

[13] The court cannot force a defendant to appear but it is fair to say that had the Public Trustee appeared as a contradictor it would have been of considerable assistance to the court, and it is at least likely that had he appeared the costs of the Public Trustee would have been ordered to be paid out of the estate. It seems extraordinary to ask the plaintiffs to fund the costs of the Public Trustee as defendant in circumstances where, unless there was no likelihood the s 18A application would fail, the Public Trustee was and remains the executor of a will, which will be admitted to probate if the s 18A claim fails, and as such has a responsibility to the beneficiaries under that will.

[14] There is a document. It does embody the wishes of the deceased as to who should get his house on his death. It is more likely than not that it was written in the last hours of the deceased’s life. According to the evidence, he had nothing to give except his writings, which he valued, and his house. He stated what he wanted to happen to them.

[15] The question to decide is whether the deceased intended the document to operate as his will. The facts going to support a positive finding are the place where the document was located and the fact it was made at a time when death was imminent. The facts against this are that the wording is precatory and not dispositive; that as the deceased had made a valid will in 1995 he knew the requirements for a valid will; that there is no signature on the document; and the way in which the writing runs down the paper indicating it was expressing emotions and not legal intentions.

[16] It could be said that the deceased might not have thought there could be any difference between saying “I want you have my home” and “I give my home to you”. It could also be said that a man about to take his life is unlikely to bring to mind the requirements for execution of a will and, in any event, he would not have been able to arrange execution. This last matter does not of course deal with the problem of the absence of his signature.

Re Estate of Masters; Hill v Plummer

For the section to operate, the Court must be satisfied that the intention was that the document operate, in the sense to which I shall refer, as an actual act in the law.

[18] In principle and with respect that must be correct. The majority judgments were not to the contrary. It was accepted as correct in Polyak Estate Amy v Permanent Trustee [1999] NSWSC 862.

Issues on appeal

6 The appellants rely on the following grounds of appeal:

5 His Honour erred in law in not finding the document the subject of the proceedings was intended by the deceased to operate as his Will.

6 His Honour erred in law in not finding that the document the subject of the proceedings was an informal testamentary document within the meaning of the Wills, Probate and Administration Act 1898, sec 18A.

7 I will consider in turn the following issues:

(2) The appropriate approach by an appellate court in an appeal such as this.

(3) The question whether there was error by the primary judge.
Formalities

8 Division 3 of Pt 78 of the Supreme Court Rules deals with non-contentious proceedings for grant, that is (broadly), proceedings where there is no defendant. Such proceedings are to be commenced by summons: Supreme Court Rules Pt 78 r 8.

9 Part 78 r 34E provides as follows:

78.34E Consent of or notice to affected persons

(b) serve notice, in the form prescribed, on the affected person,

in respect of the informal testamentary document.

(b) the affected person cannot be ascertained or cannot readily be ascertained,

(c) the affected person, though ascertained, cannot be found, and

(d) though the affected person can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to dispense with compliance for the purpose of saving expense.

10 Part 78 r 34H and r 34I provide that a person so served may appear and become a party to the proceedings.

11 Had this procedure been followed in this case, as it could have been, notice under r 34E should have been given, unless dispensed with, to the Public Trustee and Mr Schultz (at least). Then, whether or not they appeared, they would have been bound by the result: Pt 78 r 34F. There would have been no obligation on either to appear.

12 I do not think this position was altered in substance by the circumstance that the appellants chose to proceed by statement of claim. I do not think therefore that the Public Trustee can properly be criticised for declining to participate unless his costs were paid. The Public Trustee did appear as respondent to the appeal, and the Court was assisted by his submissions.

13 During the hearing of the appeal, the Court raised a question as to whether the deceased’s nephew should have been served. There was no evidence that Mr Schultz had died before the deceased did, but there was no evidence that he was then still alive. The Court took the view that, in those circumstances, the nephew should be regarded as a person whose (contingent) interest in the estate might be affected. Directions were given requiring that the nephew be fully informed of the proceedings and the appeal; and the Court has since then been provided with evidence of this, and evidence that nephew supports the appellants’ application.

Approach of appellate court

14 There is a very helpful discussion concerning the approach to be taken by an appellate court on questions of fact or of mixed fact and law, where the appeal is by way of rehearing, by Allsop J (with whom Drummond J and Mansfield J agreed) in Branir v Owston Nominees(No 2) Pty Limited [2001] FCA 1833, (2001) 117 FCR 424 at [21]-[32]:

[21] However, this conclusion does not alter the need to show error on appeal. In Hamsher [ Minister for Immigration, Local Government and Ethic Affairs v Hamsher (1992) 35 FCR 359] Beaumont J and Lee J identified the need for the demonstration of error in the trial judge's findings or conclusions and they expressed the view that the statements in Warren v Coombes (1979) 142 CLR 531 (dealing with an appeal by way of rehearing) that an appellate court must not shrink from giving effect to its own conclusion were premised on a conclusion that the decision of the trial judge was wrong and should be corrected.

[22] In any event, it is plain from what the High Court has said in CDJ v VAJ supra [(1998) 197 CLR 172] at [111], in Allesch v Maunz , supra [(2000) 203 CLR 272] at [22], in Coal & Allied Operations v AIRC , supra [(2000) 203 CLR 194] at [14] and in Crampton v R (2000) 176 ALR 369 at [147] (citing Attorney General v Sillem (1864) 10 HLC 704 at 724 per Lord Westbury LC and Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan (1931) 46 CLR 73 at 109 per Dixon J) that the task of a court on an appeal by way of rehearing is the correction of error.

Cabal

Cabal v United Mexican States

Warren v Coombes

Abalos v Australian Postal Commission

Devries v Australian National Railways Commission

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq)

[224] Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his finding of fact. We cannot however simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance.

[24] What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing: see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 160 ALR 588 at 619 [90] per Kirby J; Moneywood v Salamon Nominees (2001) 202 CLR 351 at 390 [127] and [128] per Kirby J; Members of the Yorta Yorta Aboriginal Community v State of Victoria (2001) 180 ALR 655 at [203] and [205] per Branson J and Katz J; and also Khoo Sit Hoh v Lim Than Tong [1912] AC 323, 325; Paterson v Paterson (1953) 89 CLR 212, 221; Powell v Streatham Manor Nursing Home [1935] AC 243; and Warren v Coombes , supra at 538.

[25] This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kinds of considerations referred to in [24] above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient: see Zuvela v Cosmarnan Concrete Pty Ltd (1996) 140 ALR 227 at 229-230. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning: see generally Corp of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151-156) the preference of the appeal court for one view would carry with it the conclusion of error. However, other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions, see Fenton Nominees Pty Ltd v Valuer-General (1981) 47 LGRA 71, 73-76.

SRA v Earthline

Biogen Inc v Medeva Pty Ltd

Williams

Willliams v Minister, Aboriginal Land Rights Act 1983

The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.

[27] However, as was made clear in Cabal , this Court is bound to deal with the appeal as directed by Warren v Coombes , supra.

[28] The views of Barwick CJ in cases such as Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, 506, Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192, 199 and Edwards v Noble (1971) 125 CLR 296, 304 which were rejected by the majority in Warren v Coombes , supra, and the views of that majority in Warren v Coombes all contain the need for the demonstration of error. The need for demonstration of error and how that fits into the appropriate approach to dealing with the appeal is reflected in what Menzies J and Walsh J said in Edwards v Noble , supra [(1971) 125 CLR 296], where their Honours expressed views to a degree contrary to those of Barwick CJ. The views of Menzies J and Walsh J are set out in Warren v Coombes at 545-547. They were views approved of in Warren v Coombes . From Warren v Coombes , the passages of Menzies J and Walsh J in Edwards v Noble , from the other authority cited by the majority in Warren v Coombes and from more recent decisions of the High Court flow a number of relevant propositions. First, the appeal court must make up its own mind on the facts. Secondly, that task can only be done in the light of, and taking into account and weighing, the judgment appealed from. In this process, the advantages of the trial judge may reside in the credibility of witnesses, in which case departure is only justified in circumstances described in Abalos v Australian Postal Commission (1988) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472 and SRA v Earthline , supra. The advantages of the trial judge may be more subtle and imprecise, yet real, not giving rise to a protection of the nature accorded credibility findings, but, nevertheless, being highly relevant to the assessment of the weight to be accorded the views of the trial judge. Thirdly, while the appeal court has a duty to make up its own mind, it does not deal with the case as if trying it at first instance. Rather, in its examination of the material, it accords proper weight to the trial judge's views. Fourthly, in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.

[29] The degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge. Sometimes, where matters of impression and judgment are concerned, giving "full weight" or "particular weight" to the views of the trial judge might be seen to shade into a degree of tolerance of divergence of views: compare S W Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466, 478 and 491; Turbo Tek Enterprises Inc v Sperling Enterprises Pty Ltd (1989) 23 FCR 331; Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553; Allsop Inc v Bintang Ltd (1989) 15 IPR 686; Dart Industries v Decor Corp Pty Ltd (1989) 15 IPR 403, 412; and Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 at [27]. In such cases the personal impression or conception of the trial judge may be one not fully able to be expressed or reasoned: see for example In re Wolanski's Registered Design (1953) 88 CLR 278, 281 and Secretary of State for Foreign Affairs v Charlesworth, Pilling & Co [1901] AC 363, 391. However, as Hill J said in Commissioner of Taxation v Chubb Australia (1995) 56 FCR 557, 573 "giving full weight" to the view appealed from should not be taken too far. The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.

[30] From these principles of how the appeal court should undertake its task, the following can be said about the approach of those conducting an appeal. The proper approach is not to ask the court to survey all the evidence, directed by the otherwise unassailable findings on credit, and to ask it to arrive at its own conclusions, without "essaying the necessary task of positively demonstrating that the trial judge was wrong": Williams v The Minister , supra at [61] per Heydon JA. It is not appropriate to treat the appeal as though it were a new trial on the evidence and constrained merely by the unassailable factual findings. Error must be demonstrated. See also Biogen Inc v Medeva Pty Ltd , supra at 45 and Williams , supra at [136] and [137] citing Zuvela , supra and Biogen , supra. The views and conclusions of the trial judge ultimately have to be shown to be wrong. They should not be laid to one side and a simple re-argument of the case take place.

[31] It will be necessary to return to such considerations as these when examining the submissions of the appellants and their attacks on his Honour's findings and conclusion.

Australian Broadcasting Commission v XIVth Commonwealth Games

GR Securities v Baulkham Hills Private Hospital

Howard Smith and Co Ltd v Varawa

B Seppelt and Sons Ltd v Commissioner for Main Roads

Geebung Investments v Varga Investments

Pirt Biotechnologies v Pirtferm Pty Ltd

Warren v Coombes

15 Consistently with this analysis, I would briefly summarise as follows my views as to the approach to be taken by an appellate court, where there is an appeal by way of rehearing on questions of fact or mixed fact and law.

16 First, in relation to any matter, I would give weight to the decision of the primary judge, I would recognise my own fallibility, and I would intervene only if I was then satisfied that there was error by the primary judge. However, what amounts to satisfaction of error varies according to the nature of the issue.

17 Second, I would consider whether or not there is a material error in the reasoning, that is, a failure to give reasons or an error in the reasoning that was apt to influence the result and that apparently did so. Mere failure to state all relevant factors will not generally be an error, although failure to state a particularly important factor may be: see Mifsud v Campbell (1991) 21 NSWLR 725.

18 Third, if there is no material error in the reasoning, then what is required is satisfaction:

House v the King

(2) For a factual question depending on assessment of oral evidence, that the decision is very clearly wrong: Fox v Percy [2003] HCA 22, (2003) 214 CLR 118.

(3) For other decisions on matters where there is not one correct answer, such as a decision on an amount of non-economic loss or on apportionment of responsibility, that the decision is outside the reasonable range for such a decision.

(4) For decisions on matters where there is one correct answer, and where the appeal court is in as good a position as the primary judge, that an answer different from that given by the primary judge is to be preferred.

19 In the present case, even if I were not satisfied that the primary judge’s decision was unreasonable, I would substitute my own view if, giving weight to the primary judge’s decision and recognising my own fallibility, I nevertheless preferred a different view. In my opinion, that would sufficiently amount to a finding of error: cf Branir at [25] and [29]. I do not think this approach conflicts with Warren v Coombes (1979) 142 CLR 531, or differs in substance from that stated by Basten JA in his judgment in this case.

Was there error in this case?

20 Mr Blackburn-Hart SC for the Public Trustee submitted that the primary judge’s decision should not be overturned.

21 He submitted that in one respect, the primary judge’s decision was overly favourable to the appellants, namely his finding that it was more likely than not that the document was written in the last hours of the deceased’s life. Mr Blackburn-Hart pointed out that the note did not itself suggest contemplation of suicide, and was found in the bedroom, and not in the hallway where the deceased died.

22 Mr Blackburn-Hart relied on the reasons given by the primary judge and, submitted that further considerations supported the primary judge’s conclusion. He pointed to the great informality of the document, including the informality of expression and the way the document was written down the page, without any signature. He submitted that the document was in emotional terms, and submitted that wording such as “look after” and “I want” was indicative of request rather than disposition of property. He also pointed to the circumstance that the deceased had not entrusted the document to anyone; and also to the lack of evidence concerning the wishes and intentions of the deceased, which one would have expected to be available from his family.

23 There is force in these submissions, and in the reasons given by the primary judge; but I have a firm preference for the alternative view, and in that sense am satisfied there was error by the primary judge.

24 In my opinion, the primary judge was justified in drawing the inference that the document was written shortly before the deceased’s death. It was left in a prominent place. It was addressed to “Mum and Dad”, so plainly it was intended to come to their attention; and it had not previously been brought to their attention. There is no suggestion that the deceased was close to death at any other time.

25 These matters are not conclusive, but in my opinion are sufficient to justify the primary judge’s inference, on the balance of probabilities.

26 The crucial questions in this case are whether the document purports to govern the disposition of the deceased’s property after his death, and whether the deceased actually intended it to do so. I agree with the way the question was posed in Estate of Masters (1994) 33 NSWLR 446 at 452 by Kirby P; namely whether the document “sufficiently evidences the fact that by it the deceased intended to govern the disposition of his or her property after death”.

27 I would give less weight than the primary judge apparently did to the precatory wording of the document, the deceased’s knowledge of the requirements of a valid will, the lack of a signature and the form of the document.

28 I would give more weight to the consideration that the document was written on a solemn unique occasion, as a last message to his parents, the persons apparently closest to him. I would give more weight to the consideration that, if the document was no more than an emotional expression of wishes, the house would to the deceased’s knowledge be disposed of under his will to an ex-acquaintance with whom the deceased’s relationship had broken down and with whom the deceased had lost contact. I do not think it likely that the deceased was, by this document, intending to do no more than to indicate an ineffectual emotional wish for something that would not happen.

29 This is a case in which the primary judge was in no better position than the appeal court to reach a view on the matter. I do give weight to the primary judge’s opinion, and I recognise my own fallibility. I do not consider the primary judge’s conclusion an unreasonable one, or that there is any material error in his reasoning. However, for the reasons I have given, and taking all the considerations I have mentioned into account, I have a firm preference for the view that the document does purport to govern the disposition of the deceased’s house after his death, and that the deceased did in fact intend by the document to govern the disposition of the house after his death.

CONCLUSION

30 For those reasons, in my opinion the following orders should be made:

(2) Declaration that the deceased intended:

(b) the informal document to revoke his will made on 12 September 1995.

(4) That the application be remitted to the Registrar to complete the Grant.

(5) That the costs of the Public Trustee be paid out of the estate of the deceased.

31 IPP JA: I have had the privilege of reading the reasons to be published of Hodgson JA and Basten JA. Hodgson JA observes at [19] that the approach he espouses does not differ in substance from that of Basten JA. I agree with that observation but I do think that there is a difference in emphasis in the views expressed by each of their Honours. Accordingly, while I agree substantially with their reasons, I wish to give brief reasons of my own for agreeing with the orders proposed by Hodgson JA.

32 Judicial error requiring the intervention of an appellate court is a protean concept. Examples of the form that it can take are manifold. The tests for determining judicial error depend on the nature of the decision under appellate challenge. The judicial constraint required before appellate intervention can occur differs depending on the nature of the decision under appeal.

33 Many forms of judicial decision fall into well-known categories and, in regard to these categories, judicial error of a particular kind must be identified before an appellate court can intervene. The tests for establishing judicial error in these well-known categories are well settled.

34 A familiar example is primary findings of fact in which the credibility or demeanour of witnesses has played an essential part. An appellate court will only interfere with such decisions if the trial judge has failed to use or has palpably misused his or her advantage, or has made findings inconsistent with incontrovertible facts, or has acted on glaringly improbable evidence, or has made findings contrary to compelling inferences. In CSR Limited v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 Kirby J, with the concurrence of Gleeson CJ, referred (at 465, [19]), in effect, to a shift in emphasis brought about by Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 but the degree to which that shift has occurred is not yet clear and the established criteria continue to be the basic standards that have to be applied.

35 Another familiar category is decisions based on the exercise of a judicial discretion. Discretionary decisions by the primary judge are approached with great constraint. The relevant test is that laid down in House v The King [1936] HCA 40, (1936) 55 CLR 499 where Dixon, Evatt and McTiernan JJ said at 504-5:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

36 Thus, even when the judge has not erred by acting on a wrong principle, the appellate court may intervene in a discretionary decision made by a primary judge if it decides that the decision is “unreasonable or plainly unjust”. In such a case the appellate court’s own view of the primary judge’s decision may be the trigger for its intervention. Putting it another way, the appellate court may move to correct an error of discretion which is discerned merely by reference to what the judges of appeal regard as the “right” or “correct” judgment (the measure being what they regard as reasonable or just).

37 Decisions assessing general damages fall into a similar category as they involve “matter[s] of speculation and estimate”. Therefore, such an assessment is “more like an exercise of discretion than an ordinary act of decision”: Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 at 616, quoted by Mason J in Wilson v Peisley (1975) 7 ALR 571 at 585. Mason J in Wilson v Peisley at 585 expressed the test for judicial intervention in regard to the assessment of general damages as follows:

“The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.”

38 His Honour put it slightly differently at 586 when he said that the test was whether the decision fell within “the appropriate limits of a sound discretionary judgment”. A decision falls outside the appropriate limits of a sound discretionary judgment when the amount of damages awarded is wholly erroneous. This, in substance, is little different from the test in House v The King (“if upon the facts it is unreasonable or plainly unjust”).

39 It follows that, in the category of the assessment of general damages (as in the case of House v The King discretionary judgments), an appellate court may find judicial error merely by assessing the primary judge’s decision and holding it to be so wrong as to be beyond the appropriate limits of a sound discretionary judgment.

40 Decisions as to the appropriate apportionment of damages in negligence cases are governed by the principles expressed by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 532:

British Fame (Owners) v Macgregor (Owners)

41 Such decisions are based substantially on the comparative degrees of negligence and contributory negligence, and their causative effect. Nevertheless, unlike decisions as to the existence of negligence (as to which see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 discussed below), apportionment decisions are afforded strong protection from judicial intervention. The rationale for this difference is that the apportionment legislation entrusts the primary judge with “a very wide discretion” (Pennington v Norris (1956) 96 CLR 10 at 15-16 per Dixon CJ, Webb, Fullagar and Kitto JJ). Negligence, on the other hand, is not a discretionary decision, even though it involves the making of judgments as to the reasonableness of human behaviour, a concept not measurable by fixed criteria. A finding of negligence is not a matter of “individual choice or discretion”. Such a finding is either right or wrong.

42 The test applicable to valuation decisions depends on the kind of valuation in issue. Valuations may not involve fixed or readily available standard criteria. Many subsidiary factors relevant to the valuation may be uncertain, many contingencies may have to be taken into account, there may be several possible methods of assessing value, each giving widely different results, but each being reasonable. Wide ranges of legitimate decisions may apply, and opinions may legitimately differ as to virtually all of the relevant issues: see WMC Resources Limited v Leighton Contractors Pty Ltd [1999] WASCA 10; (1999) 20 WAR 489. The courts have emphasised the discretionary nature of these kinds of valuations (see, for example, The Commonwealth v Reeve [1949] HCA 22; (1949) 78 CLR 410 at 423 per Dixon J; Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336 at 381 per Mason J).

43 The test for appellate intervention in such decisions takes account of their discretionary nature. In Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd, Mason J observed (at 381):

“This Court has consistently applied the rule that on a question of valuation an appellate tribunal is not justified in substituting its own opinion for that of the court below unless it is satisfied that the court below acted on a wrong principle of law or that its valuation was entirely erroneous”

44 The “entirely erroneous” requirement is virtually the same as that laid down in House v The King.

45 There are, however, valuation decisions that may be based on readily defined criteria. These may even include the requirement of “reasonableness”. The element of reasonableness, alone, does not transform the valuation exercise into one of discretion. There remains only one uniquely correct decision: Hawker Noyes Pty Ltd v New South Wales Egg Corporation (Supreme Court of NSW, Brownie J, 11 November 1988, unreported); Atlantic Civil Pty Ltd v Water Administration Ministerial Corporation (1992) 39 NSWLR 468 at 483 per Giles J; WMC v Leighton Contractors Pty Ltd at [20].

46 This approach to the element of “reasonableness” is consistent with Warren v Coombes, a case that concerned a trial judge’s decision as to whether a driver of a car was negligent. Gibbs ACJ, Jacobs and Murphy JJ said at 551-553:

“We can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case--the facts as well as the law--for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment. Further there is, in our opinion, no reason in logic or policy to regard the question whether the facts found do or do not give rise to the inference that a party was negligent as one which should be treated as peculiarly within the province of the trial judge. On the contrary we should have thought that the trial judge can enjoy no significant advantage in deciding such a question. The only arguments that can be advanced in favour of the view that an appellate court should defer to the decision of the trial judge on such a question are that opinions on these matters very frequently differ, and that it is in the public interest that there should be finality in litigation. The fact that judges differ often and markedly as to what would in particular circumstances be expected of a reasonable man seems to us in itself to be a reason why no narrow view should be taken of the appellate function. The resolution of these questions by courts of appeal should lead ultimately not to uncertainty but to consistency and predictability, besides being more likely to result in the attainment of justice in individual cases. The interest of the community in the speedy termination of litigation might, no doubt, be an argument in favour of the complete abolition of appeals, although that would be far too high a price to pay merely for finality. However, if the law confers a right of appeal, the appeal should be a reality, not an illusion; if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it.”

47 The following passage (at 553) is particularly significant as it demonstrates how the majority in Warren v Coombes approached the identification of judicial error on the part of the trial judge when considering whether an appellate court should intervene:

“In the present case, the Court of Appeal was, and this Court is, obliged to reach its own conclusion as to the inferences to be drawn from the primary facts found by the learned trial judge. Having given due weight to the conclusion reached by the learned trial judge we are unable to agree with it … The proper conclusion to be drawn from the facts was that the respondent was driving in a negligent manner as he approached the intersection, having regard both to his speed and to his position on the roadway. The learned trial judge was wrong in holding that he was not negligent.”

48 Thus, as in the majority of the other categories of case that I have mentioned, the appellate court’s own view of the primary judge’s ultimate decision may be the trigger for its intervention. The appellate court may move to correct an error of discretion that is discerned merely by reference to what it regards as the “right” or “correct” judgment (the measure of error being the appellate court’s own opinion as to what is negligent or not negligent). In other words, there can only be one uniquely correct decision as to whether the defendant has been negligent or not.

49 Accordingly, in a case of negligence, the judges of appeal must consider first if, after recognising the advantages enjoyed by the primary judge, the judge was in no better position to decide the particular question than they are themselves. They must then give full weight to his or her decision. If, thereafter, recognising their own fallibility, the judges of appeal consider that the decision of the primary judge as to negligence was wrong, they must discharge their duty and give effect to their own judgment. Such a decision by the judges of appeal amounts, itself, alone, to the finding of judicial error by the primary judge.

50 As Basten JA points out at [96] and [97], Warren v Coombes remains the law in Australia and this Court should not regard it as having been qualified in any way.

51 In the present case, the issue for determination was the intention of the deceased. That is a question of secondary fact, to be determined by inference from the primary facts as found. The approach laid down by Warren v Coombs applies a fortiori to such a determination. The finding of secondary facts by drawing inferences from primary facts does not involve any element of discretion. Nor does it require any judgment as to concepts (such as reasonableness) not measurable by fixed criteria. There can be only one unique answer to the question whether a particular intention is to be inferred from the proved primary facts. If the appellate court comes to a different conclusion to the primary judge on such a question, the appellate court may intervene.

52 Like Basten JA, I agree with the analysis undertaken by Hodgson JA at [24] to [29]. I agree with the inferences drawn by Hodgson JA and agree with his Honour’s proposed disposition of the appeal.

53 BASTEN JA: As explained by Hodgson JA, with whose proposed orders I agree, the question for determination is finely balanced. This raises squarely the issue whether, in order for this Court to interfere with the decision of the primary judge, it is necessary that it find “error” on the part of the primary judge, that it have a firm preference for another view in circumstances where the primary judge’s conclusion cannot be categorised as “unreasonable” nor the subject of identifiable error, or whether it is sufficient that it be satisfied that the alternative view is to be preferred.

54 Resolution of the present appeal required a determination as to whether the document in question did “embody the testamentary intentions of” the deceased and whether the Court be satisfied that the deceased “intended the document to constitute” his will: Wills, Probate and Administration Act 1898 (NSW), s 18A(1). The critical question, involving the intention of the deceased, involves a factual inference to be drawn in the absence of direct testimony. The determination was made by the trial judge without oral evidence, the assessment of credibility or any other factor which might invite deference to matters of impression. Nor did the requisite finding involve an evaluation of conflicting considerations, nor the assessment of a quantifiable factor. In those circumstances, on an appeal by way of rehearing under s 75A of the Supreme Court Act 1970 (NSW), if, after giving proper consideration to the views of the trial judge as expressed in his Honour’s reasons, this Court would draw a different inference, it should do so and give judgment accordingly.

55 To reach this conclusion it is necessary to address the following issues:

(a) the scope and nature of an appeal under s 75A of the Supreme Court Act ;

(b) the correct approach to reviewing inferences;

(c) whether the purpose of such an appeal is limited to the redress of error;

(d) if so, what is meant by ‘error’;

(e) whether resolution of the issue requires the exercise of “discretionary judgment” and hence a constrained approach to intervention, and

(f) the nature of the exercise required by s 18A of the Wills, Probate and Administration Act .

(a) Statutory scope of appeal

56 The starting point for the analysis must be the statutory source of the powers conferred on the Court. The appeal being brought from a judgment in proceedings in the Court, s 75A of the Supreme Court Act is applicable: see 75A(1). The decision below having been given after a hearing, “the appeal shall be way of rehearing”: sub-s (5). The Court has power to receive further evidence, but, except in respect of evidence concerning matters occurring after the hearing, shall not do so except on special grounds: sub-ss (7)-(9). Otherwise, the critical provisions read as follows:

57 It is a matter of significance that the section does not apply to appeals from trials with a jury (sub-s (2)) and hence constraints which may be relevant in such cases have no application. Further, according to established principles of construction, it is “quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”: Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421 and other authorities collected in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 at [11] (fn 31). Nevertheless, such provisions have become the subject of an encrustation of judicial exegesis, although mainly in areas not of direct present relevance, such as the review of findings of primary fact based on oral testimony and the review of evaluative judgments.

(b) Reviewing inferences

58 The approach traditionally taken in relation to the review of inferences drawn from primary facts is that “in general an appellate court is in as good a position as to the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge”: Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551.

59 Warren v Coombes involved an appeal from this Court, the character of which was defined by s 75A of the Supreme Court Act, in a form not materially different to its present form. The case involved a claim by a 13 year old boy who was seriously injured when the bicycle he was riding collided with the respondent’s vehicle: at 533. The trial judge was not satisfied that the driver of the car was negligent, a conclusion which was upheld in this Court. The question for determination in the High Court was whether the trial judge was correct in his finding that the driver was not negligent: at 536. As noted in the joint judgment, the respondent’s position was that “the question for decision was simply one of fact and that the majority of the Court of Appeal rightly deferred to the decision of the learned trial judge”. Their Honours continued (at 536-537):

“It would not be enough, so it was said, that if they had been trying the case they might have drawn different inferences from the facts. So the important question arises, what is the duty of an appellate court when questions of credibility have been decided and the matter which remains for decision is what inferences should be drawn from facts which have been found and are no longer in contest?”

60 The joint judgment (neither of the dissenters, Stephen J and Aickin J, commenting on this issue) reached the following conclusion (at 551):

“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation.”

61 This conclusion found support in authorities in the High Court prior to the decision of the House of Lords in Benmax v Austin Motor Co Ltd [1955] AC 370 and in Benmax itself. It is convenient to refer to part of the material relied upon in the joint judgment, to make clear the point of distinction which was being drawn in Warren v Coombes. Thus, in Benmax, Viscount Simonds stated (at 373-374):

“… I cannot help thinking that some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts. An example of this distinction may be seen in any case in which a plaintiff alleges negligence on the part of the defendant. … A judge sitting without a jury would fall short of his duty if he did not first find the facts and then draw from them the inference of fact whether or not the defendant had been negligent. … For I have found, on the one hand, universal reluctance to reject a finding of specific fact, particularly where the finding could be founded on the credibility or bearing of a witness, and, on the other hand, no less a willingness to form an independent opinion about the proper inference of fact, subject only to the weight which should, as a matter of course, be given to the opinion of the learned judge.”

62 In agreeing with Viscount Simonds, Lord Reid stated (at 376):

“But in cases where there is no question of the credibility or reliability of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

63 The joint judgment also quoted with approval the following remarks of Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 at 762:

Benmax

64 There were, as noted in the joint judgment, two positions articulated in later authorities, with some language falling on the spectrum between the identified positions. The ‘deferential’ or ‘non-interventionist’ view was that articulated by Barwick CJ in Whiteley Muir and Zwanenberg Ltd v Kerr (1965-66) 39 ALJR 505 at 506. This judgment was described in Warren v Coombes as one which “heralded a new approach”: at 542. Windeyer J, the joint judgment noted at 543, “went further” in Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 212-213. Windeyer J considered that “the evaluation of conduct in terms of reasonableness is a value judgment upon facts rather than an inference of fact”: Warren v Coombes at 543. This distinction was a matter of some importance because in Edwards v Noble [1971] HCA 54; 125 CLR 296 at 312-313 Windeyer J adopted the constrained approach to review of such evaluative judgments identified in House v The King [1936] HCA 40; 55 CLR 499, to which further reference will be made below.

65 It is clear that the joint judgment, in relation to review of inferences, rejected the call of Barwick CJ “for judicial restraint” and the statement that “the decision of a trial judge should not be reversed simply because the appellate court holds a view of the facts different from that which the trial judge has taken, when that view is not unreasonable in the circumstances of the case”: at 548 and 551. It also rejected the view of Windeyer J that a finding of negligence should only be reviewed on grounds applicable to an evaluative judgment: at 551-552. Rather, the joint judgment preferred other statements of principle, including those of Menzies J and Walsh J in Edwards v Noble at 308-309, 318-319; Walsh J and Gibbs J in O’Neill v Chisholm (1973) 47 ALJR 1 at 3-5, as applied by Jacobs P (whilst on this Court) in Cashman v Kinnear [1973] 2 NSWLR 495 at 498-500. The joint judgment also set out (at 550), the following passage from Murphy J in Kouris v Prospector’s Motel Pty Ltd (1978) 19 ALR 343 at 357:

“The Full Court of the Supreme Court was also bound to come to its own conclusion on the case and if it is different from that of the trial judge to give effect to it, even if the reasoning of the trial judge did not disclose any error of principle and was open on the evidence.”

66 The joint judgment further extracted a passage from Murphy J in Livingstone v Halvorsen (1979) 53 ALJR 50 at 57 where, after affirming the view expressed in Kouris, his Honour continued:

“The appeal to the Court of Appeal was a true appeal. Such an appeal is not a mere exercise of supervisory jurisdiction. The parties to the appeal have a statutory right to the appellate court’s decision on the merits of the case. If the appellate court is of the view that the appellant is entitled to succeed on the merits, it must not defer to the view of the primary judge.”

67 Needless to say, none of those statements is inconsistent with the proposition that the appellate court should give “respect and weight to the conclusion of the trial judge”: Warren v Coombes at 551. As explained by Lord Hoffman in Biogen Inc v Medeva plc [1997] RPC 1, it cannot merely be a matter of personal courtesy or deference, it must be based on legal principle and the proper resolution of the controversy presented to the court for disposition: at 45. It reflects the fact that the decision of the trial judge is effective until overturned and his or her reasoning explains a determinative resolution of a dispute in the exercise of judicial power. It exemplifies a “lack of overweening certainty in one’s own opinions”: Cashman at 499 (Jacobs P). It is no doubt equally important that members of an appellate court treat differing views on their court in the same way.

(c) A need to identify “error”?

68 Neither s 75A, nor the passages from Warren v Coombes referred to above in terms qualify the power (and obligation) of the appellate court to give effect to its preferred conclusion by the need to identify “error” on the part of the primary judge. Nevertheless, the authorities dealing with the nature of the powers of an appellate court are replete with statements that the jurisdiction is invoked “to redress the error of the Court below”: see Attorney-General v Sillem (1864) 10 HLC 704; 11 ER 1200 at 1209 (Lord Westbury LC). Similar statements may be found in recent High Court authority: see, eg, Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23] (Gaudron, McHugh, Gummow and Hayne JJ) and [44] (Kirby J); Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [14] (Gleeson CJ, Gaudron and Hayne JJ).

69 However, it is important to bear in mind that the word “appeal” carries no precise or technical meaning. As explained in the joint judgment in Coal and Allied, there is “no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another”: at [11]. In each case, the jurisdiction and powers of the appellate body will depend upon the proper construction of the statutory conferral: see Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 82 ALJR 669 at [2]. In relation to the High Court, the conferral is ultimately referable to the Constitution – see Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 at 109 (Dixon J) and Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 – a consideration which may be important because it brings into play the doctrine of separation of powers, which will not operate, or not in the same way, with respect to State courts. In some circumstances, it may be necessary to distinguish original from appellate jurisdiction; an appeal court may be described as exercising original jurisdiction when “a judicial investigation is being made for the first time”: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 299B (Glass JA).

70 The variety of forms of review described as “appeals”, and the purposes for which they may be classified, should lead to caution in identifying a single unifying principle, such as ‘redress of error’. The nature, scope and subject matter of one form of appeal may reveal different underlying policies to those relevant to another form. Further, a statutory requirement that the appeal court decide a matter for itself is not satisfied by asking if the appellant has demonstrated that the decision below was wrong: Dwyer at [25] and [46]-[49]. Even in relation to an appeal “by way of rehearing”, the courts have been consistent in their assertions that such an appeal remains a form of review of an earlier hearing, so that the latter is not to be treated as little more than a ‘dry run’ for the real battle which is to occur later. A similar policy consideration does not apply, or at least not with the same force, with respect to an appeal de novo, or by way of a fresh hearing. Thus it may be said that a rehearing requires identification of error, but a hearing de novo does not: Coal and Allied at [14]. Nevertheless, even that statement with respect to an appeal by way of rehearing was subject to the qualification that the statement was true “[o]rdinarily, if there has been no further evidence admitted and if there has been no relevant change in the law”. Those factors reflect the power of an appellate court conducting an appeal by way of a rehearing to admit further evidence and the obligation to determine the appeal in accordance with the law as applicable at the date of the rehearing. Again, by way of contrast, what is commonly classified as an appeal “in the strict sense” involves an assessment of the decision of the tribunal below on the evidence before it and according to the law as it stood when that decision was made: Coal and Allied at [12].

(d) Concept of ‘error’

71 In addition to these considerations, ‘error’ may occur in different contexts. In a statutory context in which the appeal was limited to errors of law, Glass JA explained in Azzopardiv Tasman UEB Industries Ltd (1985-1986) 4 NSWLR 139 at 156G:

“Errors may be committed by a Workers’ Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found.”

72 These categories are capable of refinement, so as to distinguish findings of primary fact from inferences drawn from the facts as found and, in addition, distinguishing inferences of fact from evaluative judgments. Other categories may be added, such as the process of exercising a discretionary power.

73 In each circumstance, different kinds of ‘error’ may arise. A finding of primary fact may be dependent upon correct rulings as to the admissibility or inadmissibility of evidence, conclusions as to the credibility of witnesses, a correct understanding of the evidence given by witnesses, the consideration of all the relevant evidence and the application of judgment based upon experience and common sense. A similar analysis can be undertaken for other steps in the process.

74 Each step in the process may require a different analysis by an appellate court with varying degrees of deference to the finding or decision of the trial judge.

75 At each step, policy considerations come into play. For example, despite the extraordinary degree to which we reduce information to a written or electronic record, great emphasis is still placed in the judicial process on orality. Not all evidence is given orally and the degree of emphasis on orality is partly dependent upon whether the trial involves a jury or is by judge alone. Nevertheless, the values which underlie the principle of orality must be given proper weight. Reading the transcript of argument may be as good as (or in some circumstances better than) listening to oral argument. The same approach does not apply to evidence. Despite “scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of” the appearance of witnesses, the judgment of a trial judge with respect to credibility and reliability is still accorded a high level of deference: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [31].

76 In part, the deference to the findings of the trial judge in these respects involves a qualification on the changes which have taken place as a result of civil trials being generally conducted by judges, rather than juries. Whereas the findings of a jury are opaque, the findings of a trial judge should be transparent and explained in written reasons. Nevertheless, as noted by Lord Hoffman in an oft-cited passage from Biogen at 45:

“The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.”

77 That statement was applied by the High Court in Fox v Percy at [41] and Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [102] (Kirby J); see also in this Court, Williams v Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Rep ¶81-578 at [137] (Heydon JA); Bova v Locke [2005] NSWCA 226 at [3] (Mason P) and in the Full Court of the Federal Court, S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 168 ALR 396, 400 (Hill, RD Nicholson and Emmett JJ).

78 In relation to criminal convictions, there is a right of appeal where, on any ground, there has been a miscarriage of justice: Criminal Appeal Act 1912 (NSW), s 6(1). That language, traditionally, has not been said to require “error” but rather “some irregularity”: see R v Cutter [1944] 2 All ER 337 at 339, quoted with approval by Brooking JA in R v Gallagher [1998] 2 VR 671 at 677. As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7]:

“The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error.”

79 Examples of miscarriages which may occur without error in the traditional sense of that term may include circumstances where there has been prejudicial pretrial publicity, where jurors have carried out their own investigations, where there have been attempts to tamper with a juror or counsel have misconducted themselves.

80 In civil cases, an appellate court may intervene where the trial judge has made no identifiable error in reaching a conclusion, and where the result is not itself indicative or error, but where there has been a failure to comply with the obligation to provide reasons for preferring one finding or conclusion over another. That failure may be identified as involving a miscarriage of justice, but is not aptly described as an erroneous finding.

81 Of course, where the appeal is by way of rehearing and there has been a statutory change since the judgment below, it is highly artificial to speak of the judgment as erroneous, in the sense that there was error on the part of the trial judge. (By contrast, it is possible to speak of error where, in the same matter, the High Court changes the law by overriding established authority in the intermediate court of appeal, thereby rendering the judgment below erroneous, although it involved the proper application of established principle when delivered.) It is clear that a court which can hear further evidence is entitled to reach a different conclusion on the basis of material not before the trial judge.

82 Another example of reversal on appeal in the absence of error below may occur where the appellate court entertains an argument with respect to a legal principle which was not agitated below. Although there may be cost consequences for the party raising the point for the first time, such argument may well be permitted if it was not one which could have been met by evidence, had the opposing party had the opportunity: see, eg, Giannarelli v The Queen [1983] HCA 41; 154 CLR 212.

83 These considerations suggest that the search for a unifying concept of ‘error’ is unlikely to succeed. But there is a more fundamental difficulty: the concept of ‘error’ invokes a standard. Where there is an existing standard, departure will (or may) constitute error, but in a truly contentious case, the ‘correct’ decision is not known, and hence the standard set, until the Court’s ruling is delivered. The decision of the Court below is, in law, correct and binding until reversed by an appellate court. When an appeal is allowed by a majority decision, the trial judge and the appellate dissenter may be said to be wrong, but not until the outcome is known. The appellate majority must explain its decision. To the extent that it finds fault with the reasoning of the trial judge, his or her reasoning may be said to reveal ‘error’, but not necessarily by reference to a pre-existing standard.

84 Putting aside errors of law which do usually engage a pre-existing standard, it may be unclear what precisely is meant by saying that ‘the established facts did not reveal negligence on the part of the defendant, contrary to the finding of the primary judge’. The court’s reasons must explain why its conclusion differs from that reached below: it may describe the result reached at trial as ‘wrong’ or ‘erroneous’. However, it might equally be said that the appellate court gave effect to its preferred view. It has been suggested that to describe a decision as “preferable” is apt only if the decision involves “discretionary considerations”: see Shi v Migration Agents Registration Authority [2008] HCA 31 at [140] (Kiefel J). Nevertheless, language is not always used with careful attention to such distinctions. Relevantly for present purposes, it is far from clear that references to the requirement that an appellate court identify error necessarily mean that the court should do more than determine whether it disagrees with the finding of the primary judge. In particular, reference to error does not necessarily invoke a two-stage process by which the appellate court must first determine the existence of error and only then consider whether the decision is right or wrong.

85 There is authority in the Full Court of the Federal Court that an appeal court should only embark upon a reconsideration of inferences drawn by the primary judge once it is persuaded that that course is necessary for the correction of identifiable error. That approach may be considered by reference to three particular authorities. The first is the decision in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359. The joint judgment of Beaumont and Lee JJ noted that the Court was as well placed as the primary judge to draw inferences from the evidence: at 368-369. After referring to s 27 of the Federal Court of Australia Act 1976 (Cth), which provided the relevant right of appeal, their Honours referred to Duralla Pty Ltd v Plant [1984] FCA 146; 2 FCR 342, a decision which, until finally overruled by the High Court in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [68]-[71], was widely accepted in the Full Court as characterising the right of appeal as an appeal in the strict sense and not one by way of rehearing. The joint judgment continued (at 369):

Warren v Coombes

Edwards v Noble

86 This analysis is open to doubt for two reasons. First, in requiring that the appellate court must be satisfied of error, its approach was coloured, no doubt, by its understanding of the nature of the appeal, although that qualification was not expressly made when referring to Warren v Coombes. Secondly, in referring to the dicta in Edwards v Noble, their Honours appear to have treated the statements of Barwick CJ, Menzies J and Walsh J as to similar effect. In Warren v Coombes (at 548) the joint judgment said:

Edwards v Noble

87 In State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 at [83], Kirby J noted the reference to the views of Windeyer J as a “heresy” and the principles advocated by Barwick CJ as having been “despatched” in Warren v Coombes, in preference for the views of, amongst others, Walsh J.

88 The second decision of the Full Court of the Federal Court is Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 (Hill, Weinberg and Dowsett JJ). By the time the decision was delivered in Cabal, the Court was conscious that the right of appeal contained in s 27 of its Act was an appeal by way of rehearing and not an appeal in the strict sense, as had been pointed out in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [75] (Gleeson CJ and Gummow J). After referring to Warren v Coombes (and other authorities with respect to review of factual findings), the joint judgment continued (at [223]):

“In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However, once having reached its own conclusion it will not shrink from giving effect to it.”

89 That language is in accordance with Warren v Coombes. The qualification that such an approach should be adopted “in general” was relevant to the circumstances of the case, where, whilst it was true that the Full Court was in the same position as the primary judge, their Honours were all considering an extradition case in which the oral testimony had been heard by a magistrate, whose decision was upheld by the primary judge.

90 The Court then held that, in those circumstances, it would set aside findings of fact only if persuaded that they were “erroneous” and would not “simply substitute for his Honour’s findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance”: at [224]. This language appears to depart from Warren v Coombes, but, as noted above, so did the circumstances of the case.

91 The third Full Court authority in which the proper approach was given detailed and careful consideration was Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833; 117 FCR 424, the judgment being delivered by Allsop J, with whom Drummond and Mansfield JJ agreed.

92 Branir noted that the matter had not been approached by the parties “on the basis of the incorrectness of the proposition that the approach of Beaumont J and Lee J in Hamsher, in the requirement for the demonstration of error is one which is appropriate for appeals both in the strict sense and by way of rehearing”: at [20]. Nevertheless, having concluded that the appeal was indeed one by way of rehearing, the Court noted that “this conclusion does not alter the need to show error on appeal”: at [21]. After referring to other authorities discussed above, the Court stated at [28]:

Warren v Coombes

93 There followed a discussion of the way in which an appellate court, exercising its powers by way of rehearing, should deal with “the facts”. No clear line was drawn between assessment of primary facts, the drawing of inferences and making evaluative judgments. Nor was any unequivocal principle identified. However, the Court concluded at [29]:

“The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.”

94 Although there appear to be statements in Branir which may, on one construction, be seen to be inconsistent with Warren v Coombes, it is important that they be read in their context. Thus, the statement that the conclusions of the trial judge “ultimately have to be shown to be wrong” was made in rejection of the proposition that they could be “laid to one side and a simple re-argument of the case take place”: at [30]. Further, in discussing circumstances where, by nature of the fact or conclusion, only one view is legally possible, it was said that “the preference of the appeal court for one view would carry with it the conclusion of error”, in respect of the contrary view of the trial judge: at [25].

95 Branir has been applied by this Court, but without consideration of its consistency with Warren v Coombes: see, eg, Jones v Bradley [2003] NSWCA 81 at [113]-[116]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 46 ACSR 504; 21 ACLC 1,810; 179 FLR 1 at [17]-[19]. However, in Ruthol Pty Ltd v Mills [2003] NSWCA 56; 11 BPR 20,793 at [66]-[67], Cabal and Branir appear to have been relied on for the proposition that error was not required. Apart from a passing reference in the ACT Court of Appeal, in Glass v The Commonwealth [2003] ACTCA 8, Branir does not appear to have been discussed in any other State or Territory intermediate court of appeal.

96 It remains to consider whether more recent authorities in the High Court should be seen as qualifying the principles stated in Warren v Coombes. In Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460, Kirby J, at [113]-[114], both applied Warren v Coombes and referred to “erroneous” fact-finding, without making clear whether a review of inferences required a demonstration of “error”. However, his Honour’s affirmation of Warren v Coombes in Earthline Constructions at [72]-[83] and in CSR Ltd v Della Maddalena [2006] HCA 1; 80 ALJR 458 at [22] (with the agreement of Gleeson CJ) was unequivocal and emphatic. In Imbree v McNeilly [2008] HCA 40 at [189], Heydon J held that the decision of this Court should be reversed because the Court “did not sufficiently expose any error justifying alteration” of the basis for assessment of contributory negligence reached by the trial judge. Other members of the Court did not adopt that approach. Further, his Honour may have considered that the apportionment of liability involved an evaluative judgment, governed by principles discussed below.

97 It is not appropriate for this Court to reconstrue the authorities which predated Warren v Coombes to reach a different test. Nor is it appropriate to sift through the language of subsequent authorities seeking indications that the Court might one day revisit Warren v Coombes, when it has not yet done so: see Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; 116 CLR 200 at 207 (Barwick CJ) and 217 (McTiernan, Taylor and Owen JJ); see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134]. Indeed, the High Court has affirmed Warren v Coombes expressly in Fox v Percy at [25] (Gleeson CJ, Gummow and Kirby JJ), [87] (McHugh J), [134] (Callinan J), and CSR Ltd v Della Maddalena at [22] (Kirby J) and referred to it on more recent occasions without casting doubt on its correctness: see, eg, CGU Insurance Limited v Porthouse [2008] HCA 30 at [69]; Dwyer at [24] and [35]; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 at [113] (Kirby J).

(e) An exercise of discretionary power?

98 Warren v Coombes involved the assessment of primary facts against the indeterminate criterion of “reasonable care”, to determine whether a party involved in an accident had been negligent. That is sometimes described as an evaluative or discretionary judgment. That exercise bears a degree of similarly to the exercise of a discretionary power. Yet the test adopted in Warren v Coombes differs from that adopted in House v The King at 505 (Dixon, Evatt and McTiernan JJ) with respect to an appeal against the exercise of a discretionary power, namely the imposition of a sentence. That case concerned an appeal to the High Court, but one then available on law and fact. The joint judgment stated at 504-505:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.”

99 Their Honours then proceeded to identify the nature of the relevant error concluding with the remarks that:

“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

100 The reference to a “substantial wrong” reflects the language of the traditional ground of criminal appeal involving a miscarriage of justice: see Criminal Appeal Act 1912 (NSW), s 6(1). Indeed, the joint judgment in House v The King made clear that the Court was applying in relation to its own jurisdiction (no longer extant) the same principles which would be applied by an intermediate court of criminal appeal.

101 Decisions with respect to discretionary powers may fall into various categories. One category involves a determination of where, within a range, the result properly lies. In such a case, as with the exercise of the sentencing discretion, the principles in House v The King may properly be applied. Examples in the civil jurisdiction include the assessment of damages in personal injury cases and the valuation of property. As noted by Mason J in Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; 146 CLR 336 at 381:

“This Court has consistently applied the rule that on a question of valuation an appellate tribunal is not justified in substituting its own opinion for that of the court below unless it is satisfied that the court below acted on a wrong principle of law or that its valuation was entirely erroneous …. As with the assessment of damages, especially in personal injury cases, the valuation of property by a court has many of the characteristics of a discretionary judgment. Valuation is a matter of estimation, not of precise mathematical calculation. It certainly involves the making of a value judgment in the metaphorical as well as the literal sense.”

102 The constrained role of an appellate court in reviewing a determination of this kind in civil proceedings is uncontroversial, although it is significant that not all valuations fall into that class: see, eg, WMC Resources Ltd v Leighton Contractors Pty Ltd [1999] WASCA 10; 20 WAR 489 at [15]-[26] (Ipp J, Kennedy and White JJ agreeing).

103 A motor accident case may involve five separate steps: (i) a finding of primary facts; (ii) the drawing of inferences as to how the accident occurred; (iii) a judgment as to whether either or both parties were negligent; (iv) if both, an apportionment of culpability, and (v) an assessment of damages. Arguably, both (iv) and (v) involve evaluative judgments, subject to review only in accordance with House v The King. Step (i) may be subject to constraints based on the advantages enjoyed by the trial judge. Step (ii) is not subject to House v The King constraints, a matter which appears to have been accepted by Windeyer J in Edwards v Noble: at 312. Warren v Coombes places step (iii) in the same category as step (ii): cf Edwards at 313-314 (Windeyer J). Although a finding of negligence may be described as an evaluative judgment, based on imprecise criteria, it is not the exercise of a discretionary power in the sense of House v The King.

104 The distinction may be illustrated by reference to Re Coldham; Ex parte Brideson [No. 2] [1990] HCA 36; 170 CLR 267. The case involved an appeal to the Australian Industrial Relations Commission from the decision of a Registrar concerning the registration of a union. The right of appeal under s 88F of the Conciliation and Arbitration Act 1904 (Cth) (since repealed) was held to confer a right of appeal by way of rehearing: at 272. The Court (Deane, Gaudron and McHugh JJ) held that the Commission was therefore “bound to make its own decision on the evidence before it, including evidence of events which had occurred since the Registrar’s decision”: at 274. It expressly rejected the proposition that “the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied”: at 275. By way of comparison, however, the Court noted that those principles could be brought to bear on the question of whether leave to appeal should be granted.

105 The constraints on review identified in House v The King are thus appropriate and applicable in relation to an order granting relief, whether interlocutory or final, where the nature of the order depends upon an evaluative judgment of the kind discussed above, or involves a balancing of considerations, rather than the application of a dispositive rule of law. The present case-law requires that the constrained approach be adopted in reviewing decisions, such as the assessment of damages, and possibly the apportionment of liability between two negligent parties, but not in relation to a finding of negligence or contributory negligence. It is not necessary, for present purposes, to identify the rationale for that dividing line, in the context of an appeal under s 75A of the Supreme Court Act. It is sufficient to note that the present case falls well outside the House v The King limitations because it involves no evaluative judgment, nor even a finding to be made according to imprecise criteria. It requires an inference to be drawn, but in circumstances which allow scope for reasonable minds to differ as to which of two conclusions is correct. The scope for difference depends upon the need to draw an inference from circumstantial material. The next issue concerns the nature of that exercise.

(f) Nature of issue in dispute

106 The foregoing comments are intended to emphasise the need to determine the jurisdiction and powers of the court in a particular case by reference to the statutory provisions conferring power on the court, the subject matter of the proceedings and the nature of the complaints made about the judgment below.

107 This case involved an assessment of the status of the document presented as embodying the testamentary intentions of the deceased person, pursuant to s 18A of the Wills, Probate and Administration Act. The status of the document as a valid will depended upon the satisfaction of the Court that the deceased person intended the document to constitute his or her will: s 18A(1). It was common ground that the relevant state of satisfaction was to be achieved on the balance of probabilities. The trial judge did not reach such a state of satisfaction.

108 Although s 18A is in two parts, one characterising the document and the other the intentions of the deceased, they are unlikely in practice to give rise to different conclusions. Thus, if the Court is satisfied as to the intention of the deceased, namely that the document constitute his or her will, that being a testamentary intention, it would follow that the document in question, although not formally executed, purported to embody such intentions. As explained by Mahoney JA, in Inthe Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 at 455D, the intention of the deceased must have been that the document constitute a will in the sense of being capable of effecting a transfer of property, upon death, to the intended beneficiaries. Further, his Honour stated (at 455F):

“Ordinarily, a transaction will or will not be an act in the law of the particular kind according to whether it was of the relevant form or nature and was intended to operate as such. … A person may set down in writing what are his testamentary intentions but not intend that the document be operative as a will.”

109 His Honour concluded the passage by stating:

“What is to be determined in respect of a document propounded under s 18A is whether, assuming it to embody the testamentary intentions of the deceased, it was intended by the deceased as his testamentary act in the law, that is, to have present operation as a will.”

110 There may be a risk in adopting the language of an intention that “the document operate … as an actual act in the law”: at 455D. This terminology was not adopted by Kirby P or Priestley JA and, whilst it contains nothing erroneous as a matter of principle, it could, if applied without caution, distract attention from the statutory language. The question is whether the deceased intended that the document constitute his or her will. That question will depend in part upon his or her state of knowledge and understanding of the nature of a will. In Pahlow-Silady v Siladi [1997] NSWCA 241, Powell JA rejected the proposition that because Mr Silady had made a formal will some 19 years earlier he would “recall the formalities that then attended the process or would necessarily assume, even if they were recalled, that these formalities were essential to validity”: at 17. The state of knowledge of the putative testator is obviously a relevant consideration in assessing intention, but the ultimate question is one of satisfaction as to that intention.

111 In Estate of Masters, Priestley JA quoted with approval the statement of the trial judge, Powell J, (at 466G) “that in the application of this section the questions arising are essentially questions of fact, the particular questions of fact being whether there is a document, whether that document purports to record the testamentary intentions of the deceased and whether it was the intention of the deceased that the document should operate as his or her will”. However, it is also clear that all members of the Court treated the task as one of drawing inferences from primary facts, there being no direct evidence in respect of the third, critical, question. Neither of the majority sought to identify particular errors in the reasons or findings of the trial judge; rather they merely stated what they believed to be “the proper inference” in the circumstances: at 453C (Kirby P) and 468-469 (Priestley JA). (Mahoney JA, although in dissent, expressed the exercise required in terms of what it was “proper to infer” (p 456G) and, in relation to the relevant documents, his own state of satisfaction.)

112 A somewhat different approach was adopted in Pahlow-Silady. Both Gleeson CJ and, relevantly, Powell JA, concluded that the appeal should be allowed because the primary judge “did not have before him a sufficiently clear and cogent account of the facts relevant to the issues which arose for determination” at 1 (Gleeson CJ). In respect of the correct approach, after referring to the passage set out from Priestley JA in Estate of Masters, Powell JA stated (at 21):

“If, as seems to be accepted, the questions to be determined upon an application such as this are questions of fact, then, as it seems to me, it follows that, in any case in which the Court has been misled as to, or has misapprehended, or misunderstood, what are, the material facts, the hearing of the application will, in all probability, have miscarried, so that the result of that hearing ought to be set aside.”

113 The approach revealed in these cases applied the principle identified in Warren v Coombes. In a case where there has been no oral evidence, none of the considerations referred to in Biogen bear weight and the appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from undisputed primary facts.

114 Adopting a similar approach, consistent with Warren v Coombes, I agree with the factual analysis undertaken by Hodgson JA at [24]-[28]. It is apparent that his Honour has given different degrees of weight to identifiable matters as compared with the primary judge. The primary judge heard no oral evidence and was thus in precisely the same position as this Court, although he lacked the assistance of full argument from a contravener. I would draw the same inferences as Hodgson JA and therefore agree with his Honour’s disposition of the appeal.

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Citations

Costa v The Public Trustee of NSW [2008] NSWCA 223

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CITATION:	Costa and Another v The Public Trustee of NSW [2008] NSWCA 223
HEARING DATE(S):	11 July 2008
JUDGMENT DATE:	17 September 2008
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 31; Basten JA at 53
DECISION:	(1) Appeal allowed. (2) Declaration that the deceased intended: (a) the informal document referred to in the judgment to constitute his last will; and (b) the informal document to revoke his will made on 12 September 1995. (3) That probate of the informal document be granted to the appellants according to the tenor of the informal document. (4) That the application be remitted to the Registrar to complete the Grant. (5) That the costs of the Public Trustee be paid out of the estate of the deceased.
CATCHWORDS:	APPEALS – Appeal by way of rehearing – Question of fact – inference from undisputed written evidence – Whether necessary for appeal court to find error – Discussion of principles. Supreme Court Act 1970 (NSW) s 75A - SUCCESSION – Informal document – Whether document purported to convey testamentary intentions – Whether deceased intended document to be his will. Wills Probate and Administration Act 1898 s 18A
LEGISLATION CITED:	Criminal Appeal Act 1912 (NSW), s 6(1) Conciliation and Arbitration Act 1904 (Cth) s 88F Supreme Court Act 1970 (NSW) s 75A Supreme Court Rules Pt 78 rr 8, 34E, 34F, 34H, 34I Wills Probate and Administration Act 1898 s 18A
CATEGORY:	Principal judgment
CASES CITED:	Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 46 ACSR 504; 21 ACLC 1,810; 179 FLR 1 Allesch v Maunz [2000] HCA 40; 203 CLR 172 Atlantic Civil Pty Ltd v Water Administration Ministerial Corporation (1992) 39 NSWLR 468 Attorney-General v Sillem (1864) 10 HLC 704; 11 ER 1200 Azzopardi v Tasman UEB Industries Ltd (1985-1986) 4 NSWLR 139 Biogen Inc v Medeva plc [1997] RPC 1 Branir v Owston Nominees (No 2) Pty Limited [2001] FCA 1833, (2001) 117 FCR 424 Benmax v Austin Motor Co Ltd [1955] AC 370 Bova v Locke [2005] NSWCA 226 Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 Cashman v Kinnear [1973] 2 NSWLR 495 CGU Insurance Limited v Porthouse [2008] HCA 30 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Re Coldham; Ex parte Brideson [No. 2] [1990] HCA 36; 170 CLR 267 The Commonwealth v Reeve [1949] HCA 22; (1949) 78 CLR 410 CSR Limited v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 R v Cutter [1944] 2 All ER 337 Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; 124 CLR 192 Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601 Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 Duralla Pty Ltd v Plant [1984] FCA 146; 2 FCR 342 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 82 ALJR 669 Edwards v Noble [1971] HCA 54; 125 CLR 296 Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd [1981] HCA 4; (1981) 146 CLR 336 Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 R v Gallagher [1998] 2 VR 671 Giannarelli v The Queen [1983] HCA 41; 154 CLR 212 Glass v The Commonwealth [2003] ACTCA 8 Hawker Noyes Pty Ltd v New South Wales Egg Corporation (Supreme Court of NSW, Brownie J, 11 November 1988, unreported) House v the King (1936) 55 CLR 499 Imbree v McNeilly [2008] HCA 40 Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; 116 CLR 200 Jones v Bradley [2003] NSWCA 81 Kouris v Prospector’s Motel Pty Ltd (1978) 19 ALR 343 Livingstone v Halvorsen (1979) 53 ALJR 50 Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Nudd v The Queen [2006] HCA 9; 80 ALJR 614 O’Neill v Chisholm (1973) 47 ALJR 1 Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 Pahlow-Silady v Siladi [1997] NSWCA 241 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; 207 CLR 72 Ruthol Pty Ltd v Mills [2003] NSWCA 56; 11 BPR 20,793 S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 168 ALR 396 Shi v Migration Agents Registration Authority [2008] HCA 31 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34; 46 CLR 73 Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 Western Australia v Ward [2002] HCA 28; 213 CLR 1 Whiteley Muir and Zwanenberg Ltd v Kerr (1965-66) 39 ALJR 505 Williams v Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Rep 81-578 Wilson v Peisley (1975) 7 ALR 571 WMC Resources Limited v Leighton Contractors Pty Ltd [1999] WASCA 10; (1999) 20 WAR 489 Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460
PARTIES:	Alexander COSTA (First Appellant) Doreen Leonie COSTA (Second Appellant) THE PUBLIC TRUSTEE OF NSW (Respondent)
FILE NUMBER(S):	CA 40826/07
COUNSEL:	L J ELLISON SC (Appellants) P BLACKBURN-HART SC (Respondent)
SOLICITORS:	The Charlestown Law Firm (Leon Sokulsky) (Appellants) Anthony Lentini, Solicitor for Public Trustee NSW (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 104938/07
LOWER COURT JUDICIAL OFFICER:	Windeyer J
LOWER COURT DATE OF DECISION:	12 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Alexander Costa & anor v The Public Trustee in the Estate of Robert Costa aka Wayne Geary Coaster [2007] NSWSC 1271