FEDERAL COURT OF AUSTRALIA
Devers v Kindilan Society (ACN 004 947 782) [2010] FCAFC 72
Citation: Devers v Kindilan Society (ACN 004 947 782) [2010] FCAFC 72 Appeal from: Devers v Kindilan Society [2009] FCA 1392 Parties: JANE DEVERS v KINDILAN SOCIETY
(ACN 004 947 782)File number(s): VID 907 of 2009 Judges: RYAN, MANSFIELD AND MCKERRACHER JJ Date of judgment: 21 June 2010 Date of hearing: 7 May 2010 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 138 Counsel for the Appellant: Mr D Perkins with Mr D Hancock Solicitor for the Appellant: Access Law Counsel for the Respondent: Mr M P McDonald SC with Mr R A Millar Solicitor for the Respondent: Middletons
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 907 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JANE DEVERS
AppellantAND: KINDILAN SOCIETY (ACN 004 947 782)
Respondent
JUDGES:
RYAN, MANSFIELD AND MCKERRACHER JJ
DATE OF ORDER:
21 JUNE 2010
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the respondent, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 907 of 2009
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: JANE DEVERS
AppellantAND: KINDILAN SOCIETY (ACN 004 947 782)
Respondent
JUDGES:
RYAN, MANSFIELD AND MCKERRACHER JJ
DATE:
21 JUNE 2010
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
This appeal arises from a dismissal of a discrimination claim (Devers v Kindilan Society (2009) 263 ALR 433). The proceeding before the primary Judge arose pursuant to s 46PO(1) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) following termination of the initial complaint to the Human Rights and Equal Opportunity Commission.
The appellant has been disabled by being profoundly deaf since birth. She commenced limited voluntary employment in 2003 with the respondent, a charitable organisation assisting disabled people. A month later she was engaged on a paid but quite limited part time basis. During the five years of employment to which the proceeding relates, despite the fact that her presence in the workplace was occasional only, the appellant generated a substantial number of grievances about a variety of factors at work. Some of those concerns were related to the discrimination claim that came before the primary Judge. Others were of a more general nature unconnected with the claim. The trail of correspondence reveals unfortunate disharmony and tension.
Regrettable though that may be, the circumstances did not, according to the primary Judge, demonstrate discrimination at law. The claim failed for several reasons, one of which was that the primary Judge found the evidence of the appellant confused and unreliable.
The appeal challenges the reasoning and process of the primary…
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- Devers v Kindilan Society [2010] FCAFC 72
- Case
- [2010] FCAFC 72
- Decision Date
CaseChat Overview and Summary
The legal issues in this case revolved around the grounds of appeal presented by the appellant, which primarily sought a reevaluation of the primary Judge's findings on credibility and the admissibility of certain evidence. The appellant argued that new evidence, in the form of financial statements, should have been considered on appeal as it would have significantly influenced the outcome of the trial. The Court had to determine whether the principles of finality in litigation and the deference owed to the primary Judge's assessment of credibility warranted setting aside the lower Court's decisions.
The Court held that for new evidence to be admissible on appeal, it must be shown that the evidence was unavailable at the trial despite reasonable diligence and that it would have significantly influenced the trial's outcome. The Court emphasized the importance of finality in litigation and was reluctant to allow parties to introduce new evidence that could have been obtained earlier. The appellant did not demonstrate that the financial statements were unavailable or that their content would have affected the trial's outcome. Therefore, the new evidence was not considered on appeal.
Consequently, the Court dismissed the appeal and upheld the orders of the lower Court. The appellant was ordered to pay the respondent's costs. The reasoning underscored the appellate court's cautious approach to overturning findings based on witness credibility and the necessity for compelling reasons to deviate from the primary Judge's evaluation.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant is to pay the costs of the respondent, to be taxed if not agreed.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The orders sought by the appellant were:1.That the orders of the Court dated 27 November 2009 dismissing the application be set aside.2.That the order that the appellant pay the respondent’s costs be set aside.3.A declaration that the respondent has discriminated against the appellant since March 2003;4.In the alternative to the orders sought in Paragraph 3, an order remitting the application to a single Judge to be re-heard.5.That the respondent pay damages to the appellant in such a sum as this Honourable Court deems appropriate;6.That the respondent pay the appellant’s costs of this proceeding, including the costs of and incidental to this appeal. CONSIDERATION The course of argument took an entirely different route on oral submission and various grounds were collected under topics. It is helpful first to say something of a general nature about the principles applicable to most of the appeal grounds. The observations apply to the grounds either as drawn or as presented. Although the grounds of appeal can be seen to invoke some points of principle, in large measure the appellant requires this Court to reach different findings of fact from those reached by the primary Judge. An obvious starting point is the complaint as to the rejection of the appellant’s credibility on key issues in her claim. There may now be doubts about the degree to which an appellate court should defer to the advantage a primary Judge has to form a view as to credit on the basis of demeanour (as considered in Fox v Percy(2003) 214 CLR 118). It is clear from cases such as Fox v Percy that even in a credibility case, an appellate court may, indeed should, reverse the trial or primary Judge where objective evidence such as documentary evidence requires that course to be taken in order to do justice. Nevertheless, there is, notwithstanding that an appeal is by way of rehearing (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507), a recognition that where the primary Judge’s evaluation of witness credibility is at the heart of his or her conclusion, there needs to be good reason to interfere with it. No conclusion in Fox v Percy departs from this principle. As was observed in Devries v Australian National Railways Commission (1992) 177 CLR 472 (at 479) (footnotes omitted):If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge “has failed to use or has palpably misused his [or her] advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”. A finding of fact may also be reversed where reliance has been placed on key evidence wrongly admitted or key evidence wrongly excluded when such evidence is pivotal to the result. In Devries (at 479-480) , Deane and Dawson JJ observed (footnotes omitted):An appellate court which is entrusted with jurisdiction to entertain an appeal by way of rehearing from the decision of a trial judge on questions of fact must set aside a challenged finding of fact made by the trial judge which is shown to be wrong. When such a finding is wholly or partly based on the trial judge's assessment of the trustworthiness of witnesses who have given oral testimony, allowance must be made for the advantage which the trial judge has enjoyed in seeing and hearing the witnesses give their evidence. The “value and importance” of that advantage “will vary according to the class of case, and, … [the circumstances of] the individual case”. If the challenged finding is affected by identified error of principle or demonstrated mistake or misapprehension about relevant facts, the advantage may, depending on the circumstances, be of little significance or even irrelevant. If the finding is unaffected by such error or mistake, it will be necessary for the appellate court to assess the extent to which it was based on the trial judge's conclusions about the credibility of witnesses and the extent to which those conclusions were themselves based on observation of the witnesses as they gave their evidence as distinct from a consideration of the content of their evidence.