Eggins v Robinson

NEW SOUTH WALES COURT OF APPEAL

CITATION: Clive Eggins & 2 Ors v Allan Robinson [2000] NSWCA 61

FILE NUMBER(S):
40529/98

HEARING DATE(S): 29 February 2000

JUDGMENT DATE: 28/04/2000

PARTIES:
Appellants: Clive Eggins, Ivan Connor, Colin Rae Munro
Respondent: Allan Robinson

JUDGMENT OF: Meagher JA Sheller JA Powell JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3272/95

LOWER COURT JUDICIAL OFFICER: Moore DCJ

COUNSEL:
Appellant: JB Whittle SC / BJ Burke
Respondent: F Donohoe

SOLICITORS:
Appellant: Foot. Law & Co (Grafton)
Respondent: Bruce Petrie & Co (Sydney)

CATCHWORDS:
Contract
Oral agreement
Whether corroborative letter was forged
Admissability of expert evidence
No forgery made out
Contract upheld

LEGISLATION CITED:
Evidence Act 1995 (NSW)
District Court Rules Pt 19A

DECISION:
Appeal dismissed with costs.

JUDGMENT:

Clive EGGINS, Ivan CONNOR and Colin Rae MUNRO v Allan ROBINSON

CONTRACT-ORAL AGREEMENT-WHETHER CORROBORATIVE LETTER WAS FORGED-ADMISSABILITY OF EXPERT EVIDENCE-NO FORGERY MADE OUT-CONTRACT UPHELD

Facts: Robinson was employed as a farm hand on the cattle farm of Ellis. While still alive, Ellis promised, by oral agreement, to give Robinson two hundred head of cattle. This was in consideration for work done on the farm.
After Ellis died, Robinson sought to claim the cattle from the estate, the executors of the will having refused to honour what Robinson claimed was a binding contract.
There was some evidence to support Robinson’s claim. The first was a witness, Earl. The second was a letter written by Ellis to Robinson, while Robinson was in gaol. The executors argued this letter was a forgery, and given Robinson’s prior convictions for offences of dishonesty, placed the authenticity of the letter in serious doubt.
The trial judge found there had been no forgery. The executors appealed against this decision. This was particularly in regard to the trial judge accepting evidence from a handwriting expert. The executors argued this evidence was inadmissible, as the witness was not suitably qualified.

Held per Meagher JA: Although the evidence left much speculation as to the authenticity of the letter, the trial judge accepted the letter as corroborating the agreement between Ellis and Robinson. The appellants failed in their attack on correctness of this decision.

Per Sheller JA, Powell JA agreeing: This court must accept the trial judge’s conclusions about the expert evidence in relation to the hand writing. The trial judge’s approach was proper and disclosed no error in reasoning.
After the trial judgment, Mr Robinson offered a settlement of $120,000. This was rejected by the appellants. The appellants were then ordered to pay Mr Robinson on a part and party basis until 15 May 1996, and then on an indemnity basis. There should be no alteration made as to costs.

ORDERS

1. Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40529/98
MEAGHER JA
SHELLER JA
POWELL JA

28 APRIL 2000

CLIVE EGGINS & 2 ORS v ALLAN ROBINSON

JUDGMENT

MEAGHER JA: This is an appeal from Moore DCJ who gave a judgment in favour of the plaintiff (the present respondent, Allan Robinson) against the three appellants, who are the executors of the will of the late Mervyn Rupert Ellis, who died on 26 April 1994. The plaintiff, Mr Robinson, sought (and obtained) judgment against the appellants in the sum of about $150,000.00 The circumstances out of which the contract on which Mr Robinson sued were distinctly unusual.
Mr Ellis was a farmer and grazier from the Grafton area. He was rich: when he died in 1994 his estate was sworn to be worth nearly $3,000,000.00. In 1989, when the relevant matters in the case commence, he was in his early eighties. His wife was dead. He had one legitimate child, Mrs Fujikake, and three illegitimate children. He did not see Mrs Fujikake for 10 years before he died, and then had a death-bed reconciliation with her. He owned a number of properties. One of them was called (inter alia) “Lavidia”, Ulmarra, and it had about 500 cattle grazing thereon.
The plaintiff, respondent, Mr Robinson, was a younger man, feckless, a drifter, possessing no qualifications for anything, generally uneducated. He had no rural skills. He had never married. He was also a gaol bird. Between 1969 and 1988 he was convicted seven times- and all of them offences involving dishonesty.
On 30 October 1969 he was fined $80.00 for goods in custody; on 21 July 1970 he was fined $40.00 on each of two charges of stealing cheques; in November the same year he was convicted and given a suspended sentence of 12 months hard labour for stealing a motor car radio; and on 2 June 1989 he was convicted on 4 charges involving the theft of two motor cars: in respect of each of the two cars he was convicted of possessing the vehicle with intent presumably to deprive the owner of its use and of false pretences; in respect of the former charges he was officially placed on a two year probation, a sentence which on appeal was increased to two years’ imprisonment.
It is against this background that the plaintiff alleged that the deceased entered into what would seem a most unlikely contract. The plaintiff, had met Mr Ellis in 1978, but did not see him again until 1989. He sought out Mr Ellis to see if he could find somewhere to live. Mr Ellis agreed to let him rent a house on “Lavadia” for $50.00 per week. He moved in and lived there. He paid the rent. He did nothing else except effect a few repairs and do some painting. The plaintiff said Mr Ellis often came over from his property for a meal or a casual cup of tea. About six months after the plaintiff moved in, on one of Mr Ellis’s visitations, according to the plaintiff there took place one of the two critical conversations with which this case is concerned. In the plaintiff’s words, “he asked me if I would be interested in doing a bit of work around the place, and all this sort of thing, and he’d look after me, I wouldn’t have to pay rent or power bills, and he’d look after me and I said ‘Yes that’d be fine’.” There was no particuarlization of what the “looking after” would amount to. The plaintiff accepted the proposal. Thereafter he ceased paying rent. He would, he said, inspect the property on most days, repair fences, check that no cattle had strayed or gates become broken. Over the months, he and Mr Ellis became “pretty good friends”. Then, late in 1992, again on the plaintiff’s version. Mr Ellis said to him “I have not paid you anything for what you have been doing for a long time. I am going to give you a couple hundred head of them” (at that time there were roughly 500 cattle on Lavadia) “for what you’re done for me, cause I appreciate the work you’ve done for me, cause you’ll be with me for a long time, I hope.” The plaintiff said, presumably with some enthusiasm, “Definitely”.
One will notice that there was no appropriation of any 200 cattle out of the 500-odd on the property, to any contract; nor was there any discussion at that conversation about when and how to sell the 200, on any of them, although these matters were discussed at a later stage. To make matters worse, there was the most confused evidence as to the time when the plaintiff was in residence at “Lavidia”, an important sub-issue for deciding the date of the conversation.
Nonetheless, if the plaintiff were believed, then there was an undoubted contract between him and Mr Ellis. Since the contract alleged was oral, and no person present except the plaintiff and Mr Ellis, and since this inevitably involved making a claim against an estate, great caution had to be exercised in making an affirmative finding about the claim, as his Honour recognised. There was some slight oral corroborative evidence of the contract. Thus, a Mr Earl, (who had the extraordinary distinction of being indirectly related to the plaintiff, because he was “a cousin of his first wife by her first marriage”), said he vaguely remembered Mr Ellis saying “ I have just given Allen 200 head of these cattle”. He was not disbelieved.
But by far the most important item of corroboration relied on by the plaintiff in support of his alleged contract was a letter which Mr Ellis wrote to him in gaol. It was in the following form:
Dear Alan,
Thank you for being in touch with me and to know you should soon be able to come down and caretake Lavadia as you had previously, pleases me.
There are lots of people around these days who are ready to help themselves to anything that is around and unattended.
Your two hundred head I gave you are safe until you arrive. We are getting a drop of much needed rain at the moment I hope it keeps on for a while yet it is very much needed for water supplies and crops.
I ll [sic] take my boat and outboard motor down when your [sic] back and we will go out and catch a schnapper [sic] or two for ourselves, a breath of sea air wouldnt [sic] do either of us any harm.
Good to here [sic] from you Alan and hope to see you soon.
Yours faithfully
M.R.(Peter) Ellis
P.S. Cattle prices are improving.
The appellant’s took issue with the plaintiff on the genuiness of this letter. In fact the parties devoted over 5 of the 11 days the case was heard to debate this question. His Honour approached the question with a full realisation that the heaviness of the onus of a plaintiff suing a deceased estate was equally matched by the heaviness of the onus of a defendant alleging forgery.
The defendants’ handwriting expert was a Mr Westwood, the plaintiff’s a Dr Walton. The defendants made a vigorous attack on the qualifications of Dr Walton, whose original training was in microbiology, but who had branched out into any field which called for skill in microscopy. His Honour considered her sufficiently qualified, and I can see no error in his Honour’s exercise of his discretion in this regard.
As a matter of textual analysis, his Honour declined to uphold the charge of forgery. Indeed, an examination of the documents in question would demonstrate that many of Mr Westwood’s arguments could not be sustained and many of Dr Walton’s criticisms of him were well merited.
But there where other disturbing facts apart from textual analysis. For example, the sentence “I’ll take my boat and outboard motor down when you’re back and we will go out and catch a snapper or two for ourselves, a breath of sea air wouldn’t do either of us any harm” poses some real problems. Mr Ellis at that time did not have a boat in his possession, although he once had one which at the time of the letter was agisted with a friend on an apparently permanent basis; there was no evidence he had ever possessed an outboard motor; the condition of Mr Ellis’s heart made him too frightened to go to sea; and one can ,it would seem, not catch snapper in the Clarence River, but only at sea. The explanation of these riddles led to much speculation.
Nonetheless, at the end of the day, his Honour was unconvinced by the appellant’s accusations about the letter. That, presumably, involves the consequence, from which he did not shrink, of accepting the authenticity of the letter. And that, combined with his favourable findings on the plaintiffs demeanour, led to the inevitable conclusion that the plaintiff won the case. In my view, no successful attack has been made on this conclusion.
I agree with what Sheller JA has to say about costs.
The appeal should be dismissed with costs.

SHELLER JA:
INTRODUCTION
The facts of this case are unusual. The decision of the District Court, from which this appeal is brought, is, on its face, surprising.
In 1989 the respondent, Allan Robinson, was looking for a house to live in. He approached a gentleman known as Peter Ellis, whom he had met once before in 1978. Mr Ellis’s true name was Mervyn Rupert Ellis and he was born on 22 February 1912. Mr Ellis was a grazier and a widower. He owned properties in the Grafton area. On one sometimes called “Lavidia”, or “Lavadia, he grazed cattle. He agreed to let the respondent live in a house on this property for a rent of $50 per week. The respondent moved in and carried out some repairs and painting. From time to time Mr Ellis visited the respondent for meals or a cup of tea. Five or six months after the respondent had moved in, according to him, Mr Ellis asked him if he would be interested in doing a bit of work around the place and said that if so, the respondent would not have to pay rent or power bills and he would look after him. The respondent said that that was fine.
The respondent claimed that this meant that if he did some work, unspecified, on the property, he would not have to pay rent or power bills and Mr Ellis would remunerate him for his work in an amount again unspecified.
After that, the respondent said that he did some work mending fences and checking that the cattle had not got out and that the gates were not broken. On most days he would drive out and inspect the property. There is, perhaps, nothing unusual about such an arrangement. Mr Ellis continued to visit the property about once a week. He and the respondent would drive over the property and have general conversations which could last for two or three hours. They became good friends.
The respondent did not know much about cattle and Mr Ellis offered to teach him “a bit”. But nothing came of this. Sometime later, perhaps in 1992, Mr Ellis and the respondent had a conversation while they were driving on the property. According to the respondent, Mr Ellis said to the respondent that he had not paid him anything for doing what he had been doing for a long time. Mr Ellis then said:
“I’m going to give you a couple a hundred head of them [meaning 200 of the 500 cattle on the property] for what you’ve done for me, cause I appreciate the work you’ve done for me, cause you’ll be with me for a long time I hope.”
The respondent said: “Definitely.”
In February 1993 the respondent went to gaol on charges of unlawful possession and false pretences of which he had been found guilty in Queensland. He had been dealing with two stolen motor vehicles. At his trial, he had been put on probation but the Crown appealed successfully and the respondent was imprisoned for two years.
While he was in gaol, the respondent said that he rang Mr Ellis from time to time. Mr Ellis would say that the cattle were doing “fine” and that there was plenty of feed. The respondent kept Mr Ellis informed of when he expected to be released from gaol. On 11 July 1993, according to the respondent, Mr Ellis wrote him a letter the text of which is set out in the reasons for judgment of Meagher JA, which I have had the benefit of reading. In that letter, Mr Ellis wrote: “Your two hundred head I gave you are safe until you arrive.” Mr Ellis said that he was pleased that the respondent would soon be able to come down and caretake Lavidia as he had done previously.
In February 1994 the respondent was released from gaol but, because of a parole condition, could not return immediately to New South Wales. When he did, he telephoned Mr Ellis who came to see him. The cattle were not discussed. After that Mr Ellis went to hospital, eventually in Coffs Harbour where the respondent visited him. At that time the respondent was again living at Lavidia. Not long afterwards Mr Ellis died. In the District Court the respondent sought to recover from Mr Ellis’s estate the value of the 200 cattle. The estate refused to honour what the respondent claimed was his contract with Mr Ellis.
CONTRACT
The respondent claimed that the contract was made in or about June 1989. The respondent agreed to act as caretaker of the property and to do certain work in consideration for Mr Ellis’s promise to pay him a reasonable remuneration. The respondent further claimed that in November or December 1992, the respondent and Mr Ellis agreed that, in satisfaction of Mr Ellis’s promise, the respondent would accept from him 200 head of Devon cattle which were then grazing upon the property.
The appellants, who are the executors of Mr Ellis’s will, accept that if such a contract is proved they are liable to pay to the respondent damages in the sum of $139,000 plus interest. This was the amount the trial Judge, Judge Moore, awarded the respondent.
THE NEED FOR CAREFUL SCRUTINY
The respondent’s case was based on conversations that had taken place between him and Mr Ellis when alone and depended upon the acceptance of his evidence. Mr Ellis was no longer living and could neither accept nor rebut what the respondent said. The nature of the respondent’s claim called for it to be carefully scrutinised in accordance with the principle exemplified by Plunkett v Bull (1915) 19 CLR 544 and described by McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785 at 789 as follows:
“…in a claim based on communications with a deceased person, the court will treat uncorroborated evidence of such communications with considerable caution, and will regard as of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available.”
The appellants submitted that the transaction the respondent sued on was, to adapt the language of the Privy Council in Parshad v Maharajah Narendro Kishore Singh Bahadur (1891) 19 Ind App 9 at 10, “in many respects of an improbable character”.
The respondent’s convictions for offences of dishonesty weakened confidence in his character and trustworthiness as a witness of truth; Bugg v Day (1949) 79 CLR 442 at 467 per Dixon J. But, the respondent had, he no doubt supposed, corroboration in Mr Ellis’s letter of 11 July 1993. However, the appellants claimed that this letter was not written by Mr Ellis and was a forgery. They bore the onus of proving this allegation of fraudulent conduct which also required careful scrutiny; Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. Where each side in a trial makes allegations going to the central issue of a nature or seriousness which require particular scrutiny by the court before they are accepted, as the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, “generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as not directed to the standard of proof, likely to be unhelpful and even misleading.” Their Honours added, at 172:
“The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities.”
THE TRIAL
The proceedings before Judge Moore began on 11 June 1996 and ran over eleven days. On 3 September 1996 judgment was reserved. At the trial, more than five days were devoted to the oral evidence of two handwriting experts, Dr Judie Ruth Walton, whom the respondent called to say the letter was genuine, and Paul Dennis Westwood, whom the appellants called to support their claim of forgery. The attention given to this evidence was understandable. If the letter was genuine, it corroborated the respondent’s claim in a significant way. If the letter was a forgery, the credibility of the respondent’s case was destroyed.
LONG AWAITED JUDGMENT
Judge Moore did not deliver judgment until 3 July 1998, twenty-two months after he had reserved his decision. His Honour began with an apology for the delay brought about by major surgery which put his Honour out of action for two months and the preparation of other judgments, many of which his Honour said should not have had priority over this matter. In Goose v Wilson Sandford & Co (unreported), 13 February 1998 at para 112, the English Court of Appeal pointed out that a judge’s tardiness in completing his or her judicial task, after a trial is over, denies justice to the winning party during the period of delay and undermines the loser’s confidence in the correctness of the decision.

The considerable efforts made in New South Wales to have cases disposed of quickly places a considerable work load on trial judges. Understandably, judges are anxious and encouraged to meet their list commitments. However, to do so at the expense of putting off for nearly two years the delivery of a reserved judgment is inefficient and defeats the purpose of achieving quick resolution of disputes. It seems to me that courts must allow judges time to write judgments where necessary so that the history of this case is not repeated. As it happens in this case, Judge Moore had made notes of demeanour and other preliminary matters as the hearing progressed and had the benefit of counsels’ written submissions and careful reflection on the evidence. Although the appellants suggested that the Judge’s recollection of the demeanour of the witnesses may have dimmed, neither side made any point based solely on the delay in giving judgment.
REASONS FOR JUDGMENT
Judge Moore gave judgment for the respondent in the amount of $199,847.72 and ordered the appellants to pay the respondent’s costs to be assessed on a party and party basis to 29 May 1996 and on an indemnity basis thereafter.
During the trial, the respondent was comprehensively cross-examined and on some matters gave inconsistent accounts of what happened. Notably, Lisa Atkinson, with whom the respondent said he had been living, at one point in his evidence for about twelve months from September 1989, and at another point, on 31 January 1992 and for about two to three years, was not called to give evidence. Two of the appellants, Clive Eggins, who had been a friend of Mr Ellis for many years, and Phillip John Cooper, a son of Mr Ellis, gave evidence. The appellants also called Neville Arthur Uren, who in 1991 lived not far from Mr Ellis. While Judge Moore thought that Mr Uren had a most uneasy demeanour, he said of Mr Cooper’s evidence that it was given in a straightforward and relaxed fashion, without any prevarication.
The Judge observed that in a case in which there was a likelihood of one or more witness being a liar, on one side of the record or the other, the respondent gave the impression of plausibility. He said that the respondent’s court room demeanour gave no cause for concern.
“On the contrary, there were a number of features of the way he gave evidence which were quite impressive. He constantly answered questions promptly, without pausing for thought in a way which gave the impression that he was recalling fact. He tended to talk both volubly and speedily in a way incompatible with invention at many points although this was not the case with all of his evidence. At no point on any contentious issues was his demeanour palpably evasive or embarrassed.”
The respondent called two witnesses to corroborate his evidence. The first was Eric John Earl who gave evidence that on an occasion towards the end of 1992, he visited Lavidia to speak to the respondent and was introduced to Mr Ellis. During the course of the conversation he remembered Mr Ellis saying something to the effect: “I’ve just given Allan 200 head of these cattle”. When asked if he could remember anything about the reason for Mr Ellis to give the cattle, he said that he used the word “deserved”. The trial Judge said that Mr Earl was of neutral demeanour in his evidence in chief and, under cross-examination, gave the impression that he was speaking as if recalling.
“However as the cross-examination proceeded on peripheral matters concerning description of the cattle, he gave the impression of being distinctively uncomfortable. This could have been an unfortunate mannerism but it was in contrast to his earlier evidence of Mr Ellis’s statement. If this were the only source of corroboration of the plaintiff it would be some cause for careful scrutiny, but not necessarily destructive.”
The respondent also called a cousin, Anita Maree Bailey, who Judge Moore said gave the impression of being honest and anxious to do her best but, his Honour said, her evidence afforded no corroboration of the respondent’s case.
ALLEGED FORGERY
Judge Moore said:
“The plaintiff did not ever see Mr Ellis’s writing or see any documents he had written before that letter was sent by the plaintiffs’ solicitors to the defendant’s solicitors. He did not instruct any person to forge the letter.”
By this his Honour must have meant that the respondent had not seen Mr Ellis’s writing before the respondent received the letter of 11 July 1993. In argument of the appeal, the appellants referred us to a letter dated 27 July 1994 from the respondent’s solicitors in which they wrote that while the respondent was away in Queensland, that is when the respondent was in gaol, “the Deceased kept in contact with our client by letter, one of which was the letter dated the 11th July.” The terms of this part of the solicitors’ letter were not put to the respondent in cross-examination and he was given no opportunity at the trial either in evidence or argument to explain any discrepancy. The solicitor who wrote the letter was in court but did not give evidence. I do not think the appellants can now for the first time rely on what the respondent’s solicitors wrote about his correspondence with Mr Ellis.
The trial Judge dealt in some detail with the competing expert opinions. He noted the well recognised practical impossibility of making a convincing forgery of a large amount of good quality cursive handwriting; see Suspect Documents by Wilson R Harrison at 424. His Honour also noted what he described as an “extremely significant deficiency in the specimens of handwriting of Mr Ellis produced to the experts which, with one exception, were all old, in some cases more than twenty years old. The trial Judge dealt with various statements in the letter itself which the appellants submitted tended to show its falsity. His Honour said:
“(a)     It refers to ‘much needed rain which we are getting at the moment, which is very much needed for crops’. Mr Ellis did not have any crops. However, I have already dealt with this when dealing with the plaintiff’s evidence. The plaintiff himself volunteered that he was surprised at that reference, as he knew that Mr Ellis did not have any crops. A clever forger, or a clever employer of a forger, might see that such a reference was included in such a letter for the very purpose of showing his frankness in saying he did not understand it. And yet again, it could be said that Mr Ellis would not necessarily need to have to have crops himself, to say that the rain was very much needed for crops. It is an everyday feature of commentary on weather for persons who are even unconnected with the land to make such comments.
(b)      In the letter Mr Ellis says, ‘I will take my boat and outboard motor down and we will go out and catch a schnapper or two for ourselves’. I have already dealt with this earlier in dealing with the plaintiff’s evidence. Mr Ellis did not have a seaworthy boat at his property. He did have an aluminium boat which he had given to a friend, Mr Taylor, and invited Mr Taylor to register it in Mr Taylor’s name. However, he still had access to the boat. Mr Ellis had not been out fishing for many years, because of his fear of being out of range of immediate treatment, with his heart condition. It is not entirely out of contemplation that he might have made the statement in the letter with the intention of breaking with his previous habit. However, that is one example of the reticence that must be applied in surmising about what Mr Ellis might or might not have done, where he is unavailable to give evidence.
(c)       The disputed letter contains spelling and grammatical errors - ‘your’ instead of ‘you’re’, ‘wouldn’t’ is spelt in the letter without an apostrophe and ‘here’ is used instead of ‘hear’. The defendant’s submission is that these faults do not appear in the specimen documents. In fact, as Mr Westwood says (Exhibit 9) ‘hear’ appears in the specimens twice, correctly spelt, the expression ‘you are’ is not abbreviated in the specimens, and he makes no comment on the missing apostrophe. It would be necessary for a much more extensive and up to date analysis to be made for this submission to be of real weight.
(d)      ‘Yours faithfully’, the closing expression of the disputed letter is not used in the specimen documents. The specimen documents are written to persons with a different relationship to Mr Ellis. Mr Ellis was not a regular letter writer. If the letter is genuine, he was writing it formally to a person in prison.
(e)      The first sentence of the disputed letter it is submitted, is a convoluted expression, which finds no parallel in the specimen documents. Again, one would need a more extensive volume of specimens for this submission to have real weight. The submission is in the nature of linguistics, which was a matter expressly not dealt with in the hearing.
(f)        The disputed letter contains ‘P.S.’ but no specimen letter contains a ‘P.S.’. Once again a more extensive and more up to date body of specimens would be needed to substantiate this submission.”
Judge Moore regarded the appellants’ failure to make available to the experts other specimen documents as a grave deficiency in the appellants’ case.
In his evidence, Mr Westwood stressed the significance of any single consistent dissimilarity between a suspect and a genuine sample, where the dissimilarity was in any feature which was fundamental to the structure of the writing and its presence was not capable of reasonable explanation. He said that those not experienced in the critical comparative examination of writings might overlook such a feature. Dr Walton replied that the rule must not be applied blindly and said that the questioned document was genuine. She said:
“Mr Westwood’s report has not identified a single consistent dissimilarity in any feature of the questioned document which is fundamentally different from the specimens or that cannot be reasonably explained.”
The trial Judge dealt one by one with dissimilarities identified by Mr Westwood as set out in Schedule 4 to the judgment. Having engaged in this process, his Honour said:
“These are examples of points at which my observations did not accord with Mr Westwood’s. There were others. That is not to say that my observations should be preferable to his; it is to say that I did not feel that those matters came up to his standard of ‘consistent, significant’ dissimilarities.”
The Judge said:
“Mr Westwood spent two days in the witness box. He illustrated his evidence thoroughly and clearly both as to his oral expression and by charts and diagrams. I am not to be taken as ‘rejecting’ his evidence; I do not feel that it satisfies me to the necessarily high civil standard.
This dissatisfaction is accentuated when I consider the evidence of Dr Walton. Dr Walton’s reasons for coming to the conclusion that the disputed letter is genuine, were comprehensive and lucid. Her reports were voluminous, but properly so. She was over five days in the witness box. She was thoroughly cross-examined. On many of her points of difference from Mr Westwood, I found her opinion more attractive.
The expert evidence does not able me to find with certainty that the letter is either genuine or forged. I can say that it is more likely genuine than not.
That finding gives such corroboration to the plaintiff’s evidence that those reservations I expressed earlier are dispelled in his favour.”
Judge Moore’s conclusion about the expert evidence meant that the case had to be approached on the basis that the letter was genuine. Unless the appellants can satisfy this Court that this conclusion by the trial Judge was insupportable and not open to him, we have to approach the appeal on the same basis.
THE GROUNDS OF APPEAL
Mr Whittle SC appeared for the appellants. His arguments were well reasoned and forcefully put. Mr Frank Donohoe appeared for the respondent and answered in kind. Part of the appellants’ submissions was directed to what were said to be fundamental errors in Judge Moore’s reasoning.
The first of these was the submission that the Judge placed insufficient weight on all the improbabilities and inconsistencies of the alleged agreement. In particular, the Judge erred in not inquiring into the value of the consideration allegedly given by Mr Ellis and the subject of the claim. The trial Judge said:
“The plaintiff believed, that by giving him 200 head of cattle, Mr Ellis was being generous, in comparison to the work the plaintiff had done and was to do. Nonetheless the Court will not inquire into the financial value of the consideration.”
The appellants, in my opinion justifiably, complained that if the question was whether or not Mr Ellis said that he would remunerate the respondent for the small amount of work he had done by giving him 200 head of cattle worth more than $100,000, and amounting to more than a year’s income for Mr Ellis, the imbalance of the consideration was a matter to be taken into account in deciding whether it was probable that these conversations occurred. It had nothing to do with the general common law rule that if a contract is proved, the Court will not inquire into the adequacy of the consideration in deciding whether to enforce it.
Secondly, the appellants submitted that the trial Judge erred when he said:
“In the present case I feel that the evidence of the plaintiff’s criminal record should only be considered in so far as to show whether the plaintiff ought not [to] be believed on his oath. In the resolution of that question, it has limited value.”
The appellants urged that the respondent’s convictions for obtaining property by false pretences bore a close resemblance to the nature of the claim the respondent made in these proceedings and raised serious doubts about whether his evidence should be believed.
Thirdly, the appellants claimed that the trial Judge had put the question of whether the letter was forged into “an hermetically sealed compartment”. He decided which expert witness he preferred and paid no attention to other evidence about the probability of the transaction which the letter purported to evidence.
The trial Judge set out various submissions made by the appellants’ counsel at the trial in criticism of the respondent’s evidence and dealt with them as follows:
“(a)     if, as asserted by the defendants, the plaintiff did not reside upon the property until 1991, then it is most unlikely that the deceased would have given him 200 cattle in late 1991 as recompense for less than 2 years caretaking work. In reply to this, it could be said that it is the experience of the Courts, which is only one viewpoint of the experience of mankind, that as people become older they often bestow generosity upon individuals both unexpectedly and where this might be objectively hard to understand. That could be the case even if the defendants’ submission is correct. The same observation applies to the following submissions (b) to (e) by Ms Murell [sic] [Ms Murrell SC appeared at the trial for the appellants].
(b)      The plaintiff conceded that, to the knowledge of Mr Ellis, the plaintiff did not know much about cattle. Why, it is submitted, would Mr Ellis pay, at all, the plaintiff for caretaking.
(c)       The value of the 200 head of cattle is well in excess of the bequests in Mr Ellis’s will to his longtime friends and offspring.
(d)      The value of the gift was completely out of keeping with other evidence that Mr Ellis was anything but a generous man. In her adult life, he gave to his daughter Mrs Fujikake only $2000.00.
(e)      The value of the 200 cattle is much more than the total cattle sales for the years ended June 1993 and April 1994.
(f)        The plaintiff says that Mr Ellis ‘was teaching me about botfly before I went to gaol… and… when I went to gaol… I didn’t get the chance.’ Mr Eggins [sic] evidence was that botfly was a disease which affected horses rather than cattle and that he assisted Mr Ellis by spraying for buffalo fly. This topic has too many imponderables to be persuasive. The plaintiff said that Mr Ellis had got other friends and associates to do the spraying for botfly. If it was done on a day when Mr Ellis had brought other people over to do it the plaintiff never got involved with them. The plaintiff said that he offered his services but Mr Ellis, in effect, politely declined.
(g)      The plaintiff was unable to draw Mr Ellis’s earmark or to identify his brand mark … After this length of time, lapse of memory may well explain this deficiency in the plaintiff a self confessed novice.
(h)       The plaintiff referred to the property where he lived as ‘Lavadia’. Other witnesses referred to it by various names (the Ulmarra Property, the swamp, Fernances and Tancred). They said that Mr Ellis did not refer to the property as Lavadia. Lavadia was a name, which was used by older people in the Ulmarra district. The plaintiff said that Mr Ellis told him it was called Lavadia. The plaintiff was not sure how it was spelt, having only heard it by word of mouth. The plaintiff said he asked Mr Ellis the name of the property ‘because a lot of people have got a name for it.’ He says that, after telling him it was called Lavadia Mr Ellis did not use the word ‘Lavadia’ but referred to that property as ‘my place’ or ‘your place’, depending on the sense in the expression he was using. One of the documents submitted for expert opinion, said to be in Mr Ellis’s handwriting, was a ‘Radio Japan Diary 1980’. ….. On the page headed ‘May 16 Fri’ there is an entry, apparently in Mr Ellis’s handwriting, about transporting cattle. The writing commences with ‘Lavadia’.
(i)      In 4 February 1994 Mr Ellis made his last will. The will does not mention the 200 head of cattle for the plaintiff. It may well have been that the plaintiff [sic Mr Ellis] did not regard this as a matter to go into his will, or that he expected the arrangement to be fulfilled before his will operated.”
The appellants criticised what was said to be his Honour’s tendency to explain away in the absence of evidence, these discrepancies in the respondent’s case. In my opinion, these discrepancies lose any significance if the letter of 11 July 1993 is accepted as genuine.
The appellants also submitted that the trial Judge erred in finding that the transaction between the respondent and Mr Ellis was a contract rather than an imperfect gift. This submission was pressed both at trial and on the appeal but it involved some fragmentation of the core issue. Acceptance of the respondent’s evidence and the trial Judge’s interpretation of what was said, which was open, established the contract relied on. The respondent did not claim to be entitled to recover on the basis that Mr Ellis had simply given him 200 head of cattle. If a finding of contract was not open on the evidence, the respondent’s claim failed. The appellants accepted that if the claim based on contract was made out, they were in breach and the damages correctly assessed.
Finally, even if they failed on the substantive appeal, the appellants appealed against the award of indemnity costs against them.
THE FINDING THAT THE LETTER WAS GENUINE
The appellants criticised this finding as one reached without express regard to the unlikelihood of the transaction as a whole, the respondent’s credibility, particularly bearing in mind his criminal record, and other inconsistencies and deficiencies in his evidence. But these matters do not gainsay the weaknesses in Mr Westwood’s reasoning and the strengths of Dr Walton’s evidence which his Honour pointed out. True, Mr Ellis was not alive to say whether he had written the letter and the consideration was out of proportion to the service the respondent rendered. But I do not think that such factors are sufficient to undermine in any decisive way the conclusion reached on the expert evidence.

The appellants’ main attack on the expert evidence was oblique. It was founded on the proposition that his Honour should have rejected the whole of Dr Walton’s evidence as inadmissible because she was not suitably qualified and because Mr Westwood had “impeccable credentials”. We were referred to s76 of the Evidence Act 1995, the opinion rule, which provides that evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed, and s79 which provides:
“If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.”
The appellants submitted that Dr Walton had neither the training, study or experience to enable the Court to find that she had the specialised knowledge contemplated by s79.
Although no formal voir dire was recorded, Dr Walton was questioned both in chief and then in cross-examination about her qualifications at the beginning of her oral evidence. Dr Walton’s formal academic training was in biology, chemistry and experimental pathology resulting in a PhD. She had extensive experience in microscopy. She said that since 1990, the examination of documents in dispute had been the principal activity of a company founded by her in 1989. Most examinations of documents had been in connection with litigation. By the time she gave evidence she had examined thousands of documents in the course of carrying out more than two hundred examinations. Her evidence had been accepted in contested proceedings for more than four years. At the conclusion of the informal voir dire, the trial Judge said that he was of the preliminary view that he should admit Dr Walton’s evidence “as a question of evidence” but that he was open to any submissions as to its weight and also on the question of its admissibility altogether. He said: “There’s been enough established so far for me to admit it as being proper expert evidence.” In substance, her reports were admitted and her oral evidence continued over five days.
The appellants made no direct attack on the quality of Dr Walton’s evidence. From this I would assume that neither Mr Westwood nor the appellants’ legal advisers were able to find in her evidence anything to suggest that she was incompetent to give it. The question of whether Dr Walton had specialised knowledge and gave an opinion that was wholly or substantially based on that knowledge within the meaning of s79 of the Evidence Act, was a matter for the trial Judge to determine as a question of fact; Clark v Ryan (1960) 103 CLR 486 at 503. His Honour heard Dr Walton give evidence in the witness box under attack by cross-examination and clearly came to the conclusion not only that she was appropriately qualified but that her evidence should be preferred to that of Mr Westwood. With due respect, no basis at all has been shown for this Court to reject his Honour’s conclusion or come to any other conclusion. Mr Whittle referred to what Sir George Jessel MR said in Abinger v Ashton (1873) LR 17Eq 358 at 373-4 about experts’ being the paid agents of the person who employs them. To the extent to which this criticism could be made of Dr Walton, it could also be made of Mr Westwood. I do not regard it as fairly made of either expert. The trial Judge did not think so. The parties called expert evidence and asked the trial Judge to consider it. I do not think the appellants can be heard to say that he was not entitled to act on it. In my opinion, the trial Judge’s analysis and reasoning on this aspect of the case were compelling.
Other submissions put about the authenticity of the letter arose from its text. These matters are set out in the passage from the submission which I have referred to above. The letter contained the following passage:
“Ill [sic] take my boat and outboard motor down when your [sic] back and we will go out and catch a schnapper [sic] or two for ourselves, a breath of sea air wouldnt [sic] do either of us any harm.
Good to here [sic] from you Alan [sic] and hope to see you soon.”
The point was taken that by July 1993, Mr Ellis had not been out fishing for many years because of his fear that with a heart condition he would be out of range of immediate treatment. Although he had an aluminium boat, he had given it to a friend. The appellants relied on the spelling mistakes, including that of the respondent’s first name, and the lack of apostrophes in the passage I have quoted. Earlier the letter referred to rain being very much needed “for water supplies and crops”. It was submitted that Mr Ellis ran cattle and did not grow crops. The letter concluded “yours faithfully”, a form not found in any of the specimen documents and set out Mr Ellis’s name at the end in an unusual way. The trial Judge took account of all these matters together with the expert evidence when he said he thought it more likely that the letter was genuine than not. Accepting his Honour’s conclusions about the expert evidence, which in my opinion we must, I do not regard the various features of the letter to which the appellants drew attention, or the evidence as a whole, as enabling us to conclude that the letter was a forgery with, to adopt the words of Dixon J in Briginshaw v Briginshaw at 362, “the gravity of the consequences flowing from [that] finding”.
The appellants stressed that all the matters of suspicion about the letter should be looked at together rather than separately and criticised the trial Judge for doing otherwise; see Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 535. But the parties invited his Honour to give attention to expert evidence. His Honour did not pass this by, by saying no more than he preferred the evidence of Dr Walton to that of Mr Westwood. He carefully made what on their face were trenchant criticisms of Mr Westwood’s opinion. The appellants made no real attempt to challenge those criticisms or to suggest any particular criticisms of Dr Walton’s evidence, beyond saying in a general sense that his Honour had no regard to very telling points which counsel made in cross-examination of Dr Walton. The points relied on, however, went to her qualifications and not to the substance of her evidence.
As I have already indicated, the appellants’ defence was based, in large measure, upon the letter being a forgery and they failed to establish that it was. This is the context in which the other grounds of appeal must be examined. The appellants urge that the respondent’s story was an improbable one. The appellants submitted that the value of the gift of cattle so exceeded the value of the work the respondent did that it was improbable that Mr Ellis would have given the cattle as a remuneration for the work. Looked at now and handicapped by the inevitably slight knowledge that any court will have of what really happened and why it happened, the appellants may be right. But why then does Mr Ellis write in terms which suggest that he had given the 200 head of cattle to the respondent? The appellants of course say that this is one factor pointing in the direction of forgery which must be taken into account together with all the other curiosities of the case. I have already dealt with this.
The respondent had prior convictions for offences of dishonesty. The appellants relied on Bugg v Day. The trial Judge referred to that decision and to Bickle v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 at 494 and R v Aldridge (1990) 20 NSWLR 737 at 740. He also referred to ss 55, 102 and 103 of the Evidence Act and said that:
“Relevance is the essential criterion of both admissibility and use of evidence.
In the present case I feel that the evidence of the plaintiff’s criminal record should only be considered in so far as to show whether the plaintiff ought not be believed on his oath. In the resolution of that question, it has limited value.”
The appellants submitted that the offences were serious and had involved substantial dishonesty. Therefore it was submitted that his Honour was wrong to say that on the question of credit the respondent’s criminal record had limited value. The appellants said this was a misdirection and that his Honour was “palpably misusing his position”. His Honour should have concluded that there were serious doubts as to whether the respondent was a person who could be believed upon his oath and that any corroboration produced by the respondent should likewise have been viewed with that conclusion in mind.
The trial Judge was impressed by the demeanour of the respondent in the witness box. The appellants submitted that his Honour made no express findings of credit. However, I think it is quite clear that he implicitly accepted the respondent as a witness of truth. He did so, although he was aware of and noted inconsistencies in his evidence and was aware of and noted that he had criminal convictions for dishonesty. Mr Whittle drew our attention to a passage in the speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431. Lord Pearce pointed out that credibility involves wider problems than mere demeanour and said that it is essential that the balance of probability is put correctly into the scales of weighing the credibility of a witness. His Lordship said: “...in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.” This passage shows how important was the letter of 11 July 1993, once it was found to be genuine.
I am not persuaded by any submissions that were made that we should or can interfere with these conclusions. The appellants relied upon the respondent’s failure to call Lisa Atkinson. However, her absence was explained to the satisfaction of the trial Judge, who found that she and the respondent had parted company well before the hearing. On one account given by the respondent of the time that she was living at Lavidia, she would have been present in February 1992 when Mr Cooper said that he went to the house with Mr Ellis where a woman was waiting with an envelope at the ready which contained six $50 notes. There was an available inference that this was a payment of rent made after the time when, according to the respondent, Mr Ellis had agreed that the respondent should pay no rent. However, his Honour was satisfied with the explanation for Ms Atkinson’s absence. Accordingly, the appellants do not advance their case by referring to her absence from the witness box.
The appellants attacked the evidence of Mr Earl and submitted that this evidence could not be viewed as corroborative and reflected poorly on the case the respondent had presented. But it is not clear that his Honour took this evidence into account and if so to what extent. The appellants submitted his Honour failed to take into account Mr Cooper’s evidence and that of the non-expert witnesses the appellants called. The trial Judge referred to their evidence and there is no reason to suppose that he ignored what they had said.
A reading of Judge Moore’s judgment, shows that he concluded on the probabilities that the letter of 1993 was genuine. That conclusion was largely based on the view he took, after careful analysis, of the expert evidence. The trial Judge was satisfied that the letter, being authentic, corroborated the respondent’s evidence so that any earlier reservations he may have had about that evidence were dispelled in the respondent’s favour. This is a perfectly proper approach and discloses no error. Nor do I think there was any error in the way his Honour treated the criminal convictions. The respondent impressed him as a witness of truth. Criminal convictions are to be taken into account but if the criminal gives evidence in a way which the trial Judge regards as plausible and impressive, a past criminal history may have, as his Honour thought, little significance. His Honour should have brought into account the generosity of the consideration in deciding whether the respondent’s case was made out. But, since his Honour heard expert evidence on the point in great detail, I do not regard Mr Ellis’s apparent generosity as likely to have led his Honour to any different conclusion if he had taken it into account in determining whether there was a contract. The letter, if genuine, was compelling.
In concluding the discussion of this part of the appeal, it is helpful to cite what was said by Brennan, Gaudron and McHugh JJ in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. 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 advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”
According to these criteria, the appeal must fail. There is nothing glaringly improbable about his Honour’s findings, properly understood. There is no incontrovertible evidence which tells against the respondent’s case. Some initial reliance was placed on what the High Court said, particularly Kirby J, in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liquidation) (1999) 73 ALJR 306. But, Mr Whittle conceded that the present case was different from Earthline.
COSTS
The trial Judge ordered that the appellants should pay the plaintiff’s costs on a party and party basis to 15 May 1996 and thereafter on an indemnity basis. The appellants appealed against the award of indemnity costs against them. Judge Moore dealt with the question of whether there should be indemnity costs in a second addendum to his reasons for judgment on 7 May 1999. From that it emerged that at a directions hearing on 12 February 1996, Judge Garling ordered the respondent to make an offer of settlement in writing by 15 May 1996 and the appellants to reply in writing within 14 days of receipt. Pursuant to those orders the respondent’s solicitors wrote to the appellants’ solicitors on 15 May 1996 referring to the orders and stating that the respondent would be prepared to settle for a sum of $120,000 inclusive of costs. The appellants replied by saying that they were not prepared to accept such offer.
Judge Moore said that the verdict for the plaintiff was a basic sum of $139,000 plus interest making a total of $199,847.72. His Honour made some calculations about interest and the costs that would have been incurred by the parties. He referred to Pt 19A of the District Court Rules designed to promote early settlement. He discussed the general principles concerning indemnity costs in some detail. Amongst the features that he took into consideration were the appellants’ special position as trustees acting with legal advice in rejecting the offer of 15 May 1996 and the express instruction of the residuary beneficiary under the will. They were armed with the opinion of a well respected expert that the letter was a forgery. These and other matters his Honour carefully considered in coming to the conclusion that he did. The appellants stressed the particular difficulty trustees face when defending cases such as the present. The trial Judge was alive to these matters. No error has been shown in his reasoning. Costs are always a matter of discretion and absent any error I see no basis upon which this Court can interfere with the costs order.
In my opinion, the appeal should be dismissed with costs.
POWELL JA: I agree with Sheller JA.
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LAST UPDATED: 01/05/2000

[2000] NSWCA 61

28 April 2000