Trimen v Janes - [1988] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S26 of 1988
B e t w e e n -
GLORIA JEAN TRIMEN

Applicant

and
HARRY JANES

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J

TOOHEY J

Trimen
MR A.W. STREET:	May it please the Court, I appear for the

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 1988, AT 2.04 PM

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10/6/88

applicant. (instructed by Thomson Rich O'Connor)

MR W.R. NICHOLAS, QC: If the Court pleases, I appear with my

learned friend, MR R.A. GRAY, for the respondent.
(instructed by Ebsworth & Ebsworth)

MASON CJ:	Mr Street.
MR STREET:	There are four errors of principle, Your Honours,

that we seek to attack in the judgment of the Court
of Appeal.

MASON CJ:	You might identify those errors of principle.
MR STREET:	If Your Honour pleases. The first is that the applicant must establish that the trial judge could not rationally accept the evidence given by the witness. That test, we respectfully submit, does not
accord with what fell from this Court in BRUNSKILL V
SOVEREIGN MARINE.
The second error of principle that we seek to develop is that the Court of Appeal did not apply a
test on the balance of probabilities and has taken
out of context the observations that no appellate intervention should be made where the mere probabilities
revealed by the material before the trial judge were -
I withdraw that - the second point is that the Court
of Appeal did not apply the full context of the observations relating to appellate intervention on the
mere balance of probabilities upon the material before
the trial judge and that what Their Honours failed to take into consideration was that the statement of those
principles simply emphasize that one must also include
the findings of the trial judge as well as the material before the judge in determining the probabilities.

The third error of principle that we seek to

develop is that in any event the Court of Appeal erred
in assuming an advantage in the trial judge flowing from

his position as such in so far as the demeanour of a
witness is concerned as to his powersof observation
being the critical fact in issue in the present case.
The fourth matter which the applicant seeks to

develop as the error of principle is that the Court of
Appeal did not, in any event, consider the probabilities
in the absence of any rival possibility. Your Honours,
in the applicant's respectful submission, each of those
principles are ones which, of themselves, are matters
of importance in appellate intervention on findings of
fact.
IL l could s~~~ L0 J~v~l0~ further the proposition

relating to the test applied on the balance of
probabilities. If I could hand up to Your Honours

SlTl0/2/RB	2	10/6/88
Trimen

additional material, being the judgment in "P. CALAND"
of the House of Lords and the judgment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Trimen v Janes

Details

AGLC: Trimen v Janes [1988] HCATrans 124
Case: [1988] HCATrans 124
Decision Date

CaseChat Overview and Summary

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Trimen, sought to challenge a judgment of the Court of Appeal. The respondent was Janes.

The applicant argued that the Court of Appeal had erred in principle on four grounds. Firstly, it was submitted that the Court of Appeal applied an incorrect test, requiring the applicant to establish that the trial judge could not rationally accept the evidence of a witness, which the applicant contended was inconsistent with the principles laid down in *Brunskill v Sovereign Marine*. Secondly, the applicant argued that the Court of Appeal failed to apply the full context of observations regarding appellate intervention on the mere balance of probabilities, neglecting to consider that such principles must incorporate both the trial judge's findings and the material before the court. Thirdly, the applicant contended that the Court of Appeal erred in assuming an advantage for the trial judge concerning witness demeanour, suggesting this was not the critical fact in issue. Finally, the applicant argued that the Court of Appeal did not consider the probabilities in the absence of any rival possibility.

The applicant's counsel referred to decisions of the House of Lords, specifically *P. Caland* and *Hontestroom*, to support the proposition that appellate intervention still depends on the balance of probabilities. The argument was that while appellate courts should be hesitant to disturb findings of fact concurred in by lower courts, such intervention is permissible when a finding can be clearly demonstrated as erroneous. The applicant sought to demonstrate that the balance of probabilities, when considering all relevant material and the trial judge's findings, inclined against the Court of Appeal's decision. The Chief Justice questioned whether the findings of fact turned on credibility, to which counsel responded that it was his understanding that they did, particularly concerning what a master had said about lights.

Orders