Trimen v Janes

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.