Disputed facts and finding facts

Croucher v Cachia [2016] NSWCA 132

 

 

[124] …where there is a real conflict in the evidence, it is necessary to “engage with, or grapple or wrestle with the cases presented by each party”: see for recent examples Keith v Gal [2013] NSWCA 339 at [109]-[119] and Murray v Sheldon Commercial Interiors Pty Ltd [2016] NSWCA 77 at [60]. The point of the metaphor is, as Ipp JA stated in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28], that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another. As McColl JA said in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]:

“Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried.”

[125] That said, the fact that some matters were not addressed at all, or that there were errors in the way in which other matters were addressed, is not of itself sufficient to establish error. Ultimately there must be a qualitative evaluation of what a primary judge has done, having regard to (a) the inherently incomplete nature of his or her reasons, (b) the advantages he or she enjoyed hearing the evidence as the trial unfolded, (c) the matters that were given emphasis at trial and (d) the number and nature of errors identified on appeal: see Murray v Sheldon Commercial Interiors Pty Ltd at [60]-[66].

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