Approach to factual findings in an appeal

  Ralston v Jurisich [2017] NSWCA 6 I do not think that there is any hard and fast rule. The general position established by Warren v Coombes [15] is that on an appeal by way of rehearing from a judge sitting without a jury, an appellate court is in general in as...

Circumstantial case: the fact finding process

The Nominal Defendant v Cordin [2017] NSWCA 6 In the present case there was a great deal of contemporaneous evidence that assisted in the task of ascertaining what happened in the accident. The trial judge considered this evidence in some detail but the approach he...

Proof to the civil standard

Chen v State of New South Wales (No 2) [2016] NSWCA 292 It is not necessary, in order to make a finding on the civil standard, to exclude other possible explanations. Authority is scarcely necessary for that proposition. However, that was precisely the point made – by...

Fallibility

Coote v Kelly; Northam v Kelly [2016] NSWSC 1447     In Campbell v Campbell [2015] NSWSC 784 Sackar J said: [73] In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks:   …human memory of what was said in a...

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...

Jones v Dunkel

S S Pharmaceuticals v Qantas [1991] 1 Lloyd’s Rep 288 at 293, Gleeson CJ and Handley JA said: Where the inference of greater fault is open on the evidence we see no difficulty in drawing that more adverse inference where the defendant fails to call evidence. As Mr...