Nominal Defendant v Smith [2015] NSWCA 339

Basten JA

[7] In considering the scope of an appeal so identified, it may be noted that s 75A does not apply to an appeal arising out of a jury trial.3 Nor is the appeal limited to grounds identifying error of law. It is, therefore, not correct to consider whether a finding by a trial judge was “open“ or “reasonably open“ on the evidence. The power of this court to intervene is not expressed in terms requiring identification of error, although it is not rehearing the case as if it were a retrial. The court is empowered to give a judgment “which ought to have been given“ by the trial court. In this context, reference to “error“ is often no more than the description given by the appellate court to its conclusion when it proposes to uphold the appeal. It signifies that the appellate court will not intervene unless persuaded that the trial judge was not correct, was wrong, or was in error.

[8] This reflects the principles expressed in Warren v Coombes4 in the joint reasons of Gibbs ACJ, Jacobs and Murphy JJ:

Again with the greatest respect, we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case — the facts as well as the law — for itself.

[9] Warren v Coombes was concerned with the drawing of inferences from primary facts, rather than a challenge to the findings as to the primary facts themselves. The latter situation gives rise to a separate range of issues, as explained in Fox v Percy.5 Nevertheless, as Fox v Percy itself demonstrated, one starts with the propositions as to the basic powers and functions of the court set out above.6 The joint reasons then noted cases subsequent to Warren v Coombes, including Abalos v Australian Postal Commission,7 which were said to provide “simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.“8 The joint reasons in Fox v Percy continued:9

The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

[10] While accepting that weight must be given to findings based on assessments of the credibility of witnesses who have given oral testimony, and indeed to the general advantages held by a judge conducting a trial over those relying on a written transcript, the joint reasons nevertheless noted that there were circumstances in which a finding might be contrary to compelling inferences and continued:10

In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to“ its own conclusion.11

[11] There are two other factors to be borne in mind. The first is the observation of Griffith CJ in Dearman v Dearman12 that an appellate court may be more willing to intervene in circumstances where the trial judge has made a finding of fact in favour of the party bearing the onus of proof than where he or she has declined to make such a finding. Secondly, while recognising that written reasons cannot provide a complete picture of the circumstances of the trial, or the considerations which may have led to the preferring of the testimony of one witness over another, nevertheless the appellate court is entitled to infer error from the manner in which the testimony was addressed in the reasons, including a failure to refer to factors which appear to the appellate court to be significant.

Leeming JA:

[73] I agree with what Basten JA has written at [6]–[11] concerning the nature of this Court’s duty on hearing and determining an appeal from the decision of a trial judge sitting without a jury, and add the following.

[74] I agree that it is not sufficient for this court to conclude that a finding was “open“ on the evidence. As much was resolved by the endorsement by the majority in Warren v Coombes(1979) 142 CLR 531 at 549 of what Jacobs P had written six years earlier inCashman v Kinnear[1973] 2 NSWLR 495 at 498:

Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds.

[75] Jacobs J participated in the joint judgment in Warren v Coombes only weeks before his untimely resignation from the High Court. Coincidentally, his decision in Cashman v Kinnear was delivered in December 1973, shortly before his appointment to the High Court in February 1974. His reasons reflected the experience of a judge who had sat on an intermediate court of appeal for seven years, following a further six years sitting at first instance. They also reflected a characteristic humility, captured in another passage from Cashman v Kinnear endorsed by the High Court in Warren v Coombes at 549, which bears repetition:

Thus if by judicial restraint is meant the lack of overweening certainty in one’s own opinions so that respect and weight is given to the opinion of the judge below, then it is something always to be sought. The effect of that respect and weight will vary depending upon the subject matter and will be greatest where the opinion involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But in truth this quality of respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act , 1970, and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint which flows by the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this Court.