Category: Fact Finding
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Onassis v Vergottis: the fading of memory
Onassis v Vergottis [1968] 2 Lloyd's Rep 403 It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken…
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State Rail Authority v Earthline Constructions: the trial judge’s advantage
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Kirby J @ [90] The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to…
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De Martin & Gasparini Pty Ltd v Bartlett
in Fact FindingHowever, I would not accept DMG’s submission that it is “completely speculative” as to who the “other worker” was. This submission was to the effect that since the evidence established that all 13 people on the site were capable of and sometimes were involved in moving pipes, it could not be determined whether the man…
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Assessing the evidence of a party defending its own conduct
in Fact FindingStanberg v State of New South Wales [2025] NSWCA 127 He also contends that the teachers’ evidence falls to be assessed in circumstances where they were defending the propriety of their own conduct (citing Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [165] and Coote v Kelly; Northam v Kelly [2016] NSWSC…
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Willmot v State of Queensland: the fallibility of memory
Willmot v The State of Queensland [2024] HCA 42; (2024) 98 ALJR 1407 at [30] [C]ourts are mindful that ordinary human experience exposes that human memory is “fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time” [citing Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR…
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fact & law
31. In principle, the construction of a term of a lease will involve a question of law. Often there is difficulty in determining whether what is said to constitute an error is an error as to (i) the fact finding, (ii) the statement of legal principle, or (iii) the application of the legal principle to…
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Inference and actual persuasion: Love v North Goonyella Coal Mines
in Fact FindingLove v North Goonyella Coal Mines Pty Ltd [2017] QSC 140 MARC JACOB LOVE v NORTH GOONYELLA COAL MINES PTY LTD [2017] QSC 140; BC201705173 [67] …the issue is whether that is sufficient to support “an affirmative conclusion from the circumstances proved in evidence and one which they establish to the reasonable satisfaction of a…
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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 took was to consider each piece of evidence individually to…