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Grappling with competing evidence November 11, 2015

Redbro Investments Pty Ltd v Ceva Logistics (Australia) Pty Ltd [2015] NSWCA 73

[53]    Ceva’s invocation of the need to “grapple” with the evidence picks up repeated statements that 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 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 at [116], MM Constructions (Aust) Pty Ltd v Port Stephens Council [2012] NSWCA 417 at [134], Coote v Kelly [2013] NSWCA 357 at [39]-[52], Keith v Gal [2013] NSWCA 339 at [109]-[119] and Bunnings Group Ltd v Borg [2014] NSWCA 240 at [36]. The point of the metaphor is that it is not sufficient to set out the conflicting evidence and conclude, without analysis, that the judge prefers one body to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; 66 NSWLR 186 at [28]. 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.”

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