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Reviewing factual findings on appeal November 11, 2015

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


“[57] Fox v Percy (and earlier decisions) identifies two classes of case when a trial judge’s assessment of testimonial evidence is reviewed. The first is when “incontrovertible” facts are established by incontestable evidence. That is not this case: the medical histories none of which mentioned a fall did not incontrovertibly establish that Mr Simmons had not fallen.

[58] The second is where the findings are “glaringly improbable” or “contrary to compelling inferences”. Redbro necessarily placed reliance on that aspect of Fox v Percy. However, this Court said in Commonwealth Financial Planning Ltd v Couper [2013] NSWCA 444 at [67] of those terms:

“Those terms are convenient descriptive labels or guidelines, but in truth no definitive test is possible to specify those (rare) occasions when appellate review of a credit-based finding of fact is warranted: Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 at [15]. All that can be done is to look at all of the evidence, testimonial and documentary, while at the same time being conscious of the advantages of the primary judge, including the necessarily incomplete character of his or her reasons: Biogen Inc v Medeva plc [1996] UKHL 18; [1997] RPC 1 at 45.” “

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