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The place of "error" in the appellate process October 30, 2017


A trial Judge has primary responsibility for factual adjudication.  The Judge’s findings should not be disturbed unless good and sufficient reason to do so is positively established by the plaintiff.  In Fox v Percy,[10] the plurality, after referring to Warren v Coombes,[11] described the three later decisions of Jones v Hyde,[12] Abalos v Australian Postal Commission[13] and Devries v Australian National Railways Commission[14] as a “trilogy” and observed:[15]

After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not.  Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission.  This trilogy of cases did not constitute a departure from established doctrine.  The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal.  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.                                                                                              [Footnotes omitted]

23                             In Rail Commissioner (formerly TransAdelaide) v Warner I referred to this trilogy of decsions and went on to note that there are two regularly encountered approaches leading to appellate interference with factual findings of a trial Judge:[16]

The first approach refers to the fact that a trial Judge’s finding may be overturned by establishing that it is based on evidence that is “glaringly improbable”.  Here, the emphasis is on the exceptionally fragile nature of the evidence that forms the basis of the finding and the degree of required weakness is illustrated by phrases such as “glaringly improbable”.  In the present case it could not seriously be said that, standing by itelf, the evidence of McAlpine is “glaringly improbable”.

The second approach refers to an appellate reversal of “findings based on evidence that is opposed to established facts or incontrovertible evidence or contrary to compelling inferences”.  Here the emphasis is on the exceptionally solid nature of clearly identified objective evidence with which the Judge’s finding is inconsistent…

Such evidence must be quite inconsistent with the evidence of the witness(s) accepted by the trial Judge and have a greatly superior claim to reliability.  Such was the position in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In liq)[17] with the clear trail of documentation and in Fox v Percy[18] with the independent evidence of vehicle skid marks …

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