Appellant v Respondent

1. These reasons concern an appeal by the appellant, Borg Property Services Pty Ltd ('BPS'), pursuant to s 109 of the Magistrates' Court Act 1989 (Vic) from orders made by the Magistrates' Court at Melbourne on 28 November 2024 dismissing a claim made by BPS against a former employee, Ms Gulshen Pati. Ms Pati is the respondent to this appeal.
2. BPS operates a cleaning and facilities management business. The director of BPS, Jeffrey Borg, is the former brother-in-law of Ms Pati, having been married to the defendant's sister, Cevriye Borg, for 25 years. Mr Borg and Ms Borg separated in March 2020, and are currently engaged in proceedings in the Federal Circuit and Family Court ('FCAFC') relating to their divorce and an employment dispute.[1] Ms Borg was employed by BPS as an office manager/financial controller from 1998 until September 2022. In her position, Ms Borg had access to the computer systems, financial accounts and bank accounts of BPS.
3. BPS employed Ms Pati in an accounts, receptionist and administration support position from 3 September 2018 to September 2022. Ms Pati did not have access to the bank accounts of BPS.
4. Ms Pati was formerly married to Joe Pati, who was employed by BPS until February 2019, at around which time the couple separated. Mr Pati's employment at BPS was terminated after it was discovered that he was involved in fraudulent conduct, including falsifying contractor timesheets. In April 2019, Ms Pati engaged Mills Oakley to act on her behalf in family law matters concerning her separation from Mr Pati ('family law proceeding'), which appears to have been finally resolved in late 2021.
5. On 26 May 2022, Ms Pati lodged a WorkCover claim against BPS, accusing Mr Borg of, among other things, bullying conduct ('WorkCover claim'). The following day, on 27 May 2022, Mr Borg and Ms Borg had a heated telephone conversation which was covertly recorded by Ms Borg ('telephone conversation') during which Mr Borg expressed upset and outrage at the WorkCover claim, criticising Ms Pati's ingratitude in the face of the assistance he had provided her over the years.
6. It is not necessary for present purposes to include in these reasons a detailed transcript of the telephone conversation, which largely, but not entirely concerned Ms Pati and the WorkCover claim. At the commencement of the telephone conversation, Mr Borg was clearly angry and upset, describing Ms Pati as a 'whore', a 'bitch' and a 'moll'. He expressed dismay about the WorkCover claim after what he had done for her. He referred to going out night after night to put a tracker under Mr Pati's car and getting Ms Pati money back for her hot water service. He said that he helped her with all of the 'legal stuff' and helped her to get money from Mr Pati.
7. Mr Borg went on to say that Ms Pati owed BPS a lot of money for the work it did (referring to the flood repair work carried out by BPS at Ms Pati's residence), saying that she hadn't paid the money back. When Ms Borg said words to the effect that he did not want the money back, Mr Borg replied that he did now. He said that if Ms Pati did not withdraw the WorkCover claim he was going to 'crucify her so bad' that she would not have money to pay her mortgage.
8. Mr and Ms Borg then went on to discuss the incident which precipitated the WorkCover claim ('altercation'), with Mr Borg disputing Ms Pati's version of events regarding the altercation. At various points during the telephone conversation Mr Borg referred to suing Ms Pati, and 'burying' her, and made other complaints about Ms Pati's conduct in the workplace, before moving on to other issues of contention between Mr Borg and Ms Borg and other business related matters.
9. On 24 June 2022, Mr Borg sent a lengthy email to Ms Borg regarding the WorkCover claim (copying in BPS's WorkCover claims agent) about the altercation ('June 2022 email'). Mr Borg also expressed his disappointment that Ms Borg had accepted the WorkCover claim on behalf of BPS. The June 2022 email stated, among other things, as follows:

If I was bullying her, why did she ask for my help during her settlement with Joe? Why did she ask me to place a tracking device on Joes cars week after week for many months, so she knew where he went? Why did she ask me to go to her house and speak with the insurance assessor regarding her floor damage after the flood? Why did she ask me to assist in coordinating and repairing her leaking shower? Temporarily I applied silicon then she asked me to coordinate a permanent repair. Oh, and I haven't received the money that she received from her insurer ($6,600 approx.) regarding the water damage response at her home. The list goes on.

1. In July 2022, both Mr Borg and Ms Pati provided statements to a WorkCover investigator regarding the altercation, and the conduct of both Mr Borg and Ms Pati generally. Unsurprisingly, both parties provided quite different versions of the altercation and quite different opinions about where the fault lay.

1. On 23 January 2023, BPS issued a claim in the Magistrates' Court at Melbourne, alleging that in September 2022, Mr Borg discovered that Ms Pati had used BPS's funds to pay for legal services provided by Mills Oakley to her relating to the family law proceeding ('Mills Oakley invoices'). Mr Borg claims that these payments, for a total of $51,949.67 made between November 2020 and September 2021, were not authorised by him. He said further that he was unaware that the payments had been made until his current partner found a copy of an invoice from Mills Oakley addressed to Ms Pati in Ms Borg's office in or around September 2022, following which he identified five payments to Mills Oakley in BPS's banking records.
2. It is common ground that the payments were actually made to Mills Oakley by Ms Borg, not Ms Pati. In her defence, Ms Pati said that Mr Borg knew about the Mills Oakley invoices and authorised the payments, having offered to help her with the legal fees associated with the family law proceeding. Ms Pati said she believed that the offer was motivated by, among other things, Mr Borg's antipathy towards Mr Pati.
3. BPS also alleged that on 1 July 2020, BPS performed flood response work at Ms Pati's residence and issued her an invoice for $6,292 ('flood repair invoice'). During the course of the trial in the Magistrates' Court proceeding, judgment was entered by consent in favour of BPS for the flood repair invoice.[2]
4. The trial was conducted over three days commencing on 9 September 2024. Both parties were represented by counsel and solicitors. Each of Mr Borg, Ms Pati, Ms Borg and BPS's accountant, Mr Sebastian Di Mauro, gave evidence and were cross-examined. A substantial proportion of the documents in the court book tendered in evidence concerned the employment dispute between BPS and Ms Borg. Closing submissions were made in writing.
5. The key issue for determination by the learned magistrate was whether or not Mr Borg authorised Ms Borg to pay any or all of the Mills Oakley invoices from BPS's funds. BPS bore the onus to prove that the Mills Oakley invoices were paid from its funds without authorisation.
6. Mr Borg gave evidence about the following matters:

(a) Ms Borg's employment at BPS and allegations that she had made various unauthorised transactions (including withdrawals from the Borg Superannuation Fund) which were unrelated to the Mills Oakley invoices, had repeatedly failed to invoice the clients of the business, and that she had falsified bank statements to conceal her unauthorised transactions;

(b) Ms Pati's employment at BPS;

(c) how Mr Borg assisted Ms Pati, including in the course of the family law proceeding;[3]

(d) the circumstances in which Mr Pati's employment at BPS was terminated;

(e) BPS's financial position, including cashflow issues owing to unissued invoices, and outstanding taxes owed to the Australian Taxation Office ('ATO');

(f) the WorkCover claim and statements that were made as part of the investigation of the WorkCover claim;

(g) the work BPS carried out at Ms Pati's home which was the subject of the flood repair invoice; and

(h) how the Mills Oakley invoices were discovered by Mr Borg in September 2022.[4]

1. Mr Borg denied ever having a discussion with Ms Pati and/or Ms Borg about the Mills Oakley invoices, or agreeing that BPS would pay the Mills Oakley invoices.
2. Mr Borg also called Sebastian Di Mauro in support of BPS's claim. Mr Di Mauro has provided accountancy services to BPS since around 2002. Mr Di Mauro gave evidence about Ms Borg's role at BPS, debts owed by BPS to the ATO, the other unauthorised transactions said to have been made by Ms Borg, and the bank statements that Ms Borg was alleged to have altered. Mr Di Mauro also gave evidence that Mr Borg had failed to receive various emails that he had sent to Mr Borg.[5] He gave evidence that Mr Borg told him about BPS having paid the Mills Oakley invoices in April 2023.
3. Ms Pati gave evidence about her responsibilities while working at BPS, her knowledge about the fraudulent activities Mr Pati was involved in while employed at BPS, the family law proceeding and the assistance that Mr Borg provided her, the Mills Oakley invoices, and the WorkCover claim.
4. Ms Pati gave the following evidence regarding her retainer of Mills Oakley and the alleged agreement by Mr Borg to pay the Mills Oakley invoices:

(a) she retained Mills Oakley upon Mr Borg's recommendation, and Mr Borg arranged and attended the first appointment with Mills Oakley;

(b) when the question of legal costs came up Mr Borg persuaded Mills Oakley not to require that Ms Pati place funds in trust;

(c) she paid approximately $35,000 towards the Mills Oakley invoices from her personal funds;

(d) Mr Borg was 'driving' the family law proceeding, he was involved in all communications with Mills Oakley, and he challenged some of the fees billed by Mills Oakley;

(e) the issue of BPS paying the Mills Oakley invoices first came up in September 2020, during a meeting between her and Mr Borg in his office at BPS. She told him that she was in financial difficulties, and that Mr Borg said 'well, we're going to help pay your legal fees'. Later that day Mr Borg and Ms Pati went to Ms Borg's office, and Mr Borg told Ms Borg that 'we're going to be paying off Gulsen's legal fees'; and

(f) after that conversation, she would print out the Mills Oakley invoices and provide them to Mr Borg. Sometimes he would keep them, and other times he would ask her to take them to Ms Borg for payment.

1. Ms Borg's evidence corroborated Ms Pati's evidence to the effect that Mr Borg had authorised Ms Borg to make the payments of the Mills Oakley invoices from BPS's bank accounts. Ms Borg gave evidence that Mr Borg would give her directions about what invoices to pay and not to pay, and that she always followed his instructions. She would not make payments from BPS's funds without Mr Borg's authorisation.
2. Ms Borg gave evidence that Mr Borg knew about Ms Pati's financial situation and that he felt very sorry for her. Mr Borg was very involved in the family law proceeding. She said that not long after his birthday, Mr Borg and Ms Pati came to her office, and Mr Borg said that he would like to help Ms Pati by paying the Mills Oakley invoices. She said that Mr Borg wanted to use BPS's funds to pay the Mills Oakley invoices, because he wanted to 'claim expenses', as he did with a number of other non-business expenses. He would usually give her the Mills Oakley invoices to be paid, and she entered the payments into BPS's accounting system as 'legal expenses'.
3. Ms Borg also gave evidence about the other unauthorised transactions she was alleged to have made using BPS's funds, and the WorkCover claim. Most of the (lengthy) cross-examination of Ms Borg focussed upon her management of BPS's financial affairs, and whether certain payments made by her using BPS's credit card were authorised by Mr Borg. Ms Borg also gave evidence to the effect that Mr Borg was a volatile character, but was very generous to his extended family.
4. In its written submissions in the Magistrates' Court proceeding, BPS submitted that it is inherently unlikely that Mr Borg authorised the payment of the Mills Oakley invoices for the following reasons:

(a) they concerned legal expenses that were completely unrelated to the business of BPS;

(b) by September 2020, BPS was struggling financially by reason of, among other things, Ms Borg's failure to invoice BPS's clients;

(c) no other BPS employee or Borg family member received such a substantial benefit from BPS;

(d) Mr Borg was already doing a lot to support Ms Pati in the family law proceeding; and

(e) Mr Borg did not known until September 2022 that BPS had paid the Mills Oakley invoices. Had Mr Borg known that the payment of the Mills Oakley invoices had been made by BPS, he would have mentioned that during the telephone conversation and in the June 2022 email. On discovering the Mills Oakley invoices in September 2022, Mr Borg instructed solicitors to write to Ms Pati concerning the allegation that she had misappropriated company funds, but received no response until she filed her defence in the Magistrates' Court proceeding.

1. BPS submitted that the strikingly similar evidence of Ms Pati and Ms Borg that Mr Borg authorised the payment of the Mills Oakley invoices was a convenient recent invention and should be rejected.
2. Ms Pati submitted that the payment of the Mills Oakley invoices by BPS was a gift to her and was authorised by Mr Borg because:

(a) Mr Borg was heavily invested in the family law proceeding, largely as a result of his lingering animosity towards her ex-husband Mr Pati, stemming from Mr Pati's fraudulent activities during his employment at BPS;

(b) Mr Borg was heavily involved in the family law proceeding. Mr Borg had introduced Ms Pati to a lawyer at Mills Oakley, scheduled and attended the first meeting between Ms Pati and Mills Oakley, he reviewed documents and invoices and regularly instructed and drafted emails to Mills Oakley. Mr Borg also followed Mr Pati and placed a tracking device on Mr Pati's vehicle;

(c) Mr Borg cared for and supported Ms Pati including by advising and encouraging her to press ahead with the family law proceeding, liaising with her insurer and fixing her house after it was affected by flooding; and

(d) Mr Borg knew that Ms Pati could not afford to pay the Mills Oakley invoices, as he had assisted Ms Pati to prepare financial statements for the family law proceeding, had reviewed invoices issued by Mills Oakley, and had acknowledged in his statement to WorkCover on 20 July 2022 ('WorkCover statement') that Ms Pati had to draw additional funds from her mortgage to cover expenses related to her home.

1. On 28 November 2024, the learned magistrate delivered oral reasons dismissing BPS's claim. After briefly narrating the background to the matter, the relationships between the parties and the issue in the proceeding, the learned magistrate set out his findings. The learned magistrate found on the balance of probabilities that Mr Borg had authorised Ms Borg to make the payments of the Mills Oakley invoices.
2. There is no available recording or transcript of the learned magistrate's reasons. The parties instead relied upon the notes of the hearing taken by solicitors at the hearing. A summary of the key findings in the learned magistrate's reasons derived from the notes of the hearing prepared by Ms Pati's solicitors is provided at paragraph 34 of these reasons.[6]
3. Prior to announcing his findings, the learned magistrate made a number of observations regarding the evidence given at the trial. He commenced these observations by saying that he accepted the evidence that Mr Borg had offered to pay the Mills Oakley invoices from BPS's funds, and that he preferred the evidence of Ms Pati and Ms Borg to that of Mr Borg.
4. The learned magistrate made the following observations regarding Mr Borg's evidence:

(a) Mr Borg said he only became aware of the Mills Oakley invoices in November 2022[7] when his new partner discovered the records. Mr Borg's partner did not give evidence to corroborate this evidence, but Ms Pati did not seek that an adverse inference be drawn from the absence of this evidence;

(b) the correspondence between Mills Oakley and Mr Borg went into some detail regarding Ms Pati's asset pool and financial affairs, which refutes Mr Borg's evidence that he did not know about Ms Pati's financial position;

(c) Mr Borg asserted that BPS would not have paid the Mills Oakley invoices because they were not a business expense, purporting to keep his business and personal expenses separate;

(d) he referred to the allegations made by Mr Borg against Ms Borg in respect of her failure to perform her role, which caused cash flow issues and BPS's failure to meet its tax obligations;

(e) he referred to Mr Borg's suspicions that Ms Borg was intercepting and hiding information about BPS's financial position, and using BPS's credit cards to pay for personal expenses such as her parents' kitchen renovations and beauty products;

(f) Mr Borg said that after he discovered the payments to Mills Oakley he raised concerns with his solicitors, accountant and the police;

(g) Mr Borg denied providing financial assistance for kitchen renovations for Ms Borg's parents, saying that while he organised the cabinet makers, he did not authorise Ms Borg to use BPS's funds to pay for them;

(h) Mr Borg admitted to placing a tracking device on Mr Pati's car;

(i) Mr Borg maintained that despite being involved in the family law proceeding, and recommending Mills Oakley to Ms Pati, he had no knowledge of Ms Pati's financial position; and

(j) referring to the telephone conversation, the learned magistrate noted that Mr Borg denied that this proceeding was in pursuance of 'burying' Ms Pati, and that Mr Borg said that if he had known about the Mills Oakley invoices, he would have mentioned them in the telephone conversation. He said that the overall tone of the telephone conversation was 'vindictive', and showed that Mr Borg considered the WorkCover claim was an ungrateful betrayal by Ms Pati after the assistance and support he had provided to her.

1. The learned magistrate also commented upon the evidence given by Mr Di Mauro, BPS's accountant. He noted that Mr Di Mauro alleged that Mr Borg did not receive his emails, but observed that there was no evidence or suggestion that Mr Di Mauro had access to Mr Borg's computer to verify this. Mr Di Mauro also gave evidence that the only fringe benefits provided by BPS to its employees were motor vehicles and Medallion Club memberships. He gave evidence that he had informed Ms Borg that her withdrawals from the BPS superannuation fund were illegal, and evidence regarding the 'continuing saga' of Ms Borg's failure to invoice customers. Mr Di Mauro said that he informed Mr Borg of Ms Borg's payment of the Mills Oakley invoices.[8]
2. The learned magistrate then referred to Ms Pati's evidence, noting:

(a) her evidence that Mr Borg was heavily involved in the family law proceeding because 'he was out to get Joe [Pati]' given the disloyalty he had shown to BPS and Mr Borg;

(b) her evidence that it was Mr Borg who arranged for her to retain Mills Oakley, and that it was Mr Borg who was driving the family law proceeding;

(c) her evidence that Mr Borg was aware of her financials and told her to be careful about Mills Oakley's legal fees;

(d) her evidence that she paid the first $35,000 in legal fees from her savings, and that Mr Borg would review the Mills Oakley invoices and query Mills Oakley about their fees;

(e) her evidence regarding her conversation with Mr Borg regarding the payment of the Mills Oakley invoices, and in particular, the difference between her evidence as to what Mr Borg told her ('we will help you pay your legal fees') and what she said Mr Borg later told Ms Borg ('a portion of legal fees'). His Honour said that this slight difference of recollection was irrelevant;

(f) her evidence that she printed the Mills Oakley invoices and handed them to Mr Borg, who would then approve payment;

(g) her evidence about an argument between her and Mr Borg, where she was told that she was being made redundant and Mr Borg was aggressive and volatile, following which she left BPS and made the WorkCover claim;

(h) her evidence that she chose not to respond to a show cause letter issued by BPS's solicitors because she did not intend to return to work at BPS; and

(i) Ms Pati's solicitors' notes of the hearing record the following:

HH noted that Pati denied Mr Borg's allegation that he told her that [Mills Oakley] could handle her divorce and she responded "no problem I have 80k". HH noted that it was not unreasonable for [Ms] Pati to believe that Mr Borg would be supportive of paying her legal fees noting he was supportive of family and could become vindictive if people crossed him. During cross examination, [Ms] Pati described Mr Borg as supportive but vindictive when crossed. [Ms] Pati said he wanted to support her children and also avenge Joe Pati. HH noted that it would be reasonable to expect Mr Borg to want to take some revenge on Joe Pati for the embezzled funds.

1. The learned magistrate also commented upon Ms Borg's evidence as follows:

(a) Ms Borg gave evidence that she worked long hours and that Mr Borg watched her work and gave her constant direction. She has no academic qualifications;

(b) he referred to an SMS message from 'Michael accountant' dated 12 April 2022 which referred to unpaid invoices and said that invoices had been sent to Mr Borg. Ms Borg said that Mr Borg would approve and then forward her the invoices to pay;

(c) Ms Borg agreed during cross-examination that she had not met her invoicing obligations;[9]

(d) Ms Borg gave evidence that she was married to Mr Borg for over 20 years and described him as being very supportive of his extended family, an example of which was the payment of the Mills Oakley invoices;

(e) Ms Borg's evidence that Mr Borg would bring the Mills Oakley invoices to her to pay was different to Ms Pati's recollection, but the learned magistrate did not find the differences substantial enough to concern him, or cause him to consider the evidence unreliable;

(f) during cross-examination Ms Borg was taken to payments for what did not appear to be legitimate business expenses and 'explained without apparent deceit or omission' that these expenses were family expenses paid with the 'express or tacit approval of Mr Borg', examples of which were a luxury brand watch for Mr Borg and her parents' kitchen renovations;

(g) in relation to the kitchen renovations, the learned magistrate referred to an email where Mr Borg directed that the invoices be made out to BPS, noting that 'this evidence was inconsistent with Mr Borg's purported strict adherence to record keeping and not mixing business/personal expenses';

(h) Ms Borg gave evidence that she would not know how to modify bank statements, and all impugned credit card payments were explained by Ms Borg 'honestly and openly'; and

(i) Ms Pati's solicitors' notes of the hearing record the following;

HH believed the Plaintiff's attack against Mrs Borg's character fell flat. HH also noted that the apparent "Beauty costs" were revealed to be for sanitary products delivered monthly for the company (recurring monthly payments) but were held at Mrs Borg's house and remain unopened in boxes.

1. Ms Pati's solicitors' notes record the following findings made by the learned magistrate:

HH referred to key matters in dispute.

Did Mr Borg authorize [Mills Oakley] payments?

HH noted that the Company has not discharged its onus of proof.

HH noted that he believes that Mr Borg authorised payments.

HH's reading of the evidence was that Mr Borg was supportive of family and was willing to use his Company to provide for them. If crossed Mr Borg did have the capacity to be vindictive and doggedly pursue people who crossed him. HH noted examples of tracking devices and "bury her" phone recording.

HH weighed Mr Borg's evidence against [Ms] Pati and Mrs Borg's evidence.

HH noted that nothing in the evidence showed that [Ms] Pati or Mrs Borg were lying. Their evidence was consistent. They appeared to be giving evidence honestly. HH noted in his examples that he accepted Mrs Borg used company credit card for a range of personal and company purchase[s], but with approval and some costs were for Mr Borg and at Mr Borg's urging.

HH noted that Mr Borg's evidence sought to suggest all purchases were unauthorised. HH deemed his argument unsuccessful and there was too much evidence to the contrary.

HH accepts Mrs Borg's evidence that Mr Borg authorised costs.

HH [accepted] that Mr Borg encouraged use of the Company funds. HH noted that the attempt to besmirch Mrs Borg is evidence that Mr Borg is willing to colour evidence in pursuit of his motives.

HH went on to note that this is consistent with the picture painted by [Ms Pati] that Mr Borg is generous and supportive when happy, but is not to be crossed.

HH pointed in particular to Mr Borg's "ranting" during the recorded telephone call.

HH also noted it is consistent with his apparent obsession with the monitoring of Joe Pati by installing a tracking device and following him around town during the divorce proceedings.

HH accepted [Ms] Pati's evidence of Mr Borg's familiarity with her financial circumstances.

HH noted that viewed objectively, Mr Borg took a peculiarly active stance in Pati's divorce. HH accepted this as in part, looking after the family, but also his dislike towards Joe Pati. HH stated that it cannot be described as typical for someone to place a tracing device on a brother-in-law's car. HH also noted that Mr Borg attended [Mills Oakley] meetings and drafted emails to them which shows a high level of engagement in [Ms] Pati's divorce beyond the usual amount expected for a brother-in-law.

HH also pointed to evidence that Mr Borg recommended [Mills Oakley] and warning [Ms] Pati of fees. Given his ongoing involvement, HH did not consider it credible that Mr Borg was ignorant. It is more probable he was aware of the family estate. HH pointed to numerous emails in the Court Book where Mr Borg instructs [Mills Oakley] as to the size of the family estate and what would be considered an equitable carve up of the assets.

HH rejected Mr Borg's claim that he was unaware of payments to [Mills Oakley] until November 2022. He accepts [Ms] Pati's and Mrs Borg's evidence that they were paid at his direction.

HH considered that the only corroborative evidence of Mr Borg, was the [Di Mauro] comments where he told him about the payments in 2023. HH noted the closeness of time between November 2022 and the 2023 discussion. HH noted that this communication with [Mr Di Mauro] could lend some weight to Mr Borg's version and is in his purported adherence to not mixing expenses. HH went on to note that in isolation, however, it is not sufficient to dislodge the evidence of [Ms] Pati and Mrs Borg.

HH commented that the rest of [Mr Di Mauro's] evidence was of little assistance beyond confirming the Company's bookkeeping was insufficient. This was irrelevant to the issue at hand.

HH also noted that [Mr Di Mauro's] comments regarding fringe benefits did not preclude other expenses being available to be paid from the Company's accounts.

HH accepted that Mr Borg instructed the use of funds for the kitchen renovation.

HH noted that [Mr Di Mauro] was in no position to know whether or not Mrs [Borg] was intercepting emails. HH noted that the exchange between Mrs Borg and the accountant Michael is somewhat contemporaneous evidence of Mrs Borg not being able to see some emails.

HH found there was no evidence that showed Mrs Borg intercepted emails.

With regards to the alleged doctoring of bank statements, HH accepted Mrs Borg's denial and also accepted that she would not have the knowledge.

HH not convinced that Mr Borg does not mix personal and business expenses.

With regards to the taped phone call, HH noted that Mr Borg admitted that if he had agreed for [Mills Oakley] to pay the invoice, he would have mentioned this during the call. HH noted that Mr Borg was upset given how generous he had been to Ms Pati. HH considered carefully, but by his own words, Mr Borgs list was not exhaustive. HH noted that Mr Borg ended the description of the things he had done for [Ms] Pati with "and the list goes on". HH did not consider the exclusion of the [Mills Oakley] invoices as persuasive evidence.

HH also did not agree with Mr Borg's allegations that Mrs Borg and [Ms] Pati are accomplished liars or were coordinating to work against Mr Borg. HH found their version of events more probable than Mr Borg.

HH noted Mr Borg's evidence was not reliable and he is prepared to colour evidence. He initially maintained that he never mixes personal and business expenses however Mrs Borg's evidence and kitchen renovation emails indicated otherwise.

HH noted that [Ms] Pati and Mrs Borg were able to demonstrate inconsistencies in Mr Borg's evidence and actions and highlight his attempts to besmirch is opponents in vindictive pursuit by using the credit card purchase descriptions and the kitchen renovations invoiced to the Company.

HH noted that the claim against [Ms] Pati cannot succeed once the above evidence is accepted.

Prior to giving his findings, HH noted Mr Borg's issue raised during submissions - declaration of trust and no consideration flowing from [Ms] Pati - gratuitous executory promise. HH accepted that Mr Borg intended to provide a benefit to [Ms] Pati for two reasons:

a. support family; and

1. take down Joe Pati in vindication for the betrayal against Mr Borg ("antipathy for Joe").

HH believes that payment of the expenses should be considered a gift but does not believe it require characterization.

HH is content to find that on balance of probability Mr Borg offered to pay [Mills Oakley] invoices and instructed Mrs Borg to pay the invoices after individual review and authorisation in accordance with his standard practice.

HH finds that payments were authorised.

The case should be dismissed.

1. In its notice of appeal dated 13 January 2025, the appellant seeks the following relief:

1. Appeal allowed.

2. There be judgment for the Appellant on the Claim, including interest.

1. The Respondent pay the Appellant's costs of this appeal and of the proceeding below.

1. The appellant relies on the following grounds of appeal:
   1. The learned Magistrate mistook the evidence and made a decision that no reasonable magistrate could make on the evidence.
   2. The learned Magistrate erred in failing to take into account the contemporaneous evidence of the telephone call which occurred in or around May 2022 and the email from Jeff Borg to Cevriye Borg dated 24 June 2022 indicating the Appellant has no knowledge of the alleged gift to the Respondent.
   3. Such further or other grounds as may be advanced by way of amendment of the Notice of Appeal or at the hearing of the appeal after the full reasons for judgment below are provided.
2. While the parties made submissions with respect to both grounds of appeal, there is considerable overlap between the grounds of appeal. The disposition of the appeal turns upon the resolution of a single issue. That is, was the inference to be drawn from the failure of Mr Borg to expressly refer to the payment of the Mills Oakley invoices in the telephone conversation and the June 2022 email (being that Mr Borg had no knowledge that BPS paid the Mills Oakley invoices) so compelling that the learned magistrate's conclusion that Mr Borg authorised the payment of the Mills Oakley invoices was 'glaringly improbable,' 'contrary to incontrovertible facts', and was thus unreasonable.

1. BPS referred to the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corp ('Wednesbury')[10] which explained the administrative law standard of unreasonableness as being where a decision is so unreasonable such that no reasonable person could be said to have reached it. Such unreasonableness 'will be made out where the decision is manifestly unreasonable, that is, where the decision lacks an evident and intelligible justification or simply defies comprehension.'[11]
2. BPS submitted that the telephone conversation and June 2022 email established that Mr Borg had no knowledge of the payment of the Mills Oakley invoices, which he only discovered in September 2022. The learned magistrate failed to properly take into account and give proper weight to the telephone conversation and June 2022 email, and as such, came to a decision at which no reasonable magistrate would have arrived.
3. BPS submitted that if Mr Borg had authorised the payments of the Mills Oakley invoices, he would have inevitably mentioned that in the telephone conversation and the June 2022 email. The items of assistance that Mr Borg enumerated in the telephone conversation and the June 2022 email were of much less monetary value than the quantum of the Mills Oakley invoices paid by BPS. Had the payments of the Mills Oakley invoices been authorised by Mr Borg, one would expect that it would be one of the first items of assistance that Mr Borg would have mentioned in the telephone conversation and the June 2022 email. Instead, Mr Borg referred to helping Ms Pati place a tracker on Mr Pati's car, getting her a couple of hundred dollars back on her hot water service, attending meetings and assisting with paperwork related to the family law proceeding, carrying out the work related to the flood repair invoice, and repairing Ms Pati's leaking shower.
4. With respect to Mr Borg's statement in the June 2022 email that the 'list goes on', Mr Borg submitted as follows:

[T]he statement was reference to other minor help that Mr Borg routinely provided his family, including [Ms Pati]. Payment of more than $51,000 of legal invoices would not have been relegated to the unspecified "list goes on". [BPS] submits that it was not open to the learned Magistrate to conclude that this phrase could be reference to the payment of the Mills Oakley invoices which totalled in excess of $51,000 and that no reasonable person, taking into consideration all of the evidence, including that [BPS] was, as accepted by the learned Magistrate, under financial strain due to Mrs Borg's lack of invoicing, would come to the conclusion that "the list goes on" comment could include the payment of the very substantial amount of the Mills Oakley invoices.

The more reasonable conclusion, and the one which a reasonable person, in [BPS's] submission, would have come to, was that given the quantum of monies the Mills Oakley invoices amounted to, Mr Borg would have mentioned this as the first or second item of assistance he offered [Ms Pati] in both the [telephone] conversation and the [June 2022] email. This was the submission advanced at trial by Mr Borg, and it was not properly considered by the learned Magistrate. A reasonable Magistrate would have accepted that submission and come to the conclusion that the invoice payments were not authorised, which was the only justifiable conclusion. The conclusion that the learned Magistrate reached was one which defied reasonable comprehension and constitutes an error of law.

1. BPS's submissions referred to the principle endorsed by the High Court in Abalos v Australian Postal Commission,[12] which requires that deference be given to the findings of a primary judge who has seen and heard the witnesses ('Abalos principle'). The Abalos principle was also referred to by Gleeson CJ and Gummow and Kirby JJ in Fox v Percy,[13] where their Honours said:

These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[14]

1. BPS submitted that the authorities make it clear that the Abalos principle does not apply where the primary judge reaches a conclusion which is 'inconsistent with facts incontrovertibly established by the evidence', or reaches a 'glaringly improbable' conclusion.[15] In Devries v Australian National Railways Commission,[16] the High Court stated as follows:

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his [or her] advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".[17]

1. BPS submitted that the learned magistrate's conclusion that the payments of the Mills Oakley invoices may have been covered by the statement that 'the list goes on' in the June 2022 email, despite not being explicitly mentioned in the June 2022 email or the telephone conversation, was glaringly improbable and contrary to compelling inferences. BPS referred to the following statement in Fox v Percy:[18]

In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. 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.[19]

1. The quantum of the Mills Oakley invoices was far in excess of the value of the other assistance provided by Mr Borg to Ms Pati. BPS submitted as follows:

It is "glaringly improbable" that a person would purposefully omit mentioning the most significant item of help they have provided someone when reeling off a list of all the assistance they have provided to this same person over time. The only plausible reason why Mr Borg would omit mentioning the payment of the Mills Oakley invoices during the [telephone conversation] and again in the [June 2022 email] was because he was unaware that the Appellant had made payment. This is because Mr Borg did not offer to pay the Mills Oakley invoices on behalf of the Respondent, and did not authorise the Appellant to facilitate such payments.

1. Further, if Mr Borg had omitted to mention the Mills Oakley invoices in the telephone conversation due to his heightened emotional state, he would have then made sure to refer to them in the June 2022 email.
2. In his oral submissions at the hearing of the appeal, counsel for BPS submitted, in summary, as follows:

(a) this is an unusual case, where there are two fundamental pieces of evidence, being the telephone conversation and the June 2022 email;

(b) it beggars belief that Mr Borg would have not mentioned the Mills Oakley invoices had he in fact authorised payment of the Mills Oakley invoices. Accordingly, the evidence of Ms Pati and Ms Borg should be rejected; and

(c) the failure of BPS to call Mr Borg's partner to give evidence about the circumstances in which he found the Mills Oakley invoices did not justify the drawing of a Jones v Dunkel[20] inference against BPS.

1. Counsel for BPS referred to other evidence which supported BPS's claim in the Magistrates' Court proceeding, including:

(a) the alleged meeting where Mr Borg allegedly agreed to pay the Mills Oakley invoices was said to be in September 2020, when Victoria was in full lockdown;

(b) the Mills Oakley invoices would not have been tax deductible by BPS, because they were not legitimate business expenses;

(c) there were no emails in evidence showing that Ms Borg emailed bank statements to Mr Borg;

(d) the evidence that Mr Borg warned Ms Pati that Mills Oakley were very expensive is inconsistent with Mr Borg agreeing to pay the Mills Oakley invoices;

(e) Mr Borg gave evidence that he knew that Ms Pati had more than $100,000 available to meet her legal costs;

(f) the unlikelihood that Mr Borg would authorise the payment of legal fees when BPS had such significant financial problems;

(g) Mr Borg also made no reference to the Mills Oakley invoices in the WorkCover statement; and

(h) Ms Pati's failure to respond to the allegations made against her in correspondence until she filed her defence in the Magistrates' Court proceeding.

1. Counsel for BPS rejected the proposition that the Magistrates' Court proceeding was brought in retribution for the WorkCover claim. Rather, the purpose of the proceeding was to recover an unauthorised payment.
2. Counsel for BPS submitted that the current case falls outside the scope of the Abalos principle, because the learned magistrate's finding regarding the import of what was said and not said by Mr Borg during the telephone conversation and/or in the June 2022 email did not amount to a finding as to Mr Borg's credibility: rather, it represented a strained interpretation of what was actually said and not said.
3. In response, Ms Pati submitted that the learned magistrate's decision was not unreasonable, was supported by evidence, and was the product of sound evaluative reasoning. BPS bore the onus of proving its case on the balance of probabilities, and failed to do so.
4. In the telephone conversation, Mr Borg is recorded as saying 'helped [Ms Pati] with all the legal stuff with fucking [Mr Pati], got her the extra money from [Mr Pati]' which Ms Pati submitted could be a reference to the Mills Oakley invoices. In the June 2022 email, Mr Borg similarly states that he 'help[ed] [Ms Pati] during her settlement with [Mr Pati]' and the 'list goes on' which could also capture the Mills Oakley invoices.
5. Ms Pati submitted that the learned magistrate carefully considered both the telephone conversation and the June 2022 email. Ms Pati submitted that Mr Borg may not have instantly recalled all the items of support he had provided Ms Pati, particularly in the emotional state he exhibited during the telephone conversation. While the Mills Oakley invoices were of a 'high monetary value compared to the other items, Mr Borg may not order the significance of his support by monetary value.' Ms Pati submitted that Mr Borg routinely provided financial support to his family. Further, some of the non-monetary assistance Mr Borg provided Ms Pati was unusual and would have left a strong impression on Mr Borg, such as crawling under Mr Pati's vehicle at night in the rain to place a tracking device.
6. Ms Pati also submitted that Mr Borg was highly involved in the family law proceeding, in part motivated by a vendetta against Mr Pati which may have led him to perceive the family law proceeding as part of a collaborative venture between him and Ms Pati.
7. With respect to BPS's submission that the statement that 'the list goes on' in the June 2022 email referred to minor forms of assistance, Ms Pati submitted that this submission was not supported by the evidence and asks the Court to draw an inference as to Mr Borg's reasonableness or rationality that may not be open to be drawn. Ms Pati submitted that it was open to the learned magistrate to find that the 'the list goes on' may have included the Mills Oakley invoices.
8. Ms Pati submitted further that the learned magistrate's decision must be considered in the context of all the evidence, including:

(a) Ms Pati's direct evidence of how Mr Borg expressed the intention of the gift and the corroborative evidence given by Ms Borg;

(b) Ms Pati's evidence that Mr Borg reviewed the Mills Oakley invoices to ensure they were correct;

(c) Mr Borg introduced Ms Pati to Mills Oakley and liaised with and provided instructions to Mills Oakley throughout the family law proceeding;

(d) Mr Borg was aware of Ms Pati's financial situation;

(e) Mr Borg's interest in supporting Ms Pati's children and his vendetta against Mr Pati; and

(f) the credibility, reliability, and demeanour of the parties and witnesses generally.

1. Ms Pati submitted further in relation to the telephone conversation and the June 2022 email:

(a) other items of assistance provided by Mr Borg may have made a greater impression upon Mr Borg;

(b) Mr Borg did refer to the family law proceeding in the telephone conversation and June 2022 email;

(c) BPS's submission that a reasonable person would list the most prominent item as the first in a list of items, suggests that Mr Borg was a reasonable and rational person, which was contrary to the evidence in this proceeding. It also presumes that Mr Borg measures value primarily in monetary terms; and

(d) the learned magistrate gave careful consideration to the evidence taking into account the relationship between the parties, Mr Borg's involvement in the family law proceeding, and Mr Borg's personality traits.

1. In his oral submissions at the hearing of the appeal, counsel for Ms Pati observed that there was a lot of evidence in the Magistrates' Court proceeding, including a lot of credibility evidence, in particular relating to the credibility of Ms Borg. BPS's position is that the inference to be drawn from the telephone conversation and the June 2022 email was so compelling that the learned magistrate could disregard all of the other evidence and base his conclusion on those two pieces of evidence alone.
2. Counsel for Ms Pati referred to the statement of French CJ in Minister for Immigration and Citizenship v Li[21] to the effect that the threshold for unreasonableness is not met simply on the basis that the decision maker has given insufficient or excessive consideration to some matters or makes an evaluative judgment that the reviewing court disagrees with. Here, we are not dealing with a deductive logical error, but rather an asserted error in drawing an inference.
3. Counsel for Ms Pati submitted as follows:

So even if this court finds that the probabilities are against, or even strongly against, the primary judge's findings, the court should still not depart from the primary judge's findings.

The appellant is therefore asking the court to find that His Honour's findings are so inherently improbable that credibility and reliability and all those other advantages become irrelevant, and then, on that basis, asking the court to remake the judgment based on just two pieces of evidence.[22]

1. Counsel for Ms Pati submitted that one explanation for why Mr Borg referred to the flood repair invoice in the telephone conversation and the June 2022 email but not the Mills Oakley invoices is that there was an agreement that Ms Pati would pay the flood repair invoice once she had recovered the funds from her insurer, while the payment of the Mills Oakley invoices was a gift to Ms Pati. Accordingly, while BPS contends that only one inference can be drawn from the telephone conversation and the June 2022 email, that inference is only one of many.
2. Counsel for Ms Pati submitted that this Court does not have to accept that BPS's payments of the Mills Oakley invoices were not referred to in the telephone conversation and/or the June 2022 email. Counsel referred to the statement by Mr Borg in the June 2022 email that 'the list goes on', and observed that references were also made to the family law proceeding in both communications. Mr Borg was not asked during his examination-in-chief as to what he meant by the words 'helped her with her settlement with Joe [Pati]', so it was open to the learned magistrate (and this Court) to find that this 'help' encompassed the payment of the Mills Oakley invoices.
3. Counsel for Ms Pati referred to BPS's submissions to the effect that BPS would be unlikely to pay the Mills Oakley invoices because they were not tax deductible, and observed that many of the gifts made through BPS to other family members, which were extensive, were similarly not properly tax deductible.
4. Counsel for Ms Pati submitted as follows:

I submit that His Honour's reasoning was not unreasonable but was based on sound, evaluative judgment, and it's that balancing of probabilities, which is essential in this case, His Honour had to carefully weigh up a lot of different evidence, and all of this is just inferential. The only non-inferential evidence is the direct evidence of Mrs Pati and Mrs Borg saying that, 'Well, he approved the invoices', and so on, and Mr Borg saying he's not. Everything else is inferential and there's lots of different inferences to be taken from lots of different evidence.[23]

1. Counsel for Ms Pati submitted that the issue of the inference to be drawn from the telephone conversation and the June 2022 email was front and centre before the learned magistrate. The learned magistrate expressly considered this evidence, but found that it was insufficient to displace the weight of the other evidence, including the direct evidence of Ms Pati and Ms Borg regarding the discussions between them and Mr Borg. Counsel observed that there was also quite a lot of evidence to support a conclusion that Mr Borg was heavily involved in and invested in the family law proceeding, and as such, would have been willing to go to significant lengths to assist Ms Pati in the family law proceeding. Not only did Mr Borg engage in revenge seeking behaviour, but he also had a general propensity to be generous to his immediate and wider family.
2. Counsel for Ms Pati referred to the fact that the learned magistrate was able to observe extensive evidence going to the credibility and reliability of the witnesses, including the extensive cross-examination of Ms Borg regarding allegedly misappropriated funds, which 'really backfired', and the general demeanour and manner of the witnesses when they gave evidence, including the aggressive tone of Mr Borg during the telephone conversation. Counsel referred to the evidence relied upon by the learned magistrate in making his credibility findings in some detail.
3. Counsel for Ms Pati submitted that BPS's submissions regarding the only inference which could rationally be drawn from the failure of Mr Borg to expressly refer to the Mills Oakley invoices in the telephone conversation should be rejected, as Mr Borg, being a busy businessman, may place greater weight on matters which consume his time and attention rather than on the expenditure of money. As for the reference in the June 2022 email to 'and the list goes on', counsel for Ms Pati submitted that the interpretation of this phrase contended for by BPS was not supported by the evidence. Mr Borg could have been asked about what he meant by those words, but he was not asked.
4. Counsel for Ms Pati concluded his submissions as follows:

Ultimately, because it's all a question of probabilities, the appeal is in effect asking for a merits review, the more weight should have been given to this inference rather than other inferences, but as we know, even if this court finds the probabilities are strongly against the respondent, the court should not set aside the original judgment, but this question fundamentally contains questions of credibility and reliability, and that's probably a matter for the trial judge.

So in summary there was nothing unreasonable in the reasoning of the magistrate. While the appellant is presenting this evidence as so compelling to render the whole trial moot, like a single, unassailable and conclusive fact, forget about even having a trial, could have just put this in front of the judge, really, and properly framed, the appellant is merely arguing the weight of various competing inferences and that's not sufficient for this court to overturn the decision at trial.

We know the learned magistrate gave careful consideration to the evidence highlighted by the appellant. The evidence must be understood in the context of the relationship between the parties, Mr Borg's involvement in the proceedings generating the invoices, the personal traits of Mr Borg and the learned magistrate was in the proper position to make that assessment.[24]

1. In its submissions in reply, BPS submitted, in summary, as follows:

(a) the learned magistrate's decision was unreasonable and unsupportable having regard to the evidence of the telephone conversation and the June 2022 email;

(b) Mr Borg's statement in the telephone conversation that he helped Ms Pati with 'all the legal stuff with ... [Mr Pati], got her extra money from [Mr Pati]' does not establish that he authorised the payment of the Mills Oakley invoices;

(c) the overwhelming logical inference which should have been drawn by the learned magistrate was that Mr Borg would have mentioned the Mills Oakley invoices in the telephone conversation as the primary example of Ms Pati's perceived ingratitude to him;

(d) there were no emails in evidence which showed the Mills Oakley invoices being sent to Mr Borg;

(e) there was no need to call Mr Borg's partner, who found the Mills Oakley invoices in Ms Borg's office, to give evidence;

(f) Mr Borg was aware that Ms Pati had at least $80,000 comprising money she had withdrawn from her joint account with Mr Pati and $22,000 from her insurer's payout following the flood repair works, so he knew that she had sufficient funds to pay her legal costs of the family law proceeding;

(g) the learned magistrate's failure to accept the telephone conversation and June 2022 email as conclusively persuasive evidence was not based on Mr Borg's credibility as a witness but 'on a strained interpretation of the words he used in the [telephone conversation]';

(h) based on the objective evidence of the telephone conversation and the June 2022 email, the only rational view possible is that Mr Borg did not authorise the payment of the Mills Oakley invoices; and

(i) there is no evidence weighing against the inference to be drawn from the telephone conversation and the June 2022 email.

1. In his oral submissions in reply, counsel for BPS submitted that the learned magistrate's conclusions regarding the credibility of Ms Borg's evidence are irrelevant, as those conclusions are not the subject of this appeal. Counsel for BPS maintained that the learned magistrate's acceptance of Ms Borg's evidence regarding the alleged agreement to pay the Mills Oakley invoices 'in the face of the compelling evidence of the [telephone conversation] and the [June 2022] email amounts to an error of law in relation to the Fox v Percy principle and also Wednesbury unreasonableness'.[25] The balance of counsel's oral submissions concerned other evidence in support of BPS's claim, which, given the issue in this appeal, I will not canvass further here.

1. Section 109 of the Magistrates Court Act 1989 (Vic) provides that appeals to this Court from the decision of a magistrate can only be brought on a question of law. That is, it is not the role of this Court to review the merits of the factual findings of a magistrate. It is not open to this Court to substitute its own conclusions regarding the factual findings made by a magistrate, unless there is some fault in the conduct of the proceeding, the reasoning process or the decision which amounts to legal error.
2. In the current appeal, BPS must establish that the reasoning process of the learned magistrate was so illogical and/or irrational, and/or the outcome so perverse, as to amount to unreasonableness in the legal sense.
3. The parties' submissions largely focussed upon whether in the current case BPS can rely upon the exceptions to the Abalos principle. The circumstances where a reviewing court can depart from a primary judge's findings arrived at least in part from findings as to the credibility of witnesses are well established, and are referred to later in this section of these reasons. However, those statements of principle need to be considered in the context of the nature of this appeal, where this Court must find not only error on the part of the learned magistrate, but 'unreasonableness', in the Wednesbury sense, albeit as modified (and somewhat relaxed) by the statements of the High Court in more recent times.
4. As noted by Nettle and Gordon JJ in Minister for Immigration and Border Protection v SZVFW:[26]

Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what might be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused - where, for instance, there is no "evident and intelligible justification" for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, "[r]eview by a court of the reasonableness of a decision made by another repository of power 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'".[27]

1. However, the bar remains high, particularly in the context of judicial fact finding. As observed by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS:[28]

What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.[29]

1. The authorities concerning the exceptions to the Abalos principle, which generally concerned appeals in the conventional sense rather than appeals limited to questions of law, do not use the language of 'unreasonableness'. That said, there is a considerable conceptual overlap between terms such as 'glaringly improbable' and 'contrary to incontrovertible facts' and 'unreasonableness', 'illogicality' and 'irrationality', in that it would be unusual to conclude that drawing an inference from established facts which is glaringly improbable would 'fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law'.[30]
2. The statements in the authorities concerning the Abalos principle and the exceptions to the Ablalos principle have already been extracted in the summary of the parties' submissions earlier in these reasons and I will not repeat them again here. However, the deference traditionally shown to a primary decision-maker when it comes to factual findings based upon the credibility of witnesses was succinctly explained by the plurality of the High Court in Lee v Lee[31] as follows:

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences" is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.[32]

1. That the Abalos principle still carries considerable force is apparent from the reasons of Nettle J in ABT17 v Minister for Immigration and Border Protection,[33] where his Honour stated as follows:

Ordinarily, in an appeal by way of rehearing from the judgment of a judge alone, a court of appeal has before it, in the form of the record, all the material that was before the judge and the judge's reasons for judgment and determines the appeal on that basis without receiving further evidence. The court of appeal does not, however, have the opportunity of seeing and hearing witnesses give their evidence, or thus the opportunity of making a fully informed assessment of the witnesses' demeanour. Accordingly, the established position in relation to an appeal by way of rehearing from the judgment of a judge alone is that, where the judge's decision is affected by his or her impression of the credibility of a witness whom the judge has seen and heard give evidence, the court of appeal must respect the attendant advantages of the judge in assessing the witness's credibility. Of course, if, making proper allowance for those advantages, the court of appeal concludes that error is shown, it is incumbent on the court of appeal to proceed accordingly. That may be so where the judge's findings, despite being based or said to be based upon an assessment of credibility, are contrary to "incontrovertible facts or uncontested testimony", "glaringly improbable", or "contrary to compelling inferences". But where no such error is apparent, it, is not a justification for the court of appeal to depart from the judge's assessment of the credibility of the witness that the court of appeal may consider that the judge did not give sufficient weight to matters that the court of appeal is of opinion bear upon the assessment. In those circumstances, it would be impermissible for the court of appeal to depart from the judge's assessment.[34]

1. Accordingly, there is probably not a great practical difference when evaluating whether a decision is to be impugned on the grounds of legal unreasonableness and whether an appellate court should step in to correct an error where a factual finding or inference to be drawn is glaringly improbable in the light of incontrovertible facts. However, the requirement of legal unreasonableness means that it is insufficient for this Court to impose its own view as to what might be 'glaringly improbable'. Rather, if whether such a conclusion should be drawn is a matter about which reasonable minds can differ, the appeal must fail.

1. In order for this Court to find that the learned magistrate reached a conclusion that was glaringly improbable, and one that no reasonable magistrate could have reached, BPS must establish that the only rational inference which could be drawn from Mr Borg's failure to expressly refer to the Mills Oakley invoices in the telephone conversation and the June 2022 email was that Mr Borg had not authorised the payment of the Mills Oakley invoices.
2. BPS concedes that it has a high bar to hurdle, but says that the probative value of the evidence of what was not said by Mr Borg in the telephone conversation and the June 2022 email is so overwhelming that this bar has been easily cleared.
3. I disagree. In my view, it was open to the learned magistrate to fail to draw the inference contended for by BPS and to reach the decision he did regarding BPS's claim.
4. First, the inference that Mr Borg was not aware of the Mills Oakley invoices was not the only inference which could be drawn from the telephone conversation and the June 2022 email. It was an available inference, and, arguably, the more probable inference. However, it was not the only inference, and, viewing the learned magistrate's conclusions and reasons as a whole, it is tolerably clear that he rejected that inference at least in part owing to his findings regarding the credibility of the witnesses and the absence of any other evidence to corroborate Mr Borg's version of events.
5. The primary issue before the learned magistrate was whether, during a conversation between Mr Borg and Ms Pati in September 2020, followed up by a further conversation between Mr Borg and Ms Borg later that day at which Ms Pati was present, Mr Borg agreed, or promised, that BPS would pay the Mills Oakley invoices going forward. Ms Pati and Ms Borg gave reasonably consistent evidence to the effect that these conversations did occur. Mr Borg said that they did not occur.
6. Given that the alleged agreement or promise was oral, not in writing, and there was no dispute that BPS paid the Mills Oakley invoices, the only direct evidence going to the heart of the issue in this proceeding was the evidence of Mr Borg, Ms Pati and Ms Borg. All of the other evidence, including the evidence of Mr Di Mauro, most of the documentary evidence, and what was said and what was not said in the telephone conversation and the June 2022 email went largely to credit.
7. In those circumstances, credit loomed large in this proceeding. That much is not only apparent from the learned magistrate's reasons (see paragraph 34 of these reasons) but also from the parties' submissions to the learned magistrate, and the comprehensive assault on the credibility of Ms Borg in particular during the course of cross-examination.
8. It is in this context that the inference to be drawn from Mr Borg's failure to make express reference to BPS's payment of the Mills Oakley invoices in the telephone conversation and the June 2022 email (and also the WorkCover statement) needs to be considered.
9. In effect, BPS contends that the inference to be drawn from the failure of Mr Borg to refer to the Mills Oakley invoices in these communications so overwhelmingly bolsters the credibility of Mr Borg's direct evidence regarding the primary factual issue in this proceeding such as to render the credibility findings made by the learned magistrate about each of the key witnesses and the consequential factual findings made by the learned magistrate largely irrelevant. That contention, and the evidence relied upon by BPS to support that contention does not seem to me to be consistent with the facts and circumstances referred to in the authorities where the Abalos principle has been overcome by incontrovertible facts or unchallenged testimony.
10. In Fox v Percy,[35] the High Court heard an appeal from an appellate court decision to reverse the finding of a trial judge regarding the cause of a collision between a horserider and a motor vehicle. The trial judge held that the horserider, who was seriously injured in the collision, had given credible evidence that the oncoming motor vehicle had swerved across to the wrong side of the road before the collision. This finding was made notwithstanding the contemporaneous observation of the attending police officer that the motor vehicle had come to a stop on the right side of the road, and there were 10 metres of skid marks behind it. The trial judge also accepted the evidence of an expert witness engaged by the horserider, who failed to make any mention of the skid marks in his report.
11. The Court of Appeal held that the evidence of the police officer concerning the skid marks being on the correct side of the road amounted to a fact 'incontrovertibly established by the evidence',[36] which meant that the testimony of the horserider and her other witnesses could not sustain the ultimate conclusion reached by the trial judge.
12. The High Court agreed, stating as follows:

In the end, it was not logic and assessments of probable behaviour in the circumstances that persuaded the majority of the Court of Appeal. Such considerations alone might not have warranted disturbance of the primary judge's conclusion. It was the objective fact of the skid marks which, to the close of the trial, remained unexplained, or insufficiently explained, by the appellant.[37]

1. In Lee v Lee,[38] the High Court was also concerned with a motor vehicle accident. The appellant, a teenage boy, was severely injured in a collision with another vehicle. The driver of the other vehicle was not at fault. The issue is whether the vehicle at fault was driven by the appellant, who was unlicensed, or his father. If the appellant was driving the vehicle, the trial judge must have accepted that his father moved the appellant from the driver's seat to the rear passenger seat in a very short period after the collision. The DNA evidence showed that blood found on the driver's airbag belonged to the appellant.
2. The trial judge formed an adverse view of the credibility of the evidence of the appellant and his mother, who were not native English speakers, and reached the conclusion that the appellant was the driver.
3. The Court of Appeal found that there were a number of difficulties with the trial judge's findings, in particular, the inferences drawn from the DNA evidence and expert evidence regarding the pattern of the bloodstains upon the driver's airbag. The expert evidence showed that it was extremely unlikely that the bloodstains on the airbag came from the driver of the vehicle. Nevertheless, the Court of Appeal dismissed the appeal, invoking the Abalos principle. The High Court held that the Court of Appeal was in error in doing so, given that the Court of Appeal held that the inferences the trial judge had drawn from the primary facts, in particular, the facts established by uncontradicted expert evidence, were wrong.
4. In both of the examples above, the High Court found that the evidence of the objective facts overcame the advantage the trial judge had of seeing and hearing the witnesses giving evidence.
5. In the current case, the only incontrovertible objective fact is that Mr Borg did not say during the telephone conversation or the June 2022 email words to the effect that 'and I paid her legal bills'. The question is whether the only available inference to be drawn from that incontrovertible fact is that Mr Borg did not authorise the payment of the Mills Oakley invoices. That is, could reasonable minds differ as to the available inferences to be drawn?
6. In my view, there was at least one other available inference to be drawn from the telephone conversation and the June 2022 email. While I accept that it is odd that Mr Borg did not specifically refer to the Mills Oakley invoices in those communications in the context of the WorkCover claim, and it seems unlikely that he forgot about the Mills Oakley invoices, it seems to me at least plausible that the references by Mr Borg to helping Ms Pati with the family law proceeding in those communications encompassed the payment of the Mills Oakley invoices.[39] Further, the contents of the telephone conversation and the June 2022 email should not be considered in isolation from the other evidence, and it is clear from his reasons that the learned magistrate did not consider the contents of the telephone conversation and the June 2022 email in isolation from the other evidence relevant to the credibility of the direct evidence given by the key witnesses.
7. In the current case, the learned magistrate made a number of findings which affected his assessment of the credibility of Mr Borg's denial of the conversations about which Ms Pati and Ms Borg gave evidence. By way of example, the learned magistrate pointed to an email which he observed contradicted Mr Borg's denial that he paid for Ms Borg's parents' kitchen renovations from BPS's funds, which also supported a conclusion that the boundary between business and personal expenses was, in Mr Borg's mind, fairly porous, again contrary to Mr Borg's evidence and submissions. He rejected Mr Borg's evidence that he had no knowledge of Ms Pati's financial situation, given the email communication between him and Mills Oakley. He rejected Mr Borg's contention that a number of payments made by Ms Borg using BPS's credit card were unauthorised. He held that while Mr Borg was very supportive of and generous towards family members, he could become vindictive when crossed, referring to Mr Borg's conduct towards both Mr Pati and Ms Pati and the tone and contents of the telephone conversation. He referred to the (unsuccessful) attempt of BPS to 'besmirch' Ms Borg's character and conduct as supporting a conclusion that Mr Borg was 'willing to colour evidence in support of his motives', a conclusion that was consistent with Ms Pati's portrait of Mr Borg as 'generous and supportive when happy, but is not to be crossed'.
8. Taken individually and together, these findings as to Mr Borg's credibility could reasonably be described as fairly devastating. Having made those findings, the learned magistrate's observations to the effect that the absence of any reference to the Mills Oakley invoices in the telephone conversation was not persuasive evidence in support of BPS's claim was unremarkable.[40] Viewed in the context of the learned magistrate's reasons as a whole, I read that statement to mean that the probative value of this evidence was insufficient to dislodge his overall conclusion that Mr Borg had not given credible evidence about the issue of whether he had authorised the payment of the Mills Oakley invoices. That is, the other evidence weighed against the drawing of the inference urged upon him by counsel for BPS.
9. The learned magistrate did take the telephone conversation and the June 2022 email into account in his reasons but held that this did not overcome the other problems with the credibility of Mr Borg's evidence, and consequently BPS's claim. In particular, the learned magistrate accepted the evidence of both Ms Borg and Ms Pati regarding the communications between them and Mr Borg regarding the payment of the Mills Oakley invoices. The learned magistrate did not accept that they were not telling the truth, and that minor differences in their evidence did not affect the reliability of their evidence. He held that Ms Borg's credibility was largely undisturbed by cross-examination. In contrast, the learned magistrate made a number of criticisms of Mr Borg's evidence, stating that 'he was prepared to colour his evidence to suit his position'.
10. In those circumstances, it is also unremarkable that the learned magistrate commented upon the absence of corroborative evidence to support BPS's claim. The learned magistrate was not asked to, and did not appear to draw a Jones v Dunkel[41] inference from BPS's failure to call Mr Borg's partner regarding the discovery of the Mills Oakley invoices in Ms Borg's office in September 2022. Rather, I read the reference in the reasons to the failure to call this evidence as an observation to the effect that, given his findings about Mr Borg's credibility, he would be cautious in accepting Mr Borg's uncorroborated evidence. Similarly, he referred to the (limited) corroborative evidence of Mr Di Mauro as being insufficient to overcome the evidence of Ms Borg and Ms Pati.
11. Further, the learned magistrate did not base his assessment of the evidence regarding the primary issue in the proceeding on his adverse findings regarding Mr Borg's credibility alone. He also made express findings regarding the credibility of Ms Pati and Ms Borg. In particular, he observed that the attack on Ms Borg's character 'fell flat' (which is consistent with my reading of the transcript of her evidence), and enumerated his findings with respect to the attacks upon Ms Borg's character and conduct in some detail.
12. In my view, reasonable minds could differ as to the inference to be drawn from the telephone conversation and the June 2022 email. Further, having regard to the learned magistrate's findings regarding the credibility of the witnesses (in circumstances where someone must be lying, and someone must be telling the truth, there being no room for ambiguity on the facts), the learned magistrate's credibility findings could reasonably be, and in fact were relevant to the assessment of what inference could be drawn from the failure of Mr Borg to refer expressly to the Mills Oakley invoices in the telephone conversation and the June 2022 email.
13. In addition to the learned magistrate's express credibility findings, there was other circumstantial evidence which undermined BPS's claim that Mr Borg had not authorised the payment of the Mills Oakley invoices, noting that not only did the learned magistrate find that BPS had not discharged its burden of proof, but also made a positive finding that Mr Borg had in fact authorised the payments. The evidence of Ms Borg and Ms Pati regarding Mr Borg's hostile attitude to Mr Pati was largely undisturbed by cross-examination, and Mr Borg's evidence to the effect that he did not take matters personally was difficult to accept in the light of the tone and the contents of the telephone conversation.
14. Further, I agree that the email correspondence between Mr Borg and Mills Oakley in evidence demonstrated an unusual degree of involvement by Mr Borg in the family law proceeding, and was consistent with Ms Pati's evidence that Mr Borg was 'driving' the family law proceeding, in part because of his antipathy to Mr Pati. There was evidence that BPS funds were routinely used for personal and family expenses, contrary to Mr Borg's evidence, such that payment of the Mills Oakley invoices from BPS's funds would not have been an extraordinary thing for Mr Borg to authorise. There was evidence that BPS funds were used to purchase luxury motor vehicles for Mr Borg's parents, home renovations for Ms Borg's parents, and expensive watches for Mr Borg and his son. Given that evidence, the proposition that Mr Borg would have helped Ms Pati with her legal fees, especially where the expenditure fulfilled another, less generous motive of Mr Borg, seems more likely than it might in another family and business context.
15. There is other evidence which supported the version of events put forward by Ms Pati and Ms Borg in the Magistrates' Court proceeding not expressly referred to by the learned magistrate in his reasons. Mr Di Mauro gave evidence that Mr Borg told him about the Mills Oakley invoices in April 2023 (that is, after the issue of the Magistrates' Court proceeding) not immediately after they were said to have been discovered, as contended for Mr Borg. And, if Ms Borg had paid the Mills Oakley invoices without the authority of Mr Borg, why would she have left them lying around her office able to be discovered by someone cleaning the office up one year later? Why would she have entered them into BPS's accounts under the heading 'legal expenses', in circumstances where her role as the 'financial controller' of BPS was under strict and critical scrutiny by Mr Borg, Mr Di Mauro, and other external accountants?
16. In its submissions to the learned magistrate, and, to a lesser extent, before this Court, BPS contended that it would be unlikely that BPS would pay for Ms Pati's legal expenses at a time when it was in dire financial straits, owing millions of dollars to the ATO, because of Ms Borg's defaults. However, it seems to me that the quantum of the Mills Oakley invoices, being $51,000 over a 14 month period, was a drop in the bucket compared with BPS's other liabilities. Further, an analysis of the Mills Oakley invoices themselves and a reconciliation schedule showing the Mills Oakley invoices and the payments of them by Ms Pati and BPS supports Ms Pati's evidence that by September 2020, she was facing difficulties in paying the Mills Oakley invoices. By that time, she was over $8,000 in arrears.
17. None of the pieces of evidence referred to in the preceding paragraph of these reasons, or the inferences to be drawn from that evidence are determinative. However, taken together, there was ample evidence to support the learned magistrate's conclusion that Mr Borg authorised the payment of the Mills Oakley invoices. There was of course evidence to the contrary, including the available inference to be drawn from the telephone conversation and the June 2022 email, but ultimately the task of the learned magistrate was to consider all of the evidence and reach his conclusion on the balance of probabilities, which he did.
18. In conclusion, BPS has not discharged the onus upon it to establish that the only available inference to be drawn from the telephone conversation and the June 2022 email is that Mr Borg did not authorise the payment of the Mills Oakley invoices. There was at least one other inference which was reasonably available to the learned magistrate, being that the payment of the Mills Oakley invoices was subsumed in the more general references made by Mr Borg to assisting Ms Pati with the family law proceeding. Mr Borg was not asked to explain what he meant by those references, leaving it to the learned magistrate to reach his own conclusions. Further, it was understandable that the learned magistrate did not draw the inference contended for by BPS in circumstances where the learned magistrate had made adverse credibility findings against Mr Borg which were certainly available to him to be made. In those circumstances, the learned magistrate has not reached a conclusion which was glaringly improbable, or unreasonable. There is no basis for concluding that the learned magistrate misused the advantage he had from hearing and seeing the witnesses give evidence.
19. The appeal will be dismissed. I will hear further from the parties on the question of costs.

[1] After the separation between Mr Borg and Ms Borg in 2020, Ms Borg continued to work at BPS until she was dismissed in September 2022. Ms Borg brought a general protections claim in the FCAFC against BPS, although the particulars of this claim are not in evidence. On 20 April 2023 BPS issued a cross-claim alleging that Ms Borg had misappropriated funds for personal expenses from BPS, and was negligent in the performance of her duties with BPS. In particular, BPS alleged that Ms Borg was negligent by failing to issue invoices to BPS's clients, by failing to meet BPS's obligations to the ATO, and by failing to pay traffic fines incurred by BPS's employees.

[2] Following the conclusion of the hearing of the appeal, the appellant provided the Court with a copy of the order made by the learned magistrate on 28 March 2025:

1. There be judgment for the Plaintiff in the sum of $7,687.11 inclusive of interest.

3. Payment of the judgment sum referred to in Order 1, and consideration of the question of costs, be stayed until 28 days after the final determination of the appeal to the Supreme Court in no. S ECI 2025 00127.

[3] It was common ground that Mr Borg had devoted considerable time and effort in assisting Ms Pati with the family law proceeding, including by attending meetings with Mills Oakley and drafting emails providing instructions to Mills Oakley.

[4] Mr Borg gave evidence that in September 2022 his partner was clearing Ms Borg's office at BPS and found an invoice from Mills Oakley addressed to Ms Pati. His partner told him that she believed that Ms Borg had made payments for Ms Pati, and insisted that Mr Borg check BPS's bank accounts, following which he discovered the payments to Mills Oakley. Mr Borg's partner was not called to give evidence.

[5] This evidence was given to support a contention that Ms Borg intercepted Mr Borg's emails and deleted them. Ms Borg denied this allegation.

[6] There was no material difference between the notes prepared by BPS's solicitors and Ms Pati's solicitors, but the notes prepared by Ms Pati's solicitors are more detailed and comprehensive.

[7] This should be a reference to September 2022.

[8] This may be an error, as Mr Di Mauro gave evidence that Mr Borg told him about the Mills Oakley invoices in April 2023.

[9] Some of the documents in the courtbook, and BPS's cross-claim in the FCAFC proceeding, focused upon Mr Borg's (understandable) frustrations with Ms Borg's failure to render invoices to BPS's customers in a timely fashion, or at all, which was said to have cost BPS many hundreds of thousands of dollars in revenue, if not more. Ms Borg admitted in her evidence that she had not adequately fulfilled her responsibilities in that regard, but said that she lacked the necessary skills and support.

[10] [1947] EWCA Civ 1; [1948] 1 KB 223.

[11] Agar v McCabe [2014] VSC 309; (2014) 67 MVR 81 [55].

[12] [1990] HCA 47; (1990) 171 CLR 167.

[13] (2003) 214 CLR 118.

[15] Devries v Australian National Railways Commission (1993) 177 CLR 472.

[18] (2003) 214 CLR 118.

[19] Ibid [28]-[29] (citations omitted).

[20] [1959] HCA 8; (1959) 101 CLR 298.

[21] [2012] HCA 61; (2013) 249 CLR 332 [72].

[26] [2018] HCA 30; (2018) 264 CLR 541.

[28] (2010) 240 CLR 611.

[30] Minister for Immigration and Citizenship v Li [2012] HCA 61; (2015) 249 CLR 332 [105] (Gagelar J), quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 [47].

[31] [2019] HCA 28; (2019) 266 CLR 129.

[33] [2020] HCA 34; (2020) 269 CLR 439.

[35] (2003) 214 CLR 118.

[38] [2019] HCA 28; (2019) 266 CLR 129.

[39] Another available inference is that Mr Borg considered the payment of the invoices as being money well spent because of his vendetta against Mr Pati and therefore did not characterise the payment of the Mills Oakley invoices as amounting to assistance to Ms Pati, but I consider that would be a far fetched inference to draw.

[40] In his reasons, the learned magistrate said that Mr Borg's statement that 'and the list goes on' was made in the telephone conversation. That is incorrect, that statement appears in the June 2022 email. Little turns upon that error for present purposes.

[41] [1959] HCA 8; (1959) 101 CLR 298.