(d) Concept of 'error'
71 In addition to these considerations, 'error' may occur in different contexts. In a statutory context in which the appeal was limited to errors of law, Glass JA explained in Azzopardi v Tasman UEB Industries Ltd (1985-1986) 4 NSWLR 139 at 156G:
"Errors may be committed by a Workers' Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found."
72 These categories are capable of refinement, so as to distinguish findings of primary fact from inferences drawn from the facts as found and, in addition, distinguishing inferences of fact from evaluative judgments. Other categories may be added, such as the process of exercising a discretionary power.
73 In each circumstance, different kinds of 'error' may arise. A finding of primary fact may be dependent upon correct rulings as to the admissibility or inadmissibility of evidence, conclusions as to the credibility of witnesses, a correct understanding of the evidence given by witnesses, the consideration of all the relevant evidence and the application of judgment based upon experience and common sense. A similar analysis can be undertaken for other steps in the process.
74 Each step in the process may require a different analysis by an appellate court with varying degrees of deference to the finding or decision of the trial judge.
75 At each step, policy considerations come into play. For example, despite the extraordinary degree to which we reduce information to a written or electronic record, great emphasis is still placed in the judicial process on orality. Not all evidence is given orally and the degree of emphasis on orality is partly dependent upon whether the trial involves a jury or is by judge alone. Nevertheless, the values which underlie the principle of orality must be given proper weight. Reading the transcript of argument may be as good as (or in some circumstances better than) listening to oral argument. The same approach does not apply to evidence. Despite "scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of" the appearance of witnesses, the judgment of a trial judge with respect to credibility and reliability is still accorded a high level of deference: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [31].
76 In part, the deference to the findings of the trial judge in these respects involves a qualification on the changes which have taken place as a result of civil trials being generally conducted by judges, rather than juries. Whereas the findings of a jury are opaque, the findings of a trial judge should be transparent and explained in written reasons. Nevertheless, as noted by Lord Hoffman in an oft-cited passage from Biogen at 45:
"The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation."
77 That statement was applied by the High Court in Fox v Percy at [41] and Dovuro Pty Ltd v Wilkins [2003] HCA 51; 215 CLR 317 at [102] (Kirby J); see also in this Court, Williams v Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255; [2000] Aust Torts Rep ¶81-578 at [137] (Heydon JA); Bova v Locke [2005] NSWCA 226 at [3] (Mason P) and in the Full Court of the Federal Court, S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 168 ALR 396, 400 (Hill, RD Nicholson and Emmett JJ).
78 In relation to criminal convictions, there is a right of appeal where, on any ground, there has been a miscarriage of justice: Criminal Appeal Act 1912 (NSW), s 6(1). That language, traditionally, has not been said to require "error" but rather "some irregularity": see R v Cutter [1944] 2 All ER 337 at 339, quoted with approval by Brooking JA in R v Gallagher [1998] 2 VR 671 at 677. As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7]:
"The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error."
79 Examples of miscarriages which may occur without error in the traditional sense of that term may include circumstances where there has been prejudicial pretrial publicity, where jurors have carried out their own investigations, where there have been attempts to tamper with a juror or counsel have misconducted themselves.
80 In civil cases, an appellate court may intervene where the trial judge has made no identifiable error in reaching a conclusion, and where the result is not itself indicative or error, but where there has been a failure to comply with the obligation to provide reasons for preferring one finding or conclusion over another. That failure may be identified as involving a miscarriage of justice, but is not aptly described as an erroneous finding.
81 Of course, where the appeal is by way of rehearing and there has been a statutory change since the judgment below, it is highly artificial to speak of the judgment as erroneous, in the sense that there was error on the part of the trial judge. (By contrast, it is possible to speak of error where, in the same matter, the High Court changes the law by overriding established authority in the intermediate court of appeal, thereby rendering the judgment below erroneous, although it involved the proper application of established principle when delivered.) It is clear that a court which can hear further evidence is entitled to reach a different conclusion on the basis of material not before the trial judge.
82 Another example of reversal on appeal in the absence of error below may occur where the appellate court entertains an argument with respect to a legal principle which was not agitated below. Although there may be cost consequences for the party raising the point for the first time, such argument may well be permitted if it was not one which could have been met by evidence, had the opposing party had the opportunity: see, eg, Giannarelli v The Queen [1983] HCA 41; 154 CLR 212.
83 These considerations suggest that the search for a unifying concept of 'error' is unlikely to succeed. But there is a more fundamental difficulty: the concept of 'error' invokes a standard. Where there is an existing standard, departure will (or may) constitute error, but in a truly contentious case, the 'correct' decision is not known, and hence the standard set, until the Court's ruling is delivered. The decision of the Court below is, in law, correct and binding until reversed by an appellate court. When an appeal is allowed by a majority decision, the trial judge and the appellate dissenter may be said to be wrong, but not until the outcome is known. The appellate majority must explain its decision. To the extent that it finds fault with the reasoning of the trial judge, his or her reasoning may be said to reveal 'error', but not necessarily by reference to a pre-existing standard.
84 Putting aside errors of law which do usually engage a pre-existing standard, it may be unclear what precisely is meant by saying that 'the established facts did not reveal negligence on the part of the defendant, contrary to the finding of the primary judge'. The court's reasons must explain why its conclusion differs from that reached below: it may describe the result reached at trial as 'wrong' or 'erroneous'. However, it might equally be said that the appellate court gave effect to its preferred view. It has been suggested that to describe a decision as "preferable" is apt only if the decision involves "discretionary considerations": see Shi v Migration Agents Registration Authority [2008] HCA 31 at [140] (Kiefel J). Nevertheless, language is not always used with careful attention to such distinctions. Relevantly for present purposes, it is far from clear that references to the requirement that an appellate court identify error necessarily mean that the court should do more than determine whether it disagrees with the finding of the primary judge. In particular, reference to error does not necessarily invoke a two-stage process by which the appellate court must first determine the existence of error and only then consider whether the decision is right or wrong.
85 There is authority in the Full Court of the Federal Court that an appeal court should only embark upon a reconsideration of inferences drawn by the primary judge once it is persuaded that that course is necessary for the correction of identifiable error. That approach may be considered by reference to three particular authorities. The first is the decision in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; 35 FCR 359. The joint judgment of Beaumont and Lee JJ noted that the Court was as well placed as the primary judge to draw inferences from the evidence: at 368-369. After referring to s 27 of the Federal Court of Australia Act 1976 (Cth), which provided the relevant right of appeal, their Honours referred to Duralla Pty Ltd v Plant [1984] FCA 146; 2 FCR 342, a decision which, until finally overruled by the High Court in Western Australia v Ward [2002] HCA 28; 213 CLR 1 at [68]-[71], was widely accepted in the Full Court as characterising the right of appeal as an appeal in the strict sense and not one by way of rehearing. The joint judgment continued (at 369):
"The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes … (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusion, it is speaking of a conclusion that the decision of the trial judge is wrong and that it should be correct. (See also Edwards v Noble (1971) 125 CLR 296, per Barwick CJ (at 304), per Menzies J (at 308-309) and per Walsh J (at 318-319).)"
86 This analysis is open to doubt for two reasons. First, in requiring that the appellate court must be satisfied of error, its approach was coloured, no doubt, by its understanding of the nature of the appeal, although that qualification was not expressly made when referring to Warren v Coombes. Secondly, in referring to the dicta in Edwards v Noble, their Honours appear to have treated the statements of Barwick CJ, Menzies J and Walsh J as to similar effect. In Warren v Coombes (at 548) the joint judgment said:
"The dicta of Menzies J and Walsh J in Edwards v Noble are opposed to those of Barwick CJ and McTiernan J …. The case is a useful repository of statements of principle, but is not a binding authority in favour of any particular view."
87 In State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 73 ALJR 306 at [83], Kirby J noted the reference to the views of Windeyer J as a "heresy" and the principles advocated by Barwick CJ as having been "despatched" in Warren v Coombes, in preference for the views of, amongst others, Walsh J.
88 The second decision of the Full Court of the Federal Court is Cabal v United Mexican States [2001] FCA 427; 108 FCR 311 (Hill, Weinberg and Dowsett JJ). By the time the decision was delivered in Cabal, the Court was conscious that the right of appeal contained in s 27 of its Act was an appeal by way of rehearing and not an appeal in the strict sense, as had been pointed out in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [75] (Gleeson CJ and Gummow J). After referring to Warren v Coombes (and other authorities with respect to review of factual findings), the joint judgment continued (at [223]):
"In general on an appeal by way of rehearing from a judge sitting without a jury an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge. However, once having reached its own conclusion it will not shrink from giving effect to it."
89 That language is in accordance with Warren v Coombes. The qualification that such an approach should be adopted "in general" was relevant to the circumstances of the case, where, whilst it was true that the Full Court was in the same position as the primary judge, their Honours were all considering an extradition case in which the oral testimony had been heard by a magistrate, whose decision was upheld by the primary judge.
90 The Court then held that, in those circumstances, it would set aside findings of fact only if persuaded that they were "erroneous" and would not "simply substitute for his Honour's findings of fact those findings which we would have made had we been the judges on review who determined this matter at first instance": at [224]. This language appears to depart from Warren v Coombes, but, as noted above, so did the circumstances of the case.
91 The third Full Court authority in which the proper approach was given detailed and careful consideration was Branir Pty Ltd v Owston Nominees (No. 2) Pty Ltd [2001] FCA 1833; 117 FCR 424, the judgment being delivered by Allsop J, with whom Drummond and Mansfield JJ agreed.
92 Branir noted that the matter had not been approached by the parties "on the basis of the incorrectness of the proposition that the approach of Beaumont J and Lee J in Hamsher, in the requirement for the demonstration of error is one which is appropriate for appeals both in the strict sense and by way of rehearing": at [20]. Nevertheless, having concluded that the appeal was indeed one by way of rehearing, the Court noted that "this conclusion does not alter the need to show error on appeal": at [21]. After referring to other authorities discussed above, the Court stated at [28]:
"The views of Barwick CJ … which were rejected by the majority in Warren v Coombes , and the views of that majority in Warren v Coombes all contain the need for the demonstration of error."
93 There followed a discussion of the way in which an appellate court, exercising its powers by way of rehearing, should deal with "the facts". No clear line was drawn between assessment of primary facts, the drawing of inferences and making evaluative judgments. Nor was any unequivocal principle identified. However, the Court concluded at [29]:
"The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion."
94 Although there appear to be statements in Branir which may, on one construction, be seen to be inconsistent with Warren v Coombes, it is important that they be read in their context. Thus, the statement that the conclusions of the trial judge "ultimately have to be shown to be wrong" was made in rejection of the proposition that they could be "laid to one side and a simple re-argument of the case take place": at [30]. Further, in discussing circumstances where, by nature of the fact or conclusion, only one view is legally possible, it was said that "the preference of the appeal court for one view would carry with it the conclusion of error", in respect of the contrary view of the trial judge: at [25].
95 Branir has been applied by this Court, but without consideration of its consistency with Warren v Coombes: see, eg, Jones v Bradley [2003] NSWCA 81 at [113]-[116]; Adler v Australian Securities and Investments Commission [2003] NSWCA 131; 46 ACSR 504; 21 ACLC 1,810; 179 FLR 1 at [17]-[19]. However, in Ruthol Pty Ltd v Mills [2003] NSWCA 56; 11 BPR 20,793 at [66]-[67], Cabal and Branir appear to have been relied on for the proposition that error was not required. Apart from a passing reference in the ACT Court of Appeal, in Glass v The Commonwealth [2003] ACTCA 8, Branir does not appear to have been discussed in any other State or Territory intermediate court of appeal.
96 It remains to consider whether more recent authorities in the High Court should be seen as qualifying the principles stated in Warren v Coombes. In Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; 208 CLR 460, Kirby J, at [113]-[114], both applied Warren v Coombes and referred to "erroneous" fact-finding, without making clear whether a review of inferences required a demonstration of "error". However, his Honour's affirmation of Warren v Coombes in Earthline Constructions at [72]-[83] and in CSR Ltd v Della Maddalena [2006] HCA 1; 80 ALJR 458 at [22] (with the agreement of Gleeson CJ) was unequivocal and emphatic. In Imbree v McNeilly [2008] HCA 40 at [189], Heydon J held that the decision of this Court should be reversed because the Court "did not sufficiently expose any error justifying alteration" of the basis for assessment of contributory negligence reached by the trial judge. Other members of the Court did not adopt that approach. Further, his Honour may have considered that the apportionment of liability involved an evaluative judgment, governed by principles discussed below.
97 It is not appropriate for this Court to reconstrue the authorities which predated Warren v Coombes to reach a different test. Nor is it appropriate to sift through the language of subsequent authorities seeking indications that the Court might one day revisit Warren v Coombes, when it has not yet done so: see Jacob v Utah Construction and Engineering Pty Ltd [1966] HCA 67; 116 CLR 200 at 207 (Barwick CJ) and 217 (McTiernan, Taylor and Owen JJ); see also Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134]. Indeed, the High Court has affirmed Warren v Coombes expressly in Fox v Percy at [25] (Gleeson CJ, Gummow and Kirby JJ), [87] (McHugh J), [134] (Callinan J), and CSR Ltd v Della Maddalena at [22] (Kirby J) and referred to it on more recent occasions without casting doubt on its correctness: see, eg, CGU Insurance Limited v Porthouse [2008] HCA 30 at [69]; Dwyer at [24] and [35]; Roads and Traffic Authority v Royal [2008] HCA 19; 82 ALJR 870 at [113] (Kirby J).