The principles of appellate review
133 Whilst it will be necessary to advert to the relevant principles in discussing particular findings and submissions, it is helpful to identify the fundamental principles of appellate review.
134 The principles governing the responsibilities of the Court on appeal in the review of findings of fact are not in doubt. They are found in High Court authority: most conveniently and contemporaneously expressed for present purposes, in Warren v Coombes (1979) 142 CLR 531 (Warren v Coombes), especially at 545-553, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 (Earthline) at 619-620 [89]-[91], Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 (Coal and Allied Operations) at 203-204 [14]; Fox v Percy [2003] HCA 22; 214 CLR 118 (Fox v Percy) at 124-129 [20]-[31], and Lee v Lee [2019] HCA 28; 266 CLR 129 (Lee v Lee) at 148-150 [53]-[58]. To these cases may be added Robinson Helicopter Inc v McDermott (2016) 331 ALR 550 at 558-559, as long as what was said there is not seen as departing from Fox v Percy: See Lee v Lee at 148-149 [55] and Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301 (Aldi Foods) at 306-307 [2]-[3], 318 [54] and 346 [169].
135 The importance of the expression of principle by the majority (Gibbs ACJ, Jacobs J and Murphy J) in Warren v Coombes was that it settled the question as to the nature of the review in an appeal by way of rehearing, by disapproving a line of authority as to a measure of judicial restraint in overturning findings of fact reasonably open on the evidence. The reasons of their Honours stated that in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. By so doing, it corrects error - error being found by the appeal court reaching a different conclusion to the primary judge.
136 The present importance of the reasons of Kirby J in Earthline (apart from the valuable history of appellate review, including a summary of the ebb and flow of the expression of High Court authority over the years in 160 ALR at 609-615 [72]-[86]) is that within his Honour's reasons at 619-20 [89]-[91] one finds a full, nuanced and clearly expressed description of the advantages of the trial judge, not just in seeing the witnesses, but in relating the oral evidence to the documentary evidence in the whole process of the conduct of the trial as the evidence unfolds.
137 The importance of the reasons of Gleeson CJ, Gaudron J and Hayne J in Coal and Allied Operations, at least for present purposes, is that they expressed with clarity what was within CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111] per McHugh, Gummow and Callinan JJ and re-expressed what had been said with equal clarity by Gaudron, McHugh, Gummow and Hayne JJ in Allesch v Maunz (2000) 203 CLR 172 at 180 [22]-[23] that the statutory provisions providing for the exercise of appellate powers after an appeal by way of rehearing were to be construed as for the correction of error.
138 The importance of the reasons of Gleeson CJ, Gummow J and Kirby J in Fox v Percy is that they expressed and reconciled the important features of an appeal by way of rehearing: That it is a real review looking at the whole of the record, but it is conducted within the constraints marked out by the appellate process and the advantages of the trial judge, including the evaluation of a witness's credibility having seen and heard the person at trial, and the advantage of seeing the evidence unfold during the trial and over a period of time, and that its purpose is the correction of error. That reconciliation, to be found in particular at 214 CLR 127 [27], involved, importantly, the recognition that the advantages of the trial judge do not derogate from the obligation of the appeal court to conduct a real review by way of rehearing according for the purpose of correction of error. If, from this review, and after making due allowance for the advantages of the trial judge, the appeal court concludes that an error has been shown, effect must be given to that conclusion.
139 From time to time, Full Courts of the Court must express the relevant principles in their reasons so as to reveal that they have taken the correct approach to their task undertaking an appeal. This does not require, however, that in so expressing the principles Full Courts do so in language not drawn from the governing High Court cases or from long-established expressions of principle by earlier Full Courts. Indeed, re-expression in different language runs the risk of unnecessary confusion and conflict in precedent in the Court. This tendency and the risks involved were referred to in the reasons of Allsop CJ and Perram J in Aldi Foods 261 FCR at 307-309 [4]-[10] and 317-318 [52]-[53] in discussing the expression of principle in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 (Branir) at 432-438 [11]-[32], which has been repeatedly followed and applied in this Court and in other intermediate appellate courts for over twenty years. In that case (Branir), the detailed review of principle was undertaken in the context of the then recent difficulties expressed about earlier Full Court reasoning (upon which doubts had been cast) that an appeal to this Court was an appeal "stricto sensu", and not truly by way of rehearing. The view of the Court in Branir was that previous authority such as Duralla Pty Ltd v Plant (1984) 2 FCR 342 (which had been followed up to 2000) that the appeal was one of error "stricto sensu" and not truly by way of rehearing, was wrong and should not be followed: see especially Branir 117 FCR at 432-435 [11]-[20]. That conclusion, however, did (and does) not make error of the primary judge below irrelevant. On the contrary, the rehearing, that is the real review of the evidence, must be engaged in with a view to divining whether relevant findings reveal error: Coal and Allied Operations 203 CLR at 203-204 [14]; see also Fox v Percy at 214 CLR 127-128 [27] and the other references in Branir 117 FCR at 435 [22] (though the references in the FCR report of Branir at [22] are wrong: the correct page reference to CDJ v VAJ is "201-202" and the correct reference to Allesch v Maunz is only "180 [22]-[23]"). The reasons in Branir then discussed the nature of error in different kinds of cases and factual decisions, including intellectual property and other cases involving evaluative impression: cf Aldi Foods 261 FCR at 307-309 [5]-[10], 316-318 [43]-[54] and 346 [169]. Within that discussion one finds guidance as to the contextual nature of the approach to assessing error in any particular case: 117 FCR at 435-436 [24]-[25], and the proper weight or respect to be given to the trial judge's views and the advantages of the trial judge, including, but not limited to, seeing the witnesses where credibility or reliability is an issue: 117 FCR 436-438 [25]-[29]. As made clear in that discussion, and as is clear from Warren v Coombes and Fox v Percy, error may be demonstrated, after due regard for and respect is paid to, the advantages and views of the trial judge, by a different conclusion by the appeal court as to the relevant fact or question. Error is not limited to showing why or how the trial judge erred in the process or approach that was taken; error may be concluded from the difference in view of the appeal court as to the conclusion in issue.
140 Here, the relevant guiding principles are most clearly drawn from Earthline, Fox v Percy and Lee v Lee, assisted by certain paragraphs of the reasons of Gibbs ACJ, Jacobs J and Murphy J in Warren v Coombes that adopt what Jacobs J had said as President of the Court of Appeal in Cashman v Kinnear [1973] 2 NSWLR 495 at 498-499, 499-500 and 509.
141 As we have observed, the primary judge made a number of findings of fact based in whole or in part upon a conclusion of the lack of credibility and lack of honesty of Mrs Frigger in her evidence. Such are findings (whether primary findings or secondary findings based on a combination of impressions about the credibility or reliability of witnesses and other inferences from primary facts: Lee v Lee 266 CLR at 148-149 [55]) that must, to be reversed, be shown to be contrary to "incontrovertible facts or uncontested testimony" or be shown to be "glaringly improbable" or "contrary to compelling inferences", being, as they were, findings affected by impressions about the credibility and reliability of Mrs Frigger as a result of seeing and hearing her give her evidence: Fox v Percy 214 CLR at 128 [28]-[29] and Lee v Lee 226 CLR at 148 [55].
142 That was not, however, the only advantage of the primary judge. In an important passage in Earthline, Kirby J explained the advantages, subtle but real, of a trial judge hearing a long case and being able to assess and place all the evidence in its context as it unfolds and as witnesses (truthful, reliable, or not) deal with it. The passages at 160 ALR 619-620 [89]-[91] are worthy of repetition in full:
[89] None of the foregoing considerations [being Kirby J's review in [87]-[88] of the many changes to the appeal function and the increasing modern scepticism as to appearance and demeanour as aids to identify the truth] alone requires the abandonment of the respect which appellate courts, by present legal authority, must pay to the advantages enjoyed by the trial judge. Instead, they require renewed attention to precisely what the advantages are which the trial judge has over those enjoyed by the appellate court, conducting a second look at the facts, usually with more opportunity to evaluate particular facts than is possible in the midst of a trial and with the appellate advantage of viewing such facts in the context of the record of the complete trial hearing.
[90] The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary or electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are the real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge. These considerations acquire added force where, as in the present case, the trial was a very long one, the exhibits are most numerous, the issues are multiple and the oral and written submissions were detailed and protracted. In such cases, the reasons given by the trial judge, however conscientious he or she may be, may omit attention to peripheral issues. They are designed to explain conclusions to which the judge has been driven by the overall impressions and considerations, some of which may, quite properly, not be expressly specified.
[91] All of the foregoing considerations leave to be weighed, in some cases at least, the impression which the trial judge holds of a particular witness, perhaps influenced by the witness' demeanour and the kinds of considerations commonly referred to such as hesitation or displays of partisanship not readily conveyed, or conveyed at all, by the printed record. One can hold different views about whether such considerations should intrude in the assessment of qualified expert witnesses. One can strive to minimise resort to such considerations in the case of lay witnesses, out of recognition of the fallibility of human assessment of credibility from appearances. But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. In such cases it will remain the fact that, try as it might, the appellate court cannot procure from the printed record exactly the same materials on which to base the judicial decision as the trial judge had.
143 These paragraphs were expressly approved by Gleeson CJ, Gummow J and Kirby J in Fox v Percy 214 CLR at 125-126 [23]:
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance" [citing Dearman v Dearman (1908) 7 CLR 549 at 561]. On the other, it must, of necessity, observe the "natural limitations" that exits in the case of any appellate court proceeding wholly or substantially on the record [citing Dearman v Dearman (1908) 7 CLR 549 at 561. See also Scott v Pauly (1917) 24 CLR 274 at 278-281]. 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 [citing Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637 per Lord Scarman with reference to Joyce v Yeomans [1981] 1 WLR 549 at 556; [1981] 2 All ER 21 at 26. See also Chambers v Jobling (1986) 7 NSWLR 1 at 25]. 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 [citing State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 619-620 [89]-[91]; 73 ALJR at 330 citing Lend Lease Development Pty Ltd v Zemlicka (1985) 3 NSWLR 207 at 209-10; Jones v R (1997) 191 CLR 439 at 466-467; 149 ALR 598 at 619-620].
(Footnotes and citations included.)
See also the discussion of findings based on credibility in the reasons of Gaudron, Gummow and Hayne JJ in Earthline 160 ALR at 589-590 [3]-[4] and 607 [63].
144 The discussion by Kirby J at [90] of Earthline, expressly adopted by Gleeson CJ, Gummow J and Kirby J in Fox v Percy, expresses well what the primary judge's approach and advantage was in this case: During and after many days of hearing at the trial, which occurred after a background of extended pre-trial consideration of the issues and likely evidence, his Honour, with the advantage of the evidence unfolding before him, conducted a careful examination of the oral testimony, with its difficulties, against a shifting body of arguments, with a mass of documents sometimes contradictory or inconsistent, sometimes explained by the oral evidence (of varying reliability), and revealing, ultimately, in the context of all the evidence, no sure evidentiary footing. In this body of evidence, the primary judge had the advantage, over time, during and after the trial, of relating the documents and the oral evidence together, and evaluating their overall effect in the discharge of the onus of proof. Such does not absolve the Court of the obligation to examine all the material in a full review by way of rehearing, but it reveals why we must give respect to the findings of the primary judge, not just those based directly on seeing and hearing Mrs Frigger's evidence, in evaluating the findings in question and in reaching the answer to the question whether the onus of proof was discharged at relevant points in the analysis.
145 The ultimate task was expressed by Gleeson CJ, Gummow J and Kirby J in Fox v Percy 214 CLR at 126-127 [25]:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect." In Warren v Coombes, the majority of this court reiterated the rule that:
'In general 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 but, once having reached its own conclusion, will not shrink from giving effect to it.'
As this court there said, that approach was "not only sound in law, but beneficial in … operation."
See also Lee v Lee 266 CLR at 149 [55].
146 The contents of the paragraph from Warren v Coombes 142 CLR at 551 cited above by Gleeson CJ, Gummow J and Kirby J in Fox v Percy as well as the notion of respect and weight being given to the conclusion of the trial judge to which reference was being made, are illuminated in understanding and meaning by a reading of what Jacobs P (as his Honour then was) said in the New South Wales Court of Appeal in Cashman v Kinnear [1973] 2 NSWLR 495 at 498-499, 499-500 and 509 that was set out in full in the reasons of Gibbs ACJ, Jacobs J and Murphy J in Warren v Coombes 142 CLR 549-550, not long before the passage at 142 CLR 551 in the discussion leading up to that passage. The importance of these passages is that they reinforce what Gibbs ACJ, Jacobs J and Murphy J said in Warren v Coombes, which underpins the expression of principle by Gleeson CJ, Gummow J and Kirby J in Fox v Percy and by Bell, Gageler, Nettle and Edelman JJ in Lee v Lee, that the giving of weight and respect to the conclusion of the trial judge and recognising any advantage of the trial judge is done as part of the assessment of the appeal court's own views. Branir 117 FCR at 437-438 [29]-[30] is to be understood in that light: see Aldi Foods 261 FCR at 308-309 [7]-[10] and 316-318 [47]-[53]. The passages of Jacobs P in Cashman v Kinnear were as follows:
[At 498-499] … Even though a finding of negligence was open on the evidence, the question still remains whether the conclusion of the trial judge that there was negligence was right or wrong. If I finally reach the conclusion that it was right, the appeal fails. If I finally reach the conclusion that it was wrong, then in my view the appeal succeeds. No 'judicial restraint' should lead me, on an appeal to which the statutory provisions of the Law Reform (Miscellaneous Provisions) Act 1965, apply, to refrain from giving effect to that conclusion of fact to which I finally come. It seems to me, though I speak with some diffidence and with great respect, that the only stage at which 'judicial restraint' can properly be exercised is upon the initial question whether or not I should arrive at a different conclusion from that of the trial judge. If I apply that restraint, as it has been expressed in many decisions of the House of Lords, the Privy Council and the High Court, I would give great weight to the conclusions of a trial judge. In cases where the credibility of witnesses is involved the weight is so great that an appellant who seeks to overturn findings of facts so based faces an almost, but not quite, insuperable task. But even in cases of the latter category the weight of the trial judge's conclusion is very great. Even if I am inclined to a different view it is likely that the weight of the trial judge's view will outweigh that inclination. If, however, on final balance it does not, then I am bound to say that the conclusion of the trial judge is wrong. …
…
[At 499-500] Thus if by judicial restraint is meant the lack of overweening certainty in one's own opinions so that respect and weight is given to the opinion of the judge below, then it is always something to be sought. The effect of that respect and weight will vary depending upon the subject matter and will be greatest when the case involves a discretionary judgment and next where the subject matter is one of conclusion or evaluation drawn or made from the facts found. But, in truth, this quality of respect must be all pervading whether the subject be fact or law. However, if it be suggested that by judicial restraint a judge exercising his office under the Supreme Court Act 1970, and its predecessors should restrain himself from giving effect to his own conclusion once he has, after applying to himself the mental restraint which flows by the process which I have described, finally reached that conclusion then it is in my view a suggestion contrary to that Act and its predecessors and I do not think that it should be adopted in the absence of a clear authority binding this court.
…
[At 509] I, therefore, return to the facts, conscious that I must reach my own conclusion upon them, but at the same time obliged and willing to give great weight to the conclusion of the trial judge. …
147 To the extent that one may find advantage in recourse to the judgments of this Court in explication of these principles, in particular in, but not limited to, intellectual property cases, the consistent expression of principle in Branir 117 FCR at 432-438 [11]-[32] and Aldi Foods 261 FCR at 306-309 [2]-[10], 316-318 [43]-[53] and 346 [169] that were built and expressed upon Warren v Coombes, Earthline, Coal and Allied Operations and (in respect of Aldi Foods) Fox v Percy, are available.