role of appellate court
35 This appeal is brought under subs 24(1) of the Federal Court of Australia Act 1976 (Cth). It is an appeal by way of rehearing on the evidence adduced before the primary judge (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 ('MIMA v Jia')).
36 Consideration has been given in many cases to the proper role of an appellate court where the appeal is by way of rehearing. S & I Publishing Pty Ltd v Australian Surf Life Saver Pty Ltd (1998) 88 FCR 354 ('S & I Publishing') and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 ('Branir') are two such cases. Mr Sullivan QC, senior counsel for Poulet Frais and Mr Hamood, argued that the decision of the Full Court in Branir is in conflict with the earlier Full Court decision in S & I Publishing and two other Full Court decisions which followed S & I Publishing. He identified the other two decisions as SAP Australia Pty Ltd v Sapient Australia Pty Ltd (1999) 169 ALR 1 and Mark Foys Pty Ltd v TVSN (Pacific) Ltd (2000) 104 FCR 61.
37 S & I Publishing is of particular significance to these appeals as it gave consideration to the role of an appellate court is a case concerning s 52 of the TPA. At 359‑361 their Honours said:
'Once the primary facts have been found, the question whether conduct is misleading or deceptive or likely to mislead or deceive is a conclusion of fact. No doubt the question whether conduct is capable of being misleading or deceptive or likely to mislead or deceive would involve a question of law. It has recently been said by Lord Hoffmann (with the agreement of all other members of the House of Lords) in Biogen Inc v Medeva plc (1996) 36 IPR 438 at 452 that even where primary facts are not in dispute an evaluation of facts not depending on assessment of credibility, requires appellate caution in reversing the trial judge's findings. …
… There have been some suggestions originating in the area of copyright law where the issue is whether one work is a reproduction of another in a material form that particular respect should be paid to the decision of a primary judge. So in SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 at 478 per Gibbs CJ, with whose reasons Mason J agreed, said:
"The nature of the issue, involving as it does matters of impression, is one in which particular respect and weight should be given to the decision of the trial judge unless some error in his judgment has been demonstrated."
…
There is some considerable similarity between the questions of infringement arising in the copyright and design area on the one hand and the question of misleading and deceptive conduct on the other. Both involve questions of judgment and degree. …
…
We think that while what was said by Gibbs CJ in Edwards Hot Water Systems is apposite in a case such as the present, it does not preclude the appellate court from reaching a different conclusion from the trial judge if it forms the view that conduct is not misleading and deceptive which was found to be so by the trial judge; a fortiori if a conclusion at first instance involves a question of principle. What was said in Edwards Hot Water Systems is no more than a salutary reminder that questions of fact and degree involving judgment may be such that minds may differ so that in a doubtful case an appellate court should give weight to the views of the trial judge. It is not a fetter on an appellate court reaching its own conclusion where it is of a contrary view to that taken by the trial judge.'
38 In SAP Australia Pty Ltd v Sapient Australia Pty Ltd at [38] the Full Court noted that in S & I Publishing the Full Court had accepted the proposition that 'on questions of fact and degree involving matters of judgment and impression, minds may differ, so that in a doubtful case the court should give respect and weight to the views of the trial judge'. The Full Court observed that the general approach accepted in S & I Publishing is not a fetter on the appeal court's giving effect to its own conclusion where it is definitely of a contrary view to that taken by the trial judge.
39 In Mark Foys Pty Ltd v TVSN (Pacific) Ltd at [37] the Full Court observed that it is well settled that it is open to a Full Court sitting on appeal to come to a different view from a trial judge as to whether the conduct of the respondent is misleading or deceptive. The Full Court cited S & I Publishing at 361 in support of its observation.
40 Branir was not itself an appeal concerning s 52 of the TPA. However, the observations made in Branir concerning the role of an appellate court were adopted by the Full Court in Sydneywide v Red Bull which was an appeal concerning s 52 of the TPA.
41 In Branir, Allsop J, with whom Drummond and Mansfield JJ agreed, gave extensive consideration to authorities touching generally on the role of an appellate court. His Honour noted at [22] that it is plain from what the High Court said in CDJ v VAJ (1998) 197 CLR 172 at [111], Allesch v Maunz (2000) 203 CLR 172 at [22], Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14] and Crampton v The Queen (2000) 206 CLR 161 at [147] that the task of a court on an appeal by way of rehearing is the correction of error. We do not understand the Full Court in S & I Publishing to have suggested to the contrary.
42 In Branir at [23] Allsop J cited a passage from Cabal v United Mexican States (2001) 108 FCR 311 from which we extract the following:
'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.
Notwithstanding the fact that the learned primary judge's review was conducted on the papers, and without any opportunity to consider the demeanour of the witnesses, the weight to be accorded to the evidence of the experts was primarily a matter for his Honour to determine. This Court can consider whether he fell into appealable error in that regard but it will not approach that evidence as though this were a rehearing de novo in which his Honour's views count for nought. If, after giving full weight to his Honour's views, we are persuaded that the conclusions which he reached were erroneous we must set aside his finding of fact. We cannot however 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.'
43 Allsop J at [24]‑[25] observed:
'What is error in any given case depends, of course, not only on the evidence, but also on the nature of the findings or conclusions made by the primary judge. The demonstration of error may not be straight-forward where findings or conclusions involve elements of fact, degree, opinion or judgment or when the findings or conclusions in question can be seen as made with the advantage of hearing the evidence in its entirety, presented as it unfolded at the hearing with the opportunity over the course of the hearing and adjournments for reflection and mature contemporaneous consideration and assessment, in particular in a long and complex hearing ….
This is not to elevate ordinary factual findings to the protected position of those based on credit, but it is to make clear, first, the advantages of the trial judge and, secondly, the need for demonstration of error. The inability to identify error may arise in part from the unwillingness of the appeal court to be persuaded that it is in as good a position as the trial judge to deal with the issues, because of the kinds of considerations referred to in [24] above. Or, it may be that the nature of the issue is one such that (though not a discretion) there cannot be said to be truly one correct answer. In such cases the availability of a different view, indeed even perhaps the preference of the appeal court for a different view, may not be alone sufficient …. In circumstances where, by the nature of the fact or conclusion, only one view is (at least legally) possible (for example, the proper construction of a statute or a clause in a document, where, although, as often said, minds might differ about such matters of construction, there can be but one correct meaning … the preference of the appeal court for one view would carry with it the conclusion of error. However, other findings and conclusions may be far more easily open to legitimate differences of opinion eg valuation questions ….' (Citations omitted)
44 We do not agree that there is any material difference between the conclusions reached by Allsop J in Branir and the approach adopted in S & I Publishing. A determination of whether particular conduct is misleading or deceptive will ordinarily involve, to use the language of Allsop J, 'elements of fact, degree, opinion or judgment' (Branir at [24]). In a particular case an appellate court might conclude that only one view is reasonably open. In such a case the adoption by the appeal court of that view will, as Allsop J observed in Branir at [25], 'carry with it the conclusion of error' if the primary judge adopted a different view. The Full Court expressed the same principle in S & I Publishing when it observed at 361 that an appellate court is not precluded from reaching a different conclusion from the trial judge if it forms the view that conduct is not misleading or deceptive which was found to be so by the trial judge. However, in a less clear case, the preference of the appellate court for a view other than that adopted by the trial judge may be insufficient to demonstrate error.
45 Importantly both Branir and S & I Publishing recognise that an appeal by way of rehearing is not simply a rehearing of, or second go at, the trial. The appellate court does not consider the matter de novo but, exceptional cases aside, sits to correct error made at first instance. Evidence additional to that adduced in the court below is not ordinarily received (O 52 r 36 of the Federal Court Rules). An appellant is ordinarily precluded from raising on appeal a point not argued at first instance (Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631). An appellant is required to specify the grounds on which the appeal is brought.
46 The proper approach in the context of a case concerning an alleged contravention of s 52 of the TPA can, in our view, be restated in the following way. Where the determination of whether particular conduct was misleading or deceptive is not straight‑forward, but rather involves elements of degree, opinion or judgment, a simple preference in the appellate court for a view different from that taken by the trial judge may not carry with it the conclusion of error. The appeal court might conclude either that there could not be said to be only one possible correct determination or that the trial judge had a particular advantage, not shared by the appellate court, in assessing critical matters of nuance and judgment. In such a case, in determining whether or not the trial judge fell into appealable error, the appeal court should not proceed as though on a hearing de novo in which the views of the trial judge carry no weight. Rather the appeal court must give appropriate weight to the views of the trial judge and set aside his or her finding only if persuaded that the finding is wrong. However, if an appellate court is persuaded that particular conduct, found by the trial judge to be misleading or deceptive, was not in fact misleading or deceptive, it thereby identifies error in the decision of the primary judge. Similarly where an appellate court is persuaded that conduct which the trial judge did not consider misleading or deceptive is in fact misleading or deceptive.
47 In our view the above restatement is entirely consistent with the principles enunciated in Warren v Coombes (1979) 142 CLR 531 at 552-553 by Gibbs ACJ and Jacobs and Murphy JJ and apparently approved in MIMA v Jia at 533 by Gleeson CJ and Gummow J.