Tjiong v Tjiong

9Dr Tjiong appeals from the primary judge's decision and seeks leave to adduce further evidence on the hearing of the appeal. 10The amended grounds of appeal challenge five findings of fact. Those findings are as to his illness in June 2009 (ground 1(a)); the fabrication of entries in volume 2 of his pilot's logbook in support of his evidence that on 26 March 1996 he had flown to Melbourne in his Beechcraft B58 aircraft (ground 1(b)); the creation of a false medical negligence claim against George's estate by a Mr Johnson on behalf of Kevin Reeves (ground 1(c)); the fabrication of the file note dated 22 December 2001 which purported to record George's wishes as to how his estate should be distributed (ground 1(d)); and the making of the December 2003 misstatements (ground 1(e)). 11The further evidence which Dr Tjiong seeks leave to adduce under s 75A(7) of the Supreme Court Act 1970 comprises records of Manning Base Hospital at Taree, records of Medicare Australia, patient records of Dr Tjiong for a period in March 1996 and an affidavit of a Dr Fisher. This evidence is said to be relevant to whether Dr Tjiong was in Melbourne on 26 March 1996 and in Taree on 27 March 1996. 12Katrina and Lindsay also seek to adduce further evidence on the appeal. That evidence consists of records of Medicare Australia relating to the same period in March 1996. 13None of the evidence sought to be tendered on appeal concerns matters which occurred after the hearing. Therefore, because the appeal is from a judgment following a hearing on the merits, this Court can only receive that evidence if it is satisfied that there are "special grounds" for doing so: s 75A(8). 14One consideration relevant to whether such grounds exist is the probability that the further evidence would have produced a different outcome. Because that question must be addressed in the context of the grounds of appeal as well as separately from those grounds, I propose to deal with the applications to adduce further evidence after the amended grounds of appeal have been considered. To assist an understanding of the issues in the proceedings and how they arose, and of the potential significance of the further evidence to those issues, it is convenient first to summarise the sequence of events with which the proceedings were concerned and the course of the evidence before and during the hearing. 15Accordingly, these reasons proceed in the following order: (1)The sequence of events which are the subject of the proceedings. (2)The course of evidence before and during the hearing. (3)The amended grounds of appeal. (4)Dr Tjiong's application to adduce further evidence. (5)The respondents' application to adduce further evidence. (6)Conclusion.

(1) The sequence of events which are the subject of the proceedings 16Dr Richard Tjiong graduated in medicine in 1964. He practised as an ear, nose and throat specialist based at Taree between 1971 and 1997. From 1986 to 1991 he studied law. Between 1993 and 1997 he was chairman of the NSW Medical Defence Union which, loosely described, provided the equivalent of professional indemnity insurance to its medical practitioner members. As the primary judge found, in that position he was "deeply involved with medical negligence insurance and medical defence for many years": [31]. 17George Tjiong established a general medical practice in Victoria. He was divorced from his wife, Margaret, in 1984. On 20 March 1996 he suffered a stroke and was admitted to the Austin Campus of the Austin/Repatriation Medical Centre at Heidelberg. He remained there until he was transferred to the Royal Talbot Rehabilitation Centre on 1 April 1996. Katrina, who lived in Melbourne, learned of her father's stroke on 23 March and visited him in hospital on that day. She also visited him over the following days. On 29 March Katrina and Dr Tjiong took her father to a solicitor's office in Carlton where he executed a power of attorney appointing Katrina and Dr Tjiong as his joint and several attorneys. At the hearing there were significant issues as to when Dr Tjiong had visited his brother in hospital during this period. 18In December 1997 George moved to Sydney and purchased a house at Terrey Hills where he lived alone. Over the next four years Katrina, who continued to live in Melbourne, saw her father about once a year. George Tjiong also travelled to Darwin where Lindsay lived. At this time, George's brother, Harry, lived in Terrey Hills and three of his sisters, Helen Khouw, Soei Chang and Stella Lim, lived in the Burwood/Strathfield area. In November or December 2001, George was diagnosed with bowel cancer. On 23 December he executed a will appointing Dr Tjiong as his executor and leaving the whole of his estate equally to Katrina and Lindsay. That will was prepared by Dr Tjiong who maintained that in the afternoon of 20 December and the evening of 22 December he had lengthy discussions with George as to his testamentary wishes. Dr Tjiong said he prepared a file note dated 22 December 2001 as a record of those discussions. That file note recorded that George desired that 10 per cent of his estate should be distributed among some of his siblings at Dr Tjiong's discretion and that a trust fund should be established "outside his will" so that Dr Tjiong could control the distribution of the balance of the estate to Katrina and Lindsay. 19On 24 December 2001 George underwent abdominal surgery and suffered a massive stroke during surgery. He survived but was seriously incapacitated and unable to deal with his financial affairs. From that time Dr Tjiong took over the management of George's medical and financial affairs. On 11 December 2003 there was a meeting between Katrina and Lindsay and Dr Tjiong and his wife at which there was discussion about the establishment of a family trust using George's assets. On 15 December the George Tjiong Family Trust was established with Maroka as trustee. The directors were Dr Tjiong, Katrina and Lindsay. The beneficiaries were George Tjiong, Katrina, Lindsay and four of George's siblings, Helen Khouw, Soei Chang, Stella Lim and Harry Tjiong. Acting under the power of attorney, Dr Tjiong then transferred assets of his brother valued at about $1.3 M to the George Tjiong Family Trust. The assets left in his brother's estate were valued at that time between $700,000 and $1 M. 20George Tjiong died on 30 January 2004. By early April 2004 disagreements had arisen between Katrina and Lindsay and Dr Tjiong as to the management and distribution of funds in the George Tjiong Family Trust and of the estate. Dr Tjiong wanted some of his brothers and sisters to receive part of the capital because they had cared for George. (Dr Tjiong described the three sisters as "carers".) There were meetings between Katrina and Lindsay and Dr Tjiong and his wife, Kathryn, on 8 and 9 April 2004. Dr Tjiong proposed that his three sisters receive a distribution of up to 10 per cent of the value of his brother's estate. He also maintained that his mother had a valid claim upon George's estate in respect of an interest in a property in Belmore Street, Burwood. At the meetings on 8 and 9 April these matters were not resolved as Dr Tjiong would have liked. Katrina and Lindsay agreed to payments totalling $40,000 to the three sisters and $20,000 to Harry Tjiong. They did not agree to any settlement of the claim made on behalf of Dr Tjiong's mother. They also resolved that distributions of $100,000 should be made to each of them from the trust. 21On 14 April 2004, Dr Tjiong removed Maroka as trustee of the George Tjiong Family Trust and appointed himself as sole trustee. On 21 April, according to Dr Tjiong, he received a telephone call from a Mr Johnson foreshadowing a medical negligence claim against the estate. He asked that they write to Mr Thornton, a partner of Ebsworth & Ebsworth (Ebworths) who acted for the estate. On 30 April Mr Thornton received a letter from "Rod Johnson" foreshadowing a claim against George's estate on behalf of his 14 year old stepson, Kevin Reeves. On 7 May 2004 Ebsworths, acting for Dr Tjiong, wrote to solicitors acting for Katrina and Lindsay. That letter referred to the Reeves claim and the claim made on behalf of Dr Tjiong's mother and said that it was "obvious that the claims are such that no moneys can be distributed until there is clarification of the claims and the extent of them". The reference to distributions was to distributions from the trust as well as from the estate. 22Between 30 April 2004 and 29 May 2009, a further six letters were received by Dr Tjiong's solicitor or Katrina sent by Rod Johnson or Sharon Reeves who is identified in the first letter as Kevin Reeves' mother. The evidence established that there was no record of any person named Rod Johnson, Sharon Reeves or Kevin Reeves. The primary judge found that the claim was completely bogus. That is now conceded by Dr Tjiong although he does not concede that he played any part in the making of the claim. On 28 January 2005 Dr Tjiong caused the Oninama Charitable Foundation to be established with him as sole trustee. On the same day he caused the George Tjiong Family Trust to pay $134,945 to the Oninama Charitable Foundation.

(2) The course of evidence before and during the hearing 23The proceedings were commenced in February 2005. In her first affidavit (sworn 9/2/05) Katrina said that Dr Tjiong had come to Melbourne on or about 27 March 1996; that she had driven him to hospital to see her father and that later she had driven him back to his hotel; that on 28 March she had driven Dr Tjiong to see her father; that in the afternoon on 29 March she had met Dr Tjiong at the hospital and driven to a solicitor's office with her father where he signed a power of attorney; and that on 30 March she had driven Dr Tjiong to her father's house. In her affidavit in reply (sworn 15/08/06) Katrina maintained that she had picked up Dr Tjiong from the airport in the early evening on 27 March and visited her father in hospital. Her evidence as to what happened on 29 March varied to the extent that she said she had collected Dr Tjiong from Melbourne airport in the early afternoon and driven to the hospital to collect her father. 24In his first affidavit (sworn 5/10/05) Dr Tjiong said that on 25 March 1996 he received a phone call from Katrina in which she advised of her father's stroke and said that he "seems alright but he's refusing treatment"; that on the morning of 26 March he flew from Taree to Sydney and then by Ansett from Sydney to Melbourne where he went directly to the hospital; that there he had a lengthy conversation with George which included discussion about a power of attorney; that he returned to Taree on 26 March 1996; that he next flew to Melbourne late on the morning of 29 March and visited his brother in hospital and then went to the office of Mr John Ball, a solicitor; and that he stayed overnight in Melbourne and again visited his brother in hospital on the morning of 30 March. 25In his first affidavit, Dr Tjiong also said that on 30 March, whilst at the hospital, he had a conversation with George in which his brother described an incident involving a child patient some 12 to 18 months previously in which he had given the child "an adult aminophylline suppository for his wheeze". George said he later received a telephone call from the child's mother in which she said that the child was "fitting and that an ambulance was on the way". Dr Tjiong noted that the circumstances described by his brother had an "uncanny resemblance" to the facts in Black v Lipovac. That case was decided by Higgins J on 13 September 1996: see Lipovac v Hamilton Holdings Pty Ltd [1996] ACTSC 98; on appeal Black v Lipovac [1998] FCA 699; 217 ALR 386. Dr Tjiong was familiar with the facts of that case because Dr Black's defence had been conducted by the NSW Medical Defence Union. 26In her affidavit in reply (sworn 15/8/06) Katrina denied having a conversation with Dr Tjiong on 25 March in which she said that her father had been refusing treatment. She also denied that Dr Tjiong could have spent time with her father on 26 March because he was with her on day leave at his home between about 10.00am and 4.00pm. 27Dr Tjiong maintained, in his affidavit in reply (sworn 24/6/08), that he had seen his brother in hospital on 26 March from about midday and that he was there for approximately three hours. He said he watched George have lunch and they spent some time walking in the hospital grounds. 28The hearing commenced on 1 June 2009. In cross-examination (on 2 June 2009) Katrina said that Dr Tjiong could not have seen her father on 26 March because he was out on leave with her for five hours or so. By that time it was apparent that notwithstanding that the dates when particular conversations occurred in March 1996 were not relevant to the fraudulent misstatement or Reeves claim issues, there was a credit issue as to whether Dr Tjiong was in Melbourne on 26 March and had the conversation with George that he deposed to. As Dr Tjiong's counsel acknowledged on 2 June 2009: "His Honour: At the moment what happened in 1996 seems to me to be pretty peripheral. Hallen: I accept that, however, the point that I am making is that it is quite clear that this is an assertion by the plaintiff that the defendant's evidence is false. She is saying it couldn't have happened on the 26th, he wasn't there, he was with me on the 26th. That is a matter of some importance in this case because your Honour will at some point in time have to determine on the evidence whether or not you accept the plaintiffs' evidence about such matters as this or the defendant's evidence on such matters as this." (emphasis added) 29Dr Tjiong commenced his oral evidence on 4 June 2009. He changed his evidence as to how he had travelled to Melbourne on 26 March 1996. He said that he had flown his Beechcraft B58 aircraft, registration VH-KMY, from Taree to Sydney, and then from Sydney to Essendon and returned in the evening flying from Essendon to Sydney and then to Taree. In support of that evidence he produced photocopies of two pages headed "Daily Inspection Certifications and Aircraft Time - In-Service" (daily inspection certificates) which contained entries on 26 March 1996 for flights from Taree to Sydney, Sydney to Essendon, Essendon to Sydney and Sydney to Taree. 30During cross-examination on 4 June 2009 it was put to Dr Tjiong that his evidence that he had seen his brother in hospital on 26 March 1996 was false and that the evidence about flying his own aircraft to Melbourne on that day, and the documents in support of it, were "untruthful" and that he "put it together". The following further propositions were put to Dr Tjiong by the cross-examiner: that the hospital treatment notes for 26 March 1996 were consistent with his brother being on day leave with his daughter on that day; that his evidence of his conversation with George on 30 March was inconsistent with the medical evidence as to his brother's cognitive and speech difficulties at that time; that he had "made up" this conversation and his diary entry referring to it; and that he had manufactured the Kevin Reeves claim. Dr Tjiong denied each of these allegations. 31At the commencement of the fifth day of the hearing (5 June 2009), the primary judge commented: "As a general rule in cases in which fraud is alleged I, and I know a number of other judges as well, prefer to have original documents as a matter of course. Where there is the slightest allegation or possibility that somebody has interfered with a document as a general rule I require to have the originals." 32On that day Dr Tjiong was cross-examined about the daily inspection certificates, the conversations with his brother on 26 and 30 March 1996 and his brother's medical condition at that time as revealed in the hospital records. That cross-examination concluded before the luncheon adjournment because Dr Tjiong was suffering from dizziness due to Meniere's disease. Although the hearing continued on 9, 10, 11, 15 and 16 June, Dr Tjiong's cross-examination did not re-commence until the hearing resumed on 14 December 2009. 33On 15 June 2009, documents produced by Airservices Australia were tendered. They showed a flight of aircraft VH-KMY from Taree to Sydney on 25 March 1996, but no flights on 26 March 1996. It was said that Airservices Australia only recorded aircraft flights in respect of which flight plans had been lodged. 34On 12 December 2009 two pilot's logbooks were produced by Dr Tjiong in answer to a call which had been made during the hearing in early June. Each was tendered on 14 December when Dr Tjiong's cross-examination resumed. The second logbook contained entries relating to flights in the period from 27 July 1984 to 10 October 1997. In the course of the cross-examination on 14 December it was established that the second logbook which was printed by the Civil Aviation Authority had not been published until early 1989.

The applicable principles 35A number of the primary judge's findings are challenged. Most are affected by the primary judge's view of Dr Tjiong's evidence. The primary judge was not prepared to accept that evidence unless it was not controversial or supported by reliable corroborating evidence. Findings based expressly or inferentially on demeanour may be set aside if it is shown that the primary judge "failed to use or has palpably misused his advantage" or acted on evidence which was "inconsistent with facts incontrovertibly established" or "glaringly improbable": Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 at 479, 480-481; Fox v Percy [2003] HCA 22; 214 CLR 118 at [25]-[27]. In Agbaba v Witter (1977) 14 ALR 187; 51 ALJR 503 at 508, Jacobs J gave as an example of a case in which findings as to primary facts based on credibility of witnesses might be displaced, one where "in a complex pattern of events incontrovertible evidence can only be fitted into the pattern if a different view of the credibility of a witness is taken by the court on appeal". 36The amended grounds of appeal challenge findings made with respect to facts in issue in the proceedings as well as findings as to facts only relevant to issues of credit. The primary judge's finding in relation to the Reeves claim was as to a fact in issue, which also had adverse consequences for Dr Tjiong's credit. It is convenient to deal with the challenge to that finding first. It was expressed to be based in part on the primary judge's views as to Dr Tjiong's demeanour when giving evidence in relation to that issue.

The finding concerning the Kevin Reeves 'claim' (ground 1(c))

Overview 37The seven letters from Rod Johnson or Sharon Reeves are set out by the primary judge at [88]. Mr Johnson's first letter, addressed to Mr Thornton and dated 30 April 2004, gave as a return mail address "2 Narambi Avenue, Ingle Farm 5098" in South Australia. That address was the mail address of the South Australian Revolver and Pistol Association (SARPA). As at April 2004 the president of SARPA was Mr Alex Taransky. He was a professional pistol shooting coach. He had also been coaching Dr Tjiong in pistol shooting from about 2001. On 25 and 27 April 2004 Dr Tjiong had lengthy telephone conversations with Mr Taransky. 38On 16 November 2004 Ebsworths wrote to Mr Johnson at that address serving a notice under s 93 of the Wills Probate and Administration Act 1898. On 30 November Dr Tjiong made three telephone calls to the telephone service of the owner of the property at Ingle Farm, who lived at an adjoining property. Dr Tjiong denied that there was any connection between these telephone calls and the sending by Ebsworths of its letter earlier in November. The fifth and sixth letters, dated 20 and 21 August 2007, sought to implicate Katrina in the making of the claim. The last letter, dated 24 December 2008, sought to implicate Katrina and Lindsay's mother, Margaret, in the fabrication of the claim and referred to aspects of Margaret's personal history which would not generally have been known. 39In cross-examination Dr Tjiong agreed that the claim was a total fabrication in the sense that it was made by named persons who did not exist. He gave three possibilities as to who could have made such a claim: [94]. They were that it was made by him or someone related to him; that it was a "try-on" based on true facts but made with no intention of pursuing it; or that it was made by Katrina or someone associated with her. The second possibility left open that the circumstances on which the claim was based had actually occurred. 40The primary judge gives seven reasons for his conclusion that Dr Tjiong either wrote or directed that someone else write the letters from Rod Johnson or Sharon Reeves: [108]-[117]. Those reasons do not include that Dr Tjiong fabricated the second pilot's logbook to support his evidence as to what happened on 26 March 1996.

Motive - the prevention of distributions from the trust and estate 41The primary judge found that Dr Tjiong's motive for making the claim was to prevent any distributions from the family trust and from George's estate to Katrina and Lindsay at a time when he strongly wished to resist their demands for distributions: [109], [120]. 42Dr Tjiong submits that this motive was implausible. First, there were two other claims made as at early April 2004. They were claims made on the estate on behalf of Dr Tjiong's mother and by his brother, Harry. Each would have prevented distributions and for that reason there was no need to make another claim. Secondly, the claim prevented the orderly resolution of Dr Tjiong's mother's claim and the provision of funds to his three sisters. Each was something Dr Tjiong wanted to bring about. Thirdly, Dr Tjiong had suggested that Katrina and Lindsay be joined as defendants in the proceedings brought against the estate on behalf of his mother, thereby enabling them to delay any distribution to her estate. That was inconsistent with his acting against their interests. Finally, the claim could delay but not prevent distributions, because it was to be expected that the process for barring a claim under s 93 of the Wills, Probate and Administration Act 1898 could have been completed by late 2004. 43These arguments require attention to the events of April 2004. The primary judge made general findings as to those events: [81]-[86]. None of those findings is challenged. They were that the Reeves claim prevented Katrina and Lindsay from receiving the $200,000 in distributions which they sought and Dr Tjiong did not want to happen; and that it provided the justification for Dr Tjiong to refuse making further distributions from the trust and estate in circumstances where he believed that Katrina and Lindsay would press for those further distributions to be made. 44In advance of the meetings on 8 and 9 April 2004, Dr Tjiong arranged for a number of things to happen. Before 1 April he requested Ebsworths to prepare a form of consent by Katrina and Lindsay to the payment of 10 per cent of the net capital value of the estate to his three sisters. He arranged for a general power of attorney to be given by his mother to his sister, Soei Chang. A letter dated 6 April 2004 was then written by Soei Chang to Ebsworths making a claim on the estate on behalf of her mother. That claim related to the Burwood property acquired in 1996. It was alleged that the property was held by George on trust for his father and, on his father's death, for his mother. On 6 April Dr Tjiong received from Ebsworths an advice in relation to his mother's claim. That letter suggested that he obtain Katrina and Lindsay's consent to his settling that claim and enclosed a form of authority to Dr Tjiong to that effect. 45The meeting on 8 April was of the directors of Maroka. Dr Tjiong prepared an agenda. The subjects to be discussed included the payment of a provision to the carers, interim distributions to Katrina and Lindsay and the "program of distribution" until vesting day. Dr Tjiong produced a computer diskette containing the file note of 22 December 2001. He allowed Katrina and Lindsay to read the note on his computer. The note referred to the setting aside of an amount equal to 10 per cent of the net value of George's estate for distribution between the three sisters at the discretion of Dr Tjiong. Katrina and Lindsay did not agree to that. They agreed instead to a distribution of $20,000 to Soei Chang, $10,000 to Helen Khouw and $10,000 to Stella Lim. 46A file note of Dr Tjiong dated 8 April 2004 recorded: "In making their final decisions in relation to the Carers' gift, [Katrina and Lindsay] acted out of a desire to control the amount to be given out collectively, the amount to be given out individually and the process of the distribution without due deference to their father's wishes in all these respects. In so doing, they were not carrying out the wishes of their father, but were substituting their own wishes with their attendant biases in lieu of their fathers expressed wishes. ... Their desire for control resulted in a distribution that is far less than the amount intended by their late father. The underlying overriding motive appears to be a desire to maximise their own respective inheritance. ... In doing so, they may have breached their duty as directors. I shall need to consult our legal advisers on this point." 47The meeting on 9 April was concerned with the affairs of George's estate and claims made upon it by Harry and by Soei Chang on behalf of her mother. On 9 April, Harry had made a claim alleging a gift of QTI shares made by George in December 2001. It was agreed that Dr Tjiong could settle this claim for $20,000. There was no agreement to the resolution of the other claim and Katrina and Lindsay refused to sign the form of authority to settle it. At the conclusion of this meeting Katrina and Lindsay were given cheques for $100,000 drawn by Maroka and post-dated 22 April 2004. 48On 14 April, Dr Tjiong removed Maroka as trustee of the George Tjiong Family Trust and appointed himself sole trustee. His stated reason for doing so was to prevent Katrina and Lindsay from forcing further distributions to themselves and the vesting of the trust before the estate was cleared of claims: [85]. Maroka requested the return of the cheques and advised that replacement cheques would be issued on the trustee's new account. 49On 14 April, solicitors acting for Katrina and Lindsay wrote to Ebsworths requesting a copy of the advice concerning Dr Tjiong's mother's claim and a transcript of the file note. On 15 April, Dr Tjiong asked Ebsworths for advice as to whether it remained appropriate to issue new cheques to Katrina and Lindsay who he described as a "hostile" party. On 16 April Ebsworths responded to the solicitors saying that it would be "quite unsafe" for the executor to distribute the estate until Dr Tjiong's mother's claim was settled. That left the likelihood that Katrina and Lindsay would press for the $200,000 and further distributions from the trust. 50After receiving the phone call from Mr Johnson on 21 April, Dr Tjiong sent an email to Ebsworths in the following terms: "May I please have your learned view on the issue of tracing as it relates to the deceased estate and the GTL Tjiong Family Trust. I now have an enquiry from the parents of a past child patient of George; apparently the child is still have problem. The details are sketchy and the enquirer showed an interest in Dr G Tjiong's medical records. I have asked that they write to me you." The word "me" is crossed out and "you" written in hand. The email also enquired whether it was still appropriate to make the distribution of $100,000 to each of the beneficiaries. On 22 April Ebsworths responded advising Dr Tjiong not to make any distributions at that stage and to make the position clear to Katrina and Lindsay's solicitors, Teece Hodgson & Ward. 51Dr Tjiong produced a file note dated 30 April 2004 and headed "File Note On Investment Plan Post Johnson". The file note referred to "an emerging claim from an ex-patient that has the potential of bankrupting the estate". It recorded: "3. Following PT's expressed advice, the distribution of the Estate needs to be delayed until all the claims are resolved; it is reasonable to expect that the Johnson claim may be resolved within two years. No distribution from the Trust is to be made before December 2005 ..." 52On 5 May 2004, new solicitors acting for Katrina and Lindsay wrote to Dr Tjiong concerning the trust and removal of Maroka as trustee. The letter requested that he appoint an independent trustee and resign as appointor under the trust deed. In their response dated 7 May, Ebsworths said that there was "no prospect" of any distribution from the estate or the trust for the reason that the three claims, including that by Mr Johnson, had been made. 53I now return to Dr Tjiong's arguments. 54The first argument is that the finding as to motive is implausible because two claims had already been made on the estate. Neither of those claims, however, justified the withholding of the distribution of $200,000 or any further distributions from the trust. Dr Tjiong's concern was that the children would seek to force the distribution and winding-up of the trust without making what he regarded as a sufficient provision for the three sisters. 55In relation to the second argument, the Reeves claim would prevent payments being made to the sisters. However, Dr Tjiong did not regard those payments as anywhere near sufficient or satisfactory. The Reeves claim would not delay payment of the claim by his mother because it was not likely to be resolved in the immediate future as Katrina and Lindsay would not agree to its resolution. 56The fact that Dr Tjiong suggested that Katrina and Lindsay be joined as defendants to the claim brought on behalf of his mother's estate is not inconsistent with the primary judge's finding as to motive. Those proceedings were commenced in 2009. Dr Tjiong, as executor, filed a submitting appearance and Katrina and Lindsay, as sole beneficiaries, were joined as defendants. The proceedings were ultimately dismissed: Chang v Tjiong [2009] NSWSC 122. Dr Tjiong's conduct in 2009 provides no insight as to his thoughts or motive five years earlier. 57The fourth argument is that the Reeves claim was only likely to delay distributions for eight months or so. That does not appear to have been Dr Tjiong's view. His note dated 30 April 2004 indicates that the making of the Reeves claim justified the position that there should be no distributions from the trust until December 2005, a period of eighteen months. 58These arguments do not identify any error in the primary judge's finding as to Dr Tjiong's motive for making the Reeves claim.

The telephone number called by Mr Johnson 59Dr Tjiong said that Mr Johnson telephoned him at his home. He agreed that this number was only listed in his wife's name. He also agreed that there was no medical directory published which contained his name with that number. Dr Tjiong was asked how Mr Johnson might have known to telephone him on his wife's number. The primary judge sets out Dr Tjiong's evidence at [84] and [96]. The primary judge described this evidence as "contradictory and implausible": [111]. His Honour gives his reasons for so concluding at [96] and [97]. Dr Tjiong submits that when his evidence is properly understood there was no inconsistency and no justification for the primary judge's description. 60Dr Tjiong answered, "I don't know" to the question as to how Mr Johnson knew to ring him on the number in his wife's name. He then answered "yes" to the question whether Mr Johnson had told him how he had found "your" number: [96]. Dr Tjiong explained, as he had in his first affidavit, that Mr Johnson said he had found the number in the medical directory. As Dr Tjiong's submissions correctly observe, any apparent inconsistency between these answers disappears if the answer "I don't know" was given on the basis that the first question was directed to how "in fact" Mr Johnson came to know the number. 61That the number called was not in Dr Tjiong's name was first raised in cross-examination. It meant that the explanation given by Mr Johnson could not have been correct. Dr Tjiong set out in his first affidavit and without comment what Mr Johnson had said as to how he obtained his name and number: [84]. When asked in cross-examination whether Mr Johnson had told him how he obtained the number he added the qualification: "That's what the man said. I don't know if that's true": [96]. 62The primary judge's description of Dr Tjiong's evidence as contradictory is strictly not correct. The evidence was consistent if the first question was understood and answered as directed to the fact. However, there remained an element of implausibility about the evidence; a person believed to be making a genuine claim volunteers an obviously false explanation as to how he came to know Dr Tjiong's telephone number and Dr Tjiong puts that explanation forward without comment. It was open to the primary judge to conclude, in part in reliance upon the way Dr Tjiong gave this evidence (at [97]), that when giving his affidavit evidence of the conversation with Mr Johnson he overlooked the fact that the home telephone number was only listed in his wife's name. When the subject was first approached in cross-examination Dr Tjiong could not refer to that affidavit evidence because it obviously did not provide the answer. 63Any error involved in the primary judge's description of this evidence as "contradictory" was not material as his Honour is not shown to have erred in his conclusion that this evidence did not have the appearance of being truthful.

Black v Lipovac 64It does not appear to be contested that the facts of Black v Lipovac provided the inspiration for the Reeves claim. In a file note dated 30 April 2004, Dr Tjiong described Mr Johnson's claim as having an "uncanny similarity" with the facts of that case. Dr Tjiong submits that the fact that he was familiar with this case did not give rise to an inference that he used that knowledge to assist in the invention because to have done so would have been foolish on his part. 65This submission does not squarely address the way in which the primary judge took this factor into account. It was accepted by Dr Tjiong that the likelihood was that the claim was fabricated by someone with a reason for doing so. Those persons included him, Katrina or her mother, Margaret: [93], [94], [95]. The evidence did not suggest that either Katrina or Margaret was, or was likely to be, aware of the facts in Black v Lipovac. Therefore, this factor tended to exclude Katrina or Margaret as being the person who made the claim, whilst at the same time being consistent with Dr Tjiong having done so. 66The primary judge's finding that Dr Tjiong had fabricated the claim was based upon inferences drawn from a range of factors, of which this was but one. His Honour is not shown to have erred in assessing this factor in the way he did.

Familiarity with medical terminology and treatment 67The primary judge concluded that the writer of the letters was also familiar with medical terminology and treatment and the reputation of the firm "Maurice Blackman [sic] Cashman" as specialists in medical negligence litigation: [113]. In cross-examination Dr Tjiong conceded that the letters could only have been written by someone with a medical or nursing background. The primary judge found that Dr Tjiong was familiar with each of those subjects; that there was no evidence that Katrina was familiar with either of them; and that, although there was evidence that her mother, Margaret, had been a nurse, there was no suggestion that she knew of Maurice Blackburn Cashman. Each of these findings was consistent with Dr Tjiong having been the source of the claim and, at the same time, was a reason for excluding Katrina and Margaret. 68Dr Tjiong does not take issue with those findings or that reasoning. Instead he points out that the writer of the letters did not disclose all of the medical and medico-legal details concerning Kevin Reeves in the earliest or earlier letters and that those details were disclosed progressively. It is suggested that this progressive disclosure shows that the writer initially knew relatively little of the alleged incident and came to learn more about its medical and legal aspects over time. 69That suggestion is pure speculation. It is at least equally likely that this was the appearance which the author of the letters was intending to create. Dr Tjiong does not point to anything in the content of the letters which is inconsistent with the primary judge's ultimate finding as to his involvement or which demonstrates error in his consideration of this factor.

The SARPA address 70The mailing address given by Mr Johnson in the letters dated 30 April 2004 and 25 August 2004 was 2 Narambi Avenue, Ingle Farm in South Australia. That was the address of SARPA of which Dr Tjiong's pistol coach, Mr Taransky, was president in April 2004. There were frequent telephone communications between Dr Tjiong and Mr Taransky during this period: [100]. The primary judge found that whereas Dr Tjiong had a "direct and immediate connection" with that address, there was no evidence to suggest that Katrina or her mother had any connection with that address or any members of SARPA: [114]. He relied upon these circumstances as tending to support a conclusion that Dr Tjiong was responsible for the letters. 71Dr Tjiong criticises the primary judge's rejection of his evidence that the use of the SARPA address was a "mere coincidence". He does so on the basis that whilst it is implausible in the extreme that its use was a mere coincidence, his answer was consistent with the answer which would have been given by someone who was in fact innocent. For that reason, no conclusion should be drawn from the fact of the coincidence. That may be accepted. However, Dr Tjiong's argument and criticism proceeds on the basis that the primary judge's finding that he was involved was based on the implausibility of his explanation. That was not the basis for his Honour's conclusion which took account of the other circumstantial evidence. 72Dr Tjiong also submits that the primary judge's conclusions concerning the use of the SARPA address are implausible for two further reasons. First, it is said that it is unlikely that Dr Tjiong would have co-opted the assistance of both of Messrs Taransky and Javor to write, or at least to post, fraudulent letters and become involved in fraud and dishonesty. It is also submitted that it is improbable that he would have fabricated a claim which used the address of a shooting association connected with his pistol coach, and therefore indirectly, with him. 73As to the first reason, the primary judge made no findings as to the nature or extent of any involvement of Messrs Taransky and Javor. Their assistance could have been procured on the basis that the addressee of the letters was a friend of Dr Tjiong who had asked for an address to which mail could be sent. It would not have been necessary to disclose any aspects of the content of the letters to them. Nor would it have been the case, if they were made aware of the contents of the letters, that this would or should have aroused suspicion or implicated them. Whether that was the position also depended upon whether they were aware that Mr Johnson and Sharon Reeves did not exist and that the contents of the letters were fabricated. It is not implausible that they assisted without having knowledge of any wrongdoing or impropriety. 74In this context, the primary judge also noted that Dr Tjiong did not call evidence from Messrs Taransky and Javor by video link to corroborate his evidence when the opportunity to do so was available. The inference which the primary judge drew from his not having done so is not attacked on appeal: [116]. 75As to the second reason, it is not suggested that the primary judge did not take into account the likelihood of Dr Tjiong having fabricated the claim in circumstances which included the use of an address of a shooting association closely connected with his pistol coach. That likelihood had to be weighed with the other circumstances referred to by the primary judge. It cannot be said that it was "glaringly improbable" that Dr Tjiong might have used the SARPA address. Its use and the connection with Dr Tjiong were only discovered by inquiries conducted in the context of hard fought litigation. That litigation and those inquiries were not necessarily to have been expected at the time the first letter was written. 76None of these arguments demonstrate error on the part of the primary judge.

Textual analysis of letters 77The primary judge concluded that Dr Tjiong had fabricated the Reeves claim and either written or directed someone else to write the letters: [108]. He compared what he described as "stylistic quirks" in the seven letters emanating from Mr Johnson or Sharon Reeves with Dr Tjiong's own writings and concluded that there were similar spellings of words and frequent use of quotation marks. He referred to the consistent use of two words for a single composite word, such as "mean time": [118]. However, the primary judge made clear that he did not use these observations to found his conclusion that Dr Tjiong was involved in the writing of the letters. He noted that the use of similar "stylistic quirks" was consistent with that conclusion: [119]. 78Dr Tjiong has undertaken an analysis of the writings considered by the primary judge. It is pointed out that in those writings there are a number of composite words used, most of which are spelt as one word rather than two. That analysis shows that in Dr Tjiong's letters of 27 February 2002 and 18 January 2005, he has used "anyone" and "meantime" as single composite words four times. That means that the primary judge's observation (at [118]) that Dr Tjiong consistently used "mean time" is not correct. The analysis confirms the correctness of the primary judge's decision not to found his conclusion on these observations. But it does not constitute indisputable evidence that Dr Tjiong did not or could not have participated in the writing of the letters. It remains the case that the usages in the letters are consistent with usages which Dr Tjiong sometimes adopted. 79Dr Tjiong submits that the Reeves letters are written in colloquial Australian which is not a characteristic of his writing. He also points to internal inconsistencies between the letters as indicating that they were written by different persons. Assuming each of these observations to be correct, neither requires that a different view be taken as to whether Dr Tjiong was responsible for the letters. The author of the letters could deliberately have chosen to write in a colloquial Australian style and to introduce inconsistencies between the letters. Dr Tjiong says that the first and fifth letters assert different locations for the treatment of Kevin Reeves and that this suggests that they were not written by the same author. They are the letters of 30 April 2004 and of 20 August 2007. The first suggests that the young Kevin Reeves was treated by George at his rooms in Briar Hill. The second refers to treatment but does not say where it happened. The submission may intend to refer to the sixth letter dated 21 August 2007 which can be read as suggesting that George treated the child at his home. If so, the letters are inconsistent. But they purport to be written by different people. Nothing much may be made of the inconsistency. It does not reveal error by the primary judge.

30 March 1996 diary note 80The primary judge makes no express finding that this note and the conversation it refers to were fabricated. However, it is implicit in his treatment of the conversation that he gave the note no credence as a record of something which happened: see [91], [92], [105], [106]. 81Dr Tjiong argues that in not expressly dealing with this note the primary judge overlooked relevant evidence. Dr Tjiong says that the note is consistent with his having had a conversation with his brother George about circumstances which actually happened and someone else subsequently making a claim based on those circumstances which was a "try-on". The primary judge addressed and rejected that hypothesis: [105], [106], [108]. 82There are difficulties with Dr Tjiong's submission that there was a conversation on 30 March 1996 in the terms deposed to in his two affidavits. First, the conversation is said to have been about circumstances which actually happened and which later became the foundation for a claim which it is now conceded was made by and using the names of people who did not exist. It is not obvious how or why someone would have made such a claim using those circumstances. Secondly, Dr Tjiong gave two versions of the relevant conversation. The second version took account of George's difficulty, because of his dysphasia, in communicating using sentences. That second version was given partly in response to an affidavit of Dr Geoffrey Herkes, a neurologist. Assuming George's condition in March 1996 was as recorded in the hospital admission records and a neuropsychology report of a Dr Ian Stuart dated 2 May 1996, Dr Herkes' opinion was that George had difficulty with conceptualisation, the construction of long sentences and abstract thought processes. He considered that it was highly unlikely that George could have participated in a discussion of the level of complexity described by Dr Tjiong in his first affidavit. 83Dr Stuart's report of 2 May 1996 records: "Dr Tjiong was unable to adopt an abstract attitude. ... He was also unable to generate a description of a farm house in the country apart from a few simple sentences, and he showed a marked impoverishment of thought." "This difficulty is of concern as it means that in his medical practice Dr Tjiong would fail to understand the patient's language if it extended beyond the simple levels of his comprehension. He would be unable to gather together the elements of a moderately complex conversation and so would fail to understand what was said. The more frontal components would also have an impact on his capacity for medical practice as he would find it difficult to process material in a logical manner. These problems could also affect other areas in his life, in relation to legal and business matters." 84Dr Tjiong suggested, by reference to the hospital clinical notes, that George's condition had deteriorated between 30 March and 2 May 1996 when he was examined by Dr Stuart. Dr Herkes disagreed. His evidence was that the notes showed a slight improvement over that period. 85Dr Herkes also considered Dr Tjiong's second version of his conversation of 30 March 1996 and expressed the view, with varying emphasis, that parts of the conversation were "very unlikely" or "not probable". That version included George saying that any claimant would have difficulties proving that he saw the child because there was no record of his having done so. Dr Herkes considered the likelihood that George could have volunteered such a statement was "small, again perhaps of the order of 10-20%". In contrast, Dr Tjiong's note dated 30 March 1996 records "Long discussion with George re past incidents/claims and MDAV". 86There was also a dispute as to whether Dr Tjiong visited George in hospital on 30 March 1996. Dr Tjiong's evidence was that he visited his brother in hospital on the morning of 30 March and remained there from "after breakfast" until about 1:00pm. During most of that period they walked in the hospital grounds. The clinical notes record that George "left for day leave with family at approx 10.15am" and "returning around 1700 hrs". That note is not consistent with Dr Tjiong's version of events that his brother remained at the hospital. Nor is it consistent with the evidence of Katrina and Lindsay. Katrina's evidence was that on 30 March she took Dr Tjiong from his hotel to her father's house and that whilst he was there, he had a discussion with Lindsay about her father's gold coins. Lindsay's evidence was that Dr Tjiong came to his father's house on that morning, that they searched the home for his father's belongings, including a gold coin collection, and that he later drove Dr Tjiong to the airport. Neither Katrina nor Lindsay gave evidence that they visited the hospital on that day. 87The evidence that Dr Tjiong saw and had a conversation with his brother on 30 March 1996 in the terms recorded in the note was certainly not indisputable. Even if Dr Tjiong saw his brother on that morning, there was no independent evidence corroborating the terms of that conversation and some medical evidence that it could not have happened as Dr Tjiong maintained. That being the position, the primary judge is not shown to have erred in not treating the note as a reliable record of something which happened in March 1996.

Conclusion concerning the Kevin Reeves claim 88The finding that Dr Tjiong wrote or directed that someone else write the Kevin Reeves letters was based on circumstantial evidence, an assessment of the probabilities and an assessment of the credibility of the relevant witnesses, in particular Dr Tjiong. The evidence established that Dr Tjiong had a motive for fabricating the claim, that he had the specialised knowledge evident in the way the claim was pursued, and that he had a close connection with the address used by the claimants. That evidence also made it most unlikely that Katrina or her mother, Margaret, could have been involved in the making of the claim. 89The circumstantial evidence provided a sound basis for the primary judge's finding and Dr Tjiong has not demonstrated that the finding was attended by any error. It is not contrary to any indisputable fact. Nor is it glaringly improbable. Nor is the view which the primary judge had of Dr Tjoing's credibility with respect to this finding contradicted by any incontrovertible evidence. For these reasons, the arguments made in support of ground 1(c) do not provide a basis for setting aside this finding. 90This conclusion has significance for the application to adduce further evidence and for other aspects of the appeal. The primary judge's reasons for the finding that this claim was fabricated do not include his finding that the pilot's logbook had been fabricated or that Dr Tjiong had given false evidence that he had flown to Melbourne on 26 March 1996. Although those other findings were made, and were relevant to an assessment of Dr Tjiong's credibility, they were not necessary to justify this finding and the primary judge did not say that he regarded them as such. In addition, the finding of fabrication provided a sufficient reason, where there was an issue about some fact, for not accepting Dr Tjiong's evidence, or documents produced by him, unless supported by reliable corroborating evidence.

The finding concerning Dr Tjiong's illness in June 2009 (ground 1(a)) 91On 9 June 2009 the respondents made a call for the production of Dr Tjiong's pilot's log. Two logbooks were produced on 14 December 2009. Dr Tjiong was asked why it had taken so long to produce them. In his answer he referred to his health. The primary judge extracted part of that answer at [56] and commented on it at [58]: "... Richard referred to his ill health during the period as a reason for delay. Later evidence showed that no diagnosis had been made of Richard's claimed illness while he was in hospital and that after his discharge (on the last day of the hearing) he was well enough to drive his car and to compete in the World Masters Games in October in the Centre Fire Pistol event." 92Dr Tjiong submits that the reference to his "claimed illness" is to Meniere's disease and that the primary judge erred in describing that illness as "claimed" because it was established by the medical evidence. He also submits that the primary judge ought to have taken the fact of that disease into account when assessing his demeanour. 93The primary judge's reference is to Dr Tjiong's "claimed illness while he was in hospital". The Court was advised of Dr Tjiong's hospitalisation on 9 June 2009, the first hearing day following the adjournment of Dr Tjiong's cross-examination on 5 June 2009. Dr Tjiong's counsel stated: "The defendant went to St Vincent's Hospital emergency on Sunday night [7 June]. Dr Markus confirmed that he examined the defendant yesterday and that he had symptoms consistent with having suffered a TIA, a trans ischaemic attack. He wasn't able to say that he had in fact sustained such an event but the symptoms were suggestive of that having occurred. He is unaware of the mechanism that caused the symptoms and needed to conduct further investigations so that he could treat in the event a stroke occurred." 94On 15 June 2009, three medical reports of Dr Phillip Chang, an ear, nose and throat surgeon and physician, were tendered. The first, dated 5 June 2009, concluded that the stress associated with the court proceedings had exacerbated Dr Tjiong's Meniere's disease of the left ear producing symptoms of "imbalance, hearing loss and tinnitus of the left ear". The second, dated 9 June 2009, referred to Dr Tjiong's admission to hospital for "clinical transient ischaemic attacks causing classical visual deficit". The third, dated 11 June 2009, referred to Dr Tjiong continuing to suffer from "disabling dizziness association with Meniere's disease" and to the fact that the "investigation of his ear condition (and TIA) continue". 95On 14 December 2009, when his cross-examination recommenced Dr Tjiong said he continued to suffer from dizziness. There was then an exchange with the primary judge: "Q. Could you tell me, has a diagnosis been established, doctor? A. Your Honour, established is too strong a word. There are two schools of thought from my three attending physicians as to what was going on with me in June and what went on since March. I was admitted the first time in late March to St Vincent's Hospital. I had an operation in early April. Between April and June I continued to have the dizziness. I had a relapse in June leading to my readmission. My ENT surgeon believes I have been suffering from Meniere's disease right up to now when I saw him ten days ago. My neurologist thought it wasn't a straightforward Meniere's, it could have been a TIA. I am still on Warfarin on account of his suspicion of a TIA." 96The neurologist referred to was Dr Markus. On 14 December 2009 his report dated 12 June 2009 was tendered by the respondents. It referred to two incidents where Dr Tjiong had suffered sudden vision loss in the right visual field (hemianopia). He recorded that those incidents were "most likely secondary to transient ischaemia of the brain" and that, for that reason, Dr Tjiong had been admitted "for further investigation". The letter reported the results of various tests. None confirmed that the symptoms were due to a transient ischaemic attack. 97This analysis shows that whilst the primary judge's description of the illness which caused Dr Tjiong's hospitalisation as a "claimed illness" conveys a sense of scepticism, the statement that no diagnosis of that illness had been made was correct. It is not a statement that Dr Tjiong had not suffered or been diagnosed as suffering from Meniere's disease. The remaining findings made by the primary judge at [58] were also justified by the evidence. Dr Tjiong agreed that Dr Chang had permitted him to drive a motor vehicle after June 2009 and that in October (after "a little bit of practising") he had participated in a pistol event at the World Masters Games. 98Contrary to Dr Tjiong's submission, the primary judge did take account of Dr Tjiong's illness when assessing his demeanour. During the course of his evidence on 14 December 2009, Dr Tjiong referred to his continuing dizzy spells. At [65] the primary judge observed: "I interpolate here to say that I did not find Richard's appeal to his dizziness or confused mental state at all convincing. To my observation, Richard remained acutely alert at all times throughout his cross examination and was able to fence with the cross-examiner whenever he thought he could score a point. It was only when Richard was confronted with a difficulty or contradiction in his own evidence for which he did not have a prepared explanation that he appealed to his infirmity." 99Dr Tjiong does not take issue with the correctness of this observation. Nor was there any evidence that his suffering from Meniere's disease explained or was responsible for any behaviour in the witness box which the primary judge was likely to have taken into account when assessing his credibility. 100This ground of appeal is not made out.

The finding as to the second pilot's logbook (ground 1(b))

Overview 101The primary judge rejected Dr Tjiong's evidence that on 26 March 1996 he had flown to Melbourne and seen his brother in hospital. In doing so, his Honour found that Dr Tjiong had fabricated the second pilot's logbook to support that evidence; and that his evidence that the logbook had been created in 1989 after the original had been stolen was also false: [80]. Dr Tjiong submits that these findings did not have regard to "incontrovertible" facts or consider the attack made on Katrina's credit in relation to this issue. Six matters are referred to in support of this submission. It is also necessary to consider Dr Tjiong's reliance on his diary notes of 25 and 26 March 1996. 102To assess these submissions, it is necessary first to consider how the primary judge dealt with Dr Tjiong's evidence about the pilot logbooks: see [55]-[80].

The sequence of evidence as to the pilot logbooks 103Two logbooks were produced on 14 December 2009. The first was for the period from 27 August 1976 to 13 July 1984 and the second for the period from 27 July 1984 to 10 October 1997. Dr Tjiong said that his practice before 1984 was to make entries in the logbook within a day or so of the relevant flight and that the latest time that he would make entries in respect of particular flights was when his instrument flight rating licence was next due for renewal. Initially, that occurred every six months or so and later every twelve months: [60], [62]. By 1984 Dr Tjiong's practice was to keep the logbook at his home and transcribe the entries made in the maintenance release to the logbook: [60], [72]. He said that the entries in the second book for flights in March 1996 were made in 1996; and that although some entries in the second book were made after the event, none were re-entries or repeat entries by which he meant none were re-created at some later time: [65], [67]. 104In the course of giving this evidence, Dr Tjiong volunteered that "at some stage" he had "things stolen from my plane" but could not recall when that was or what was stolen. He said it was "possible" that the logbook he was then using had been stolen so that it was necessary to get a new book and fill it out from scratch. He said it was not likely that this occurred in relation to the second book. He was asked whether if it had been necessary to re-create a new logbook, that would have involved a great deal of effort. He acknowledged that this would have involved much effort but not if there were only one or two pages of entries in the book at the time it was stolen. Dr Tjiong said he had no recollection of the second logbook being stolen or of having to re-create entries in it: [62]. 105In response to questioning from the primary judge, Dr Tjiong said that a reason he had volunteered the possibility that a logbook had been stolen, when he had no recollection of that having occurred, was to deal with the possibility that the cross-examiner would suggest that some of the entries in the logbook were not "contemporaneous records": [63]. In further questioning Dr Tjiong maintained that the entries for 1985, 1986 and 1987 in the second volume had been made within the six to twelve month period before renewal of his instrument flight rating licence: [66]. 106The cross-examiner then pointed out to Dr Tjiong that the second logbook bore the imprinted notation "R 1/89" and could not have been issued by the Civil Aviation Authority before January 1989: [67]. When first confronted with that reality, Dr Tjiong conceded the possibility of his having re-created part of the logbook and said that he would have to think about that: [67]. He also said that he had anticipated that he would be challenged as to rewriting a logbook. To refute the suggestion that the whole of the logbook had been re-created, he referred to the Gowing's Flying School certification stamp which appears on the entries for April of each year in the period 1992 to 1997: [62], [69]. 107In re-examination Dr Tjiong recalled losing his pilot logbook and produced a diary entry for 18 August 1989 which recorded the loss of his flight book whilst the aircraft was undergoing repairs at Hawker Pacific, Bankstown: [70], [71]. That diary was said to have been found by his wife, Kathryn, who was available but not called to explain how and where she had found it: [74]. Dr Tjiong said he had a clear recollection of using the maintenance release records for the aircraft for the period 1984 to 1989 to make entries in a new logbook for flights in that five-year period. He recalled that exercise involving "many sittings" over a period of ten weeks: [70], [72], [73]. 108Although asked, Dr Tjiong did not explain why the second logbook was in his flight bag at the time it was stolen when his practice was to keep the logbook at home. His explanation for the maintenance releases, which usually were kept in the flight bag, not being stolen was that the Hawker Pacific maintenance engineer had removed them from the bag: [76], [77]. 109In his reasons, the primary judge makes observations and assessments as to Dr Tjiong's credit based on the way in which this evidence was given: at [64], [65], [68], [77], [78]. Findings of fact which take account of those assessments may only be set aside in the face of demonstrated error on the part of the primary judge in acting on them: Fox v Percy at [28], [90].

The "incontrovertible facts" relied on by Dr Tjiong

Mr Ball's evidence 110Mr Ball had a telephone conversation with Dr Tjiong "on or about 27 March 1996" and received a letter from Dr Tjiong dated 29 March 1996 which referred to that earlier telephone conversation. The letter does not indicate when that conversation occurred or make any reference to Dr Tjiong having been in Melbourne before 29 March. Mr Ball's evidence of the conversation does not refer to Dr Tjiong having earlier seen his brother in hospital. Mr Ball recalled Dr Tjiong saying words to the effect "George has assets in Victoria and Katrina lives here". That evidence provides a basis for inferring that the call was made from Melbourne. Dr Tjiong's evidence was that he spoke to Mr Ball from Sydney. Mr Ball's evidence did not incontrovertibly establish that Dr Tjiong had been in Melbourne on 26, 27, or 28 March 1996 or that he had seen George in hospital on one of those days. It suggested, in reliance on the use of one word in a conversation recalled more than ten years after the event, that Dr Tjiong telephoned from Melbourne on one of those days. It was not in accord with Dr Tjiong's evidence that he telephoned from Sydney.

The Hawker Pacific Lounge fax 111The Hawker Pacific Lounge fax is dated 26 March 1996. It purports to be a facsimile message sent from the Medical Defence Union office at Crows Nest to Hawker Pacific in Sydney at 8.02am on 26 March 1996 and contains a message which includes the words "hope Dr George is okay, please send him my best." Dr Tjiong's evidence was that the document was given to him by his wife on 13 December 2009. She was not called to establish when and in what circumstances she came to have the document. Dr Tjiong recalled first seeing the facsimile on the morning of 26 March 1996. He was not cross-examined about the document and the primary judge makes no express reference to it. 112Nevertheless, the facsimile could not, in circumstances where there were allegations as to the fabrication of documents, answer the description of indisputable evidence that Dr Tjiong was at the Hawker Pacific Lounge in Sydney on 26 March 1996 or that he had told the author of the document that he was going to visit his brother George on that day: cf State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; 160 ALR 588 at [63], [70]. Its authenticity was not established by any reliable independent source.

Austin/Repatriation Medical Centre clinical notes 113The primary judge found that Dr Tjiong's evidence as to his visit to his brother on 26 March 1996 was "contradicted by independent contemporaneous records": [43]. The records referred to include those of Austin/Repatriation Medical Centre hospital: [41], [42]. The clinical notes for 26 March record "on leave -/c daughter", "currently out on day leave" and "returned to ward following day leave". The first of these entries is preceded by the words "am nursing". The third is preceded by the word "nursing". The evidence did not identify the nurses who wrote these notes or indicate the hours when they worked. There was no note of any family visit on 27 March. However, a note for that day with the heading "occ therapy" records, as a result of an interview of George, "Reports house is level with separate shower. Reports did not experience any difficulties on day leave". On 28 March there is a note "visited by family". On 29 March the notes record "returned from afternoon leave with his family at 1800 hrs". On 30 March they record "left for day leave with family at approx 1015 hrs. Pt returning around 1700 hrs" and in a separate entry "Pt returned from day leave". 114The hospital records also include a page headed "Diabetes Treatment" which notes the monitoring of George's blood glucose levels. That page contains entries for 10.15 and 7.00pm on 26 March 1996. Finally, there is a graphic chart record of George's pulse and temperature readings. For 26 March 1996 that chart has dots, which appear to represent temperature readings, in columns in which the numbers "1000" and 1400" are written. There is also a dot for a pulse reading in the "1000" column. There do not appear to be any other temperature or pulse readings for 26 March. There was no evidence which assists an interpretation of these entries or provides a basis for assessing their reliability. 115Dr Tjiong makes a number of submissions concerning these records. The first is that the hospital records are inconsistent with Katrina's version of events of 26 March 1996 (that George was on day leave with her from about 10.00am to 4.00pm) because of the reference to the blood glucose reading at 10.15am and the temperature reading in the column headed "1400". The second is that the notes are not inconsistent with Dr Tjiong's version of events because they are silent as to the period between 2.00pm and 7.00pm. The third is that there is no record of a visit on 27 March 1996 although Katrina's evidence was that she had visited her father with Dr Tjiong in the evening on that day. Taking account of all these matters, it is submitted that the primary judge's finding that the records "contradicted" Dr Tjiong's evidence and, by implication, corroborated the evidence of Katrina was incorrect. 116Katrina said that she had an actual recollection of the first day on which she took her father out of hospital because she took him home to do various things including to check on his dog. Dr Tjiong's counsel, when cross-examining Katrina, did not challenge her evidence that she had taken her father out on day leave on 26 March. What was in issue was whether George was back in the hospital by 2.00pm. No doubt that time was suggested because of the temperature chart record. It was not, however, consistent with Dr Tjiong's evidence which was that George was in the hospital from about midday. 117With the exception of the temperature reading, the hospital records are consistent with Katrina's evidence that she took her father out for a period which extended beyond midday and that she took him home. The "occ therapy" entry of 27 March is consistent with George having gone to his home on the previous day. The second "nursing" entry was not likely to record accurately the position if the fact was that George had returned at midday, taken lunch in the hospital with Dr Tjiong and then spent three hours or so with him walking around the hospital grounds. The reference to "uneventful evening" suggests this entry was made by a nurse who was on duty for at least part of the evening. These records call into question the reliability of the temperature reading in indicating that George was back in the hospital at 2.00pm. 118There is no inconsistency in the records taken together if that temperature reading is put aside as unreliable. The primary judge's conclusion that the records "contradicted" Dr Tjiong's evidence either overlooked that reading or resolved the possible inconsistency by not treating it as reliable. It is not likely that the primary judge overlooked the reading. Katrina was cross-examined about it and it was the subject of comment by the primary judge. The conclusion that it should not be treated as reliable was available having regard to the content of the two nursing notes, the uncontested fact that Katrina had taken her father out on day leave and the entry for the next day which indicated that George had spent that day leave at home. 119For these reasons, I am not persuaded that the primary judge's conclusion that the records "contradicted" Dr Tjiong's evidence was not available or wrong. Nor, for the same reasons, were those records inconsistent with Katrina's recollection of events. Whilst there were no records of temperature or pulse readings between 2.00pm and 7.00pm, the three references to "day leave" are inconsistent with Dr Tjiong's evidence that he arrived at midday and watched his brother have lunch. More significantly, the temperature reading chart is not incontrovertible evidence which is inconsistent with the primary judge's finding that George was out on day leave with his daughter. 120The remaining matter raised by Dr Tjiong is the absence of a record of any visit to George on 27 March and Katrina's evidence that she saw her father with Dr Tjiong on the evening of that day. The primary judge made no express finding as to whether this occurred. The resolution of this issue reflected on the reliability of Katrina's recollection. It could not, however, cast doubt on her unchallenged recollection that on 26 March 1996 she had taken her father on day leave to his home for at least part of the day.

Discussions about power of attorney and records of Manning Base Hospital 121Dr Tjiong submits that the evidence established that he discussed the power of attorney with Katrina and his brother George at some time before 29 March 1996. He says that must have been on 26 March because the Manning Base Hospital records (which are sought to be tendered on the appeal) establish that he was performing surgery in Taree on 27 March and because it was not suggested by any witness that he was in Melbourne on 28 March. 122Katrina's evidence was that she had spoken to Dr Tjiong about a power of attorney on 27 or 28 March. She did not say that she had any discussion about that subject with her father and Dr Tjiong at any time before the meeting with Mr Ball on 29 March 1996. She accepted that there was a brief discussion with Mr Ball at their meeting on 29 March. Dr Tjiong's evidence was that he alone had a discussion with his brother about the power of attorney on 26 March 1996. Contrary to Dr Tjiong's submission, there was no evidence he had spoken with Katrina and George about a power of attorney before 29 March. 123It may be accepted for the purpose of considering this argument that the Manning Base Hospital records establish that Dr Tjiong performed five procedures between 8.17am and 12.28pm on 27 March 1996, that three of those procedures were tonsillectomies performed on children and that his patient records indicate that he saw a number of other patients in his rooms at Taree in the afternoon of 27 March 1996. 124It may also be accepted that these hospital and patient records make it most unlikely that Dr Tjiong could have been in Melbourne by the early evening of 27 March. They do not, however, establish that he was in Melbourne on 26 March. 125In the absence of other evidence which established that Dr Tjiong was in Melbourne and visited his brother in hospital on either of 26 or 27 March 1996, the Manning Base hospital and patient records could not, taken alone or with that other evidence, establish incontrovertibly that Dr Tjiong was in Melbourne on 26 March rather than 27 March 1996. 126It seems likely that, with the benefit of this additional evidence, the primary judge would not have accepted as reliable Katrina's recollection that Dr Tjiong was in Melbourne on the evening of 27 March 1996. That conclusion may have affected any assessment of the reliability of Katrina's uncorroborated recollection. However, such an assessment was not necessary with respect to what happened on the previous day because of the contemporaneous hospital records and the fact that Katrina's recollection was challenged in only one respect. 127Dr Tjiong's submission in relation to the subpoena apparently issued to the Stamford Hotel does not take this argument any further. Katrina's evidence was that she requested her solicitor to issue a subpoena for records showing that Dr Tjiong had stayed at that hotel on the evening of 27 March. She did not remember whether a subpoena had been issued or whether documents had been produced in answer to it which demonstrated that Dr Tjiong had not stayed at the hotel. In the absence of evidence as to the issue of the subpoena, its terms and the response to it, it is not possible to assess Dr Tjiong's submission. Even if these circumstances contradicted Katrina's evidence as to what happened on 27 March, they say nothing as to her evidence of events on 26 March 1996.

The daily inspection certificates 128The primary judge found that the photocopy of the daily inspection certificates tendered in evidence "showed that a number of alterations had been made to various entries": [48]. His Honour did not make any express finding that Dr Tjiong had altered this document to advance his case. However, a finding to that effect was a necessary consequence of his finding that the second logbook was fabricated because the entries in the logbook replicated those in the daily inspection certificates and the primary judge found that those entries for 26 March 1996 were false in the sense that they recorded flights which did not occur. Dr Tjiong submits that the primary judge should not have treated this document with suspicion. It is said that it is unlikely that the alterations were made to deceive because they are obvious on the face of the document and no attempt was made to conceal them. It is also said that the alterations involved in crossing out the numbers "1395-50" were explicable: see [48], [49]. 129To deal with these submissions it is necessary to consider Dr Tjiong's evidence about the certificates which consist of two photocopy pages, each being a copy of two pages of entries. Pages 1 and 2 were on the first photocopy page and pages 3 and 4 on the second. The flight details recorded on those pages included for each flight - the date, time and points of departure and landing, the aircraft's cumulative time in service (flight time) and the number and progressive total of landings. Each page brought forward from the bottom of the previous page the aircraft's cumulative flight time as well as the progressive total of landings. Page 1 commenced with a flight on 29 October 1995. Page 2 contains records of flights on and from 29 February 1996. It includes the three disputed entries for 26 March 1996. Page 3 commenced with a flight on 6 June 1996. Page 4 has no entries. 130The primary judge refers to alterations at the top of pages 1 and 3. On page 1 the number 1395-50 has been written over another number: [48]. On page 3 the same number has been crossed out and 1448-03 has been written beside it: [49]. The primary judge suggests that the alteration on page 3 (which increases the cumulative hours carried forward from 1395-50 to 1448-03) is consistent with alterations also having been made to page 2 to increase the number of hours flown as shown on that page: [50]; the suggestion perhaps being that this was consistent with the entries for 26 March having been added. 131In my view this suggestion or observation of the primary judge was not correct. It does not take account of Dr Tjiong's evidence as to the form in which the daily inspection certificate was issued. It was printed on the back of the maintenance release. When that was issued the maintenance engineer would write the aircraft total time in service at the top of the first page of the certificate (on the back of the release). Dr Tjiong's practice was then to photocopy the certificate (which had that current cumulative flight time written on it) before making entries in it, because he would invariably require more than the two pages to record flight entries in the period until the next maintenance release was issued. Dr Tjiong said that when he commenced filling in page 3, it was necessary therefore to cross out the 1395-50 and to insert instead the total time in service carried forward from the bottom of page 2. That explains why 1395-50 was crossed out on page 3. It does not, however, explain why there was any need for the crossing out that appears on page 1 or the fact that the blank page 3 could not have been a photocopy of the blank page 1 and vice versa. These matters were the subject of the cross-examination which lead to Dr Tjiong's observation recorded by the primary judge at [51]. 132There remained other unexplained discrepancies in relation to the flights recorded on page 2. There are three flights, each from A to B, which as recorded involve two landings each and one entry for which there are no flight details which has two landings. Those entries result in a progressive total of 61 landings at the bottom of page 2, which corresponds with the number carried forward to the top of page 3. There are no similar discrepancies in relation to landings for the flights recorded on pages 1 or 3. 133There are also differences between the flights recorded on page 2 as having occurred between 25 March and 6 May 1996 and those recorded by Airservices Australia for the aircraft for the same period. The evidence in relation to Airservices Australia was that it only recorded flights in respect of which flight plans had been lodged. This does not explain why some flights are in the Airservices records and not on page 2. 134Notwithstanding the primary judge's incorrect observation at [50], his Honour was justified, for reason of these "other inconsistencies", in treating the photocopy daily inspection certificates with suspicion. Because the documents were photocopies produced by Dr Tjiong and contained inconsistencies or otherwise required explanation, they could not constitute incontrovertible evidence that Dr Tjiong had flown to Melbourne on 26 March 1996.

The Gowings Flying School certifications 135Reference has already been made to these stamped certifications. Dr Tjiong submits that the primary judge erred in giving no weight to them as evidence that the second logbook was at least in existence by April 1992 and that the entries after that date were genuine and made in the manner described by Dr Tjiong. I do not understand it to be submitted that the certifications were incontrovertible evidence of those facts. 136The primary judge was justified in regarding them as having no weight. Dr Tjiong's evidence as to the making of the entries dated before 1989 had been demonstrated to be incorrect. The primary judge formed the view from the course of that evidence and Dr Tjiong's demeanour that it was not only incorrect but knowingly untrue. He also had before him evidence which justified a conclusion that Dr Tjiong had fabricated the Kevin Reeves claim. The decision to attach no weight to certifications in the absence of their authentication involved no error.

Dr Tjiong's diary notes of 25 and 26 March 1996 137Finally, reference is made to Dr Tjiong's diary notes dated 25 March and 26 March 1996. The first records a telephone call from Katrina on 25 March concerning her father's stroke. Katrina said she learned of her father's stroke on 23 March. She denied having a conversation with Richard Tjiong in the terms of this note. The note of 26 March referred to a visit to George in hospital and recorded that Dr Tjiong was told that his brother was refusing treatment. Each of these diary notes was attached to Dr Tjiong's first affidavit. The second is said to support the conclusion that he flew to Melbourne in his aircraft. 138In circumstances where there were allegations as to the fabrication of documents and the making of a false claim, the primary judge was justified in not regarding these diary notes as incontrovertible evidence of what they purported to record. They were produced after the proceedings were commenced and there was no reliable or unquestionable evidence which established their provenance as records made in March 1996.

Conclusion concerning the pilot's logbook 139The primary judge is not shown to have erred in finding that Dr Tjiong fabricated the second logbook in support of his evidence that he had flown to Melbourne on 26 March 1996. The finding involved the acceptance of Katrina's evidence which was challenged in only one respect and supported by the clinical notes. None of the six matters relied upon is or establishes an indisputable fact inconsistent with that finding.

The finding concerning the file note dated 22 December 2001 (ground 1(d)) 140Dr Tjiong's evidence was that this note was prepared as a record of his discussions with George on 20 December and 22 December 2001. The primary judge did not accept that the note was a genuine contemporaneous record of George's wishes expressed to Dr Tjiong in December 2001: [129]. He concluded that George would not have said to Dr Tjiong that he should control Katrina and Lindsay's inheritance in the manner recorded in the file note and that it was "fabricated" long after the date it bears: [130]. The primary judge gave a number of reasons for reaching these conclusions. Those reasons overlap. Dr Tjiong takes issue with them. 141The first, second, and fourth reasons were that the document contained detailed instructions to Dr Tjiong which were contrary to the clear and simple provisions of the will which Dr Tjiong drew and George executed; that it would have been easy to incorporate some of George's instructions in the will; and that it was improbable that if George's instructions were as recorded in the note he would not have insisted that some of them appear in his will. 142Under the terms of the will executed on 23 December 2001, George appointed Dr Tjiong sole executor and trustee and left the whole of his estate to Katrina and Lindsay in equal shares. Dr Tjiong proffers, as an explanation as to why the will did not reflect George's detailed instructions, that it was not possible in the time available to have a will drawn to reflect those instructions. That explanation does not take account of the fact that Dr Tjiong says he first spoke to George in the afternoon of Thursday 20 December when George indicated a desire to rewrite the will. There was no reason why Dr Tjiong could not have incorporated some of those instructions or retained a solicitor between then and the following Monday to assist in completing a new will and including George's wishes in that new will. The likelihood of that being a course available to Dr Tjiong is conceded by the terms of the note itself. It records that notwithstanding that George may not have wanted himself to engage a lawyer, Dr Tjiong had a solicitor on standby to assist him in having any will completed. 143It is also submitted that the appointment of Dr Tjiong as executor was consistent with George wishing that Dr Tjiong have a significant role in the management of his estate. However, that role was only the administration and distribution of the estate between George's adult children. That appointment in no way indicated or was consistent with George desiring that 10 per cent of his estate be distributed to some of his siblings at Dr Tjiong's discretion or that a trust, to be controlled by Dr Tjiong, be created to enable the distribution of the balance over a number of years. 144The third reason relied upon by the primary judge was that he did not accept Dr Tjiong's explanation that there was no testamentary trust in the will because he did not know enough about drafting and George did not want to engage a lawyer. The primary judge's conclusion that Dr Tjiong either was sufficiently competent to draft such a clause or had access to precedents to enable him to do so was open on the evidence. He was able, and according to the note proposed, to involve solicitors in the drafting of the will; and his daughter, who was named as an alternative executor in the will, was a practising solicitor. Also, Dr Tjiong produced a final form of will which, whilst straightforward, was as the primary judge noted, drawn as an experienced solicitor would draft it. 145The fifth reason given by the primary judge was that on 8 April when the document was first produced to Katrina and Lindsay to read, Dr Tjiong, to pre-empt an attack on it, emphasised its authenticity because of its computer date stamp. Dr Tjiong submits that there was no dispute on 8 April as to the authenticity of the document and no reason for its content to be controversial and open to challenge because Katrina and Lindsay had already agreed to the establishment of the family trust. For these reasons there was no adverse significance to be attached to his reference to the computer date of the document. 146This argument does not take account of the primary judge's finding that by December 2003 Dr Tjiong had formed the intention to take control of George's estate and administer it between Katrina and Lindsay on the one hand and George's siblings on the other: [133]. That finding is not challenged on appeal. Nor does the argument take account of the various steps which Dr Tjiong had taken, prior to the meeting of 8 April, to do so. The agenda for the meeting, which he prepared, included: "6. Carers Provision - Motion from the Chair" 147The file note was produced to support the proposal that a significant provision be made for three of Dr Tjiong's sisters. As Dr Tjiong correctly observes, the recitals to the trust deed as executed refer to some provision being made for persons who had cared for George during his lifetime. But those recitals make no reference to provision in an amount equal to 10 per cent of the value of the trust assets. Nor had Dr Tjiong said in his evidence that in December 2003 any reference had been made either to the file note or to George having expressed the intention that such a distribution be made to his sisters. 148For these reasons, the primary judge is not shown to have erred in viewing Dr Tjiong's reference to the computer date stamp as an attempt to forestall questions as to its authenticity in circumstances where he sought to use the note to obtain Katrina and Lindsay's agreement to the 10 per cent distribution to his sisters. 149The sixth reason given by the primary judge was that the fabrication of the timestamp metadata associated with the document stored in the diskette was technically feasible. That finding is not challenged. The primary judge did not justify his conclusion as to the fabrication of the document by reference to this finding alone. 150Dr Tjiong also points out that the laptop computer on which the file note was said to have been created was delivered from his possession to a third party for repairs on 6 April 2004. The expert evidence was that access to that computer would have enabled analysis of whether, and if so, when the document was created. The computer was traded in to the same or a related party on 12 May 2004. Whilst it had not been in Dr Tjiong's possession since 6 April it remained, as the primary judge found, in his control until it was disposed of. By 12 May Dr Tjiong was aware that there was a dispute as to its authenticity. The primary judge was justified in these circumstances in attaching significance to the timing of disposal of the computer: see [127], [128]. 151None of the criticisms which Dr Tjiong makes of the primary judge's reasons for finding that this note was not a genuine contemporaneous record of George's wishes demonstrates error. Ground 1(d) should be rejected.

The finding concerning the December 2003 misstatements (ground 1(e)) 152The primary judge accepted the evidence of Katrina and Lindsay as to what they were told would be the consequences if a trust was not created in George's lifetime. Katrina's evidence was that Dr Tjiong said that when George died the estate would be hit with "a huge tax bill", because of its size, which could be avoided by setting up a family trust. Lindsay's evidence was to the same effect. The primary judge rejected Dr Tjiong's denial that this was said and preferred the respondents' evidence to that of his wife, Kathryn: [132]. 153Dr Tjiong submits, referring to four matters, that the primary judge's conclusion as to what was said is "unsustainable". 154The first is that the reasons for the establishment of the trust are set out in a letter from Ebsworths to Dr Tjiong dated 4 December 2003 and the recitals to the trust deed dated 15 December 2003. The submission implies that if those reasons included to minimise exposure to tax or duty, that reason would have been referred to. 155The Ebsworths letter records reasons given by Dr Tjiong to Ebsworths for proposing that a discretionary trust be formed. It was written following a meeting between Dr Tjiong and Mr Thornton on 4 December 2003. On 4 December Dr Tjiong also sent an email to Ebsworths saying that he had arranged for Katrina and Lindsay to be in Sydney on 11 December. At the same time he gave instructions as to the persons to be named as beneficiaries under the proposed trust. They included his three siblings and brother, Harry. Neither the fact of the proposed trust nor the identities of the beneficiaries had been discussed with Katrina or Lindsay at this time. By 11 December 2003, and before the matter was first raised with Katrina and Lindsay, the trust deed had been drafted and tentative arrangements made for it to be executed at Ebsworths' office. Dr Tjiong's agenda prepared for the meeting with Katrina and Lindsay on 11 December included: "3. Peter Thornton's trust proposal. 4. The Trust Deed." 156This sequence shows that Dr Tjiong had proposed reasons for the formation of the trust to Ebsworths and arranged for a trust deed to be drafted which recited some of those reasons - all without the knowledge of Katrina and Lindsay. Nothing in either document contradicts the evidence given by Katrina and Lindsay as to what they were told. 157The second matter relied on is that one advantage of the trust was that it would protect part of George's estate from third party claims. That may have been so. The evidence accepted by the primary judge was not inconsistent with that being the case or improbable because of it. 158Thirdly, Dr Tjiong submits that Katrina and Lindsay were advised by February 2004 that death duties were not payable and raised no complaint at that time that they had been misled. That advice is said to have been given by an email from Dr Tjiong dated 24 February 2004 which included the following statement in a report of matters relating to George's estate: "I have been told that the Supreme Court may take 1-2 months to issue probate (12 months in the old days when death duties were applicable)". 159This argument assumes that Katrina and Lindsay must have appreciated that the reference to "death duties" necessarily contradicted what they had been told in December 2003. From their perspective that would not seem to have been obvious. Their evidence as to what Dr Tjiong had said made no reference to death duties and they would not necessarily have associated "a huge tax bill" with "death duties". More significantly, it was not suggested to either of them in cross-examination that when they received this email they appreciated that what had been said earlier was wrong or contradicted by what was said in the email. 160The fourth matter is that there was no evidence of Katrina and Lindsay having made any objection or inquiry at the conference with Mr Thornton on 11 December 2003 or soon after that date. The submission does not identify what objection or inquiry should have been made or why. Assuming it to refer to inquiry as to whether what they had earlier been told by Dr Tjiong about taxation was correct, the evidence did not suggest that this subject was raised in the discussion with Mr Thornton. Nor was it suggested to either of them that this was a matter that they would have raised at this meeting if it had been said by Dr Tjiong. 161Finally, reference is made to respects in which evidence given by Katrina was shown to be wrong or changed in the face of contrary and cogent evidence. It is said that these matters concerning her credibility are not considered in the judgment at all. That is not correct. They are addressed, albeit compendiously, at [132] where the primary judge recorded: "Katrina frankly conceded a number of errors in her evidence when they were pointed out to her. She never attempted prevarication". Dr Tjiong identifies some of the respects in which Katrina's evidence was shown or conceded to be incorrect. However, none of those matters is one which would require this Court to take a different view as to her credibility in relation to the critical facts found by the primary judge. 162For these reasons Dr Tjiong has not established that the primary judge's conclusion based on the evidence of Katrina and Lindsay was unsustainable or otherwise involved error. Ground 1(e) also should be rejected.

Conclusion in relation to Dr Tjiong's appeal 163It follows, subject to consideration of the application to adduce further evidence, that Dr Tjiong's appeal should be dismissed. In reaching this conclusion I have considered each of the grounds relied upon by Dr Tjiong. I have taken into account that one of the grounds (ground 1(a)) may have consequences when considering the other grounds of appeal. I have also taken into account Dr Tjiong's particular reliance on the Manning Base Hospital records when dealing with the finding as to the fabrication of the second pilot's logbook. 164It remains necessary to consider all of the further evidence sought to be tendered on the appeal and whether taken together it was likely to have produced a different outcome of the proceedings.

(4) Dr Tjiong's application to adduce further evidence

The applicable principles 165Section 75A(8) provides that the Court may not receive further evidence on appeal where the appeal is from a judgment after a hearing on the merits except on "special grounds". As Campbell JA observed in Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 at [136], that imprecise expression has been adopted to describe the circumstances which in a particular case will justify resolving the tension between the demands of justice on the one hand and the public interest in bringing suits to a final end on the other, in favour of allowing further evidence to be led. To justify the exercise of the power, those circumstances must be sufficiently out of the ordinary or exceptional to answer the description "special grounds". 166In Akins v National Australia Bank (1994) 34 NSWLR 155 Clarke JA said (at 160) in relation to s 75A(7) and (8): "Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible." 167As was pointed out in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 at [14], although they are the "general principles" referred to in Akins, the scope of the discretionary power under s 75A(7) and (8) is not defined by reference to the common law principles which governed the admission of fresh evidence on motions for a new trial: cf Orr v Holmes [1948] HCA 16; 76 CLR 632; McCann v Parsons [1954] HCA 70; 93 CLR 418; Wollongong Corporation v Cowan [1955] HCA 16; 93 CLR 435; and the discussion in CDJ v VAJ [1998] HCA 67; 197 CLR 172 at [51], [52], [97], [107]. 168Whilst the three "conditions" referred to in Akins describe matters which often will have to be taken into account, they do not represent the only considerations which may have to be addressed when assessing whether there are "special grounds". Nor is it necessary that in every case each of those considerations must be satisfied: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council esp at [135]-[136]. The circumstances of each case must be considered on their merits. 169The English courts have taken a similar approach to the exercise of the power to admit further evidence on appeal. In Ladd v Marshall [1954] 1 WLR 1489, Denning LJ described (at 1491) the conditions which would justify the reception of further evidence or a new trial as: "...first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible." Reference was made (at 1493, 1494) to Brown v Dean [1910] AC 373 where Lord Loreburn LC said, in relation to the exercise of a power to admit further evidence if it was thought "just", that the evidence "must at least be such as is presumably to be believed, and if believed would be conclusive" (at 374). For some time the relevant rule (RSC Ord 59 rule 10(2)) permitted further evidence on appeal if there were "special grounds". That description was satisfied if the conditions identified in Ladd v Marshall were present: see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 at 2324. Although the current rule (CPR rule 52.11(2)) no longer requires that there be "special grounds", it remains the position that "strong grounds" are required and that the three conditions in Ladd v Marshall are to be considered when exercising the discretion: Hertfordshire Investments Ltd at 234; Transview Properties Ltd v City Site Properties Ltd [2009] EWCA Civ 1255 at [23]. 170The appellant contends that the further evidence requires that there be a new trial. That is because in a case such as this involving significant issues of credit, no assessment of the evidence could be made by this Court with a view to making its own findings on the relevant issues. This Court's power on the hearing of an appeal to order a new trial is given by s 75A(10). That power is subject to UCPR Part 51, r 51.53(1) which provides that the Court must not order a new trial unless it appears that some "substantial wrong or miscarriage" has been thereby occasioned. 171The application of that constraint requires consideration of the nature of the proceeding which is the subject of the appeal and the basis for the application for the new trial. Where that basis is a ground of appeal identifying error, the requirement that there be "some substantial wrong or miscarriage" may be satisfied notwithstanding that it cannot be said that in the absence of that error there would have been a different outcome: Mastronardi v State of New South Wales [2007] NSWCA 54 at [73]-[76]. Where that basis is the existence of further evidence, the requirement will be satisfied because of the high degree of probability of a different result. As was observed by the majority (McHugh, Gummow and Callinan JJ) in CDJ v VAJ at [111]: "The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial." 172One of the matters which Dr Tjiong relies upon is the circumstance that he has been found to have forged documents and perjured himself and that his conduct has been referred by the primary judge to the Attorney General and the DPP: esp at [80], [108], [120], [140]. It is said that because of the gravity of the findings it would be unjust for the Court not to permit further evidence notwithstanding that some or all of that evidence could have been obtained by reasonable diligence for use in the trial. 173When assessing this submission, it is instructive to consider the position in respect of the admission of further evidence in criminal appeals in which the same or very similar considerations must also arise. 174The same distinction between further evidence and "fresh" evidence is drawn; "fresh" evidence does not include evidence which the accused could "reasonably have been expected to have become aware and which he [or she] could have been able to produce at the trial": Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 516-517. Greater latitude may be extended to an accused, than to a party to a civil proceeding, in determining what evidence by reasonable diligence could have been available. Only in an exceptional case will evidence which was not actually available to an accused be denied the quality of "fresh" evidence: Ratten at 517; Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 at 301. 175If further evidence is relied upon to justify an acquittal, it will not matter that it is not "fresh" evidence: Ratten at 518-519. However, if the further evidence is relied upon only to justify a new trial, the fact that it was available to the accused at the trial is very material. The underlying rationale for setting aside a conviction on the ground of "fresh" evidence is that without consideration of that fresh evidence a miscarriage of justice will have occurred. There will have been no miscarriage of justice in the failure to adduce evidence at trial "if that evidence was then available, or, with reasonable diligence, could have been available": Ratten at 519; Gallagher v The Queen [1986] HCA 26; 160 CLR 392 at 395, 401-402, 410; Mickelberg at 301. 176Fresh evidence will warrant setting aside a conviction if, when viewed in combination with the evidence given at the trial, the jury would have been likely to entertain a reasonable doubt about the guilt of the accused; or, putting it slightly differently, if there was a significant possibility that the jury acting reasonably would have acquitted the accused: Mickelberg at 301.

The further evidence sought to be adduced 177The evidence sought to be adduced by Dr Tjiong falls into four categories. The first is the records of Manning Base Hospital (now Manning Rural Referral Hospital) in respect of the surgical operations conducted at Taree by Dr Tjiong on 27 March 1996. The second is patient files which record the provision of services by Dr Tjiong to the patient on any one or more of the days in the period 25 to 28 March 1996. These files not only include handwritten cards on which Dr Tjiong has made entries of attendances and services provided to the patient, but also referral letters, some test results and copies of letters from Dr Tjiong reporting to the referring doctors. The third category is a Provider Patient Report produced by Medicare Australia for Dr Tjiong for the period from 1 March to 31 May 1996. That report contains name, date of birth and service description details for patients recorded by Medicare Australia as having claimed for services received from Dr Tjiong in that period. The final category is an affidavit of Dr Fisher, a specialist anaesthetist, who says that it was Dr Tjiong's practice to remain physically in the Taree area for the 24 hours following performance of a tonsillectomy on a child. 178I have already described what the Manning Base Hospital records show. Three of those five procedures performed on 27 March 1996 were tonsillectomies performed on children. Dr Fisher is not recorded as being the anaesthetist who assisted in any of those procedures. 179The Provider Patient Report records claims on Medicare for services provided by Dr Tjiong for dates which include 25, 26 and 27 March 1996. An exercise has been undertaken which seeks to reconcile those records with the Manning Base Hospital and patient files. That exercise shows that according to Dr Tjiong's files, with one exception, the patients described in the Provider Patient Report as having received services on 26 March 1996 in fact received those services on 25 or 27 March 1996. One patient is recorded as having been seen by Dr Tjiong at Manning Base Hospital late in the evening on 26 March 1996. Patient files could not be found for three patients described in the Medicare document as having received services on 26 March 1996. 180The patient files suggest that Dr Tjiong saw 26 patients in his rooms at Taree on 25 March, 20 patients on 27 March and 8 patients on 28 March 1996.

Could the further evidence have been obtained with reasonable diligence? 181In this context, and possibly in contrast to the position in relation to a criminal appeal, the actions or inactions of the lawyers acting for the party seeking to lead the further evidence are attributed to that party when deciding whether "reasonable diligence" has been exercised: Hampson v Hampson [2010] NSWCA 359 at [34]-[38]. 182It is accepted by Dr Tjiong that the records of Manning Base Hospital could have been obtained for use in the trial. It is more correct to say that those records were available for use at the trial because a subpoena issued at the request of Katrina and Lindsay resulted in the production of most of those records (albeit in a redacted form) on 6 July 2009. The documents produced showed that Dr Tjiong had performed the five surgical procedures referred to above. 183The affidavits of counsel briefed on behalf of Dr Tjiong, which were filed in support of the application to adduce further evidence, establish that senior and junior counsel were not made aware that these documents had been produced to the Court and did not give consideration to whether they should be inspected or tendered. The solicitor who had carriage of the matter in 2009 died in October 2011 so that Dr Tjiong was unable to lead evidence from her as to whether she had inspected the documents and given any consideration to tendering them. It is most unlikely that there was any deliberate forensic decision made not to tender these documents. 184A possible explanation proffered by Dr Tjiong for the fact that the hospital and patient records were not pursued and tendered is that the significance of the events of 27 March 1996 did not loom large given the other issues at the hearing. In my view that explanation cannot be accepted. A consideration of the course of evidence before and during the hearing demonstrates that issues as to Dr Tjiong's movements on 26 and 27 March 1996 had emerged by the end of August 2006. Shortly after the commencement of the hearing those issues had assumed significance in relation to his credibility. By 4 June 2009 serious allegations had been made as to the fabrication of the Kevin Reeves claim and certain diary notes and the giving of false evidence, including as to what had happened on 26 March 1996. 185Notwithstanding that the question whether Dr Tjiong was in Melbourne on 26 March 1996 was only relevant to his credit, it was apparent that it had to be dealt with as fully as possible because of the serious allegations made. Although Dr Tjiong was unwell during at least part of the period from mid-June 2009, there was ample opportunity between then and December 2009 for him and his lawyers to give consideration to what other evidence might be available, either in his own records or those of others, to corroborate his version of events. Some attention must have been given to this subject during this period because at the resumed hearing in December the two pilot logbooks and Hawker Pacific fax header were produced and tendered in evidence to corroborate Dr Tjiong's version of events. Although the logbooks were produced in answer to a call made in June on behalf of the respondents, it does not seem that Dr Tjiong expected that their production would resolve the controversy as to where he was on 26 March. As is noted earlier in these reasons, he said in evidence that he anticipated that he would be challenged as to the re-writing of the critical second logbook. 186The second category of documents, being Dr Tjiong's patient records for services provided between 25 March and 29 March were always in Dr Tjiong's possession and available, once they were retrieved and analysed, to be tendered in evidence. 187The third document is the Patient Provider Report provided to Dr Tjiong's solicitors by Medicare Australia following a request made in September 2011. That request was made following the production by Medicare of certain records relating to Dr Tjiong in August 2011 in response to a subpoena issued in this appeal at the request of the respondents. The Report was generated and provided to Dr Tjiong's solicitors within a month of that request. The Medicare records and the document could with reasonable diligence have been available at the trial either by the issue of a subpoena or the making of a request. It must have been known to Dr Tjiong and those advising him that Medicare would hold records in respect of claims for services received from Dr Tjiong during the relevant period. 188It is said that the need for the consideration of Medicare's records and Dr Tjiong's patient files arose because of the subpoena issued at the request of the respondents. This submission ignores the reality that there were significant issues as to Dr Tjiong's whereabouts in March 1996 to which these records were relevant. 189The other evidence sought to be adduced is the affidavit of Dr Fisher sworn on 15 February 2012. That evidence as to Dr Tjiong's practice could have been given by Dr Tjiong, although there would have been issues as to its credibility. It was not suggested that Dr Fisher was not available in 2009 and also willing then to give evidence of his observations as to Dr Tjiong's practice or that there were not others who were able to do so. The relevance of this evidence would have become apparent had Dr Tjiong and his lawyers inspected the Manning Base Hospital records. 190Each of the four categories of evidence now sought to be tendered either was available to Dr Tjiong, or could with reasonable diligence have been obtained by him, during the hearing and certainly by the resumed hearing in December 2009. Therefore, the first of the considerations identified in Akins is not satisfied in this case.

Is the evidence sought to be tendered credible? 191Credible evidence is evidence from a credible source which is such that it could reasonably be accepted as true. That will be so if, in relation to the events or transactions in issue, the evidence itself is reasonable or probable. 192The Manning Base Hospital records answer that description. So does the Medicare Australia document except that the significance and reliability of the entries in it cannot be assessed in the absence of evidence as to how, and from what underlying information, it is produced. 193Dr Tjiong's patient files contain some material which is credible in the relevant sense. That material includes the test results and letters received from third parties as well, perhaps, as the copies of letters sent to referring doctors. The patient cards themselves present more difficulties because they consist of handwritten entries of Dr Tjiong. Four of those cards contain entries which purport to record a reason for cancellation of an appointment originally scheduled for 26 March 1996. Those entries are disputed. Because they cannot be said to have been made by someone who was disinterested or whose credibility was beyond question, those particular entries cannot be regarded as 'credible' evidence for the purposes of Dr Tjiong's application. 194Dr Fisher's evidence stands in a different position. It is inadmissible in its form. It asserts two critical conclusions of fact. Those conclusions are that Dr Tjiong had a general practice (described in the affidavit as "the general principles of his practice") and that Dr Fisher did not recall any instance where Dr Tjiong had not followed this practice. The underlying primary facts on which those conclusions must be based, and Dr Fisher's ability to give direct evidence about them, are not addressed in the affidavit. For that reason this evidence is not credible in the sense described above.

The probability that there would be a different outcome 195Dr Tjiong's argument in respect of this consideration proceeds as follows. First, the further evidence demonstrates that he could not have been in Melbourne on 27 March 1996. Secondly, it was not suggested that he was relevantly in Melbourne on any day other than 26 or 27 March 1996. It followed that he must have been in Melbourne on 26 March 1996. Thirdly, if that was the fact, there was no reason for him to have fabricated the entries in the second pilot logbook or on page 3 of the copy inspection certificate or in his diary on 26 March. In the absence of that reason, the primary judge would not have had a sufficient basis to find that these documents were created or altered to support his version of events. Fourthly, these adverse findings of the primary judge materially influenced other findings that he made, both in relation to issues of credit and on the two principal matters in issue. Those issues were whether Dr Tjiong fabricated the Kevin Reeves claim and whether there was fraudulent misstatement in December 2003. It follows, Dr Tjiong submits, that had the further evidence been available at the hearing the high probability is that there would have been a different ultimate result. 196There are difficulties with this argument. 197The proposed further evidence makes it most unlikely that Dr Tjiong was in Melbourne on 27 March 1996. However, for the reasons discussed when addressing ground of appeal 1(b), it does not follow, either on the evidence or because of any concession made by the respondents, that if Dr Tjiong was in Taree on 27 March, he must have been in Melbourne on 26 March. Dr Tjiong does not submit that the further evidence itself was sufficient to compel a conclusion by the primary judge that he was in Melbourne on that day. That submission is not available because the only part of the further evidence which might be relied upon for that purpose is the four handwritten entries on the patient cards which are themselves challenged as authentic contemporaneous notes and cannot, on this application, be treated as indisputable evidence. 198That being the position, there would remain a contest as to whether Dr Tjiong was in Melbourne on 26 March and a basis upon which it could be concluded that he had a motive for fabricating records to support his version of events. Accordingly, even with the benefit of the further evidence, it would have remained open to the primary judge to make the adverse findings that he made concerning the second pilot's logbook and the diary note of 26 March 1996. 199Even if those findings had not been made, it does not follow that the principal matters in issue were likely to have been decided in favour of Dr Tjiong. As I have also noted above in relation to ground of appeal 1(c), the primary judge's reasons for concluding that the Kevin Reeves claim was fabricated did not include his adverse findings concerning the second pilot's logbook. The circumstantial evidence and probabilities provided a sound basis for that conclusion. The conclusion also provided a sufficient reason for the primary judge to take an adverse view of Dr Tjiong's credibility when considering whether there were misstatements concerning the potential tax liability of the trust. 200For these reasons, it cannot be said that the further evidence would have produced, or was likely to produce, a different outcome to the proceedings. All that can be said is that it is very likely, if the evidence had been led, that the trial judge would not have been satisfied that Dr Tjiong was in Melbourne on 27 March. 201There remained credit issues concerning his whereabouts on 26 March and a question as to what had occurred on 30 March and specifically whether Dr Tjiong had a conversation with George about the treatment of a child patient. The outcome of these and other issues was not determined by a finding that Dr Tjiong was not in Melbourne on 27 March 1996. 202The circumstantial evidence in relation to the Reeves claim was not contradicted by the further evidence and continued to justify the primary judge's finding that this claim had been fabricated by Dr Tjiong. That finding and the other evidence continued to justify the conclusion as to the December 2003 misstatements which also was not contradicted by the further evidence. 203On no view of the further evidence can it be said that it compels a different conclusion in relation to those findings or that it is unreasonable to suppose to the contrary.

Conclusion as to Dr Tjiong's further evidence application 204There is no "insistent" interest of justice which requires that Dr Tjiong be permitted to adduce further evidence. The main evidence relied upon, the Manning Base Hospital and patient records, was available for use at the hearing. For the most part it is credible and most likely would establish that Dr Tjiong was in Taree on 27 March. However, it does not follow that there was a probability or high probability of a different ultimate outcome. 205I have taken account of the serious nature of the findings of the primary judge. However, it was known by June 2009 that the respondents were contending for findings that Dr Tjiong had given false evidence and fabricated documents, including concerning the events of March 1996. Even giving Dr Tjiong the greater latitude that is extended to appeals from criminal convictions, the position remains that the main evidence relied upon was available and would not have compelled a different outcome.

(5) The respondents' application to adduce further evidence 206The respondents make this application to support the conclusions of the primary judge. As the appeal and the appellant's application to adduce further evidence should be dismissed, it is unnecessary to consider this application which also should be dismissed.

(6) Conclusion 207The orders which I propose be made are: (1)Appellant's application to adduce further evidence on appeal dismissed. (2)Appeal dismissed. (3)Respondents' application to adduce further evidence on appeal dismissed. (4)Appellant pay respondents' costs of the appeal including the costs of the applications to adduce further evidence. 208BARRETT JA: All matters arising upon this appeal and the related application for leave to adduce evidence are carefully and exhaustively analysed in the comprehensive judgment prepared by Meagher JA. For the reasons his Honour states, the Court should make the orders he proposes.

Amendments 11 September 2012 - Correcting date to read 26 March 1996 Amended paragraphs: Para 10, line 2 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 September 2012