Voulis v Kozary

Voulis v Kozary - [1975] HCA 44 - HCA 1973 case summary — Zoe

[22]

In Mersey Docks & Harbour Board v Proctor [3] , Viscount Cave referred again to the subject and said that it was the duty of a court of appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes in question but with full liberty to draw its own inferences from the facts proved or admitted. The distinction between inferences from fixed facts and findings based on testimony frequently recurs. In Cooper v General Accident, Fire & Life Assurance Corporation Ltd. [4] , Lord Cave said: "The question is, not what are the facts, but what is the proper inference to be drawn from the facts proved, and upon that point, as has been often said, the appellate tribunal is not less competent to judge than the judge who actually hears the case." In S.S. Hontestroom v S.S. Sagaporack [5] , Lord Sumner gave an important summary of the competing considerations. His Lordship said: "Of course, there is jurisdiction to retry the case on the shorthand note None the less, not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for judgment the trial judge's conclusions of fact should, as I understand the decisions, be let alone." Their Honours then referred to Federal Commissioner of Taxation v Clarke and said that in that case: "These cautions did not prevent this Court reversing Mann J. on a pure question of fact depending on testimony." 1. e.g., Federal Commissioner of Taxation v Clarke (1927), 40 C.L.R. 246; Paterson v Paterson (1953), 89 C.L.R. 212. 2. ibid., at p. 222. 3. [1923] A.C. 253, at pp. 258-259. 4. (1923) 128 L.T. 481, at p. 483. 5. [1927] A.C. 37, at p. 47.

[65]

The learned trial judge took an unfavourable view of the plaintiff as a witness. He declined to rely on the plaintiff as giving a truthful account of the course of events at the time when it was determined that a lottery ticket would be purchased. The direct evidence of that course of events which favoured the plaintiff came from the plaintiff alone and a contrary account was given by the surviving defendant, Kozary. If the matter there rested, it would be out of the question for an appeal court to interfere with the conclusion of the trial judge. But the matter does not rest there. Though on the one hand there was the circumstance that the plaintiff on the finding of the trial judge made application for the ticket in the names of Kozary and McCullum alone, a circumstance out of which the whole dispute may well have sprung, on the other hand there were the words and conduct of both Kozary and McCullum clearly acknowledging that the plaintiff had a one-third interest in the ticket. This conduct continued from the time when the winning of the prize was announced until the first claim by McCullum, on the afternoon of the day following the morning on which the lottery was drawn, that the plaintiff had no interest in the ticket or the prize. Thus the plaintiff was a witness whose credibility did not impress and was one who had by applying for the ticket in the name of Kozary and McCullum alone made what could be regarded as a substantial admission that they alone had an interest in the lottery ticket. But the statements and conduct of both Kozary and McCullum after the drawing of the lottery were unequivocal admissions that the plaintiff did have an interest, that the ticket was shared between the three of them. These admissions, made in the circumstances in which they were made, have an overwhelming persuasiveness unless they can be explained in some convincing way. The statements and conduct were not merely on incidental aspects of the matter. They went to the core. They were not in any way inadvertent or casual or extracted from them in circumstances which might lessen their weight. They were not made in response to questions which suggested the answers which were given. Admissions so made must be given very great probative value. Their value cannot be simply displaced by an unfavourable view of the credibility in his evidence or parts thereof of the party who seeks to rely on them. That value may only be displaced by a convincing explanation of how they came to be made. I do not think that in the circumstances of this case there was any such convincing explanation. The nature of the admissions and the lack of a convincing explanation of them are elaborately explored by Mahoney J.A. in his dissenting judgment in the Court of Appeal of the Supreme Court, and I agree with his reasoning thereon.

[68]

There is one further aspect of the matter to which I would refer. Though the case made by the plaintiff involved the claim that he had paid his two dollars share at or about the time of the agreement to purchase the lottery ticket, the issue was not whether he did in fact do so but whether he purchased the lottery ticket pursuant to an agreement between him, Kozary and McCullum that they would each contribute two dollars towards the cost and that the plaintiff would purchase the ticket on behalf of the three of them jointly. The plaintiff applied for the ticket. That he did so in the names of Kozary and McCullum alone, standing by itself, would be strong evidence that he was merely acting as their agent. The fact that the application was made in their names, it has been assumed, vested the legal title in them. But, in these circumstances, the issue is whether the plaintiff purchased the ticket solely as their agent or pursuant to the agreement which he claimed was made. Even if, in the confusion of money being produced at the bar of the hotel, the plaintiff did not pay his two dollars the agreement would stand. With respect, I cannot agree with the analysis made by Hutley J.A. and the conclusion "If there was no payment of the two dollars he claims to have contributed to the purchase of the ticket, he could only acquire an interest by gift". The importance of this aspect is the additional strength which this analysis of the real issue gives to the admissions. There was no suggestion anywhere in the case that the plaintiff's interest sprang otherwise than from the conversation at the hotel bar leading to his purchase of the ticket. The admissions were not merely that the plaintiff had an interest but must be regarded as admissions that he had an interest springing from the conversation at the hotel bar. No one suggested a conversation whereby he was to be given an interest as a gift. The admissions therefore go directly to the question whether it was agreed that he should have an interest and should contribute his two dollars, whether or not he in fact made that contribution. Of course the acceptability of the evidence as to the agreement at the hotel bar and of the evidence of the contributions made at that bar raise the same question of credibility but the answer cannot be found in the evidence of exchanges of money alone. The subsequent admissions by words and conduct are not displaced by a mere failure to be satisfied that two dollars of the plaintiff's money went to the purchase of the ticket.

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties