Voulis v Kozary

(3) Order that the solicitor for the plaintiff and the solicitor for the first and second defendants forthwith pay out the sum of $140,000 held pursuant to order made by the Court on 7 December 1973, and the interest accrued on the said sum of $140,000 as follows: -

(a) $66,666.67 and a proportionate amount of the accrued interest to the plaintiff or as he shall direct;

(b) $6,666.66 and a proportionate amount of the accrued interest to the first defendant or as he shall direct;

(c) $66,666.67 and a proportionate amount of the accrued interest to the second defendant or as he shall direct.

(4) Order that the first and second defendants pay the costs of the plaintiff and of the third and fourth defendants including reserved costs.

(1) To either of the first and second respondents as to the respective amounts to be paid to them out of the sum held pursuant to the order made on 7 December 1973;

(2) To either of the third and fourth respondents as to their costs (if any) of the appeals to the Court of Appeal and to this Court.

The appellant, Theo Voulis, is a pensioner. The first respondent, Johnny Kozary, is a businessman. The second respondent, Alexander McCullum is the representative of the estate of Bernard Christian "Barney" McCullum, a seaman. The third respondent, J. Thoms, is the Director of State Lotteries for New South Wales. The fourth respondent is the Commercial Banking Co. of Sydney Ltd.

On 30 March 1973, the appellant, the first respondent and Barney McCullum were drinking together in the bar of the Duke of Kent Hotel in Newcastle. The appellant and the first respondent were Greek and had known each other for over twenty years. The appellant had known Barney McCullum for about fourteen years. During the course of the morning, it was agreed that a six dollar Opera House lottery ticket should be purchased, and that the appellant should purchase it. These facts were not questioned. What else took place in the hotel on that day fell to be established only by oral evidence, and as McCullum has since died, by the oral evidence only of Theo Voulis and Johnny Kozary.

The appellant made the purchase and on 5 April 1973, it was announced that the ticket so purchased had won first prize of $200,000. The appellant was the first to be informed of the win since he filled in his own address on the application form for the ticket. Thereafter, on 9 April 1973, a claim by the appellant to a one-third interest in the prizemoney was denied by the other two men, whereupon he instituted equity proceedings in the Equity Division of the Supreme Court of New South Wales, asserting his entitlements. The learned primary judge, Holland J., found in favour of the respondents. The appellant then appealed to the Court of Appeal, which by a majority, Mahoney J.A. dissenting, dismissed the appeal with costs.

The appellant appeals to this Court on the ground that the Court of Appeal was in error in refusing to disturb the findings of the primary judge.

In order for the appellant to succeed, he had to establish that he was entitled at law or in equity to a share in the chose in action in question, the lottery ticket. He sought at the trial to do this by proving that his name appeared on the ticket as one of its owners or that he was a party to the agreement to buy the ticket made at the Hotel on 30 March 1973.

It is not necessary to decide whether the appellant's name appeared on the ticket since there are other facts, which, unless they are explained away, weigh heavily in favour of the appellant's version of what occurred at the Hotel on 30 March 1973. The radio interview, the television interview, and the first interview between Mr. Kozary's bank manager and Mr. Voulis are all consistent with the appellant having a one-third interest in the lottery rights.

In the radio interview, the appellant, the first respondent and Barney McCullum were referred to by name as "sharing in the $200,000 first prize". In answer to a question put to McCullum as to whether this was the first prize that the three had won together, McCullum said: "The first prize ever, yes, the first ticket we've had together." When asked how that came about McCullum continued, "Well, when I was, when we were in the Duke of Kent and Theo asked me to have a drink and he introduced me to Johnny. So we decided on buying a ticket". Later, McCullum said when asked what he would do with his share, "Well, on behalf of the three of us, we are donating $1,000 to the crippled children". In the presence of the first respondent and Barney McCullum, the appellant was asked what he was going to do with his share. The appellant then said that it was a great help to him, winning this money, since he was on an invalid pension and that he was going to help his friend, Mrs. Norris, who has nursed and looked after him for a long time. Nowhere during this interview was any objection taken by the first respondent or McCullum to the appellant giving his account of what he proposed to do with his share of the winnings. There is nothing in this interview to suggest that the first respondent or McCullum were challenging the appellant's assertion that he had an interest in the ticket.

On leaving the radio station, the three men were interviewed by a team from the local television channel. The film of the interview has been played in this Court. In my opinion, the film shows all three in a very happy frame of mind. It conveys the clearest impression that the appellant, first respondent and McCullum all had an interest in the ticket. The interviewer asked McCullum whether the three had ever bought tickets together and he said: "First occasion with Johnny and Theo." Asked what they were going to do with their share of the winnings, McCullum said: "We've agreed to give about a thousand dollars away to the crippled children - Johnny and Theo and myself." The appellant said that he was going to help his landlady with his share. The first respondent and McCullum again did not take objection to the appellant giving his account of what he proposed doing with his share.

On the next day the appellant and the first respondent went to see the first respondent's bank manager. A hand-written note by the bank manager on the occasion of that meeting indicates there were three to share the prize. In the type-written report of the interview, the bank manager said that he offered his congratulations to the first respondent and to the appellant. He also said that the appellant asked about investing his share of the winnings. The oral testimony of the bank manager is consistent with the type-written report. The first respondent was present all the time and did not contradict the appellant's assertion that he had an interest in the ticket. In my opinion, there is a strong inference the bank manager was given to understand that the appellant had an interest in the proceeds of the lottery.

These matters are quite inconsistent with the respondents' claim that the appellant had no interest in the lottery winnings. In my opinion, these three matters were not satisfactorily explained away and, with respect, the learned primary judge should have come to the conclusion that the conversation in the Duke of Kent Hotel gave rise to the interest the appellant claimed. However, should this Court sitting as a court of appeal upset a judgment like the present, where the issue was one of fact and where the learned primary judge heard the case without a jury and has had the assistance of seeing the witnesses?

This Court has on a number of occasions fully examined this question [1] . In Paterson v Paterson [2] , Dixon C.J. and Kitto J. in a joint judgment indicated that the authorities established a distinction "between cases where the result depends upon a view of conflicting testimony and cases where it depends upon inferences from uncontroverted facts". They continued:

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.

In Powell v Streatham Manor Nursing Home [6] Lord Macmillan reflected the above distinction when he said that the Court of Appeal and House of Lords:

have a duty to exercise their jurisdiction as tribunals of appeal in fact as well as in law, a jurisdiction which your Lordships have never hesitated to exercise when satisfied that the Courts below have erred on a question of fact. Where, however, as in the present instance, the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard witnesses, unless it can be clearly shown that he has fallen into error. 1. [1935] A.C. 243, at p. 256.

In my opinion this case is one where we are free to come to our own conclusions, providing that the advantage which the trial judge had in personally seeing and hearing the witnesses was not too great.

Lord Sumner said in S.S. Hontestroom v S.S. Sagaporack , referred to by Dixon C.J. and Kitto J. in Paterson's Case [7] , that in assessing the advantages of seeing witnesses, a court of appeal should look at "the course of the trial and the whole substance of the judgment". In S.S. Hontestroom v S.S. Sagaporack [8] , Lord Sumner continued by asking the question:

Is there any glaring improbability about the story accepted, sufficient in itself to constitute "a governing fact, which in relation to others has created a wrong impression" or any specific misunderstanding or disregard of a material fact, or any "extreme and overwhelming pressure" that has had the same effect? 1. (1953) 89 C.L.R., at p. 222. 2. [1927] A.C. 37, at p. 50.

Yet even where the judge decides on conflicting evidence, it must not be forgotten that there may be cases in which his findings may be falsified, as for instance by some objective fact; thus in a collision case by land or sea the precise nature of the damage sustained by the colliding objects or their relative or final positions may be determinant and indisputable facts, and the same may be true of some conclusive document or documents which constitute positive evidence refuting the oral evidence of the witness; such cases have occurred in the experience of most judges and are covered by the third question propounded by Lord Sumner. Lord Greene M.R. in Yuill v Yuill [10] said that a court of appeal had jurisdiction to set aside a finding based in part on credibility if, on a critical examination of the whole of the evidence, it was clear that the primary judge's impression on the subject of a witness's demeanour was mistaken. Similarly, in Watt (or Thomas) v Thomas [11] , Lord Thankerton said: The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. 1. [1935] A.C., at pp. 267-268. 2. [1945] P. 15, at pp. 20-22. 3. [1947] A.C. 484, at p. 488.

Applying these principles to the present case, I am of the opinion that, on a survey of the whole of the evidence, to quote the words of Lord Sumner above, there is a "glaring improbability about the story accepted [by the learned judge], sufficient in itself to constitute a governing fact, which in relation to others has created a wrong impression". The learned primary judge, in my opinion, formed an unfavourable impression of the appellant and this coloured his conclusion on the facts in dispute and led him to place less weight than he should have on the radio and television interviews and the interview with the bank manager.

Three men, two Greek in origin, Voulis and Kozary, and one an Australian, McCullum, while drinking in a hotel in Newcastle one Friday, discovered in the course of conversation that McCullum's birthday coincided, more or less, with the day on which Kozary had, many years before, first arrived in Australia. To celebrate this happy coincidence it was agreed that a lottery ticket should be bought and this Voulis agreed to do.

Voulis later bought a ticket, at a cost of six dollars, writing on the application form the names of the subscribers as "* KOZARIS BARNE Mc", giving as the address his own home address. He inserted in the space for a description of the syndicate the numerals "3-11-3". Where the above asterisk appears as representing the first letter in the names of subscribers there in fact appears an initial letter, separate from the name Kozaris. This Voulis claims to be a "T", representing the initial letter of his first name, "Theo"; the contrary view is that it is a "Y", representing in terms of our alphabet the respondent Kozary's Greek first name, which translates into English as "John" but which, we were told, Greeks would render, in our alphabet, as something like "Yani". "Kozaris" is the Greek version of "Kozary"; McCullum was known as "Barney", a contraction of his first name "Bernard".

On the following Thursday Voulis was aroused from bed by local reporters and a press photographer with the news that the ticket had won the first prize of $200,000.

There followed, later that Thursday morning, a joyful reunion of the three in a Newcastle street outside a Greek club; they embraced, exchanged mutual congratulations and were congratulated by others; they were photographed by the press both in the street and in the Club and began a day of celebration and of publicity; they appeared together on a radio programme, publicly announced a gift of $1,000 to a charity and were interviewed on television. Throughout the day each, by action and statement, gave the clearest impression that the prize was to be shared equally between them.

On the next morning, a Friday, Voulis, the ticket in his pocket, visited the home of Kozary in Charlestown to arrange for collection of the prizemoney; Kozary, a well-to-do investor in local properties, received a congratulatory telephone call from his bank manager while Voulis was there and the upshot was that the two of them then visited the bank in Charlestown and were told how they should go about collecting the prizemoney. While there the manager also advised Voulis, an invalid pensioner of no great means, how he might invest his share of the winnings.

By Friday afternoon Voulis had obtained the necessary claim form from the lottery office, and all three of them visited the bank in Charlestown, still all apparently on the best of terms. Voulis produced to the manager a claim form for filling in, and because it provided space for only two signatures, Voulis proposed that his two companions should be the signatories. At this McCallum declared that Voulis was "not in it at all" and had not contributed towards the price of the ticket; McCullum refused to sign the claim form and appealed to Kozary who agreed with him that it was he and McCullum who alone had each contributed three dollars to the cost of the ticket. Voulis protested vehemently in English, then lapsed into Greek while he reproached Kozary, whereupon McCullum left the room, saying he was going to the lottery office and taking the claim form with him. He was followed by the other two.

Kozary offered to drive Voulis home to Newcastle although relations were, of course, strained between them and on the way there was discussed the payment of a large sum of money to Voulis in lieu of a one-third share of the prize. Kozary parked his car in a Newcastle street and went in search of McCullum who was found in a hotel but who was unwilling to pay anything to Voulis. Kozary returned to his car, told Voulis this and drove Voulis home, the discussion continuing en route; on arrival and at the insistence of Voulis the two visited a Mrs. Ferguson, a neighbour of Voulis who had a typewriter and who did her best to reduce to typed form what Voulis described as Kozary's undertaking to pay him $20,000 so as to avoid litigation and hard feelings. In composing this document in their presence Mrs. Ferguson believed that Kozary agreed to each of its terms but when it was shown to him he declined to sign it without professional advice. Voulis took the unsigned document and, after a short talk together, Kozary left. Voulis and Kozary have not spoken to one another since. Voulis subsequently sued Kozary and McCullum in the Supreme Court of New South Wales seeking a declaration that he was entitled to a one-third share in the winning ticket and other ancillary relief. McCullum died before trial. At the trial before Holland J., Voulis failed in his claim and his appeal to the Court of Appeal was dismissed by a majority. He now appeals to this Court.

At the trial the facts, of which this is a bare outline, emerged in the course of three days of evidence, much of it coming from Voulis and Kozary, whose evidence was in conflict upon very many aspects and was given in broken English, often difficult to understand, especially in the case of Kozary.

A striking feature of this case, a product of the particular findings of fact by Holland J., was the existence of two evidentiary situations very difficult to reconcile the one with the other. Either on its own would provide strong evidence as to those entitled to the lottery ticket; unfortunately they pointed in diametrically opposed directions.

The first concerns the way which Voulis filled in the application for the lottery ticket, the second the unequivocal conduct of the three of them after they heard the news that the ticket had won first prize. If, as his Honour held, Voulis described the subscribers in the form of application as confined to Kozary and McCullum, omitting himself, this was strong evidence that Voulis was no more than the agent of Kozary and McCullum to apply for a ticket on their behalf and was consistent with Kozary's evidence that Voulis contributed nothing to the price of the ticket and was to have no interest in it. However it is wholly inconsistent with the undoubted conduct of the parties on the following Thursday, conduct which persisted until Friday afternoon when, in the bank, McCullum denied Voulis' entitlement; from the first news of the win until that moment both Kozary and McCullum, by word and deed, confirmed and adopted Voulis' assumption that he shared equally with them in the ticket and its proceeds and that he was, indeed, the moving spirit in the affair, having suggested its purchase.

The learned trial judge was able to reconcile to his satisfaction these two conflicting circumstances by reference to the rather special relationship which Voulis bore to each of the others. They were strangers to one another until their meeting over drinks on the previous Friday, whereas Voulis had had a long association with each of them. Kozary explained his acquiescence in what seemed, to him, Voulis' unjustified claim to share in the winnings by his belief that Voulis and his old shipmate, McCullum, were conspiring to include Voulis in the prizemoney; his Honour inferred that McCullum was, until the Friday afternoon, constrained by a similar belief, believing that Voulis and his compatriot Kozary, two Greeks and old friends of one another, were conspiring to include Voulis in a share of the prize. McCullum, according to his Honour, saw an opportunity of denouncing this conspiracy when at the bank; he took that opportunity and thereby revealed to Kozary that his own suspicions were unfounded and that Voulis' unjustified claim to a share of the winnings lacked McCullum's support.

This explanation, of which it should be said that no better has emerged during the progress of the case through the courts, did not satisfy two members of the Court of Appeal, including one of the majority in that court; it may be thought to carry little conviction, leaving substantially unexplained the failure of McCullum and of Kozary to deny Voulis' entitlement throughout a day and a half of mutual congratulation, public reminiscence over the circumstances of the purchase of the ticket and public discussion by each of his plans for enjoyment of his $66,000-odd third share of the prize.

McCullum and Kozary did not merely fail to deny Voulis' entitlement, they postively affirmed it and this no less unequivocally because not framed in express words of affirmation. If McCullum's part in public acts of affirmation was more prominent than that of Kozary, McCullum being, as it were, the spokesman for the three and Kozary's English being poor, nevertheless Kozary is equally implicated; and it was he who accompanied Voulis on the Friday morning to visit Kozary's bank manager where the conversation proceeded upon the implicit footing that Voulis shared in the prize, hence the manager's advice to Voulis, in Kozary's presence, as to the investment of his share of the prizemoney. On this occasion, in the absence of McCullum and in the presence of the manager, previously known only to Kozary and who might be relied upon to give his well-to-do customer, Kozary, both advice and moral support against any unjustified claim by Voulis, Kozary cast no doubt upon Voulis' entitlement; on the contrary his every action supported its existence.

This assessment of the conduct of McCullum and Kozary does not depend upon the evidence of Voulis, it emerges from the unchallenged evidence of the tape recording of the radio interview, of the film of the television interview, of photographs of the three celebrants and from testimony of a number of witnesses whose evidence the learned trial judge accepted, including the bank manager whose extensive contemporaneous notes were in evidence.

By way of contrast, his Honour's conclusion about the form of application, which alone gives rise to this curious conflict, depends exclusively upon two matters, the equivocal evidence of the application form itself and his Honour's view of Voulis' evidence concerning it. As to the first of these his Honour acknowledged that the identity of the initial letter, preceding the name "Kozaris", was "doubtful. It could be a "T" or it could be a "Y" ". He gave three reasons, "apart altogether from its appearance", for saying that it was more likely to be a "Y". First because "Y" was the first letter of "Yani", representing the Greek pronunciation of Kozary's first name, Voulis' use of the Greek version of the surname "Kozaris" making it not unnatural to precede it by the first letter of the Greek version of the Christian name. This, while explaining why a "Y" rather than a "J" appears, provides no reason for preferring a "Y" to a "T"; it assumes, rather than supplying, an answer to the question whether Voulis was identifying himself or Kozary by the first initial letter. Secondly, from his Honour's observation of Voulis while making samples of handwriting in the witness box and from the samples themselves, he formed the impression that Voulis might be deliberately attempting to deceive in the samples he produced. Thirdly his Honour commented upon the absence from the plaintiff's case of any pre-dispute samples of Voulis' handwriting.

On their own the first and third of these considerations are, we think, of little if any weight; his Honour had prefaced all these comments by the observation that he could not accept Voulis' account of the manner in which he filled in the application form. It seems a fair inference that but for this these three considerations might not have assumed for his Honour the weight that they did.

It is, then important to note his Honour's reasons for dissatisfaction with Voulis' evidence about the manner of filling in the application form. Voulis had said that he began by writing "Kozaris", followed by McCullum's Christian name, Barney (misspelt "Barne"). This, as may be seen from the form itself, left little of the allotted space and omitted his own name, he therefore inserted "T" before "Kozaris" to denote his own Christian name, Theo, and added "Mc" in what space was left after "Barne". He then, on the line opposite "address", inserted his own home address. His Honour described that as highly improbable and in part as hardly credible; his reason for doing so was not expressed to be based upon demeanour, upon equivocation in cross-examination or the like but rather, as stated by his Honour, depended exclusively upon three factors. First that "the letters look as if they have been written in the sequence in which they are found in the document and as the names of only two persons"; for our part, an examination of this particular application form is uninformative as to sequence of writing and may or may not denote only two names. Then his Honour found it hardly credible that Voulis should identify himself, an act he knew to be important, only by the initial "T", however, if the initial written was "T", it could, in the circumstances, refer to no-one but Voulis, and the fact that the only address shown on the ticket was that of Voulis made the identification the stronger. Lastly his Honour regarded as equally unacceptable Voulis' claim that there was insufficient room on the form in which to write three names; this will, of course, only be so if Voulis' account of the filling in of the form be rejected, if his version be accepted there would have been little space for his surname.

This examination discloses, we think, no very firm basis in his Honour's reasons for concluding that Voulis was not identified on the application form, unless it be an inarticulated dissatisfaction founded on demeanour or the like, yet it was this conclusion that gave rise to the curious evidentiary conflict which troubled both his Honour and the Court of Appeal.

Although an ultimate conclusion that Voulis did not identify himself on the application form must bear powerfully upon the truth of events at the hotel, we would find it less compelling than the subsequent conduct of Kozary and McCullum and once the relatively slender basis for that ultimate conclusion emerges it loses much of the weight it might otherwise have. Moreover the evidence of the conduct of Kozary and McCullum is of a different kind from that relating to the completion of the application form; it depends little, if at all, upon inference or credibility, the facts are incontrovertible, whereas a difficult exercise of judgment as to the truth or otherwise of Voulis' explanation of the application form is necessary before any conclusion on that issue can emerge.

However, strong as either of these conflicting conclusions might be they do no more than cast light upon the critical question in this case, what it was that occurred when the three parties met at the hotel and it was agreed that Voulis should buy a lottery ticket. It is upon that that the appellant's right to share in the prizemoney must ultimately depend.

The learned trial judge, in his careful reasons for judgment, did not engage in any examination of the conflicting evidence of what happened at the hotel although he may be taken to have concluded that he was not satisfied of the correctness of Voulis' version of events, influenced, we would think, by his conclusion that Voulis' account of the filling in of the application form was untrue.

What happened at the hotel, so far as it is in conflict, falls into three parts, the suggestion that a lottery ticket be purchased, the selection of a syndicate name and the contribution of money. The respective versions may in some respects be checked against evidence which is of considerable weight, either as against interest or as nearly contemporaneous with the event.

Voulis describes the origin of the syndicate name, 3-11-3, and says that at the hotel he suggested that one of the numerals "3" should signify "the three of us". Kozary denies this and says that the two numerals "3" referred to the two months of March, the month in which he arrived in Australia and the month in which McCullum was born. Again McCullum's television interview is relevant, when asked "Why did you call your ticket "3-11-3" " he replied "11-3 because Johnny arrived from Greece on the 11th the 3rd 1933, and the eleventh is my birthday". It is, we think, a fair inference that the first "3" was thought to require no explanation; to the immediately preceding question "Have you ever bought tickets together?", McCullum had answered "First occasion with Johnny and Theo". During the radio interview on the same day all three had taken part in a somewhat incoherent explanation of the syndicate name of which it may be said that it is at least not inconsistent with an attribution to one numeral "3" of a reference to the three of them as the members of the syndicate.

The conflicting versions concerning the contributions towards the price of the ticket, six dollars, cannot be checked against other evidence except in one rather indeterminate respect. Voulis' version is complicated by the fact that he speaks of having some money of his own in front of him on the bar and of Kozary producing a ten dollar note which required the supply of change. His Honour described Voulis' version as "hard to follow" and said he was not impressed by it but gave no other reason for this, however if Voulis' description be followed through it does lead to a result in which Kozary received change for his ten dollar note and each of the three supplied two dollars towards the six dollar ticket. With respect to the learned trial judge, Voulis' description may only be hard to follow because of the relative complexity introduced by the need to make change for Kozary's ten dollar note. Kozary's version is a simple one, he and McCullum each supplying three dollars. In the course of the dispute at the bank Voulis, according to the manager's evidence, claimed he had contributed two dollars, putting it on the bar counter, and McCullum did not deny his having placed two dollars there but said that it was "to buy a round of drinks with". This is consistent with Voulis' version that he had notes in front of him on the bar. Kozary, on the other hand, said nothing in his evidence about money being produced by Voulis.

The way in which Holland J. approached the matter suggests that it was not so much anything in the conflicting version of what took place at the hotel that primarily determined which version he would accept but that he was influenced rather by the question of the names on the application form and by his adverse impression of Voulis' evidence concerning the application form. That evidence apart, there seems to be nothing inherently unlikely in Voulis' account of events in the hotel and where, as mentioned above, in important respects it comes into conflict with that of Kozary it is directly supported by statements made by McCullum.

Holland J. also seemed to have been much impressed by the fact that according to the written record kept by the bank manager Voulis did not in terms claim to have contributed two dollars towards the purchase of the ticket when his claim to share in the proceeds was first challenged. As already mentioned, the bank manager in his oral evidence did say that Voulis claimed that he had contributed two dollars. It might have been open to Holland J. to reject the oral evidence of the bank manager - although it was not suggested that he was anything but a truthful and disinterested witness - and to prefer the written record, but Holland J. nowhere indicates that he proceeded in this way; on the contrary his judgment suggests that he overlooked the oral evidence of the bank manager on this matter.

In those circumstances, and having regard to the great weight which should attach to the conduct of McCullum and Kozary already referred to, we conclude that the learned trial judge was wrong to find that Voulis did not contribute to the purchase of the ticket and did not have a one-third interest in it accordingly.

In saying this we are fully appreciative of and have we trust, given full weight to those special advantages which a judge at first instance must always possess over an appellate court on matters of fact, particularly when involving conflicting oral testimony and the credibility of witnesses; had the case turned upon simple matters of credibility, bereft of the rather special evidentiary material present in this case, we would have been reluctant indeed to disturb the findings of the learned trial judge expressed in his careful and detailed reasons for judgment. We find some reassurance in the absence from his Honour's judgment of any express findings as to general credibility concerning Voulis or Kozary. It is noteworthy that except in a few collateral matters his Honour expressed no view of the truthfulness of Kozary's evidence and was clearly oppressed by the evidence of the conduct of Kozary and McCullum. Moreover, while his Honour was clearly not impressed by Voulis as a witness, it is also clear that Kozary was in several respects an unreliable witness. It is unnecessary to exemplify this, the dissenting judgment of Mahoney J.A. in the Court of Appeal recounts a number of not unimportant instances in which the truthfulness of Kozary is open to grave doubt; so far as general truthfulness is concerned there was, we think, little reason to prefer Kozary to Voulis.

The special evidentary circumstances of this case have called for a review of the facts and the findings on them; such review has convinced us that the ultimate finding, that Voulis was not a subscriber to the winning lottery ticket, was wrong and was not one which was reasonably open on the whole of the material before the learned trial judge.

In the Court of Appeal Reynolds J.A. referred to the learned trial judge's reaction to Voulis' evidence concerning the names on the application form and the contributions towards the price of the ticket and concluding that they could not be impeached, stated that despite the great evidentiary value of the admissions involved in the conduct of Kozary and McCullum this should not destroy the apparent probative value of the other evidence. We have sought to show that on analysis it has little probative value and should, in our view, give way to the effect of the admissions. Hutley J.A. found it material that the admissions constituted by the conduct of Kozary and McCullum were evidentiary only, as indeed they were, but to our minds they constitute evidence of the clearest kind, not merely of the admission of Voulis' claim to share in the prizemoney but of his contribution of money to the purchase of the ticket; the statements made by McCullum during the television interview, to which reference has already been made, are open to no other interpretation and the same may be said in respect of his statements during the radio interview. His Honour was not convinced of the explanation of these admissions suggested by Holland J. but regarded Voulis as "shown to be a liar on the crucial issues in the case". With this aspect we have already dealt at some length. Because of this view he concluded that Holland J. was therefore entitled to disbelieve Voulis' version of what happened at the hotel. It is clear that what we would regard as the very slender strands which support a view adverse to Voulis on the matter of the application form would not suffice to support a general conclusion that he should be disbelieved and Kozary believed; they wholly fail to bear the burden imposed upon them by the conduct of Kozary and McCullum.

We have not sought to enter into detail into the many aspects of this case discussed in the lengthy reasons for judgment of Mahoney J.A. (dissenting) and this for the reason that we are satisfied generally to adopt his Honour's analysis of the facts.

We would allow this appeal and make declarations accordingly.

I agree with the reasons for judgment prepared by Gibbs and Stephen JJ. However, as we are differing from the trial judge and the majority in the Court of Appeal of the Supreme Court of New South Wales, I wish to add something for myself.

This is one of those rare cases where, although the conclusion of the trial judge depended upon the view which he took of the plaintiff's credibility as a witness, nevertheless this Court should, in all the special circumstances of the case and on a weighing of the probabilities in relation to the facts in issue, differ from the conclusion reached at first instance.

It was accepted throughout that the onus lay upon the plaintiff to prove that he was entitled in equity to a share in the ticket and in the prize which was won. It was accepted that in the case of a lottery ticket the legal title is vested in him or those in whose name the ticket issues [12] . It should, however, be observed that the plaintiff was the applicant for the ticket and obtained and received the custody of the ticket. If he merely acted as agent for the persons named in the application under an express or implied contract or obligation of agency, then no doubt the ticket, which simply bore the name "3-11-3", was the legal property of the principals, but only in that case. I think that this should be made clear despite the course which the pleadings and the trial took whereby the plaintiff accepted the legal onus of proof.

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.

I also agree with the conclusion of Mahoney J.A. that the trial judge erred in his finding of fact that the plaintiff did not dispute the defendants' assertion at the office of the bank manager that he had no interest in the ticket. The evidence of the bank manager that the assertion was disputed must be accepted for the reasons which Mahoney J.A. states. The bank manager gave a circumstantial account of the conversation and he had no interest at all to concoct such a circumstantial account. The fact that it is not mentioned in the record which he made at the time does not lead me to conclude that the trial judge consciously preferred this written record to the oral evidence of the bank manager. If he had, he would have referred to this fact when he commented so strongly on the plaintiff's failure to dispute the belated claim which the defendants made in the presence of the bank manager that the plaintiff had no interest in the ticket.

The failure to dispute the claim weighed heavily with the trial judge. When it is shown that the bank manager, a witness for the defendants, a witness whose credibility and impartiality were unchallenged, gave clear evidence in a circumstantial account that the plaintiff did dispute the claim, a conclusion that a written record was consciously preferred is unacceptable to me as it was to a majority in the Court of Appeal. I am satisfied that the bank manager's oral evidence was more likely overlooked than disbelieved. Once that conclusion is reached, then a situation arises where it is not possible to give to the views of the trial judge on credibility the weight ordinarily and properly to be accorded to them. It is not sufficient in order to displace the effect of this error to say, as Hutley J.A. expressed it in the Court of Appeal, that the subject matter of the error was used by the trial judge "to support an impression which he had already formed". Failure to refute an adverse claim in circumstances where it may be expected to be refuted is of the strongest evidentiary weight and it cannot be said that a conclusion on probabilities was or could be reached independently of such an important aspect, however the matter may be expressed in reasons for judgment. A conclusion on the acceptability of evidence as to, and the probability of, a fact in issue is not divisible in this way.

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.

I would allow the appeal, set aside the order dismissing the action and in lieu thereof make the declarations sought in the statement of claim.

This is an appeal from the Court of Appeal of the Supreme Court of New South Wales which, by a majority (Reynolds and Hutley JJ.A., with Mahoney J.A. dissenting), dismissed an appeal from a decision of Holland J. sitting in the Equity Division of the Supreme Court.

This case is a dispute over a lottery prize and does not involve substantial questions of law. However, the decision of the trial judge depended to some extent upon the credibility of witnesses. The appeal therefore concerns the approach of appellate courts to such a case.

Where the primary decision depends on credibility of witnesses, the accepted approach is for appellate courts to give considerable weight to the advantage which trial judges have of assessing credibility. This advantage may have been overemphasized [13] .

1. See "The Assessment of Credibility" by Sir Richard Eggleston, in Law and Crime, ed. by Morris and Perlman.

Whatever weight is given to the opinions of trial judges and under whatever disadvantages appellate courts must operate, an appellate court finally must decide the issue for itself. True appeals should not be eroded into exercises of supervisory jurisdiction.

The appeal in this case to the Court of Appeal was a true appeal, not an exercise of supervisory jurisdiction, and the appeal to this Court is also a true appeal [14] .

I agree with the analysis of the evidence by McTiernan J. and with that of Mahoney J.A. in the Court of Appeal, but wish to comment on two pieces of the evidence.

First, in the television interview shortly after the lottery win was announced and before there was any dispute, the appellant's case was dramatically confirmed by the three persons involved. In the light of this interview, the appellant's account was straightforward and the behaviour of Kozary and McCullum was, on any view of the evidence, devious.

Secondly, the trial judge stressed the lack of reaction of the appellant when challenged by McCullum in front of the bank manager that he had not contributed his share of the purchase money for the ticket. The evidence discloses however, that the appellant reacted strongly and continued to do so. Contrary to the impression of the trial judge, the bank manager stated that the appellant asserted at the time that he had contributed his share of two dollars.

The case was conducted in such a way that the appellant assumed a burden of proving that he had contributed two dollars as his share of the purchase money. I agree with Jacobs J. that this was not essential to establish his entitlement but, in my view, he has proved that he did contribute.