Conclusions with respect to the appellant's challenge to the primary judge's credit findings
71 The foregoing analyses of the evidence relied on by the respondent as the foundation of the primary judge's credit findings lead me to the conclusion that there was no evidentiary basis for the primary judge's conclusion (at Red 109T-U) that
"If I were to accept the evidence of the [appellant] and his son, I would be required to make a finding that neither of them are able to care for themselves in any way, that however, his contrary to their reluctant concessions made during cross-examination."
72 In my view there were no "reluctant concessions" of the nature of those found by her Honour. Moreover, acceptance of the appellant's and Matthew's evidence did not require her to make a finding that neither of them were able to care for themselves. It is clear that they were indeed able to care for themselves but that this was unnecessary as the deceased considered it her responsibility to provide for their care. The latter fact does not in any way militate against the appellant's and Matthew's evidence that the deceased voluntarily provided those services in the manner and to the extent described by them. Furthermore, as the authorities to which I refer below demonstrate, the question of need on the part of the appellant or Matthew in respect of the services gratuitously provided by the deceased is irrelevant in determining the value of those services when they have been lost as a consequence of the death of their provider.
73 Further, a consideration of the foregoing evidence does not reveal "reluctant concessions" on the appellant's part that whilst he could not picture himself participating in the domestic chores, he would help with the tasks the deceased normally carried out on the farm once they had both retired. Contrary to her Honour's finding, the appellant did not dispute the suggestion that he and the deceased would be entitled to sit back and take a well earned rest upon their retirement: what he did say when asked (at Black 80H) whether he would want to give her the chance to sit back and take a well earned rest, was "that's not the way it was".
74 It is clear from this evidence that, firstly, the appellant did not regard himself as being involved in the domestic activities of his wife and, secondly, that in any event his wife ruled the house and he had no reason to believe that after their retirement from the joinery business that position would not remain the same.
75 I am conscious of the restrictions placed upon an appellate court in reversing credit findings of a trial judge. The relevant authorities are cited by the High Court in Fox v Percy (2003) 214 CLR 118. As was noted by McHugh J in that case at 146-147 [90]
"It is a serious mistake to think that anything said in Abalos or Devries necessarily prevents an appellate court from reversing a trial judge's finding which is based, expressly or inferentially, on demeanour. Those cases recognise - in accordance with a long line of authority - that it may be done. But there must be something that points decisively and not merely persuasively to error on the part of the trial judge in acting on his or her impressions of the witness or witnesses."
76 In the present case the primary judge did not, at least expressly, rely upon the appellant's or Matthew's demeanour in coming to her credibility findings. Rather, she seems to have relied upon the fact, certainly so far as the appellant was concerned, that he was reluctant to make concessions. But even if demeanour inferentially played a part in her findings, it is to be noted, as Gleeson CJ, Gummow and Kirby JJ said in Fox v Percy at 128-129 [30], that
"it is equally true that … other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses." (citations omitted)
77 Furthermore, it is insufficient for an appellate court "by ritual incantation about witness credibility" to avoid its duty to exercise its judgment both on the facts and the law: Fox v Percy at 128 [29]. As the joint judgment in that case emphasises (at 126-127 [25])
"Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect'." (citations omitted)
78 In the same vein, an appellate court must acknowledge the constraints upon its capacity to disturb the decision of the trial judge encapsulated by Gleeson CJ in Swain v Waverley Municipal Council (2005) 220 CLR 517 at 519-520 [2] in the following passage:
"In the common law system of civil justice, the issues between the parties are determined by the trial process. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. Most decisions of trial courts are never the subject of appeal. When there is an appeal, the appellate court does not simply re-try the case. Depending on the nature of the appeal provided by statute, courts of appeal act according to established principles by which their functions are constrained. Those principles reflect the primacy of the trial process and the practical limitations upon the capacity of a court which does not itself hear the evidence justly to disturb an outcome at first instance. Trial by jury carries with it significant limitations of that kind."
79 Again, in Rosenberg v Percival (2001) 205 CLR 434 McHugh J, after referring (at 447-448 [38] and [39]) to passages from the judgments in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483 which highlighted the advantage enjoyed by the trial judge in hearing and seeing the witness, remarked (at 448 [41]):
"One of the consequences of the 'advantage' of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding , the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury." (emphasis added)
80 In the present case, I have sought to demonstrate that the "facts" or "objective considerations" relied on by the primary judge to support her findings on credibility do not stand up to analysis and are not, in my opinion, supported by other facts in the case. Furthermore, those findings were not expressed by her Honour to be "founded on scrutiny of a witness giving evidence": Rosenberg at 488 [162] per Kirby J. In any event, as Kirby J went on to observe in that case (at 488 [163]) (omitting footnote references):
"I have stated in SRA that, in my opinion, judges of trial should be slow to rely upon impressions derived from such observations, given the very strong doubt that is cast on the safety and reliability of such impressions by a now substantial body of scientific evidence. Contemporary judges in Australia know about such dangers where the English judges of the nineteenth century, who voiced their faith in the reliability of judicial observation, did not. This is why most judges, and equivalent decision-makers, today endeavour to rest their conclusions, as far as possible, on objective considerations, contemporaneous facts and logical inferences, rather than a self-claimed capacity to tell truth from falsehood by visual or aural impression."
81 More recently, Kirby J, with the agreement of Gleeson CJ, returned to this topic in CSR Ltd v Della Maddalena (2006) 80 ALJR 458. At 466 [23] (omitting footnote references) his Honour observed:
"It would be a misfortune for legal doctrine if, so soon after Fox v Percy corrected the non-statutory excesses of earlier appellate deference to erroneous fact-finding by primary judges, the old approach was restored, as, for example, by reversion to the previous formulae about the 'subtle influence of demeanour' that could have affected the primary judge's conclusion, even though no express reference was made to such consideration. A survey of the history of the approach by this and other appellate courts to the principles of appellate review bears witness to varying attitudes over time to questions of this kind. However, this Court should not now restore the pre- Fox v Percy approach. It has no foundation in the statutory provisions governing intermediate courts. On the contrary, it frustrated the performance by those courts of their statutory obligation to conduct an appeal by rehearing. It would involve such courts returning to non-statutory inhibitions upon the provision of appellate relief based on nothing more than the suggestion that the present 'one case' in which (by inference exceptionally) 'the subtle influence of demeanour' cannot be overlooked. If that proposition is sustained, the important gain of Fox v Percy stands in peril of being lost. This Court would then re-endorse a serious impediment to the performance of the jurisdiction and powers of intermediate appellate courts in Australia. This should not be done."
82 As I have noted in [76] above, the primary judge did not, at least expressly, rely upon the appellant's or Matthew's demeanour in coming to her credibility findings. Given the expressed basis upon which her Honour made her findings as to the creditability of those witnesses, it may well be that she had in mind the same concern that Kirby J later articulated in Della Maddalena (at 470 [44] and [45]) that any revival of the notion of an unexpressed and unstated "subtle influence of demeanour" would be inconsistent with the new emphasis contained in the High Court's reasons in Fox v Percy. His Honour accepted (at 470 [46] (omitting footnote references) that:
"a judge cannot, in his or her reasons, expound all of the considerations that influence the decision in hand. '[T]ime and language do not permit exact expression' of every factor that has contributed to a judicial decision. However, trial judges in Australia know the common disapproval of appellate courts of attempts to render trial conclusions appeal-proof by expressed reliance on the demeanour and appearance of witnesses where that is unnecessary or inappropriate. They also know the scientific unreliability of many such assessments. They are aware of the general desirability of founding judicial conclusions (as far as possible) on rationality and logic."
83 In Della Maddalena Callinan and Heydon JJ in their joint judgment were not prepared to go as far as Kirby J (and, for that matter Gleeson CJ), that the revival of the notion of an unexpressed and unstated "subtle influence of demeanour" would be inconsistent with the High Court's reasons in Fox v Percy. On the other hand, it would appear from the following paragraph in their Honour's judgment that reliance upon "the subtle influence of demeanour" requires careful consideration in each case before it is permitted to trump appellate intervention. At 492 [180] their Honours said:
"There are cases in which the advantages enjoyed by trial judges over appellate courts are exaggerated. A complete written record, a degree of detachment from the trial itself, and the sum of the collective knowledge and experience of three or more judges may themselves on occasions place the appeal court in a superior position to that of the trial judge to decide the case. But this is not such a case. This is one case in which 'the subtle influence of demeanour' cannot be overlooked; it is a case in which it 'does not follow that, because [the trial judge] made no express reference to ... demeanour ... , demeanour ... played no part in [his] findings'. The position of the appellants' counsel before the Full Court and in this Court was that demeanour was not critical in determining credibility issues at trial, but that it could not be eliminated. In truth it must have been of some significance and, although the advantage which the trial judge had may have been reduced by the time between when he heard the evidence and when he gave judgment, it has not been shown to have been reduced to nothing. …"
84 However, the facts in Della Maddalena were very different to those in the present case and it is clear that Callinan and Heydon JJ relied on the fact that the trial judge had formed an impression of the respondent in that case by reference to certain video recordings and his reaction to those recordings when questioned by reason of delays, evasions or reluctance to answer the questions that were put to him. As their Honours noted, these were
"all matters of especial relevance in a case of this kind and ones which only the trial judge, and not a court of appeal, could perceive and weigh against all of the other relevant evidence in the case."