FACTUAL ISSUES
69 Mr. Justin Gleeson SC, in his written and oral submissions, has made extensive and detailed criticisms of the judgment of the primary judge, and has supported a finding that the conversations were as claimed by Victor. Accordingly, he submits that this Court should find that there was material error in the judgment of the primary judge that vitiated his decision, and this Court should either make a factual finding in favour of Victor or send the matter back for a new trial.
70 I have carefully considered these submissions, and have come to the view that they do not succeed. I can best express my reasons by setting out and commenting on the principal submissions, and then giving a broader view of the considerations that have weighed with me. I will focus on the submissions that allege error, rather than merely putting arguments that a different conclusion was warranted.
71 The first group of submissions concerned the primary judge's criticism of Victor's evidence that the issues concerning the watch and Riad's care had been causing family disharmony prior to the entry into the terms of settlement. In fact, Mr. Gleeson submitted, two of the three sisters had said that the custody of the watch remained an issue, Joseph admitted the same, and the sisters generally confirmed that the care of Riad remained an issue. The primary judge had said that Joseph did not see Victor's letter of 13 January 1999 and did not know that Victor regarded the care of Riad to be an issue; but in fact Joseph admitted the contrary in evidence. The primary judge was in error to find that family disharmony leading up to the terms of settlement was caused solely by commercial disputes between Victor and Joseph.
72 In my opinion, the evidence of the sisters generally supported the view that the watch and the care of Riad were not major overt causes of family disharmony leading up to the terms of settlement; but, for reasons given by Mr. Gleeson, the primary judge was in error on the question whether Joseph saw the letter of 13 January 1999 and knew the care of Riad to be an issue, and in holding that family disharmony was caused solely by commercial matters. The circumstance that the watch and the care of Riad were raised in the IRC proceedings by Victor is itself an indication to the contrary; although I would remark that this point is somewhat two-edged for Victor, because it impacts on his claim that the resolution of these matters had nothing to do with the resolution of the IRC dispute, and his claim that he was concerned that these matters should be kept private. I will return to the question of whether these errors by the primary judge, either alone or in combination with other errors, were sufficient to vitiate his decision.
73 The next group of submissions concerned the primary judge's finding that the first discussion on 5 February 2001 occurred shortly after Joseph had received legal advice to the effect that everything had to be documented. The main point made by Mr. Gleeson was that the primary judge found that this advice was given in the presence of Mr. Chaffey, at the IRC and before the first meeting, whereas in fact Mr. Chaffey did not arrive at the IRC until the first meeting was already under way. Mr. Gleeson also submitted that the primary judge was in error in saying that Mr. Neil was not challenged on his evidence as to this point.
74 However, Mr. West asserted that his advice was given before negotiations between Joseph and Victor commenced, and he was not cross-examined. Mr. West did say he gave this advice in Mr. Chaffey's presence, but if it was intended on that basis to challenge his assertion that the advice was given before negotiations commenced, one would have expected that this would have been put to Mr. West. Although the primary judge may well have been in error to assert that the advice was given in the presence of Mr. Chaffey, in my opinion the probabilities strongly favour the conclusion that the advice was given before the negotiations commenced, and the error of the primary judge is immaterial.
75 In any event, if the advice was given after the first meeting, and if Joseph had at that first meeting made side agreements which were to be kept secret, the high probability is that he would have responded to the advice by saying something about these side agreements, and plainly he did not do so. So even if the advice was given after the first meeting, the fact that this advice was given would still weigh against Victor's version.
76 Next, Mr. Gleeson criticised the judge's conclusion that the evidence of Mr. Holmes and Mr. Callanan to the effect that, after the first meeting, Victor merely told them that there were private matters that needed to be sorted out, counted against Victor's case: it was entirely plausible that Victor would not have gone into details at that time.
77 What this overlooks is that Victor's evidence was that he did then tell at least Mr. Holmes and Mr. Callanan that the principal elements of the settlement included an agreement that Joseph return the watch and share the duties of looking after Riad; and that evidence was contradicted by Mr. Holmes and Mr. Callanan.
78 Mr. Gleeson then submitted that, whereas the primary judge said that Joseph's evidence that the sisters were told the terms of the settlement was corroborated by the sisters, at best their evidence merely corroborated that the agreement concerning the Northbridge units was mentioned.
79 In my opinion, even that amounted to significant contradiction of Victor's evidence that nothing was disclosed.
80 Mr. Gleeson submitted that the primary judge's finding that, when Victor handed over the cheque for $570,000.00, there was no conversation about the watch or Riad, was contrary to Victor's evidence, corroborated by Mr. Callanan and not disputed by Joseph, that Victor had asked for the watch.
81 This appears to be an error, but one that is immaterial.
82 Mr. Gleeson's next group of submissions concerned the primary judge's finding that Mr. Callanan's letters of 3 April 2001 and 17 April 2001 were not in accord with the private agreement now alleged by Victor; whereas Mr. Blackwell's oral evidence confirmed that on 3 April 2001, Mr. Callanan had informed him there was a secondary agreement in relation to the watch and the care of Victor's and Joseph's brother.
83 However, this submission does not meet the most important problem with the letters, apart from their timing, namely their failure to assert a concluded agreement to share equally in the care of Riad.
84 Mr. Gleeson then submitted that the primary judge was in error in saying there was no inconsistency in Joseph's evidence, since the primary judge had found, contrary to Joseph's evidence, that the matter of Riad was discussed. There were also inconsistencies between Joseph's evidence and that of his legal advisers, for example his assertion that he told them on 5 February 2001 that Victor asked about the watch and he had said that Victor could not have it, and also his assertion that he was not aware what the alleged private agreements involved until he saw the letter of 17 April 2001 (contrary to Mr. Blackwell's evidence concerning what happened on 3 April 2001).
85 In my opinion, there were factors such as these detrimental to Joseph's credibility which were not adequately dealt with by the primary judge; but in my opinion, Victor's case failed before the primary judge not because of positive acceptance of Joseph's evidence, but because of problems with Victor's evidence. For that reason, there is a question whether these matters were material to the primary judge's decision, to which I will return.
86 The next group of submissions by Mr. Gleeson concerned the primary judge's adverse comments concerning Victor's explanations of keeping the alleged agreement private.
87 In my opinion, no error is shown in the primary judge's comments on this matter, and in my opinion this matter is a substantial consideration weighing against Victor's evidence.
88 Mr. Gleeson submitted it was not open to the primary judge to find that Victor's evidence was coloured by resentment, since this was not put to Victor in cross-examination or sourced to particular events.
89 In my opinion, this was an observation that the primary judge could appropriately make concerning a witness whose credit was strongly challenged, without specific matters of resentment having been put to the witness; and in my opinion, the observation is supported by much that Victor wrote and said, beginning with his letter of 1 September 1998 and continuing up to the way he gave evidence in the case.
90 Mr. Gleeson submitted that the evidence of Mr. Callanan as to what Victor said to him on 5 February 2001 should not have been rejected, when this evidence was not directly challenged; and particularly the primary judge should not have relied on "passionate commitment" as a reason, when this was not put to Mr. Callanan.
91 On the question of what was to be made of Mr. Callanan's evidence, as well as the evidence of Victor and Joseph, I think it is important to keep in mind the considerations which were very well expressed by McLelland CJ in Eq. in Watson v. Foxman (1995) 49 NSWLR 315 at 318-9:
Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as "misleading") within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.