the primary judgment is correct
66 In our opinion, contrary to the appellant's submissions, the conclusions his Honour reached were not only open to him on the evidence but, in our view, were strongly supported by it.
67 Far from treating the minutes as merely one of a number of circumstances which might support an inference, his Honour (at [16]) expressly regarded the minutes as the starting point and acknowledged their special status as prima facie evidence. Nor did his Honour in substance depart from or misapply the principles he correctly articulated. To the contrary, his analysis was consistently informed by them.
68 The minutes were signed by Mr Turner, the chairman of the meeting, as required by s 64Z(10) of the Bankruptcy Act. They did not, however, comply with other requirements of s 64Z, as they were not signed by Ms Lester (the minutes secretary) in accordance with s 64Z(10), and did not record the precise words of each motion proposed or of any amendment, as required by s 64Z(4). Further, the date on which the Chairman signed the minutes (which, under s 64Z(10), must be no later than 14 days after the meeting) was unknown.
69 His Honour accepted that, as was common ground, s 257 of the Bankruptcy Act applied to the minutes, and consequently, despite the non-compliance with s 64Z of the Bankruptcy Act, treated them as prima facie evidence of the proceedings at the meeting. As that approach was unchallenged on appeal, it is unnecessary to consider whether any non-compliance potentially excluded the application of s 257 of the Bankruptcy Act.
70 His Honour carefully, scrupulously and fairly considered the minutes and the other items of evidence. In Hellicar, the High Court designated the minutes "the starting point" because they constituted an admissible business record, the accuracy of which was challenged only by inference. In this case, in accordance with s 257 of the Bankruptcy Act, his Honour treated the minutes as the starting point of his analysis and as prima facie evidence which, if standing alone, would be conclusive. The nature, quality and combined effect of the contrary evidence, however, entitled his Honour to conclude, as he did, that it rebutted the prima facie evidence constituted by the minutes that a resolution was passed for the appointment of Messrs Rambaldi and Yeo as joint trustees.
71 The sole ground of appeal was amplified by voluminous particulars, the emphasis on which shifted between the appellant's written and oral submissions. We consider the most significant bases of complaint in detail below.
72 In the amended notice of appeal, the appellant alleged that his Honour replicated the error identified in Hellicar by treating the minutes as merely one piece of circumstantial evidence and failing to accord them their due weight as prima facie evidence.
73 In written submissions, the appellant contended that his Honour erred in stating that Mr Bond's facsimiles were prepared within two hours of the meeting and, further, in finding that only those documents were prepared within hours of the meeting because the minutes and the letter prepared by Ms Lester were also prepared in that timeframe. The appellant submitted that such errors led his Honour to place excessive weight upon only half of the most contemporaneous circumstantial evidence.
74 Before us, however, the appellant conceded that his Honour did not err in finding that Mr Bond's facsimiles referring to the appointment of Mr Yeo as sole trustee were sent within two hours of the meeting.
75 Further, it was not disputed that the minutes were not prepared by Ms Lester within hours of the meeting. Rather, as his Honour found, they were prepared over the course of the day of the meeting and the three following days; and although Ms Lester's timesheets indicated that she spent most time on the minutes on the first day, it was not possible to identify the date on which Ms Lester inserted any particular item, including the description of the resolution. As stated above, there was no evidence to establish on what date Mr Turner signed the minutes, although, on any view, it was no earlier than 22 March 2007, at least three days after the meeting.
76 In such circumstances, the minutes did not possess evidenced contemporaneity equivalent to that of the facsimiles sent by Mr Bond. His Honour was fully entitled to attribute more weight to the latter on the basis of their materially greater demonstrated contemporaneity with the events described. Moreover, according to the uncontradicted evidence of Mr Yeo, Mr Turner's letter, although dated 19 March 2007, was date stamped (and by inference received by Mr Yeo's office) on 27 March 2007, which was over a week after the meeting. Accordingly, the evidence did not establish that the letter was prepared or completed on 19 March 2007, rather than some days thereafter.
77 It follows that the equivalent contemporaneity of the minutes and the letter with Mr Bond's facsimiles, on which the appellant's principal allegation depended, was not established. Accordingly, his Honour did not err by attributing excessive weight to only half of a number of equally contemporaneous documents. Nor did his Honour err in failing to accord greater weight to the minutes because Ms Lester and Mr Turner had "a fresh memory" when they respectively prepared and signed them.
78 The appellant also alleged that his Honour erred in failing to accord greater weight to the evidence of subsequent conduct by Messrs Yeo and Rambaldi, which was consistent with their joint appointment. The appellant relied, in that context, on an affidavit of Mr Yeo, in a proceeding (in which Mr Bond acted for the first and second respondents) eight months after the meeting, where Mr Yeo at one point deposed that he was a joint trustee with Mr Rambaldi and at another point, that they were joint and several trustees (emphasis added). The subsequent descriptions did not consistently accord with the resolution for joint trustees recorded in the minutes. Moreover, the significance of descriptions adopted by Messrs Yeo and Rambaldi was limited, as, in contrast to Hellicar, they were not present at the meeting and were not provided with a copy of the minutes which they adopted or confirmed. The relevant descriptions were made some months after the meeting in an unrelated context. The confusion was, as his Honour observed, explicable by the inconsistent communications the respondents had received. They had no reason, prior to the appellant's challenge, to disavow their alleged joint appointment. Mr Bond (who was present at the meeting and acted for Messrs Yeo and Rambaldi in the subsequent legal proceeding) advanced a plausible explanation for his failure to notice the designation of "joint" or "joint and several" trustees, which his Honour was entitled to accept.
79 As the appellant alleged, his Honour did not determine the appellant's objection to the admission of Ms Lester's statement that she could not exclude the possibility that in preparing the letter to Messrs Yeo and Rambaldi, she looked at the Consent to Act rather than the Running Sheet. Nevertheless, the oversight had no material effect, as his Honour did not err in failing to exclude the statement. The basis of the appellant's objection was that the statement constituted an answer to a leading question. Before us, however, the appellant acknowledged that statement was not adduced in response to a leading question. It was contained in an affidavit on which Ms Lester was not cross-examined. No evidence of the circumstances of its inclusion in the affidavit was adduced.
80 Therefore, the basis of the objection was not established. More importantly, Ms Lester's statement merely provided context for the first and second respondents' advocated explanation for the appearance of Mr Rambaldi's name in the minutes, which was a peripheral issue. His Honour's finding that Ms Lester probably drafted the minutes in large part by reference to the Running Sheet (at [41]) did not depend on the impugned statement. Ms Lester's uncontradicted evidence was that she prepared the minutes by reference to her recollection, her notes and some or all of the documents on the Weeden file, which included the agenda, the Running Sheet, the Consent to Act and the letter to Messrs Yeo and Rambaldi, which she drafted on 19 March 2007. Ms Lester's potential reliance on the Consent to Act in preparing the letter to Messrs Rambaldi and Yeo was not material to his Honour's conclusion that the minutes were largely based on the Running Sheet, which was founded on his detailed comparison of the two documents.
81 Nor, in our view, did his Honour err in failing to exclude Mr Bond's statement that he did not notice that Mr Rambaldi signed the Consent to Act, or by materially misunderstanding and misstating the effect of that evidence.
82 The appellant objected to the admission of the statement, which appeared at paragraph 8 of Mr Bond's affidavit as follows:
On 2 March 2007, I received a letter from Pitcher Partners dated 22 February 2007, signed by both Mr Yeo and Mr Rambaldi, enclosing a Consent to Act and Trustee Declaration signed by Mr Yeo on 24 February 2007 and by Mr Rambaldi on 26 February 2007. I infer that the dating of the letter was an error and that it should have been dated 26 February 2007 or later. I did not take any notice of the fact that the consent was signed by both Mr Rambaldi and Mr Yeo. My attention was focused on the fact that Mr Yeo was willing to act as trustee of the bankrupt estate as I had requested. I did not make any enquiry about why Mr Rambaldi had signed the consent as well, because it was not a matter that seemed to me to be of any importance and I saw no significance in the fact that Mr Rambaldi had signed the consent as well.
83 At [37], his Honour stated:
Bond's evidence was that he had not noticed that the document [the Consent to Act] contained the consent of both Rambaldi and Yeo.
84 The appellant submitted that his Honour failed to determine the objection and wrongly admitted evidence of Mr Bond's state of mind, the misunderstanding of which led him erroneously to conclude that the Consent to Act did not inform the conduct at the meeting. Assuming that his Honour failed to understand that Mr Bond was aware that the Consent to Act was signed by both Messrs Yeo and Rambaldi, we were not persuaded that his Honour's conclusion was, or could reasonably have been influenced by that misapprehension. In our opinion, any distinction between, on the one hand, Mr Bond's failure to notice that Mr Rambaldi had also signed the Consent to Act and, on the other hand, his failure to take notice of that fact was, in context, immaterial. The thrust of Mr Bond's evidence was that he observed that Mr Rambaldi signed the Consent to Act, but attached no significance to it, as he was focused only on obtaining Mr Yeo's consent to act, in accordance with his request. In such circumstances, knowledge that Mr Bond was aware that Mr Rambaldi had signed the Consent to Act cannot have altered his Honour's conclusion that the latter document did not inform the events of the meeting, and, in particular, the terms of the resolution which was put and passed.
85 In our view, his Honour did not err in admitting Mr Bond's evidence and did not, as a matter of substance, misstate its effect. Moreover, the admission or any such misstatement of the evidence was not relevant to the decision.
86 The appellant further alleged that his Honour erred in the weight he attributed to numerous other aspects of the evidence. In our opinion, none of the alleged errors was established. The appellant submitted that given the documentary nature of much of the evidence, the limited cross-examination and the relatively short trial, this court was in as good a position as the trial judge to assess the evidence. In an appeal by way of rehearing, the appellant bears the onus of persuading the appellate court that the decision below was wrong, although it is unnecessary to identify specific error (see Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; [2007] VSCA 267). The appellate court (subject to due regard to the decision and advantages of the primary judge) may be required to decide the case for itself and, where appropriate, draw its own inferences from established facts (see Warren v Coombes (1979) 142 CLR 531 at 551-552). The traditionally uncritical deference of appellate courts to the trial judge's assessment of witnesses has been modified (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and CSR Ltd v Della Maddalena (2006) 224 ALR 1; [2006] HCA 1). The weight to be given to the trial judge's decision will vary from case to case (see Optical 88 Ltd v Optical 88 Pty Ltd (2011) 197 FCR 67; [2011] FCAFC 130 at [31] per Cowdroy, Middleton and Jagot JJ). It nevertheless remains difficult to establish error in the weighing of evidence.
87 In this case, it is unnecessary to determine whether the advantages of the trial judge were such as to inhibit the appellate court from making and reaching its own conclusions on its own assessment of the evidence, as in our view, the primary judge's assessment was compelling. We consider the appellant's principal subsidiary complaints below.
88 In particular, we were persuaded that despite Ms Lester's non-compliances, his Honour accorded the minutes the status required by s 257 of the Bankruptcy Act, and did not, as the appellant alleged, err in the weight he accorded that aspect of her conduct.
89 Contrary to the appellant's submissions, his Honour was also entitled to accord the significance he did to the usual practice of Messrs Turner, Bond and Ms Lester, including when evaluating the relevance of the absence of notations on, departure from, or amendment of, the resolution notified to creditors.
90 We reject the appellant's submission that his Honour overlooked the improbability, on which his conclusion depended, of a mistake by experienced professional persons such as Mr Turner and Ms Lester. His Honour was, in our view, entitled to conclude that the error on the part of Mr Bond (the solicitor who initiated and was driving the replacement of Mr Turner by Mr Yeo) was more improbable.
91 His Honour did not, as the appellant alleged, err in the weight he accorded to the content of the Running Sheet or the errors in the minutes. His observation that Mr Bond was an experienced commercial solicitor (made in the context of noting that each person present would have had previous experience of creditors' meetings and there was no evidence that they regarded this meeting as extraordinary) was not, in our view, an unsafe assumption or a valid basis of complaint. The appellant did not in fact dispute that Mr Bond was an experienced commercial solicitor, or lead evidence to the contrary.
92 Nor, in our view, did his Honour base an "unsafe assumption" about Mr Bond's standards of record keeping on his status as an experienced insolvency solicitor or make an unsafe assumption that, in the absence of a record, Mr Bond would not have proposed last-minute amendments to the resolution. Rather, his Honour in essence reasoned that if there had been a material departure from the resolution originally proposed by Mr Bond, as reflected in the agenda, it would probably have been documented in some way.
93 In our opinion, the appellant's allegations of error were frequently based on inaccurate characterisation, selective reading of the reasons and exaggerated criticism of peripheral or trivial matters, which did his argument no credit. Further, the appellant frequently mischaracterised as speculation his Honour's legitimate drawing of inferences from the evidence.
94 Finally, we observe that the appellant's reliance on Hellicar was, in the markedly different circumstances of the present case, misplaced. In Hellicar, the minutes were the only evidence of the events of the meeting, and their accuracy was challenged solely on the basis of inference drawn from the circumstances. In contrast, in this case, there was a considerable volume of additional evidence, much of it documentary, which conflicted with, or cast doubt on, the accuracy of the minutes.
95 In our opinion, Hellicar does not preclude, but rather requires, in a case such as the present, the qualitative weighing up of all the evidence, including that in conflict with the minutes. While in Hellicar, no statutory provision equivalent to s 257 of the Bankruptcy Act applied, the High Court reaffirmed and amplified the established proposition that prima facie evidence will, unless rebutted by other evidence, be determinative, and is not on a footing with mere inference drawn from circumstance. Hellicar does not, however, in a case where there is additional conflicting evidence, require the attribution of greater weight to evidence merely because it is of a prima facie character.