Case: Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118
Outcome: cited
Generally as to the setting aside of findings of fact that rest on credibility findings by the trial judge, the position is as summarised by McHugh J in Fox v Percy [2003] HCA 22 ; (2003) 214 CLR 118 at [65] - [67] : 65 Whether an appellate court should intervene in a decision of a trial judge who has made findings based on the credibility or demeanour of a witness is governed by the principles stated in Abalos v Australian Postal Commission. In that case, I said [at 178-9]: [W]here a trial judge has made a finding of fact contrary to the evidence of a witness but has made no reference to that evidence, an appellate court cannot act on that evidence to reverse the finding unless it is satisfied "that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge's conclusion" [ Watt (or Thomas) v Thomas [1947] AC 484 at 488]. ... [W]hen a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his or her determination cannot be overlooked. 66 Mason CJ, Deane, Dawson and Gaudron JJ, the other members of the Court, agreed with my judgment. Abalos was applied in Devries v Australian National Railways Commission [1993] HCA 78 ; [(1993) 177 CLR 472 at 479] where Brennan and Gaudron JJ and I said: More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against -- even strongly against -- that finding of fact. (Footnote omitted.) If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" [ SS Hontestroom v SS Sagaporack [1927] AC 37 at 47] or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable" [ Brunskill [1985] HCA 61 ; (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57]. 67 There was nothing novel about these statements. They derived from principles in decisions of this Court and the House of Lords stretching over the best part of a century. 103 In the present case the appellants' attack on the credibility findings in respect of Ms Wills does not come near that standard of appellate review. 104 The "concentration camp" comment . It may be that Mr Hibberd was attempting to make the point that if different employees were working on different conditions he would have to ensure that people on the Award did not get such additional benefits as the AWA provided. However, the tone and context in which the term was used were very much matters for his Honour, who had the opportunity to assess the witnesses, and in particular Ms Wills. 105 The appellants say that his Honour failed to deal with submissions made as to fact and law; "little or no reference" was made to submissions by the appellants on the evidence. 106 The Federal Magistrates Court was established by the Federal Magistrates Act 1999 (Cth). One of the objects of that Act was "to enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power": s 3(2)(a). Likewise s 42 provides: In proceedings before it, the Federal Magistrates Court must proceed without undue formality and must endeavour to ensure that the proceedings are not protracted. 107 His Honour's judgment, handed down expeditiously some six weeks after final submissions, extends over 51 pages. It deals in detail with the events at the Tavern in 2006. It makes clear findings of fact. It cites the appropriate legislation and authorities. It explains the reasoning which led to his Honour's decision. The appellants on reading the judgment would understand why they lost. Perhaps his Honour did not record and deal with every argument advanced on behalf of the appellants, but he was not obliged to do so.