The High Court of Australia has revisited the function of appellate courts conducting “rehearings” on questions of fact in Lee v Lee  HCA 28. The trial judge had dismissed the Appellant’s claim for damages, and found that the Appellant and his Co-Appellant parents had committed fraud to obtain certain benefits arising from injuries sustained in a motor vehicle accident. The trial judge had found that the Appellant, rather than his father, was the driver of the vehicle in question.
The Queensland Court of Appeal unanimously dismissed the appeals brought by the Appellants. In doing so, though, the Court found that a number of the findings of the trial judge based on inferences drawn from primary facts were wrong.
The High Court noted that the Court of Appeal was bound to conduct a “real review” of the evidence and the trial judge’s reasons to determine whether there was an error of fact or law. Appellate restraint in interfering with findings of fact affected by impressions of witnesses was required, including with respect to secondary facts based on a combination of such impressions and other inferences from primary facts. Beyond that, an appellate court was in as good a position as the trial judge to draw inferences from undisputed facts or facts established by the findings of the trial judge. Given the identification of relevant error by the Court of Appeal, it was bound to decide for itself which of the competing hypotheses was more probable. It did not do so.
The High Court went on to conclude that the circumstantial evidence showed that the father in fact was the driver. The Court concluded that it did not need to consider the other ground of appeal being whether the Court of Appeal had failed to give adequate reasons by not addressing a substantive argument advanced on behalf of the Appellants.
Judgment was given for the Appellant on his claim and the judgments for fraud were set aside.
See judgment here: http://eresources.hcourt.gov.au/showCase/2019/HCA/28