WILLING V. CUTTEN & HARVEY

ve

Judgment delivered at...

RM74/308

AUST?

Appeal dismissed with costs.

AD

JUDGMENT

WILLING

CUTEEN & HARVEY (REG.)

BARWICK C.J.

WILLING

Vv.

CUTTEN & HARVEY (REG. )

In this appeal, which was argued by the appellant in person, I have had the advantage of reading the reasons for judgment prepared by my brothers Stephen and Mason.

The relevant facts and circumstances sufficiently appear in what they have written. I agree that this appeal feils and should be dismissed. It is plain to my mind that the trial judge made errors both as to the admissibility of evidence and as to his understanding of the evidence of the witness Henderson. But those errors do not, in my opinion, warrant an order for a new trial of the action. His Honour's verdict depended on his belief of Mr. Derrington and on his disbelief of the appellant. I am unable to :accept the view that, if he had properly understand Mr. Henderson's evidence, his Honour would either have disbelieved Mr. Derrington or believed the appellant. At best, I think he would have regarded that evidence as inconclusive, to be explained by error or confusion on the part of Mr. Henderson. There existed no reason for thinking Mr. Derrington had fabricated his account

of the instructions received from the appellant and much reason,

in the appellant's behaviour, to believe that account.

It is quite true that Mr. Derrington was emphatic that the instructions were given in person on a particular day: this led to what I think was an undue emphasis on those aspects. The real question was whether the instructions were in truth given. Doubt as to whether they were given on that day and

in person would not be sufficient, in my opinion, to warrant

the conclusion, having regard to all the evidence, that the instructions were not given at all. I share the views expressed by my brothers and