Supreme Court New South Wales Medium Neutral Citation: El-Hadi v Australian Timbers (NSW) Pty Ltd [2021] NSWSC 501 Hearing dates: 24 February 2021 Decision date: 10 May 2021 Jurisdiction: Common Law Before: Rothman J Decision: (1) To the extent that the grounds of appeal raise questions of mixed law and fact, leave to appeal is refused; (2) Otherwise, the appeal is dismissed; (3) The plaintiff/appellant on the appeal, Mr Mohamad El-Hadi, shall pay the costs of the respondent/defendant of and incidental to the proceedings. Catchwords: APPEALS – from Local Court – appeal as of right on question of law and by leave on mixed law and fact – no appeal on question of fact – no evidence ground is question of law – no evidence relates to conclusion of fact not each evidentiary fact – appeal dismissed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Local Court Act 2007 (NSW), ss 39-41 Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 14.14(3) Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315 Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318 M v the Queen (1994) 181 CLR 487; [1994] HCA 63 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Morris v the Queen (1987) 163 CLR 454; [1987] HCA 50 R v R (1989) 18 NSWLR 74; 44 A Crim R 404 R v Sorlie (1925) 25 SR (NSW) 532 Re Building Workers' Industrial Union; ex parte Gallagher (1988) 62 ALJR 81; [1988] HCA 4 The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 Whall v Stamp [2019] NSWCA 163 Williams v the Queen (1986) 161 CLR 278; [1986] HCA 88 Category: Principal judgment Parties: Mohamad El-Hadi (Plaintiff) Australian Timbers (NSW) Pty Ltd (Defendant) Representation: Counsel: A G Martin (Plaintiff) J K Raftery (Defendant) Solicitors: Law Society of NSW (Plaintiff) Mitry Lawyers (Defendant) File Number(s): 2020/255471 Decision under appeal Court or tribunal: Local Court of NSW Jurisdiction: General Division Date of Decision: 07 August 2020 Before: Kennedy LCM File Number(s): 2018/349799 Judgment 1. HIS HONOUR: By Amended Summons, filed 13 November 2020, Mohamad El-Hadi, the plaintiff on this appeal (hereinafter, except in the orders, referred to as "the appellant"), appeals a judgment of the Local Court, issued by Kennedy LCM on 3 August 2020. Under the judgment of the Local Court, the appellant was ordered to pay Australian Timbers (NSW) Pty Ltd, the defendant on this appeal (hereinafter, except in the orders, referred to as "the respondent"), the sum of $81,451.90, plus costs and interest. Background 1. The proceedings below were commenced by the respondent against the appellant. The proceedings below sought damages arising out of the alleged execution by the appellant of a Guarantee. It was alleged that the Guarantee covered contractual obligations of Alzco Carpentry and Construction Pty Ltd (hereinafter "Alzco") to the respondent. The appellant's son, Ali El-Hadi, is the sole Director of Alzco. 2. The appellant filed a Defence to the originating process and denied that he signed the Guarantee. The appellant gave evidence denying that he signed the Guarantee and the appellant relied on a series of what was said to be examples of his signature on other documents. 3. In the proceedings below, the appellant argued that those signatures were consistent within themselves and were completely inconsistent with that which appeared on the Guarantee. No expert handwriting evidence was adduced by either party. 4. Further, the appellant's son swore an Affidavit and testified orally before the learned Magistrate. That testimony was to the effect that he had forged the appellant's signature on the Guarantee. 5. The respondent, as the initiating party below, called evidence from a number of witnesses in the proceedings below. Included in the evidence was the testimony of Mr Van Akker, who gave evidence that he saw the appellant sign the Guarantee. Also called to give evidence were Mr Chehab; his granddaughter, Ms Chehab, and Mr Gorden Halabe. The issue raised in the appeal, broadly, relates to the correctness of the determination by the learned Magistrate that the appellant herein executed the Guarantee. Grounds of Appeal 1. The appeal is agitated on the basis of grounds of appeal which purportedly raise separate questions of law. The grounds of appeal raised by the notice in the Amended Summons are in the following terms: "1. The learned magistrate erred at law: a. in finding (at [67]) that the plaintiff's signature on his driving licence was insufficient evidence on balance to prove that the appellant could not have signed the documents in a different way on other occasions; b. alternatively, by finding, when there was no evidence to allow such a finding, that either: i. the plaintiff had signed the guarantee in a deliberately different manner to his usual signature; or ii. the plaintiff actually had a different signature of any kind to that of his usual signature 2. The learned magistrate erred in law in finding in a manner which was procedurally unfair and a denial of natural justice to the plaintiff (at [67] and [86]) that the appellant signed the guarantee document in a manner different to that of his signature where: a. that different manner was not pleaded by the respondent below and it did not form part of its case; and b. the plaintiff was not on notice of the case concerning the purported alternate signature. 7. The learned magistrate erred at law by failing to consider, and by failing to give any or alternatively insufficient, reasons concerning the case advanced by the plaintiff that: a. the plaintiff's son had admitted under oath that the son had forged his father's signature on the purported guarantee; b. a Mr. Van Akkar did not have the authority to bind the defendant to the purported guarantee. 8. The learned magistrate erred at law by finding the plaintiff was legally bound by the purported guarantee where: a. the plaintiff was a volunteer to the transaction and received no benefit from it; b. no one associated with the respondent explained the effect of the purported guarantee to the plaintiff, particular [sic] in a language with [sic] the appellant could understand; c. it was common ground that the defendant: i. never informed any guarantor, as a matter of practice, as to the upper limit of any guaranteed amount(s); ii. gave itself liberty to increase the indebtedness under such a guarantee without giving any notice to any such guarantor. 9. The plaintiff seeks leave to appeal the following questions of mixed law and fact: a. where the evidence before the primary judge revealed a vast difference between the signature on the plaintiff's driver's licence and the purported guarantee document, whether the plaintiff should be bound at law by such a guarantee to pay the judgment sum of $81,451.90 to the defendant; b. where the primary judge's finding that the plaintiff signed the purported guarantee was glaringly improbable or contrary to available inferences, whether the plaintiff should be bound at law by a guarantee that is signed in a manner which is vastly different to the plaintiff's own signature." 1. As can be seen from the foregoing, the Amended Summons deleted what was originally Grounds 3, 4, 5 and 6 in the original Summons. Further, the appellant informed the Court, having previously informed the respondent, that Grounds 8 and 9 were not pressed and would not be agitated. Appeal and Leave to Appeal 1. The appeal to the Court from a judgment of the Local Court is governed by the terms of the Local Court Act 2007 (NSW). Pursuant to the terms of s 39(1), an appeal may be brought to this Court from proceedings in the General Division of the Local Court from a decision with which a party is dissatisfied. 2. Such an appeal is an appeal as of right, if the appeal is on a question of law. It is necessary to record that the proceedings before the Local Court were in the General Division. 3. Otherwise, an appeal on a ground that involves a question of mixed law and fact may be taken from the decision of the Local Court sitting in its General Division to this Court, but only by leave of this Court. [1] The relevant provisions of the Local Court Act are in the following terms: "39 Appeals as of right (cf LCA 1982, section 73) (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law." "40 Appeals requiring leave (cf LCA 1982, section 74) (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court." 1. While probably unnecessary, given the jurisdiction otherwise available to this Court, the determination of an appeal is governed by the terms of s 41 of the Local Court Act and allows the Court: to vary the terms of the judgment or order under appeal; to set aside the judgment or order under appeal; to set aside the judgment or order and remit the matter back to the Local Court for determination in accordance with the law and/or the Court's direction; or to dismiss the appeal. [2] 2. Thus, if the ground of appeal raised is on a question of law, there is an appeal as of right. If, on the other hand, the ground raised in the appeal is a ground which is a question of mixed law and fact, it is necessary to obtain the leave of the Court in order for the appeal to proceed. It is important to note that neither ss 39 nor 40 of the Local Court Act permits an appeal, either as of right or by leave, on a question which is a question of fact only. 3. As can be seen from the foregoing recitation of the grounds of appeal, one of them asserts that there was "no evidence" that the appellant had signed the Guarantee. Further, there is an allegation of a breach of the rules of procedural fairness or, otherwise expressed, denial of natural justice. 4. Each of the foregoing grounds raises a question of law or a question of jurisdiction. While a question of jurisdiction may, technically, be a question of fact, it is, in my view, one for which leave to appeal is unnecessary. Alternatively, if there be a question of jurisdiction raised leave to appeal should be granted in relation to that ground, except in a clear case where the jurisdictional question is unarguable. Error of Law 1. For the appellant to have a right of appeal, the matter on which the right exists must be a ground of appeal on a question of law. For the appellant to be granted leave to appeal, the ground must involve a question of mixed law and fact. As earlier stated, no appeal lies to this Court on a question of fact that is not a question of mixed law and fact. 2. That which amounts to a question of law has been described on a number of occasions and there is little controversy as to the description. Application of the description is more difficult. [3] 3. Earlier in these reasons I have referred to a ground which purports to rely upon a denial of procedural fairness and jurisdictional error. Jurisdictional error occurs, at least, where there is: a failure to take into account a relevant consideration; taking into account an irrelevant consideration; utilisation of the wrong test or asking oneself the wrong question; a misapprehension of the nature of the limits of the power of the decision maker; or a denial of procedural fairness. [4] 4. The reference to a failure to take into account relevant considerations is a reference to those considerations that are required to be taken into account in determining the relevant decision. A jurisdictional error may be an error of law or an error of fact. For present purposes the Court accepts that a denial of procedural fairness is an error of law in that procedural fairness is, unless expressly excluded, an aspect of the requirements of valid proceedings and a valid resulting decision. 5. The taxonomy of an error of law has been described on a number of occasions. The classic taxonomy was outlined by Sir Frederick Jordan CJ and is in the following terms: "In cases in which an appellate tribunal has jurisdiction to determine only questions of law, the following rules appear to be established by the authorities: (1) The question what is the meaning of an ordinary English word or phrase as used in the Statute is one of fact not of law: Girls' Public Day School Trust v. Ereaut; Life Insurance Co. of Australia Ltd. v. Phillips; Mc Quaker v. Goddard. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: Camden v. Inland Revenue Commissioners; In re Ripon (Highfield) Housing Confirmation Order, 1938. White and Collins v. Minister of Health; although evidence is receivable as to the meaning of technical terms: Caledonian Railway v. Glenboig Union Fireclay Co.; Attorney-General for the Isle of Man v. Moore; and the meaning of a technical legal term is a question of law: Commissioners for Special Purposes of Income Tax v. Pemsel. (2) The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: Girls' Public Day School Trust v. Ereaut; Attorney-General for the Isle of Man v. Moore. (3) A finding of fact by it tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: Farmer v. Cotton's Trustees; Currie v. Inland Revenue Commissioners; Inland Revenue Commissioners v. Lysaght. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: In re Ripon (Highfield) Housing Confirmation Order, 1938. White & Collins v. Minister of Health, or (c) if it has misdirected itself in law: Farmer v. Cotton's Trustees; Colonial Mutual Life Insurance Society Ltd. v. Federal Commissioner of Taxation. Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law: Farmer v. Cotton's Trustees; Mersey Docks and Harbour Board v. West Derby Assessment Committee and Bottomley, etc. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law: Farmer v. Cotton's Trustees; Currie v. Inland Revenue Commissioners; Inland Revenue Commissioners v. Lysaght; Mersey Docks and Harbour Board v. West Derby Assessment Committee and Bottomley, etc." [5] (Footnotes and citations omitted) 1. The High Court recited and approved the taxonomy used by the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [6] in Collector of Customs v AGFA-Gevaert Ltd. [7] The High Court said: "[16] … In Collector of Customs v Pozzolanic, the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon 'value judgement[s] about the range of [an] Act' which, the Court said, necessarily raised questions of law. [17] Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions: '1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.' In Pozzolanic, the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact." [8] (Footnotes and citations omitted) 1. As noted by the High Court in passages that follow the foregoing extract, while such expositions are helpful, their utility is dependent upon the complexity of the enquiry and the complexity of the term or issue determined. 2. That which is clear is that a finding of fact determined in the absence of any evidence to support that fact is an error of law and a ground raising the issue would be a ground on a question of law. [9] 3. Thus, where there is some evidence of an element or issue, decided below, but the evidence is unbelievable, improbable, against the weight of the totality of evidence or so slender as not to satisfy the onus, the question is one of fact, or at least mixed fact and law. The distinction between the existence of evidence of a matter and the sufficiency or reliability of that evidence creates difficulties. But the former is an issue of law and the latter is at best a mixed question of law and fact for which, in present circumstances, leave to appeal would be required. 4. Essentially, the issues raised by Grounds 1 and 2 relate to the finding of fact by the Magistrate that the appellant signed the Guarantee. While the finding is described in a number of ways, fundamentally that is the finding of fact upon which the learned Magistrate relied. Further, Ground 7(a) of the grounds recited in the Amended Summons relates to evidence of an admission made by the appellant's son that he had forged his father's signature. 5. At this point, it is necessary to distinguish between a fact to be proved (factum probandum) for the purpose of the determination of a proceeding by a court or tribunal from a probative or evidentiary fact (factum probans, the plural of which is facta probantia). 6. The question of whether the appellant signed and executed the guarantee is a question of fact that was required to be determined, given the issues before the Local Court, by the learned Magistrate. The evidence that was used for the purpose of proving that fact may or may not have been sufficient for that purpose. 7. The description by the appellant, of the fact required to be determined, in a manner which elides the fact or circumstance of the execution of the guarantee with the evidence utilised to make that finding, does not assist the plaintiff. It seems, the best that can be achieved by the Court is to treat the grounds of appeal, in this regard, as raising two quite separate issues: whether there was evidence before the Court below that the Guarantee was executed; and whether the evidence in the Court below was sufficient to allow a finding that the Guarantee was executed. 8. In the latter category is the evidence that the appellant may or may not have had different signatures on different occasions; that the different manner of signing was deliberate or otherwise; and the admission by the appellant's son of the forging of his father's signature on the Guarantee. 9. Over and above those two aspects, there is the alleged denial of procedural fairness and the alleged absence of authority in Mr Van Akker to bind the respondent to the purported Guarantee. The latter was not pressed in submissions. Appellant's Submissions Ground 1 – No Evidence and Reversal of Onus 1. As the Court understands the submissions of the appellant, he agitates Ground 1 in support of two separate questions of law. First, the appellant submits that there was no evidence before the primary judge to allow the conclusion that the appellant had either a second or alternate signature, referred to by the appellant as the "phantom signature", in the form of that affixed to the purported Guarantee and submits that the signature on the purported Guarantee was vastly different to his driver's licence. 2. Secondly, the appellant submits that, even if there were such a phantom signature, there was no evidence that the appellant ever used such a signature. 3. Further, the appellant submits that the primary judge erred by reversing the onus of proof. The appellant submits that the primary judge required the appellant to prove either that he did not have or use the phantom signature; or, assuming such a phantom signature existed, had ever used it. 4. The appellant submits that whether there is any evidence of a particular fact is a question of law. Such a proposition is, as can be seen from the foregoing comments in these reasons, trite. 5. However, the appellant submits that the question of fact, here in issue, is whether there was a phantom signature or whether it was ever used. Each of those propositions is an evidentiary fact, the effect of which may be to confirm or to refute the ultimate factual conclusion that the appellant executed the Guarantee. 6. The appellant submits that the finding of the learned Magistrate comprises two distinct but interrelated findings that together comprise the signature finding. First, on the appellant's submission, the Local Court preferred the evidence of Mr Van Akker over that of the appellant. Secondly, the Local Court was not satisfied that the appellant, on the evidence before the court, could not have signed the Guarantee in a manner different to his licence signature. 7. As stated, the appellant submits that there was no evidence before the Local Court that would have allowed the conclusion that the appellant either had a phantom signature or used a phantom signature to execute the Guarantee. The appellant submits that none of the evidence suggested that the licence signature was anything other than the appellant's genuine signature. 8. That being so, on the appellant's submission, the Local Court erred, both by preferring the evidence of Mr Van Akker and attempting to explain away the vast difference between the form of the signature affixed to the Guarantee and the form of the licence signature, by concluding that it was open to the appellant to have used a phantom signature. 9. The appellant submits that the foregoing raises a question of law. That question of law is whether the primary judge erred by requiring the appellant to prove the phantom signature was not his, rather than requiring the respondent to prove that it was. Ground 2 – Denial of Procedural Fairness 1. The appellant submits that there was no pleading that the form of the signature on the Guarantee was that of the appellant. The lack of pleading, coupled with the oral and objective evidence before the Local Court, meant that it was procedurally unfair to the appellant for the Local Court to have made any conclusion about the quality or the form of signature on the Guarantee and/or its use by the appellant. 2. Had that issue been on the cards, according to the appellant, then, as he has done in these proceedings, the appellant would have adduced evidence of his uniform use of the signature on his licence across a broader range of documentation. This is one of the reasons that the appellant seeks leave to rely upon his Affidavit of November 2020, which annexes further documentation evidencing uniform use of the signature on his licence. 3. As it was, according to the appellant's submission, the primary judge had at least three individual consistent instances of the appellant's licence signature: his driver's licence; the Affidavits of the appellant in the proceedings; and the three delivery dockets relied upon by the respondent. If the November 2020 Affidavit had been included in the evidence before the Local Court, those instances would have doubled in number. Ground 7 – Inadequate Reasons 1. The appellant has submitted that the primary judge did not give adequate reasons for rejecting the sworn evidence of the appellant's son. That evidence, as has already been stated, was that he, the son, had placed the appellant's signature on the Guarantee. 2. No submissions were put before the Court seeking to agitate either Grounds 8 or 9 of the Amended Notice, the Court having been informed that the appellant did not press Grounds 8 and 9. Further, no submissions were made in relation to any apparent lack of authority in Mr Van Akker to bind the respondent to the appeal to the Guarantee. Consideration 1. Before dealing with the submissions of the appellant on appeal, it is necessary to reiterate some principles that apply to the manner in which the Court, as presently constituted, may deal with the issue. First, it is appropriate to note that the Court's jurisdiction is governed by the terms of s 75A of the Supreme Court Act 1970 (NSW), the terms of which provide that the appeal from the Local Court to it, not being an appeal under the Crimes (Appeal and Review) Act 2001 (NSW), is an appeal by way of rehearing. 2. While, in some circumstances, the term "rehearing" may involve some ambiguity, fundamentally the first task for the Court, in such an appeal, is to determine the correctness of the judgment from which the appeal has been brought. In so doing, it is the Court's function to determine whether the judgment below is the result of some legal, factual or discretionary error, [10] or is the result of some significant procedural error. [11] 3. In SZVFW, supra, the High Court said: "[29] As appeals are creatures of statutes, incidents of appeals can vary from statute to statute. To describe a particular appeal as an appeal by way of rehearing can accordingly be to fail to identify all of the statutory incidents of that appeal. More than a century of case law expounding the ordinary incidents of an appeal by way of rehearing from a final judgment of a judge sitting without a jury nevertheless allows those ordinary incidents to be identified with relative precision. The answer to the first of the subsidiary questions involved in this appeal is to be found in those ordinary incidents. [30] Like an appeal in the strict sense, of which an appeal to the High Court under s 73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to 'give the judgment which in its opinion ought to have been given in the first instance'. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. '[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.' [31] For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal. [32] To the extent necessary to address the ground or grounds on which an appellant claims that a judgment under appeal is erroneous, an appellate court in an appeal (whether in the strict sense or by way of rehearing) from a final judgment of a judge sitting without a jury 'is obliged to conduct a real review of the trial and ... of [the] judge's reasons'. The appellate court 'cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions'. [33] Performing its obligation to conduct a 'real review', the appellate court 'must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record'. Limitations of that nature can include: 'those occasioned by the resolution of any conflicts at trial about witness credibility based on factors such as the demeanour or impression of witnesses; any disadvantages that may derive from considerations not adequately reflected in the recorded transcript of the trial; and matters arising from the advantages that a primary judge may enjoy in the opportunity to consider, and reflect upon, the entirety of the evidence as it is received at trial and to draw conclusions from that evidence, viewed as a whole'. The appellate court needs to be conscious that '[n]o judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another'. The more prominently limitations of that nature feature in a particular appeal, the more difficult it will be for the appellate court to be satisfied that the primary judge was in error. [34] Natural limitations on an appellate court's ability to be satisfied of error on the part of a primary judge inhering in the need for the appellate court to proceed on the record play no part in this appeal. They have little impact in practice on the determination of an appeal from a judgment given in a proceeding for judicial review of administrative action. Ordinarily, as here, the trial of a judicial review proceeding will have been conducted wholly or substantially by reference to documentary and affidavit evidence which an appellate court is in as good a position to evaluate as was the primary judge." (Footnotes and citations omitted) 1. The judgment of the Local Court is not a judgment by way of the exercise of discretion. However, it is a judgment that depends fundamentally on the credibility of witnesses and findings of fact on the basis of evidence from different persons, which evidence is inconsistent. 2. Once error has been disclosed, the Court is entitled, particularly if factual material is largely uncontradicted, to make findings itself and, in so doing, bring finality to the determination of the issues between the parties. [12] 3. A rehearing is not a hearing de novo; nor is it a retrial. The appellant must persuade the Court that the decision from which the appeal has been brought is wrong and should be reversed. 4. Nevertheless, unlike an appeal in the strict sense, the appeal is ordinarily decided on the law as it exists at the time of the appeal and further evidence may be adduced in certain circumstances. This will alter if the statute establishing the appeal provides differently. Otherwise, the appeal is conducted on the transcript of the evidence below and the evidence otherwise adduced below. 5. As it is a matter of controversy in these proceedings, albeit one that, in my view, makes no difference to the outcome, it is necessary to point out that additional evidence of material, which was available and had occurred before the substantive hearing from which the appeal has been brought, should not be admitted into evidence on appeal, even at a rehearing, unless there are "special grounds" to justify its reception. [13] 6. Of course, if evidence is adduced to show a lack of procedural fairness or the effect of the lack of procedural fairness, such evidence would be admissible, whether or not it fits within the term "special grounds". [14] Generally, without intending to establish any kind of prescriptive taxonomy, evidence will not be admitted under the rubric of "special grounds" unless: it was unavailable before the substantive trial; it is credible; and it has sufficiently significant probative value to have affected the outcome of the substantive hearing below. [15] 7. Most relevant, for present purposes, is the issue associated with the findings of fact made below, based, as it was, on the Local Court accepting the evidence of Mr Van Akker, on the issue of the signing of the Guarantee. Findings of fact based upon the credibility of one witness and, necessarily, not believing other witnesses, need to be treated, on appeal, differently from facts, or inferences from facts, that are otherwise not in contest. 8. Where, as here, a trial judge has determined the facts based upon the credibility of the witnesses, that finding may be set aside on appeal only where incontrovertible facts or uncontested testimony discloses that the conclusions of the judge in the Court below were erroneous or were glaringly improbable or contrary to compelling inferences that were, otherwise, necessary to draw. [16] 9. In Fox v Percy, supra, the plurality said: "[22] The nature of the 'rehearing' provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal. [23] The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole. [24] Nevertheless, mistakes, including serious mistakes, can occur at trial in the comprehension, recollection and evaluation of evidence. In part, it was to prevent and cure the miscarriages of justice that can arise from such mistakes that, in the nineteenth century, the general facility of appeal was introduced in England, and later in its colonies. Some time after this development came the gradual reduction in the number, and even the elimination, of civil trials by jury and the increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision. Such reasons are, at once, necessitated by the right of appeal and enhance its utility. Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons. … [28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings." (Footnotes and citations omitted) 1. Fundamentally, in this appeal, the appellant relies upon the proposition that he was denied procedural fairness and there was "no evidence" upon which the determination by the Court below could have been made. The procedural fairness ground is untenable. 2. The Statement of Claim, filed in Local Court on 14 November 2018, alleges that the appellant, the respondent and others entered into an agreement. [17] The agreement was in writing and signed by each of the parties. As a consequence of that last mentioned allegation, there is an express allegation that the appellant signed the agreement in issue. 3. If the foregoing were not enough, the Statement of Claim continues to particularise the agreement entered into by the appellant, who was the third defendant below, as having jointly and severally guaranteed the due and punctual payment of all monies owed by his son, who was the first defendant below. 4. The Defence filed by the third defendant below, being the appellant, seemingly on or just after 17 July 2019, denies entering into the agreement with the respondent and denies signing any agreement with the respondent. It also denies meeting with the respondent on 14 March 2018 or at all. 5. As a consequence, the respondent to the appeal asserted below that the appellant entered into the agreement by signing it and asserted the effect of the Guarantee, while the appellant denied signing the agreement and entering into the agreement. Issue was joined and there can be no lack of notice that the issue was before the Local Court. 6. Further, the appellant in his defence below particularised that the signature appearing on the Guarantee was not that of the appellant and that he had never signed the document. He also particularised that the second defendant below, namely the appellant's son, had admitted to forging the signatures. 7. The foregoing alone would render any submission that the parties were not on notice that the issue was before the Local Court as untenable. However, the material before the Local Court and served on the appellant went beyond the pleadings. 8. By Affidavit sworn 14 May 2019, Mr Van Akker attested that, on 14 March 2018, he met with the appellant. [18] He was approached in his capacity as sales consultant of the respondent and asked to set up a credit account. 9. Mr Van Akker attested to: the fact that, prior to the signing of the Guarantee, he explained the terms and conditions of the Guarantee to the three persons present, the appellant, the appellant's son and an employee/worker of the company party to the arrangement; the terms of the conversation between the appellant and the Mr Van Akker are given; [19] that a conversation occurred between the appellant and his son apparently in Arabic; that the appellant provided Mr Van Akker with a copy of his driver's licence; [20] and that he witnessed the appellant executing the credit application, the Guarantee and indemnity and the notice to persons signing indemnity. [21] 10. Further Affidavits from Mr Chebah, his granddaughter, Ms Chebab, and Mr Gordon Halabe were also filed and served. Those Affidavits attested to conduct of the appellant, late in the day the guarantee was executed, consistent only with the appellant having executed it. 11. The issue of fact between the parties was whether or not the appellant signed the guarantee. That issue was plainly a matter upon which the parties had joined issue. There can be no arguable proposition that the parties were not on notice as to that contest of fact and no denial of procedural fairness or natural justice in relation to that proposition arises. The only requirement for notice is that a party be informed of that from which it should reasonably apprehend that the fact was in issue. [22] 12. The appellant seeks to confine the denial of natural justice to the evidentiary proposition that his signature on the Guarantee was different from that on the driver's licence. The adducing of material by the appellant of the nature of his signature on other documents does not prove, of itself, nor could it ever prove, in itself, the proposition that the Guarantee was not signed by the appellant. 13. At best, it is evidence supportive of the testimony of the appellant and his son that it was his son and not the appellant that signed the Guarantee. This ground must fail. 14. The appellant raises a ground of appeal that the learned Magistrate reversed the onus. It is appropriate to recite the impugned passage of the judgment below in which the issue, relating to the signing of the Guarantee, was considered and the conclusion expressed. The learned Magistrate said: "[67] Looking at the objective evidence, the signature on the guarantee and the document entitled 'notice to person signing the indemnity' appears to have been signed by the same person, that much was conceded by the defendant in submissions. The defendant points to the signature on his licence and says on that evidence I could not be satisfied that the signature is in fact Mr Mohamad El-Hadi because it is clearly so different on the licence. I agree that the signature on the two documents before me differ vastly from that seen on the drivers licence. However, a licence demonstrating a particular signature style is not sufficient evidence in this case, on balance, to prove that Mr Mohamad El-Hadi could not have signed the documents in a different way on other occasions. [68] In any event I accept the evidence of Mr Van Akker and am satisfied that Mr Mohamad El-Hadi did attend with his son, did speak with Mr Van Akker and did sign the document in front of the witness." 1. The fundamental conclusion reached by the learned Magistrate was that she accepted the evidence of Mr Van Akker and was satisfied that the appellant attended the meeting; spoke with Mr Van Akker; and signed the Guarantee in the presence of Mr Van Akker. That conclusion is based upon the credibility of the witnesses and is unassailable. 2. The last sentence of paragraph [67] of the learned Magistrate's judgment may have been expressed infelicitously. It would have been more accurate, given the terms of paragraph [68], for the Magistrate to have expressed the conclusion as being "not sufficient evidence … to qualify the proof that [the appellant] … signed the documents in a different way", but the intention of the Magistrate is clear and obvious. It is relevant to recite a passage from the Court of Criminal Appeal, relating to textual criticism of summings up. The Court there said: "The practice of subjecting a summing up, after the trial is over, to a minute and detailed textual criticism in the hope of finding something on which to base an argument cannot be too strongly discouraged. Such a practice does not in my opinion assist in the proper administration of justice, and this Court was not called into existence to wrestle with exercises in mental ingenuity of that kind. … Every summing up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This Court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced." [23] 1. In relation to judicial review, the Federal Court has made it clear that administrative decision-makers' reasons "are not to be construed minutely and finally with an eye keenly attuned to the perception of error". [24] 2. The High Court, after citing and approving the foregoing phrase, remarked that such propositions are well-settled. The High Court said: "They [the propositions just recited] recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." [25] 1. When an appeal is taken against the reasons of a judicial officer, as distinct from an administrative decision maker, greater attention may be paid and should be paid to the terms of the reasons. Those reasons must, in and of themselves, record the steps that were in fact taken in arriving at the result ultimately determined. [26] 2. Failure by a judicial officer to expose the path of reasoning in a judgment sufficiently is an error of law. However, in this case the path of reasoning has been exposed fully and adequately. 3. The Magistrate heard evidence from Mr Van Akker; from the respondent's other witnesses; from the appellant; and from the appellant's son. The evidence of the appellant's son was that he had deliberately forged the document. 4. The reference in the Magistrate's reasons at paragraph [67], recited above, that the evidence was not sufficient "to prove that [the appellant] could not have signed the documents" was not expressing a view as to the ultimate burden of proof. Rather, it was an expression, in the course of determining the learned Magistrate's findings on credibility, as to why she was prepared to accept the evidence of Mr Van Akker. 5. The reference to proving the lack of signature was a reference to what, some would say, inappropriately, used to be called the "shifting burden of proof" and means no more than, having heard and received the evidence of Mr Van Akker, if no evidence, or no more evidence, were given, in particular by the appellant, that evidence was to be accepted. 6. The use by the Magistrate, in paragraph [68] of her reasons, of the term "in any event" discloses that the Magistrate had come to the conclusion that the evidence of Mr Van Akker was to be accepted and that he attended a meeting with the appellant, the appellant's son and a third person, who was not called by the appellant. Further, that evidence was to the effect that the appellant signed the document. The conclusion was corroborated by the evidence of Mr Chebah, Ms Chebah and Mr Halabe as to the appellant's conduct later in the day. 7. The Magistrate, at paragraph [67], was making clear that the "objective evidence", being the signature of the appellant used in other documents, had been taken into account but did not displace the view, taken by the Magistrate, that the evidence of Mr Van Akker was to be preferred and was accepted. 8. Over and above the foregoing, albeit not a matter expressly or otherwise relied upon by the learned Magistrate, in essence the appellant was relying upon fraud by the respondent. The appellant, below, and, to a lesser extent in this appeal, alleges that Mr Van Akker, on behalf of the respondent, knew that the appellant had not signed or executed the Guarantee. 9. As a consequence, it was a matter to be expressly pleaded. [27] The fraud arises as a result of the terms of the Guarantee and the signatures arising on it. [28] 10. Reliance upon a Guarantee that was known not to have been signed by the guarantor is fraud and, essentially, that is the claim of the appellant. The reference by the learned Magistrate to proving that the appellant could not have signed the document was a reference to what has often been called "the tactical burden". It says nothing of the legal burden of proof on the claim that was before the Local Court. 11. In the present circumstances, given the terms of the pleading and the form of the executed Guarantee, together with the evidence of Mr Van Akker, were the appellant not to have called any evidence, the learned Magistrate would have been bound to decide the issue in favour of the respondent. It is only in this sense that the learned Magistrate is referring to the respondent proving that he could not have signed the document. 12. Properly understood, the learned Magistrate is not reversing the legal burden of proof. The Magistrate came to the view, based on credibility, which in turn was based on all of the evidence adduced, that the guarantor attended a meeting; signed the Guarantee in the presence of Mr Van Akker; and understood the effect of the Guarantee. 13. The Magistrate did that on the basis of the acceptance of the evidence of Mr Van Akker. The comment as to the form of the signature on the licence as compared to the form of the signature on the Guarantee is merely a statement of common experience. 14. Even if the appellant had, on every other occasion, signed documents in a particular way, such evidence would not ultimately overcome evidence accepted by the tribunal or court that he signed the document, in this instance, differently. The fact, and it is an accepted fact, that the signature on the Guarantee is different from that otherwise disclosed in other documents has been used to support the truth of the evidence of the appellant that he did not sign the document, but it cannot, in and of itself, prove that fact. It can only be corroborative of evidence that is otherwise believable. 15. It is for the foregoing reasons that the material sought to be adduced on appeal, which was available prior to the hearing at first instance, should not be admitted. No special grounds have been disclosed and otherwise the material only confirms that which was otherwise contained in the three individual and consistent instances of the appellant's licence signature. 16. Further, the foregoing reasons show that the primary judge did disclose her path of reasoning and did give adequate reasons for the findings of fact at which she arrived. 17. Over and above the foregoing, the formation of the contract is a matter of objectively construing the intention of the parties. The evidence otherwise adduced in relation to the conversation between the appellant, his son and Mr Alfred Chehab and his granddaughter, Ms Czarina Chehab, later in the day, was confirmatory of the intention to enter into the credit agreement and the Guarantee in the terms of the executed document. 18. These matters are attested to by Mr Alfred Chehab, Ms Czarina Chehab and Mr Gorden Halabe, an employee of the respondent. The evidence, frankly, is overwhelmingly supportive of the intention, objectively determined, of the appellant to enter into the Guarantee that allowed his son and his son's business to operate. 19. For the foregoing reasons, the appeal must be dismissed, to the extent it raises a question of law. To the extent, the appeal raises a question of mixed law and fact, leave should be refused. 20. The Court makes the following orders: 1. To the extent that the grounds of appeal raise questions of mixed law and fact, leave to appeal is refused; 2. Otherwise, the appeal is dismissed; 3. The plaintiff/appellant on the appeal, Mr Mohamad El-Hadi, shall pay the costs of the respondent/defendant of and incidental to the proceedings. ********** Endnotes 1. Local Court Act 2007 (NSW) s 41. 2. Ibid s 40(1). 3. See the history of the litigation in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 and the differing results below: HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 and Kostas v HIA Insurance Services Pty Ltd [2007] NSWSC 315. 4. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40. 5. The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126. 6. 43 FCR 280 at 287; [1993] FCA 456. 7. (1996) 186 CLR 389; [1996] HCA 36 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ). 8. Ibid. 9. Krishna v Director of Public Prosecutions (NSW) (2007) 178 A Crim R 220; [2007] NSWCCA 318; Williams v the Queen (1986) 161 CLR 278; [1986] HCA 88; Morris v the Queen (1987) 163 CLR 454; [1987] HCA 50; M v the Queen (1994) 181 CLR 487; [1994] HCA 63; R v R (1989) 18 NSWLR 74; 44 A Crim R 404. 10. Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40. 11. Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 555-556 [29]-[31]; [2018] HCA 30 at [31]-[32]. 12. Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 410; [2010] HCA 32 at [60] (French CJ). 13. Supreme Court Act 1970 (NSW) s 75A(8). 14. Whall v Stamp [2019] NSWCA 163. 15. Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. 16. Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Gleeson CJ, Gummow and Kirby JJ). 17. Court Book, Exhibit CB1, p 19 (Statement of Claim at [2]). 18. Court Book, Exhibit CB1, p 32 (Affidavit, Rod Van Akker, 14 May 2019, at [5]). 19. Court Book, Exhibit CB1, p 33 (Affidavit, Rod Van Akker, 14 May 2019, at [6]). 20. Court Book, Exhibit CB1, p 33 (Affidavit, Rod Van Akker, 14 May 2019, at [9]). 21. Court Book, Exhibit CB1, p 33 (Affidavit, Rod Van Akker, 14 May 2019, at [11]). 22. Re Building Workers' Industrial Union; ex parte Gallagher (1988) 62 ALJR 81 at 84; [1988] HCA 4 at [17], [18] (Mason CJ, Wilson, Deane and Gaudron JJ). 23. R v Sorlie (1925) 25 SR (NSW) 532 at 539. 24. Collector of Customs v Pozzolanic Enterprises Pty Ltd, supra, at 287. 25. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272; [1996] HCA 6 at [30]-[31]. 26. Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 at 1835; [2005] HCA 57 at [130] (Hayne J); DL v The Queen (2018) 266 CLR 1 at 44; [2018] HCA 26 at [131] (Nettle J). 27. Uniform Civil Procedure Rules 2005 (NSW) r 14.14(3). 28. Court Book, Exhibit CB1, p 72. Amendments 14 May 2021 - Typographical error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2021