HUGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, MEAGHER and HANDLEY JJA 25 June 1991, 27 September 1991 [1991] NSWCA 149 APPEAL and NEW TRIAL — trial judge in his reasons for judgment made unfavourable comments concerning the appellant which were not supported by evidence — whether judge's conclusions on issue of appellant's liability affected — whether appellant entitled to new trial — held: Appellant only entitled to new trial if evidence at first trial capable of supporting verdict in his favour — the appellant had no realistic chance on the evidence at the trial of securing a judgment taking the evidence at its highest in his favour — per Meagher JA and Handley JA; Mahoney JA dissenting — a new trial should be refused. Deane v The City Bank(1904) 2 CLR 198 Armstrong v Great Southern Gold Mining(1911) 12 CLR 382 Balenzuela v De Gail(1959) 101 CLR 226 Driclad Pty Ltd v FCT(1968) 121 CLR 45 Vakuata v Kelly(1989) 167 CLR 568 Commonwealth of Australia v Bank of NSW(1950) AC 235 Winters v Cross(1978) INSWLR 616 McIntosh v Williams(1979) 2 NSWLR 543 Martin v Green(1984) 1 NSWLR 14 Galea v Galea(1990) 19 NSWLR 265 Mahoney JA Between about March 1986 and December 1986 the plaintiffs, trading as Combined Petroleum Service, delivered petrol to a service station in Bourke in which the defendant Mr Hughes had some interest. For some of the petrol at least the plaintiffs were not paid. On 28 May 1987 the plaintiffs served a summons on the defendant claiming the amount in question. After some interlocutory proceedings, the claim came for trial on 30 May 1989 before his Honour Judge Conomos at Dubbo. The only issue to be tried was whether the debt sued for was contracted by Valco (Distributors) Pty Limited or Mr Hughes. The Valco company was a company in which Mr Hughes was interested. The amount claimed was $36,374.90. His Honour found for the plaintiffs, assessed interest at $15,823 and gave judgment for $52,197.90. Mr Hughes has appealed to this Court against his Honour's judgment. He has relied upon two grounds: that his Honour erred in finding that the liability was the liability of Mr Hughes and not of the Valco company; and that "the learned judge formed an adverse opinion as to the credit of the appellant which unduly influenced his decision without any basis for doing so or evidence". 1. Liability: In my opinion, the first ground of appeal has not been sustained. The learned judge was correct in holding that the liability lay upon Mr Hughes personally and not upon the Valco company. However, as the evidence placed before the court and the way in which it was dealt with are of significance in deciding the second ground of appeal, I shall refer to what was said for the plaintiffs and for the defendant and to the terms of his Honour's judgment. At the trial, the parties did not attempt to establish by evidence the full detail of what had taken place or, indeed, to establish in full the matters to which reference was made in the evidence. The evidence on each side was somewhat fragmentary. I shall state the evidence according to the findings which, in my opinion, should be made by this Court as on rehearing. 2 UNREPORTED JUDGMENTS A service station had been conducted on the relevant site at Bourke for some years. The Valco company was incorporated in June 1973 as a family company. Mr Hughes said that it conducted the business at Bourke since 1973. The company, he said, had sought and, I infer, been registered "as a shop" under the Factories Shops and Industries Act and held a licence in relation to the supply of fuel by retail at the premises. A copy of an application for a petroleum retailer's licence "for the month of June 1986" by the company was in evidence. That application suggested, and I shall assume, that it was an offence to carry on petroleum retailing without such a licence. The name of the company was, Mr Hughes said, "across the front hoarding" of the premises. Prior to about April 1986 the petrol retailed on the premises was acquired from a Mr CJ Harland. Mr Harland sold his business to the plaintiffs at about that time. The plaintiffs accordingly continued to supply petrol to the premises at Bourke. When the plaintiffs bought from Mr Harland "the Shell depot at Bourke" they received from him a list of customers. The name of Mr Hughes was, it may be inferred, on that list. The practice in relation to the supply of petrol was that a representative of the retailer would telephone the supplier and ask for a supply of petrol. Who took the message from the retailer, how it was recorded, and the way in which the delivery driver was instructed to supply it within the plaintiffs' organisation did not appear. But the arrangement was, in general, that the petrol would be delivered by the plaintiff to the retailer at his premises. In some cases, apparently, cash was required on delivery; in other cases, credit was given to the retailer. In the present proceeding, no direct evidence was given by anyone who was involved immediately in the delivery or receipt of the petrol. But there were tendered in evidence a large number of documents of the plaintiffs' organisation described as "invoices". Some of these documents were described as "paid" and I infer that payment for the petrol was made either on delivery or subsequently. A large number of invoices were, it was accepted, in respect of petrol for which no payment had been made. The invoices set forth details of the particular delivery, including the quantity of the petrol and a money sum. They also contained two things relevant for present purposes: an "Account address" and a signature acknowledging delivery. There was printed in the invoice the phrase "Account address". In the invoices there appeared various variations of Mr Hughes' name. In some cases there appeared merely "Mr W Hughes, Richard Street, Bourke". In others there appeared, for example, ""W Hughes S Stn, Richard Street, Bourke" or "Hughes S Stn, Richard Street, Bourke". It was not suggested that the company's name ever appeared in any of the invoices, either those said to have been paid or those not paid. In respect of delivery there was printed on the document the following: "CUSTOMER MUST SIGN INVOICE ONLY The goods below have been delivered and received in good order and condition and subject to the Conditions of Sale". In another place in the invoice, the "Conditions of Sale" were stated as "All orders will be executed at prices ruling at time of delivery". In the great number of the invoices a signature appears over these words. The signature, I infer, was an acknowledgment of the receipt of the petrol. Details were provided of the cheques by which payment was made for a large number of the deliveries upon dates ranging between 3 April 1986 and 5 May 1987. The first two payments (3 April 1986 and 31 July 1986) were by a cheque WRIGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE (Mahoney JAB drawn by the company. The majority of the remaining payments were by a cheque "LM Helm and WJ Hughes". Some of the cheques, between 24 March 1987 and 5 May 1987, were drawn "KA Rumble KA Rumble and WJ Hughes". Mr Hughes said in evidence that he lived in the Kempsey area and arrangements were made for payment of the amounts payable by the Bourke business with his bank there. He said that his daughter Mrs Helm had attempted to open an account in the name of the company with the bank, had been asked for details under the company's seal, and in the event had opened an account in the name of herself and Mr Hughes, they being the directors of the company. The payments were made out of that account. The circumstances of the "Rumble, Rumble and Hughes" payments were not pursued. The witness for the plaintiffs, Mr Vaughn, an "administration manager" said that the practice of the plaintiffs was that, when there was a running account with a corporate body, they would ask for a personal guarantee by a director. That, of course, had not been done in the present case. When the account in respect of the Bourke business had reached an amount in excess of $40,000, a Mr Kirby on behalf of the plaintiffs, spoke on the telephone to Mr Hughes. Mr Hughes, it would appear, contested that amounts were owing, this upon the basis, it would appear, that all petrol was paid for on delivery. Mr Kirby then sent to Mr Hughes a document described as a "December 1986 statement". This, under the heading "W Hughes - Bourke" set forth details of goods delivered, the quantity delivered, the price and the net amount owing. On 26 January 1987 Mr Hughes wrote to "The Manager, Combined Petroleum Service". He acknowledged receipt of the statement and queried certain items in it. It is clear that at no time had Mr Hughes, nor did he then, question that the account with the plaintiff was his: he did not suggest that it was the company's account. Apparently the claim that it was the company's account was made at some subsequent time. Judgment was signed in default upon the summons served on Mr Hughes. Mr Hughes had the judgment set aside upon condition that the only defence to be raised was whether amounts due were due by the company and not him personally. These matters were referred to in the learned judge's judgment: they were not formally in evidence before him. It may be that the learned judge derived the information from a perusal of material which was before him but was not formally in evidence. Apart from what was said as to the ordering of petrol and the inference that the petrol was delivered by the plaintiffs pursuant to an order so given, nothing was said in evidence at the trial as to the making of contractual arrangements between the plaintiffs and the purchaser of the petrol. Whether the relationship between the parties be properly seen as contractual or in the realm of the sale and delivery of goods need not, I think, be pursued. Goods were undoubtedly delivered and retained and it is necessary to spell out of such evidence as there is the identity of the purchaser of them. It is in my opinion to be inferred that the plaintiffs thought that the purchaser of the petrol was Mr Hughes. His name was on the list of customers that they received from Mr Harland. Under the heading "Account address" on the invoices, the reference to "Hughes" appears. The fact that payment was made by cheques drawn in the manner to which I have referred does not, I think, require the inference that the plaintiffs thought that the purchaser was other than Mr Hughes. 4 UNREPORTED JUDGMENTS But it is, I think, not clear that (if Mr Hughes gave attention to the matter at all) it was his belief that the petrol was being purchased by him rather than by the Valco company. If it be assumed that Mr Hughes' evidence is to be accepted completely and the inferences which he would have from it are to be drawn, an arguable case may be made for the view that he would, had he applied his mind to the matter, have taken the view that it was the company and not himself personally that was buying the petrol. As I have said, the company had the petrol vending licence: it was not suggested he had one himself. And his evidence as to how the bank account established for payment came to be in the name of his daughter and himself rather than of the company would add some support to the view that it was the company which was carrying on the business and purchasing the petrol and not Mr Hughes. There was, of course, evidence to support a contrary conclusion. The form of the invoices, the terms of Mr Hughes' dealing with Mr Kirby, his omission to raise the name of the company until a later stage, and the subsequent use of Mr Hughes' name in relation to the business on the premises supported the contrary case. But, for myself, were the matter to be looked at simply from the point of view of Mr Hughes and were his evidence to be accepted fully and beneficially, I would on balance conclude that he would have thought it was the company that was involved. But, of course, the matter does not end there. It is necessary to determine, in the light of what the plaintiffs thought and the defendant thought, who in law the purchaser was. In my opinion, the proper conclusion is that the purchaser was in law Mr Hughes. Oversimplified, what in effect occurred was that the plaintiffs delivered petrol to the Bourke premises and tendered at the time a document which, under the heading "Account address" referred to Mr Hughes and not to the company. A recipient of the document would, I think, understand from it that the plaintiffs believed that the person to whom the goods were being supplied (the "account'') was to be inferred from the details included under that heading; and the inference to be drawn would be that it was Mr Hughes. This inference would be proper, particularly as the document took this form on delivery on a large number of occasions and no question was raised as to the correctness of it. A purchaser in the position of Mr Hughes or those managing the business for him would, in my opinion, understand that the plaintiffs thought they were dealing with Mr Hughes: they would not have thought that the plaintiffs were dealing with the company, notwithstanding that the name of the company may have been upon the premises. Ihave set forth these matters in detail because of the submissions which have been made in relation to the second ground of appeal. In particular, in stating the facts I have assumed that the evidence of Mr Hughes would be accepted and inferences drawn from that evidence as of a credible and accurate witness. On that basis, I have come to the conclusion I have in favour of the plaintiffs as on a balance. It is, in my opinion, not completely clear that that is the correct conclusion and it is, I think, possible for a different conclusion to be accepted. The significance of this lies in what the learned judge said, during the trial and in his judgment. To that matter I shall now go. 2. The judge's findings as to credit and otherwise in respect of the defendant: The learned judge made a number of findings or statements in respect of Mr Hughes. It is, in order to deal with the submissions made for him, necessary to refer to them. The learned judge said, at the commencement of his judgment: WRIGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE (Mahoney JAB "Tt appears that the defendant who lives in Kempsey and lived in Kempsey at the relevant period has a number of businesses associated with roadside houses and service stations throughout the west. He himself says that he is well-known and in addition he has a cobweb of corporate personalities to aid and abet his activities." There was, I think, no reference in the evidence other than to two companies associated with the defendant. Subsequently, the learned judge said: "Of course the defendant is no stranger to sharp practice. I observed him in the witness-box and he struck me as being a glib, sharp, rather slippery-type of customer who would have a corporate entity available to him in case things became a little rough in the ups and downs of the economic cycle. For example not only would he have incorporated in 1973 to lessen the impacts of the revenue law but also to meet the rough and tumble of the economy and thus limit his liability. I think there is a fair chance that this company is entirely worthless as far as assets are concerned. I would be greatly surprised if any great real estate edifices could be found in the ownership of this company Valco Distributors Pty Ltd. In fact superior courts in England and here have said that such a defence as this is a defence totally without merit. I agree absolutely. How this defendant with all solemnity could sit in this court and raise such a defence when he clearly owed this huge amount of money to these plaintiffs for so long beggars belief. It indicates to me no commercial morality. In the same breath for him to turn around and say that he was seeking to franchise roadside stalls because his name was well-known in the west indicates to me that he is totally amoral financially and economically." The learned judge had the advantage of seeing the defendant in the witness box and, it was submitted, could have formed an unfavourable assessment of him. I shall assume that to be so. But it is conceded that in respect of at least the bulk of what his Honour there said there was no evidence to support his Honour's conclusions. There was nothing to suggest that the incorporation of the Valco company was undertaken "to lessen the impacts of the revenue law" or "to meet the rough and tumble of the economy". It was not suggested that the company "'is entirely worthless as far as assets are concerned". The learned judge, at the end of his judgment, recorded that, in answer to such a suggestion by the judge, the defendant had sought to prove the financial position of the Valco company but his Honour had refused to permit him to do so. And to conclude, for the reasons referred to by the judge, that "he is totally amoral financially and economically" cannot be supported by what was before the judge. His Honour went further. Having commended the plaintiffs' witness Mr Vaughn, his Honour said: "He is not streetwise but he certainly is hard-working, and as far as I am concerned I am satisfied that the defendant deliberately created an ambiguity in his business dealings so that one day, if called upon, he could rely on this defence which is without merit." It is accepted that there was no evidence that the defendant had "deliberately created an ambiguity" or that he had acted for the purpose suggested. In addition, as Mr Green submitted, the brief crossexamination of Mr Hughes did not suggest any of the matters to which his Honour referred or offer Mr Hughes the opportunity of dealing with the matters from which they might perhaps have been inferred. The cross-examination by Mr Johnson, for the plaintiffs, was brief and to the point at issue in the proceeding, the identity of the 6 UNREPORTED JUDGMENTS purchaser of the petrol. It was not suggested to Mr Hughes in any appropriate fashion that, for example, he was not a person of credit because he had done the things to which his Honour referred. In my opinion, therefore, the relevant findings were not supported by evidence and, in the circumstances of this case, it was not proper to find them to be so without them having been appropriately put to the defendant, in cross-examination or otherwise. What follows from this? Mr Green, for the defendant, accepted that there was no complaint to be made in respect of the manner in which the trial was conducted. The complaint was, he accepted, limited to what his Honour said in his judgment. The defendant submitted that what his Honour said should lead to the conclusion that, in the mind of the postulated reasonable or fair-minded observer, his Honour was biased in the sense that he was influenced to decide against the defendant and to describe him as he did for reasons which had no basis in the evidence and had not been fairly put to him. To adapt the language of Toohey J in Vakauta v Kelly (1989) 167 CLR 568, "... his Honour's remarks would excite in the minds of the parties and in members of the public a reasonable apprehension that the trial judge might not bring an unprejudiced mind to the resolution of the matter before him...": at 584. See also Galea v Galea (1990) 19 NSWLR 263. The function of a trial judge is not limited to a colourless recitation of facts and conclusions. The form of a judgment is, within proper limits, for the individual judge: Martin v Green (1984) 1 NSWLR 148 at 157. He is entitled, in a proper case, to refer to facts or conduct which, in the public interest, require to be identified, categorised and, if necessary, criticised. The recent decisions dealing with what a judge may do do not suggest otherwise. His right to make observations in the public interest is a valuable one and should not be unnecessarily restricted. But it is, in my opinion, one to be exercised "only on an occasion of sufficient moment, with considerable circumspection and with a proper sense of responsibility": Winters v Cross (1978) 1 NSWLR 616 at 624. See also McIntosh v Williams (1979) 2 NSWLR 543 at 552. If such a right is to be exercised, it should be exercised in respect of matters arising in the case before the judge and sustainable upon the evidence against the party to be criticised. And, in addition, a judge must not be, and what he says must not suggest to the reasonable bystander that he is, so affected by such matters and the criticism of them that he is not able to "bring an unprejudiced mind to the resolution of the matter before him". The submission for the defendant was that what his Honour said infringed these principles: the conclusions which he drew were not supported by anything in evidence before him; and what he said went so far as to raise the kind of apprehension to which, in Vakauta v Kelly, Toohey J referred. In my opinion, that submission should be accepted. What the learned judge said was, of course, after the evidence was concluded and in the course of articulating his conclusions and the reasons for them. But, in my opinion, the relevant bystander would think that the judge had formed his conclusions and formulated his reasons under the influence of matters of fact prejudicial to the defendant which were not based in the evidence before him and which the defendant did not have the opportunity to deal with. WRIGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE (Mahoney JAY There is, in this case, no question of waiver or the like: cf the Vakauta case 167 CLR at 586. What was said was said in the judgment and at a time when there was no opportunity for the defendant to take an appropriate objection. Waiver has not been argued. I come then to consider what should be the result of what was done. The submission for the defendant is that, because of the apprehension created by what his Honour said, there must or at least should be a retrial. Reference was made, for example, to Galea v Galea (1990) 19 NSWLR 263 and to, as it was suggested, the differing views of Kirby P and Meagher JA. It was submitted that, on the view of Kirby P: at 277 et seq; there must be a new trial; or that, on the view of Meagher JA: at 283; there should be such. Subject to the matter to which I shall refer, my conclusion is that there should be a new trial. As I have said, the learned judge arrived at conclusions of fact for which, as it has been conceded, there was no basis in the facts in evidence before him. Those conclusions indicate two things. First, his Honour formed, in respect of the matters to which I have referred, a conclusion seriously adverse to the credit or the acceptability as a witness of Mr Hughes. There being, as it is conceded, no evidence to support substantial parts of those conclusions, it is to be inferred that his Honour approached the determination of the legal and factual issues before him upon a basis in relation to Mr Hughes which found no foundation in the evidence before him. And there would, in the sense to which Toohey J referred in Vakauta v Kelly, be apprehension that the judge did not bring "an unprejudiced mind to the solution of the matter before him, namely, an assessment based upon the evidence..." of the issues posed for decision, but decided the issues influenced by unsupported views as to Mr Hughes' character and conduct. Second, the learned judge, in his decision was, I infer, actually influenced by such matters: at least, there is such a likelihood that he was that his judgment should not be allowed to stand. I have drawn that inference because of the approach which, as appears from his judgment, the learned judge took to the case as presented by Mr Hughes. His Honour did not in his judgment deal, at least in any detail, with the legal and factual issue posed, namely, who was the purchaser of the goods. He did not, at least in terms, deal with the case put by Mr Hughes to which I have referred, namely, that it was the company which in fact was carrying on the business at Bourke. And there was, for the reasons to which I have referred, a case to be considered in that regard if credibility was given to Mr Hughes as a witness. His Honour did not consider the case put forward by Mr Hughes and, it is proper to infer, he did that because of his obvious rejection of Mr Hughes as a witness of credit. Had his Honour not been influenced by the conclusions of fact concerning Mr Hughes which are now impugned, then, subject to matters of demeanour and the like, his approach to Mr Hughes' evidence might well have been different. But however that be, it is, in my opinion, proper to infer that the conclusions which have been impugned were not merely collateral but operated in the learned judge's process of reasoning to his conclusion on the issue of liability. However, it was submitted for the plaintiffs that there should not be a new trial. It was said that the conclusion that liability for the price of the goods delivered lay with Mr Hughes was so clear that there has been no miscarriage and so a new trial is not needed. 8 UNREPORTED JUDGMENTS There is force in this submission. As I have said, my conclusion is that, giving proper weight to the case proposed by Mr Hughes, the proper conclusion is that liability for the goods lay with Mr Hughes: as I have indicated, that derives from what was done or not done, even if the business in Bourke was in fact being carried on by the Valco company and not by Mr Hughes. I have, in arriving at that conclusion, given effect to Mr Hughes' case upon the basis that he put forward. In these circumstances, the thrust of the submission is that what his Honour did, though unacceptable, has not affected the decision which, on the facts, it was proper to make. I am conscious of the force of this submission and of the fact that this comparatively small case has been pending for a number of years, no doubt at considerable cost to the parties. The grant of a new trial is, at least in the present circumstances, discretionary: a new trial will not be granted if the interests of justice do not require it. If I were satisfied that in reality it was not possible for a different conclusion to be drawn as to liability by a judge who had not formed this adverse conclusion as to Mr Hughes' credit, then I would not set aside the judgment. But I am not so satisfied. I shall not set forth at length all of the matters which lead me to this conclusion. It is sufficient to say that upon the basis to which I have already referred, it would be possible for a court to conclude that, for example, the invoices had not been shown to or otherwise to have affected a person having relevant authority in the business in Bourke to produce the result that Mr Hughes was liable. And I am conscious that the judgment which this Court is asked to uphold was arrived at in, as it is accepted, the unsatisfactory manner to which I have referred. In all the circumstances, I am satisfied that, if he desires to have it, Mr Hughes is entitled to a retrial. In my opinion the appeal should be upheld, the judgment should be set aside and the matter should be returned to the District Court for a retrial of the issue in question. The appellant should have the costs of the appeal. The costs of the original trial should abide the result of the retrial. The respondents should have a certificate under the Suitors' Fund Act if otherwise entitled. Meagher JA In this matter I have had the benefit of reading in draft the judgment of Mahoney JA. Unfortunately I have the misfortune of disagreeing with it. The appeal lies from a judgment which Conomos DCJ gave against the defendant. The sole issue before his Honour was whether the defendant was liable to the plaintiffs, as the plaintiffs alleged, or a company associated with the defendant was liable, as the defendant alleged. On the facts (which are fully set out by Mahoney JA) I think it is clear that the plaintiffs had to succeed. In other words, it is not a case where the trial judge could have found for the plaintiff; it is one where his Honour was compelled to do so. A verdict for the defendant would have been perverse. Unfortunately his Honour saw fit, in giving judgment, to release a rodomontade of invective on the defendant. This was as extraordinary as it was unjustified. Nevertheless, to complain about it is pointless. It would be absurd to order a new trial of an issue by which there could only be one result, namely that at which his Honour arrived. I would dismiss the appeal with costs. Handley JA In this matter I have had the advantage of reading the reasons for judgment of Mahoney JA and Meagher JA. I agree with Mahoney JA that the proper conclusion from the evidence in this case, as on a rehearing, is that the URWGHES v ROBERT W KIRBY t/a COMBINED PETROLEUM SERVICE (Handley JA) 9 appellant was personally liable for the price of the petrol delivered by the respondents to the service station at 16 Richard Street, Bourke. As his Honour explained he arrived at this conclusion despite assuming in favour of the appellant that his evidence would be accepted and inferences drawn on that basis. I also agree that it is unfortunate that the learned trial judge made the remarks he did about the appellant. These were extravagant in terms and not supported by any evidence in the proceedings. It is possible that those remarks may have been supported by evidence admitted for the purposes of interlocutory proceedings before his Honour the day before the the trial which resulted in him striking out two of the three paragraphs of the appellant's grounds of defence. However, while his Honour's knowledge of such evidence may explain his remarks, in no way does it justify or excuse them. Litigants are entitled to a judgment which is based solely and exclusively on evidence which has been admitted in open court in the course of the relevant proceedings. It follows therefore that the trial judge in making the remarks in question has either received and acted on evidence which was not admitted in the proceedings or has drawn insupportable and extravagant conclusions from the evidence that was admitted. In either event the appellant would be entitled to a new trial if the evidence in the first trial was capable of supporting a verdict in his favour. However, after a trial on the merits it is not relevant for this Court to consider whether the appellant might adduce additional evidence on a new trial. See Deane v The City Bank (1904) 2 CLR 198 at 213. In my opinion the appellant had no realistic prospects of success in the first trial on the evidence then before the Court. In these circumstances I do not consider that the appellant is entitled to succeed in this appeal and to an order for a new trial solely because of the extravagant and unsupportable remarks of the trial judge. An appeal is a proceeding in an appellate court by which an unsuccessful party seeks to have the orders of a lower court set aside or varied in his favour. An appeal is therefore not a means of correcting the reasons for judgment of the lower court as such, except in the course of reaching a conclusion that the formal orders of that court should be set aside or varied. See Commonwealth of Australia v Bank of New South Wales (1950) AC 235 at 294 and Driclad Pty Ltd v FCT (1968) 121 CLR 45 at 64. Accordingly, if the appellant fails to satisfy this Court that the errors in the reasons for judgment of the trial judge have led to an erroneous judicial decision, the appeal must be dismissed. In a case such as the present an appellate court will not lightly reach such a conclusion. If the appellant had any realistic chance, on the evidence at the first trial, of securing a judgment in his favour from a judge acting judicially on the admissible evidence, he would be entitled to a new trial. It is clear that a new trial will not be ordered if the respondent was entitled, as a matter of law, to succeed on the evidence led at the first trial. See Deane v The City Bank (above). This is not such a case but the High Court also held in Armstrong v Great Southern Gold Mining (1911) 12 CLR 382 at 390 that a new trial should not be ordered where an appellant has "only a problematical and infinitesimal hope of success in the event of a new trial'. See also Balenzuela v De Gail (1959) 101 CLR 226 at 236 per Dixon CJ. Since, in my opinion, the appellant had no realistic prospects of success on the evidence adduced at the first trial, taking it at its highest in his favour, it follows that the appeal should be dismissed with costs. Appeal dismissed with costs. 10 UNREPORTED JUDGMENTS Counsel for the Appellant: B M GREEN Counsel for the Respondent: J L TREW QC/GH JOHNSON Solicitors for the Apellant: FALVEY ASSOCIATES Solicitors for the Respondent: M J DUFFY and SON