BURWOOD NIGHT PATROL PTY LTD v LAGARDE [1996] NSWCA 83

BURWOOD NIGHT PATROL PTY LTD v LAGARDE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA 8 May 1996, 18 July 1996 [1996] NSWCA 83

Trial Judge's preference for a witness — Duty to give reasons for preference of a witness

FACTS:

The appellant in this matter had unsuccessfully sued the respondent for breach of an employment contract. The respondent had argued that the contract did not contain the relevant disputed clause when the contract had been signed. At the hearing of the matter, each party called only one witness, each of whom gave contrary accounts of the facts in question. The trial Judge gave reasons to the effect that he preferred the evidence of the witness for the respondent and, as such, found for the respondent.

The appellant appealed on the basis that the trial Judge should have given reasons for his preference of one witness rather than the other.

HELD:

By Meagher, Handley, Sheller JJA agreeing: The preference of the trial Judge for the evidence of one witness rather than another should not be debated in an appellate court. Further, it is open to the trial Judge to find for a particular witness on the basis of demeanour without giving extensive reasons for such a finding.

ORDERS:

1. Appeal dismissed with costs.

Meagher JA This is an appeal by an unsuccessful plaintiff who sued the defendant for breach of an employment contract. Specifically, it was suing for breach of cl12 of an agreement. The defendant said that the contract did not have a page three (which contained cl12) when he signed it. Brownie J said that the plaintiff had not convinced him that page three was part of the document when the defendant signed it, and accordingly found for the defendant. Hence this appeal.

The evidence on the point was almost entirely - although not quite entirely - oral. For the plaintiff, there was the account of a Mr Gary Costello; for the defendant, there was the defendant's account. The two accounts were wholly incompatible. The learned judge preferred the latter. It is necessary to quote his Honour's precise words: