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: "At first blush that case of the defendant is unattractive. It involves in a sense the contention that the plaintiff or some officer or officers of the plaintiff had been involved in something that might be described as fraudulent. The plaintiff points, quite correctly I think, to the fact that Mr Frank Costello said without challenge that within a week or so Gary Costello showed him, Frank Costello, the agreement signed by the defendant and a similar agreement signed by Mr Murdocca. "There was also evidence of conversations with the defendant prior to the signing of the document, Exhibit 1, relating to its terms. There is also, I think, some significance in the fact that whilst the defendant says he signed what is not page 4 of Exhibit 1, the document read out to him by Mr Gary Costello, he also, 2 UNREPORTED JUDGMENTS in his own evidence signed minutes of meetings without reading the minutes and without his having been present at all of those meetings or perhaps in relation to some of these, and without having read the minutes at all. That tends to support the view that one should not attach too much weight to his evidence of what it was that he signed, because he didn't read it. "Tt is also to be borne in mind that there are discrepancies in the defendant's evidence, not only here but between what he says now and what he said on the earlier occasion. It seems to me it is fair to say of the defendant that he is an excitable person who I intended to colour his evidence and at times exaggerate. But, having said all that, I prefer his evidence to the evidence of Mr Gary Costello as to what happened on the occasion when Exhibit I was signed." On the face of it, one cannot say that a trial judge should have preferred the other witness. His duty, in such situations, is to prefer one or the other, and his preference ought not be debated in an appellate court. Learned senior counsel for the appellant, Mr Garling QC, realising these elementary propositions, did not put his case this way. Rather, he put it on the basis that the learned judge should have given reasons for his preference. Instead, so Mr Garling said, his Honour merely listed the reasons why the plaintiff should be believed and then announced his "preference" for the defendant. I for my part, can see no fault in what his Honour did. His Honour, in effect, said: "T believe the defendant despite the obvious criticisms which can be made of him." This must mean his Honour was finding for the defendant, in whole or in part, on demeanour, and that not of a peculiarly subtle kind. If that is what his Honour did, and it seems to me it is, there is no need for his Honour to provide a commentary on each sentence of each witness's evidence. I might add that an elementary examination of the appeal book provides many excellent, and obvious, reasons for his Honour's preference. The document was typed by different typewriters, page three being different from the others. Not every page was signed. The pages were not stapled together. The attestation clause is eccentric beyond words. Moreover, Mr Gary Costello in the witness box denied much of the evidence he swore to in his affidavits. The appeal should be dismissed with costs. Handley JA I agree with Meagher JA. Sheller JA I agree with Meagher JA. Appeal dismissed with costs. Counsel for the Appellant: P Garling SC and J Armfield Counsel for the Respondent: RW Tregenza Solicitors for the Appellant: Lapaine Pomare and Forster Solicitors for the Respondent: Nescis