Bale & Anor v Mills [2011] NSWCA 226

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bale & Anor v Mills [2011] NSWCA 226 Hearing dates: 3 June 2011 Decision date: 04 August 2011 Before: Allsop P at [1]; Giles JA at [1]; Tobias AJA at [1] Decision: 1. Appeal allowed. 2. Orders of the District Court made on 4 August and 3 September 2010 be set aside. 3. There be a new trial. 4. The costs of the District Court proceedings to date abide the outcome of the new trial and be dealt with by the District Court. 5. The respondent pay the appellants' costs of the appeal and have a certificate under the Suitors' Fund Act 1951 (NSW), if otherwise qualified. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - civil - fact-finding based on credibility - breach of rule in Browne v Dunn - failure to object to breach of rule does not amount to waiver of it - primary judge erred in assessment of factors fundamental to adverse finding of credit of witness.

EVIDENCE - proof - inferences - allegations of dishonesty - need to prove allegations to Briginshaw standard - Evidence Act 1995 (NSW), s 140 considered - inference of dishonesty or deliberate concealment of error not able to be drawn to Briginshaw standard in circumstances where witness not cross-examined on issue.