Despite decades of efforts to impose an obligation on appellate courts to conduct a real ‘rehearing’1, it remains the case that appeals from factual findings are difficult and parties must regard the trial as the best, and sometimes only, real opportunity to get it right.

There are many reasons why this is so. However, mere respect for the trial judge is not one of them. It has been recognised for many years now that a trial judge’s assessment of credibility of witnesses on the basis of demeanour is not reliable2. Rather, the modern principle of restraint on appellate factual review is based on finality and limited judicial resources3. These bases are really no more than certainty and economics by other names. Those arguments do not impress progressive thinkers such as Hon David Ipp AO, QC4 and Professor Luntz5  who do not see any justification for letting any error through the reviewing net. They would echo another Australian, Lord Atkin’s, 1933 aphorism “[f]inality is a good thing, but justice is a better.”6

Whilst most lawyers would agree that any error is worthy of review, especially any lawyer who has tried to argue on appeal to support an appeal he has lost, it is nevertheless the case that appellate courts are reluctant to overturn factual findings both for reasons of principle and convenience.

The principles limiting factual review are clouded in formulations of words which make predictions difficult.  Lindley MR’s 1898 formulation7 is still often quoted: it is the duty of the appellate court to re-hear the case; to reconsider the materials; to make up its own mind, not disregarding the decision below, but carefully weighing and considering it; not to shrink from overruling the decision if it is wrong; to be sensible of the great advantage of the trial judge in seeing and hearing the witnesses and, when the decision turns on which witness is to be believed, the appellate court must be guided by the impression made on the trial judge; but circumstances quite apart from manner and demeanour may show whether a statement is credible and may warrant the appellate court differing from the trial judge.

The principles in the English cases have been summarised by one judge in 2001 as posing the question: "Am I, who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case, in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong?"8 

The next most quoted English authority is that of Lord Hoffman in 1997 Biogen v Medeva plc9:

“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy.  It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence.  His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance … of which time and language do not permit exact expression, but which play an important part in the judge’s overall evaluation.”

Whilst there can be no doubt that what Lord Hoffman says is true, it might be overstated.  It is the obligation of the trial judge to express the main matters supporting and leading to the ultimate decision.  It seems to be a ‘cop-out’ to hide behind overwhelming detail as the reason for avoiding reviewing factual findings.  This reasoning might be regarded by unkind minds as an unjustified ground for excusing laziness in a reviewing court concerning a factually complex case.  This could be regarded not so much as a matter of principle as a matter of convenience.

In Australia, the leading cases leave the practitioner in no doubt that appellate restraint is real.

Perhaps the most noteworthy case was the 2003 case of Fox v Percy10.  Most unusually, the primary decision there ignored uncontroverted evidence which showed that Ms Percy’s car was NOT on the wrong side of the road.  This fact was being considered afresh over three levels of courts and 11 years of litigation – not a glowing indorsement of efficiency in the judicial system!  But not an isolated incident.  I have previously been briefed in proceedings which have failed to progress to trial after 14 years of stuttering effort!  It is no wonder that judges sometimes express frustration.  One can only hope that such frustration does not lead to intemperate decisions.  But the facts in Fox v Percy are so unusual that it may not be very helpful – the court was unanimous in upholding the overturning of the trial judge’s decision, on the basis that no amount of deference to the trial judge’s assessment of credibility could stand in the way of skid marks on the road.

Louth v Diprose11 also emphasised in 1992 the reasons for entrusting factual findings primarily to the trial judge.  And Warren v Coombes in 1979 confirmed that:

“In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”12 

A special type of basis for appellate restraint appears in cases of so-called concurrent findings of fact – cases where the facts have been found and agreed between the two courts below, and the High Court is asked to re-consider those concurrent findings. In this special type of case, the principles of finality and economics take on extra importance.  As Gleeson CJ said in the 2007 case of Dederer, it is not the function of the High Court to give a well-resourced litigant a third opportunity to persuade a tribunal to take a view of the facts favourable to that litigant.13 In those circumstances, ‘a clear case of error is needed for interference’14. Of course practitioners find this type of principle distasteful (because it is difficult to satisfy and ignores the possibility of many judges committing errors), and Callinan J seemed to agree: he took the view that neither the Constitution nor the Judiciary Act distinguish between errors of facts and law in appeals to the High Court and therefore they are each as amenable as the other to correction, observing that an error of fact is as capable of causing injustice whether characterised as ‘plain’, ‘manifest’ or ‘gross’ as some other form of error, such as a mistake of law.15 

Perhaps the last word should belong to Deane J in 1988 in Waltons Stores:

“In a context where the cost of litigation has gone a long way towards effectively denying access to the courts to the ordinary citizen who lacks access to government or corporate funding, it is in the overall interests of the administration of justice and of the preservation of at least some vestige of practical equality before the law that, in the absence of special circumstances, there should be an end to the litigation of an issue of fact at least when the stage is reached that one party has succeeded upon it both on the hearing before the court of first instance and on a rehearing before the court of first appeal.”16 

How far this thinking is permitted to restrict appellate interference by the High Court remains controversial.17 

What is clear is that appellate courts do, and are required to, take a restricted approach to the review of factual findings, despite Warren v Coombes directives about the broad function of correcting error regarding findings of negligence.18 This undoubted principle should powerfully motivate litigants to take every conceivable measure available to them to ensure that facts are correctly determined and found at trial.  As Justice Virginia Bell of the High Court has said most recently in 201419, trial is not a ‘dry run’ for getting it right on appeal. Appeals cannot be relied on to do so.