Todorovic v Moussa

(2001) 53 NSWLR 463; [2001] NSWCA 419

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appellate review of findings of fact
3. › Credibility findings
4. › Whether trial judge failed to use or palpably misused advantage of seeing witnesses
5. › Whether findings inconsistent with incontrovertible facts or glaringly improbable
6. › Abalos v Australian Postal Commission (1990) 171 CLR 167
7. › Devries v Australian National Railways Commission (1993) 177 CLR 472
1. Practice and Procedure
2. › Judgments and orders
3. › Reasons for judgment
4. › Adequacy of reasons
5. › Failure to consider material evidence
6. › Bald findings on credit where substantial factual issues remain
7. › Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
1. Practice and Procedure
2. › Judgments and orders
3. › Amendment to judgment after delivery
4. › Whether alteration of form or substance
5. › Insertion of credit finding into approved transcript after oral delivery
6. › Whether impermissible alteration
7. › District Court Rules 1973 (NSW), Pt 2A, r 7
1. Practice and Procedure
2. › Costs
3. › Costs following the event
4. › Whether costs of appeal should abide outcome of new trial
5. › Usual order applied

Quick Take

A trial judge's insertion of a critical credit finding into the approved transcript after oral delivery of judgment, where that finding was essential to the ultimate conclusion, is an alteration of substance rather than form and is impermissible. The appropriate test in civil proceedings is whether the change is one of substance in fact, not the higher criminal standard of whether it could lead to an appearance of altered substance. Where a judgment has had impermissible alterations, the proper approach is to treat the judgment as if the additions had not been made.