Moukhayber v Camden Timber & Hardware Co Pty Ltd

[2002] NSWCA 58

NSW Court of Appeal

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Interrogate

Catchwords

1. Tort
2. › Negligence
3. › Advice by employee of retailer
4. › Alleged advice to remove safety features from power tool
5. › Whether conversation proved on balance of probabilities
6. › Whether trial judge's finding should be disturbed on appeal
1. Evidence
2. › Witnesses
3. › Jones v Dunkel inference
4. › Failure to call witnesses
5. › Whether conditions for adverse inference satisfied
6. › Whether missing witnesses would be expected to be called by defendant
7. › Whether evidence would elucidate a particular matter
1. Evidence
2. › Burden of proof
3. › Civil standard
4. › Balance of probabilities
5. › Third alternative of finding burden not discharged
6. › Proof of oral conversations
7. › Inherent unlikelihood of alleged events
1. Appeal
2. › District Court appeal
3. › Appeal by way of rehearing
4. › Not trial de novo
5. › Appellant's burden to show trial judge's conclusions ought to be reversed
6. › Whether trial judge failed to use or misused advantage of seeing witnesses
7. › Supreme Court Act 1970 (NSW), s 75A(5)

Quick Take

A trial judge is not bound to make a positive finding one way or the other on disputed facts; the third alternative of finding the burden of proof not discharged is available. The Jones v Dunkel principle does not apply where the plaintiff has denied that the witnesses in question were the relevant persons and the trial judge has accepted evidence that no other relevant witnesses exist. The Watson v Foxman caution about proof of oral conversations applies generally, not only to misleading conduct claims.