State Securities Pty Ltd & Anor v Dromi

[2010] VSCA 264

Victorian Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Appeal from County Court
3. › Finding of fact
4. › Whether finding reasonably open on the evidence
5. › Failure to take into account surrounding circumstances in assessing reliability of evidence
1. Evidence
2. › Credibility
3. › Collateral evidence rule
4. › Whether adverse credibility finding by judicial officer in separate proceedings admissible to rebut witness's answers on credit
1. Contract
2. › Brokering agreement
3. › Procuration fee
4. › Whether fee referable to specific loan transaction
5. › Whether flat fee component severable from percentage component
1. Practice and Procedure
2. › Duty of trial judge
3. › Obligation to determine all issues raised in the case
4. › Failure to make findings on alternative defences

Quick Take

A trial judge may not rely on adverse credibility findings made by a judicial officer in separate proceedings to reject a witness's evidence, as such findings are not a recognised exception to the collateral evidence rule. While cross-examination on the contents of an affidavit in other proceedings is permissible, counsel is bound by the witness's answers. Where surrounding circumstances strongly support a party's case and the opposing party offers no alternative explanation, a finding that the party has failed to discharge the onus of proof may not be reasonably open.