An inference of deliberate dishonesty or concealment cannot be drawn to the Briginshaw standard where the witness was not cross-examined on the matters from which the inference is sought to be drawn. Failure to object to a breach of the rule in Browne v Dunn at trial does not waive the right to raise the issue on appeal, because the rule is fundamentally different from the waiver doctrine in Vakauta v Kelly — there is no election between inconsistent rights, and the judge retains an independent obligation to ensure fairness to witnesses. Where a primary judge's credibility findings rest on 'fundamental' matters that are shown to be flawed, the entire credibility assessment and consequent liability findings cannot stand.
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