Telfer v Telfer

(2014) 87 NSWLR 176; [2014] NSWCA 186

NSW Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Leave to appeal
3. › Costs orders only
4. › Whether leave should be granted where costs orders based on findings of serious misconduct
5. › Whether findings justified by evidence
6. › Supreme Court Act 1970 (NSW), ss 75A, 101(2)
1. Appeal
2. › Appellate review of findings of fact
3. › Credit-based findings
4. › Whether primary judge failed to take into account gravity of allegations
5. › Whether adverse inferences drawn from evidence justified
6. › Fox v Percy principles
7. › Supreme Court Act 1970 (NSW), s 75A(5), (6), (10)
1. Evidence
2. › Standard of proof in civil proceedings
3. › Gravity of allegations
4. › Allegations of forgery and fraud
5. › Whether court obliged to take into account gravity of matters alleged when proponent bears onus of proof
6. › Evidence Act 1995 (NSW), s 140(2)(c)
1. Appeal
2. › Further evidence on appeal
3. › Whether evidence could have been obtained through reasonable diligence
4. › Whether evidence likely to have led to different result
5. › Supreme Court Act 1970 (NSW), s 75A(7), (8)

Quick Take

Where a court makes findings of serious misconduct such as forgery in probate proceedings, s 140(2)(c) of the Evidence Act 1995 (NSW) requires the court to take into account the gravity of the allegations even where the proponent of the will bears the onus of proof. The absence of motive for forgery and the implausibility of the alleged forger producing a signature markedly different from the genuine signature are matters bearing on the inherent probability of the alleged misconduct that must be considered. Appellate intervention is warranted where the primary judge's credit-based findings rest on adverse inferences that cannot fairly be regarded as casting doubt on the witnesses' account.