On a retrial ordered by an appellate court, the trial judge is not bound by the appellate court's conclusions as to what findings should have been made on the evidence of the first trial; the retrial judge must make a fresh appreciation of the whole of the relevant evidence. However, where all evidence points to a particular conclusion and alternative scenarios are merely speculative, a trial judge errs in failing to make the finding on the balance of probabilities, even where the finding is serious. An appellable error in failing to make a particular finding will not result in the appeal being allowed where unchallenged findings independently support the judgment below. The question whether separate plaintiffs' claims in a single proceeding should be aggregated for the $100,000 appeal threshold under s 127(2)(c) of the District Court Act 1973 (NSW) was raised but left open.
The full text is available to signed-in members, including the 20 later cases that cite this judgment.
1 of the 20 citing cases carry a classified treatment. How each court treated it is available to signed-in members.