On 30 April 2003, the High Court of Australia delivered Fox v Percy [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989 (30 April 2003).

“Appeal – Rehearing – Review of findings of fact based on trial judge’s assessment of credibility of witnesses – Whether findings inconsistent with incontrovertibly established facts – Power of appellate court to set aside findings.

Appeal – Issue not raised at trial – Where argued that expert report based on matters not proved or supported by the evidence – Whether re-examination of facts by appellate court appropriate.

Appeal – Rehearing – Substitution of judgment of appellate court for that of trial judge – Whether re-trial an appropriate remedy.”

The court affirmed the principles, developed over many previous cases, to be applied by appellant courts when considering whether or not to overturn the findings of credit made by a trial judge.

An appellate court must be satisfied that the findings are “glaringly improbable” or “contrary to compelling inferences”; or that the judge has “failed to use” or “palpably misused” his or her advantage or acted on facts which were inconsistent with the evidence or were glaringly improbable..”

http://www.austlii.edu.au/au/cases/cth/HCA/2003/22.html

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