Theolidactionsed t drically opposed factual claims, one made made by Mrby Mr Atki Atkinson,nson, and and the othe other
made by Mr Noall who was joined as a party to the consolidated actions as
the second defendant. In reserved reasons for judgment,
his Lordship
rejected the factual claims of Mr Atkinson and accepted those of Mr Noall.
In essence, Mr Atkinson now contends
that the learned trial Judge
misapprehended the evidence and erroneously accepted the case of Mr Noall.
He boldly contends
that this court should overturn rial Judge’s
findings of fact. As the trial Judge reje rejected Mr Atkinson’s evidence on the
ground that he did not regard him as a truthful witness, Mr Atkinson’s task
of satisfying an appellate court that it
should take this course is a
formidable one.
8 &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;& &nbp; &nbp;
n>Mr Atkinson’s avit iport e
rst a, swo 19 November 19uccinctly sets out the case thae that
t
he he main maintainetained
at d at trialtrial. He deposed that he was then a 73 year old investor,
and the beneficial owner of Atlas which had entered
into a contract for the
purchase of a property at 45 Bridge Street at Muswellbrook (“the
Muswellbrook property”) on 22
June 1994. On 24 June 1994 his wife had
commenced family law proceedings against him in Australia seeking, among
other
orders, various property settlements. In July 1994, acting on advice,
he consulted Mr Gee of the legal firm, Geoffrey Gee and
Partners in Port
Vila. On 3 August 1994 Atlas became the owner of the Muswellbrook property
(by which, presumably, Mr
Atkinson meant that the contract for the purchase
of the property was settled).
9 &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; ;&nspp;&nssp;
Mr Atkinsposed as alt of adveceived in Port Vilt Vila from his accountants and Mr Gee, the, the
e
sh sharehoareholders
and directors of Atlas changed from being the nominee directors
and shareholders used by the accountants to other entities
used by Geoffrey
Gee and Partners. This occurred in mid July 1994. Further, in accordance
with advice received from Mr
Gee the shares were then “placed” in (i.e.
transferred to) a shelf trust, the Sabra Trust, previously created by Mr
Gee.
Mr Atkinson became the sole beneficiary of the Sabra Trust.
10 p; &nnsp;&&nsp; &nbp; &nbbp;&nnbp;&
span>Mr Atkinson in his affidavit alleges that in aort tceal uswelk pro as an asset against which
his wife could claim in the the
AustrAustralianalian fami family laly law prow proceedings, Mr Gee
suggested that the beneficiary of the Sabra Trust, ought
to be someone who
was relatively difficult to locate. Mr Atkinson said that he informed Mr Gee
that his long time friend,
James Noall who was a resident in Turkey, would
be prepared to help him. Mr Atkinson alleges that Mr Gee said that he would
prepare the necessary paperwork to make James Noall the temporary
beneficiary.
11 ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
span>A formal resolution by Mr Gee as the trusf thea Truas prd and recorded on 15 June 1995 in which it was resolved:
p>
“That as instructed by George Atkinson, Mr James Noall of
Istanbul to be nominated as beneficiary of the Trust but that all
instructions to the Trustee in relation thereto be approved by G Atkinson.”
12 &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>The affidavit went on to depose that in
June 199 matral di was o go for ah trial
before the Family Court ourt of Ausf
Australia, the decision in an earlier trer trial
ial
havinhaving been set aside on appeal. By this stage Mr Atkinson
said that it had
become obvious to him that the Family Court which had become aware of Atlas’
ownership of the Muswellbrook
property would treat him as being the
beneficial owner of Atlas. He says that he then reconsidered his position
and made
a full disclosure of his earlier fraudulent attempt to conceal
assets. In the result, orders were made by consent in the Family
Court on 19
June 1997 which entitled his wife to a half share of all his assets
including those then held on his behalf
by Mr Noall through Atlas.
13 p;&nssp; p; &nbp; &nbp; ;
p span>Following the settlement in the Family
Court dispute, Mr Atkinson says he asked Mr Noall to sign all his
interests
in Atack t in aance with their aeir agreemgreement. ent. He said
that he received a facsimile from Mr Noall dated 31 August
1997 which read:
“Re
Atkinson/Atkinson
Following
settlement in the above matter, I now assign all my interests in
‘Atlas Investments Ltd’
and the ‘Sabra
Trust’ to George Atkinson.
Signed: James Noall”
and a
manuscript signature “James Noall” appeared at the foot of the document.
14 p;&nbbsp;&nsp; &nsp; p; &nnsp;&&nsp; &nbp;
Afteeivin assignment document of
30 August 1997 Mr Atkinson alleged that Mr Gee fail failed toed to act on it (i.e. by
not acting on Mr Atkinson’s dirn to ll hither aser as the the sole sole
beneficiary of the Trust), saying that Mr Noall claimed
that the assignment
was a forgery and that Mr Noall said he was a bona fide purchaser of Atlas
entitled to remain the
beneficiary of the Sabra Trust. Mr Noall claimed that
the consideration for the purchase of Atlas was in part the payment of
about
$US 350,000 on Mr Atkinson’s behalf to Mr Allan Tripp, the proprietor of
Number One Betting Shop, Vanuatu, to discharge
a gambling debt, and in part
the discharge of another long outstanding debt owed by Mr Atkinson to Mr
Noall for GBP 300,000.
15 &nnbsp;; &nsp; &nsp; &&nbp;; &nnsp;&
p;
Mr Atkinson denied the gambling debt,
denied that he had bedebteMr Noand denied thatoall any payments of thef the kind
kind he a he assertsserted.
16 p; &nsp; &nbbsp; &nbbsp;
17 &nnbsp; &nnbsp; &nbp; &nbp; &n p;
Mr Noall exhibited to his affidavit a
facsimile of an undated letter on the letterhead of Number One Betting Shop
which
read: ass="" style="margin-lgin-left: eft: 36"><36">“TO WHOM IT
MAY CONCERN
It may be
stated categorically that all monies due to this agency by Mr George
Atkinson have been paid in full. We are
aware funds were made available to
Mr Atkinson from the transfer of shares of the company, Atlas Investments
Limited.
Signed: Donald Harry (Licensee, Number One Betting Shop)”
The facsimile bore a transmission imprint dated 11 May
1995.
18 &&nsp;;&nspp;&nssp; &nbp;
sspan lang="ang="EN-GB">Save in one respect, Mr Atkinson’s evidence
ng uphe reion bGee astee ded on 15 June 1995
was borneat
trial by the evidence of Mr f Mr Gee. Gee. The rThe reasoneasons fors for judg judgment ment
indicate that Saksak J accepted
Mr Gee’s evidence. The only departure was
that Mr Gee denied that the notion of Mr Noall becoming a “temporary
beneficiary”
to conceal the Muswellbrook property was ever discussed. On the
contrary, Mr Gee said that when the question of him giving
evidence in the
Family Court of Australia first arose, he had stressed to Mr Atkinson and to
his accountants in Vanuatu
that if asked he would say that Mr Atkinson w the beneficiaficiary of the Trust. Mr Gee says he told that the only way he
could swear an affidavit declaring that Mr Atkinson was not the the beneficial
owner was if Mr nson was not recorded
as suas such in the Trust’s
documentation held in his office.
19 p; &nsp; &nbbsp; &nbbsp;
Moreover, Mr Gee said he would not swear
such an affidavit if he was aware that the listed beiary meone delegated by the listed
beneficiary had had the pthe power ower to change the beneficiary
again without the consent of the listed beneficiary. It
was sometime after
this that Mr Gee said that he was instructed by Mr Atkinson that his
beneficial interest in the Trust
was to be transferred to Mr Noall. Mr Gee
said he was given no details of dealings between Mr Atkinson and Mr Noall.
He simply acted on the instructions received, and prepared the resolution
dated 15 June 1995.
20 &nnsp;&&nsp;;&nspp;&nssp;&nsp;
an>Mr Gee also gave evidence to explain why
the resolution of 15 June 1995 recordedt allructif the
Trustee in relation thereto
be apd by G Atkinson”. In par 15 o 15 of hisf his
aff affidavit Mr Gee deposed:
“That at the
same time and as discussed with the Plaintiff to provide the Plaintiff with
ongoing authority to deal with
the Assets of the Trust I minuted him as the
overseer of the Trust Assets and the general status of the Trust but again
made it quite clear that ultimately this was always subject to the wishes of
the beneficiary and provided there was no such
instruction then his position
as overseer of the Trust Assets and dealings with them would continue.”
Mr Gee
said that in May 1996 he received an instruction from Mr Noall not to have
anything further to do with Mr Atkinson
and to take no instructions from him
whatsoever.
21 &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &n It is coent as poi refer
briefly to salient aspects of the Deed which established thed the Sahe Sabra Tbra Trust.
The
Deed, dated 10 October 1990, is between Regent Limited as settlor and Mr
Gee as Trustee. Clauses 1(3) and (4) contain the following
definitions:
“(3) &nnbsp;
be beneficieficiaries” means
(a) &nbbsp;
SATE>SATELLITE HOLDINGS LIMITED
such charitable able institutions or purposes as the trustees may see
fit and as are deemed charitable in accordance with English
law as
applicable in Vanuatu
(c) ;&nbs any >any person (as defined in the schedule to the Interpretation Act
1981) as the nominator or (if the nominator be an individual) after his
death his legalonal sentative or repr representesentatives
shall from time
to time by notice in writing to the trustee during the specified period
appoint to be beneficiaries for
the purpose of this Deed (not being: -
(i) &nbssp; &nbssp; &nbp; &nbs;
pan lEN-GB(ii) &nnsp;&&nsp;;&nspp;&nssp;&nsp;
ominator’s or’s legal personal representative or representatives
whether in their capacity as such legal personal representative
or in their
personal capacity;
(iii) &nnsp;&
sp; any >any person or company who or which is or has been a trustee of the
trusd).
<
>
(>(4) ;&nbssp; &nsp; &nbs; &nbbp;&n p;
“the>“the nominator” means WATERFORD LIMITED a company duly
incorporated and ing uthe lf Vanand h its registered office at
P.at P.O. Box 183, Port Vila, Republic of Vaof Vanuatunuatu.”
Clauses 2
and 3 of the Deed give the Trustee wide powers as to the application
from time to time of the trust funds or any part of them but the exercise of
these powers
requires the consent in writing of the nominator. The evidence
at trial established that Waterford Limited is a trustee company
in Vanuatu
controlled by Price Waterhouse, and that since 1987 Waterford Limited had
consented to be the nominator in
trust deeds established by Geoffrey Gee and
Partners with Mr Gee being fully authorised by Waterford Limited to act on
its behalf and without recourse to Price Waterhouse specifically in relation
to its position as nominator. Mr Gee said that
the intent of that
arrangement was that he held full control to act under a trust deed on
instruction from the beneficiary
under the Trust.
22 & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
Mr Gee produced a trustee’s minute dat
ober recorresols as ws:
“RESOLVED: 1. &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& &nbp; &nbp; THAT George Aonins C/- C/- KPMG Peat Marwick become
Protector of the Trust and that the Trustee at
all times act on his instructinclunomin of new Trustee if
declined and/or
status of beneficiaries.
2. &nbssp; &nbssp; &nbp; &nbs;
s AT Sabra TrustTrust become beneficial owner of the shares in Atlas
Investments Limited, PO Box 212, VilaSharesfer be executed
in
favour of the nomin GeofGee & Partners ners for tfor the Sahe Sabra Tbra Trust.rust.”
The
expression “Protector of the Trust” is not one used in the Deed which
established the Sabra Trust.
23 & &nnsp;&&nbp;;&nbp; &nbp; &nnbp;&
span>Satellite Holdings Limited by declaration
f trude onune 1eclarat alh it was the apparent
benefieneficiaryciary of the Sabra
Trust it held as trusterustee fore for Jame James Noas Noall of Swiss
Hotel Istanbul, Turkey. It will be noted that this declaration
of trust was
made on the same day as the Minute by Mr Gee as trustee of the Sabra Trust
which recorded that on Mr Atkinson’s
instruction Mr Noall was nominated as
beneficiary.
24 ;&nbssp; &nsp; &nbs; &nbbp;&nnbp;&
span>It was against this background that the
assignment document of gust at fippeared to assume decisiv imnce. kinson in his his
affidaffidavit avit of 19of 19 Nove November mber 1997 propounded the
assignment as the basis of his entitlement to the declaration
sought in the
first action that he was the sole beneficial owner of Atlas, Atlas being the
principal asset of the Sabra
Trust.
25 &nnsp;&&nsp;;&nspp;&nssp;&nsp;   In October 1998 Mr Noiled ice o Moseeki haverminea preliminary issue whether ther the
ass assignmeignment dont documencument
of t of 31 August 1997 was a forgery. Saksak J ordered that
there be a determination of the preliminary issues, and embarked
upon the
trial of the consolidated actions for that purpose. He received both oral
and documentary evidence from Mr Noall
and from a handwriting examiner from
the Forensic Documents Service. Mr Atkinson did not appear at that hearing
although
he was represented by counsel who sought to uphold the validity of
the assignment. Saksak J held that the document was a forgery,
but declined
Mr Noall’s motion to summarily dismiss both actions. His Lordship considered
that it would be premature
to dismiss the proceedings before Mr Atkinson had
been given the opportunity of being cross-examined on oath as to the
contents of his own affidavit evidence and of cross-examining Mr Gee.
26 &nnbsp; &nnbsp; &nbp; &nbp; &n p;
Mr Noall appeagaine refto
ismis consted as. This Court upheld the decisiecision ofon of Saks Saksak
ak
J J: see: see
N Noall v Atkinson and Gee Civil Appeal Case Number 3 of 1999,
judgment 28 September 1999.
27 &nbssp; &nbssp; &nbp; &nbs;
s n>Saksak J resume hearf the conated ns inst antembe0, and the case was twas then
hen
adjouadjourned rned to ento enable
able the pthe parties to make extensive written submissions. As
stated at the outset of this judgment, his Lordship in a reserved
judgment
dismissed both actions on 8 August 2001. Mr Atkinson complained to this
Court that his Lordship took “twelve
months” to deliver judgment. This is an
unjustified complaint. The parties took many months to complete their
written
submissions. Those on behalf of Mr Atkinson were not filed until 5
April 2001.
28 p; &nsp; &nbbsp; &nbbsp;
In his reasons, Saksak J obserhat
therebeen der o coured 27 1997 her pdings
in w in which hich Mr NoMr Noall hall had bead
been heen held told to be t be the behe beneficial owner of all the shares
in Atlas since 15 June 1995. That order remained.
His Lordship observed Mr
Atkinson had not at any time sought to have the order set aside or appealed
and he observed:
“Therefore in my view the issue of beneficial ownership
is a dead issue.”
This
observation by implication meant that the claim for the declaration in the
first action must fail.
29 &nnsp;&&nsp;;&nspp;&nssp;&nsp;
sspan lang="ang="EN-GB">Notwithstanding that observation, his
Lordship went on to consider the various issues which had been
canvassed by
the parties at the trial relating to tclara soug the sehe second cond
action. Counsel for Mr Atkinson
advanced arguments about the construction of
the Deed, contending that Mr Gee as Trustee was obliged in 1997 to act on Mr
Atkinson’s direction to install his brother as the sole beneficiary.
However, the evidence led at the trial concentrated
upon whether the
arrangement between Mr Atkinson and Mr Noall was merely one under which Mr
Noall agreed to hold the
beneficial interest temporarily for Mr Atkinson as
part of the plan to conceal assets from the Family Court of Australia, or
whether there had been a transfer for consideration of the full beneficial
interest as Mr Noall alleged.
30 &nnsp;&&nsp;;&nspp;&nssp;&nsp;
At the resumed hearing Mr Atkinson gave
evidence and through him many documents were tendered. He maintained his
position
that the beneficial interest in the Sabra had not been
transfeansferred to Mr Noall. He continued to deny that he was indebted
to Mr
Noall, or that he had owed any money to the Number One Betting Shop. In
support of the latter allegation, he called
Mr Tripp who said that there had
been no such debt. Mr Tripp said that he was unaware of the letter bearing
the fax notation
of 11 May 1995 written on Number One Betting Shop
letterhead. Late in the trial what purported to be a record of Mr Atkinson’s
betting transactions with Number One Betting Shop was tendered as were some
banking records for Number One Betting Shop
for the months of April to June
1995. The transactions list did not show any significant debt due by Mr
Atkinson. The
banking records produced did not disclose a deposit of an
amount equivalent to $US 350,000 in 1995.
31 &nnsp;&&nsp;;&nspp;&nssp;&nsp;
Mr Noall did not attend again to give
evidence at the resumed hearing. A medical r was red s that
Mr. Noall, then aged
78 years, was suffesuffering serious illness and could not
ot
a at that time travel to Vanuatu. However, Mr Graeme Brown
was called, and
gave evidence confirming that he had arranged to send money in the order of
$US 350,000 from Switzerland
to the Number One Betting Shop in June 1995.
Generally his evidence supported the facts which had been deposed to by Mr
Noall in his affidavit to which reference has earlier been made, but it was
not supported by any documentary material to
confirm the transfer of money.
32 &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp;
In addition, the trudge ved t ece ofee which was generally supportive of Mr Noall’s cass case.
/p>
<
33 &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp;
p;
“In any event, he was no longer required to give evidence
as he had given his evidence adequately on 15 March 1999 in the trial
as to
the authenticity of a signature purported to be his.”
34 &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>In the course e tri Atkimade numeallegs agaMr Gee to the effect that he hahe had admd administinistered ered
the the
SabraSabra Trust contrary to the requirements of its constitution and that he
had acted in breach of the retainer from Mr Atkinson.
Mr Atkinson also
raised allegations of negligence against Mr Gee. Whilst similar allegations
had also been made in separate
proceedings commenced by Mr Atkinson against
Mr Gee and his partner which were not before his Lordship, the allegations
raised during the trial were directly relevant to the issues raised in the
second action, Action Number 175 of 1997. His
Lordship, for reasons given,
concluded that Mr Gee had not been negligent and that there was no breach of
retainer on
his part. The relief sought against Mr Gee in the Action Number
175 of 1997 was dismissed.
35 &nbbsp;& &nsp; &nsp; &nnbp;& &nnbsp;
Beturni consider the grounds of
appeal, it is appropriate to consider the functionction of t of this Court where it is
alleged that findings of fact by a trial Judge based substantially on credit
should be disturbed. Article 50 of the Constitution
of the Republic of
Vanuatu provides that Parliament shall provide for appeals from the original
jurisdiction of the Supreme
Court. Parliament has done so in Part IV of the
Courts Act [CAP. 122].
Section 26 of the Courts Act prescribes the jurisdiction
and powers of the Court of Appeal. Section 26 (2) reads:
“On every such appeal the procedure and the findings,
whether of fact or law, of the Court appealed from shall be subject to
review by the appellate Court which shall be entitled to substitute its own
judgment or opinion thereon save that the
appellate Court shall not
interfere with the exercise by the Court appealed from of a discretion
conferred by any written
law unless the same was manifestly wrong.”
36 &nbbsp; &nbbsp; &nbp; &nbp; &nb p;
/span>The Court of Appeal Rules 1973, even though
made before Independence, continue to apply in the absence of any later
rules:
see Articl1) ofConston. Those rules, les, constconstrued rued with
such adaptions as may be necessary to bring them in to conformity
with the
Constitution, provide in effect that this Court may receive further evidence
in appropriate cases, and in the
disposal of an appeal may make whatever
order the case may require: see rule 27. An appeal to an appellate court
vested
with these powers is an appeal by way of re-hearing, as rule 19 makes
clear. See also re Coldham v Ex parte Brideson [No 2] [1990] HCA 36; (1990) 170 CLR
267 and Cole & Allied Operations Pty Ltd v Australian Industrial
Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348 at [17] per Gleeson CJ, Gaudron
and Hayne JJ.
37 &nnsp;&&nsp;;&nspp;&nssp;&nsp;
sspan lang="ang="EN-GB">The function of an appellate court hearing
a case by way of re-hearing was stated in the following way
by Deane and
Dawson JJ in Devries v Australianonal ays Csion (19i>(1993)
93)
177 CLR 472 at 480 – 481:
“In a case
where it appears that a challenged finding of fact has, to a significant
extent, been based on the trial judge’s
observation of the demeanour of the
witnesses, the members of an appellate court are inevitably placed in a
position
of real disadvantage compared with the trial judge. Even in such a
case, however, the
‘court cannot excuse itself from the task of weighing conflicting evidence
and drawing its own inferences and conclusions’
[The Glannibanta
[1876] UKLawRpPro 35; (1876), 1 PD 283 at p 287, per James LJ, Baggallay JA and Lush J referred to
by Dixon CJ and Kitto J in
Paterson v Paterson
[1953] HCA 74; (1953) 89 CLR 212 at p 219]. The appellate duty in such a
case cannot, in our view, be explained in any short exhaustive formula
[footnote omitted].
It was correctly identified by Lindley MR, Rigby and Collins LJJ in
Coghlan v Cumberland
[[1898] 1 Ch 704 at pp 704 – 705] in a passage which has been referred to
with approval in many cases in this Court
[references omitted]
and ‘adopted as a
governing authority’ [Dearman
v Dearman [1908] HCA 84; (1908) 7 CLR 549 at p 553 per
Griffith CJ]. Their Lordships said:
&nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; ‘Even wven where, as in this case, the appeal
turns on a question of, the Court of Appeal
has to bear in mind that
its duty is to rehear the case, and thnd the Court must reconsider the materials
before the
judge with such other materials as it may have decided to admit.
The Court must then make up its own mind, not disregarding
the judgment
appealed from, but carefully weighing and considering it; and not shrinking
from overruling it if on full
consideration the Court comes to the
conclusion that the judgment is wrong. When, as often happens, much turns on
the
relative credibility of witnesses who have been examined and
cross-examined before the judge, the Court is sensible of the
great
advantage he has had in seeking and hearing
them. It is often very difficult to estimate correctly the relative
credibility
of witnesses from written depositions; and when the question
arises which witness is to be believed rather than another, and
that
question turns on manner and demeanour, the Court of Appeal always is, and
must be, guided by the impression made
on the judge who saw the witnesses.
But there may obviously be other circumstances, quite apart from manner and
demeanour,
which may shew whether a statement is credible or not; and these
circumstances may warrant the Court in differing from the
judge, even on a
question of fact turning on the credibility of witnesses whom the Court has
not seen.’”
38 &nbssp; &nsp; &nbbp;&nnbsp; &nbbsp;
p;
In short, although the appellate court has
a duty to re the and te up its ond, il not interfere unless it coit comes tmes to
theo the conc conclusiolusion that the judgment under appeal
is wrong. In Devries v Australian National Railways Commission the
other members of the High Court of Australia, Brennan, Gaudron and McHugh JJ
said at 479:
“More than once in recent years, this Court has pointed
out that a finding of fact by a trial judge, based on the credibility
of a
witness, is not to be set aside because an appellate court thinks that the
probabilities of the case are against
– even strongly against – that finding
of fact. If the trial judge’s finding depends to any substantial degree on
the
credibility of the witness, the finding must stand unless it can be
shown that the trial judge
‘has failed to use or has
palpably misused his advantage’ or has acted on
evidence which was
‘inconsistent with facts incontrovertibly established by the evidence’
or which was
‘glaringly improbable’.”
[footnotes omitted]
39 ; &nnsp;&&nsp;;&nbp; &nbp; &nnbp;&
The reason his ach by late was ined by Lord Hoffman in Biogen Inc v Mc v Medevaedeva Pty Pty
Ltd Ltd [[1996] UKHL 18; [1997] RPC 1 at 45:
“The need for appellate caution in reversing the judge’s
evaluation of the facts is based upon much more solid grounds than
professional courtesy. It is because specific findings of fact, even by the
most meticulous judge, are inherently an
incomplete statement of the
impression which was made upon him by the primary evidence. His expressed
findings are always
surrounded by a penumbra of imprecision as to emphasis,
relative weight, minor qualification and nuance (as Renan said, la
[vérité]
est dans une nuance), of which time and language do not permit exact
expression, but which may play an important
part in the judge’s overall
evaluation.’
40 p;&nssp; p; &nbp; &nbp; ;
p span>However, in many appeals a credibility
finmay n conce of roperome o entire trial, and
it is necs necessary to consider
the extent to whic which othh other ever evidencidence, noe, not
dependant upon a credibility finding, bears on the ultimate
conclusion. In
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd
(in liq) and Others [1999] HCA 3; (1999) 160 ALR 588 at 620 Kirby J identified, by
way of example, seven situations where credibility findings would not alone
determine the
outcome of an appeal. Those examples include a case where only
some aspects of the parties’ dispute turn on the findings of
credit, where
incontrovertible facts or uncontested testimony show that the findings based
on credibility were wrong,
where credibility findings are based on evidence
that was wrongly admitted or where the judge took into account irrelevant
considerations or has failed to properly weigh all relevant considerations.
But even in these cases the appeal court
must ultimately be satisfied upon
the consideration of all the material properly before the Court that the
judgment under
appeal was wrong before it will disturb it.
41 & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
p;
lpan lang="EN-GB">Implicit in the appellant’s case before
this Court is the ntion the Judge misused dvant he had in seeing
aing and hend hearingaring the the witnesses give evidence, and erred ined in
concluding that Mr Atkinson was not a witness
of truth. We are unable to
accept this submission. There was overwhelming evidence before the trial
Judge that Mr Atkinson
was not a man whose oath could be trusted. In the
course of his cross-examination he admitted that he knew the assignment
document of 31 August 1997 was a forgery, and that he had arranged for a
friend who was to pass through Turkey to post
the forgery from that country.
These admissions, viewed against the strenuous attempts which Mr Atkinson
had earlier
made to propound the validity of the document would alone be
sufficient to justify the complete rejection of Mr Atkinson as
a witness of
truth.
42 & p; &nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
p;
lpan lang="EN-GB">er thas more. The trial Judge had
before him an affidavit filed by Mr Atkinson ison in the Familyamily Court
of
Australia. That affidavit had been swor14 Ju95, that is at
at
a approximately the same time as he arranged for
Mr Gee to record the
resolution that Mr Noall was the beneficiary of the Sabra Trust. The import
of pars 195 – 199 of
that affidavit is that Mr Atkinson was unable because
of his financial position to settle on the contract for the purchase
of the
Muswellbrook property, and from par 203 that he therefore transferred the
whole of his interest in Atlas to a
person or entity unknown to him. This is
contrary to the import of his affidavit in the first action to the effect
that
the Muswellbrook land was transferred to Atlas on 3 August 1994 whilst
the company was still under his exclusive control.
43 & p;&nssp;&nsp; &nsp; ;&nbpp; &nnsp;&&nsp;
At pars 200 – 203 of the affidavit filed in
the Family Court, Mr Atkinson deposed that in the ten months leadinto
une/J994
he had experiencedenced a nu a number of adverse changes in his
financial position including incurring a number of large
gambling debts to
registered bookmakers in Australia and a very substantial debt to the Number
One Betting Shop in Vanuatu.
Accordingly he transferred his interest in
Atlas to a person or entity unknown to him in consideration of the payment
of the debt to the Number One Betting Shop. Again, these assertions are
contrary to the evidence Mr Atkinson gave before his
Lordship.
44 &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;&
Mr Atkinson informed this Court that at firstancthe F CourAustrPurdy J. had accepted him as
a credible witness. Hss. He arge
argued tued that Shat Saksakaksak J. s J. should therefore have made
similar finding in this case. This argument is untenable.
The reasons of
judgment of Purdy J. were not placed before Saksak J. and in any event would
not have been admissible
to prove Mr Atkinson’s credibility. Moreover at the
trial in the Family Court Purdy J. would have been unaware that Mr Atkinson
would later give inconsistent sworn evidence in another Court. We also note
that the judgment of Purdy J. was set aside
on appeal by the full Court of
the Family Court.
45 &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; His Lordship identified in his reasons for
judgment vs admns ag interest Mr Aon hae from
time to time in his dealings
with the other part parties. ies. In suIn substanbstance thce these wese were
statements made both before and after the consent
order made in the Family
Court on 19 June 1997 to the effect that he had no interest in Atlas. If
these statements were
not correct, they provide further instances where Mr
Atkinson has deliberately misrepresented the position in an endeavour
to
achieve an advantage for himself. One way or the other, this evidence was
either destructive of the substance of his
case, or destructive of his
credit.
46 &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; &nb Ground 10 of the Notice of Appeal contends
that the trial Judge erred in holding that he had heard both Mr Atkinso
Noall
oral evidence, and innd in deci deciding ding as between them on grounds of
credit. It is contended that the evidence of Mr
Noall was only on a limited
issue, namely the validity of the assignment document of 31 August 1997, and
that his Lordship
should not have acted on Mr Noall’s evidence in the
absence of full cross-examination. However, his Lordship noted in his
reasons for decision on the preliminary question that:
“Counsel for the plaintiff in cross-examining [Mr Noall]
went to the extent of attempting to destroy the
credibility of [his] evidence but I was impressed by his evidence and could
not make an assessment without the opportunity of hearing the plaintiff
also. There was no such opportunity because the
plaintiff did not avail
himself to such opportunity.”
47 &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; Whilst the hearing of the trial occurred in
two segmethe tof thliminary iwas nhelest of
the trial of the action. His Lordship
was correct rect in sain saying ying that that Mr NoMr Noall
all
had given evidence. We have had the opportunity of perusing
His Lordship’s
notes of Mr. Noall’s cross-examination. The cross-examination was not
confined to the authenticity of
the assignment document. It was directed to
the veracity of Mr. Noall’s account of his transactions with Mr. Atkinson
set out in his affidavit filed on 13 December 1997. It was not Mr Noall who
claimed to have personally sent $US 350,000 to
Number One Betting Shop.
Proof of that fact depended upon the evidence of Mr Brown. It is difficult
to think of issues
upon which Mr Noall could have been cross-examined beyond
those which were covered at the trial of the preliminary issue. In
our
opinion ground 10 of the Notice of Appeal is not made out.
48 &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;&
It is also contended in written submissions
filed on Mr Atkinson’alf the trudge’s reasons for jnt
ndicaat he mise misunderunderstoodstood
the the evideevidence once of Mr Noall and decided the case
on the basis that Mr Noall acquired his interest in the Sabra
Trust in April
1994. This is said to follow from references in the reasons for judgment to
a letter dated 23 May 1994
addressed to Mr Noall and signed by Mr Atkinson.
This letter does refer to dealings in 1994. However, it is plain from a
reading of the judgment, especially at p 16, that his Lordship was under no
such misapprehension. It is apparent from other
documents prepared by Mr
Atkinson that the letter of 23 May 1994 was part of a package of documents
created by him in
connection with the attempt in the Family Court to conceal
the Muswellbrook property. On Mr Noall’s evidence that he had no
communications with Mr Atkinson until April 1995, the inference arises from
the package of documents that the letter
dated 23 May 1994 was created some
time after that date as part of the ruse. His Lordship did not make the
error alleged.
49 ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp; &nbp;
“For Your Eyes Only
&nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; ;&nspp;&nssp; p; &nbp; &nbp; ;&nbpp; &nnsp;&;;bsp;;&nbssp; nbsp;& p;&nbbbsp;
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