Federal Court (Full Court). Can it be said that, in an appeal by way of re-hearing, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"? Is error "limited to showing why or how the trial judge erred in the process or approach that was taken"?
Some of the questions to the Full Court of the Federal Court (FCAFC) in the context of a non-administrative law matter were as follows:
Question 1: Can it be said that, "in deciding the proper inferences to be drawn from facts undisputed or otherwise found, the appeal court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it"?
Question 2: Can it be said that "error is not limited to showing why or how the trial judge erred in the process or approach that was taken" and that it may "be concluded from the difference in view of the appeal court as to the conclusion in issue"?
Question 3: Is the Federal Court's discretion to receive further evidence in an appeal under s 27 of the FCA Act and r 36.57 of the Rules "limited to evidence of which the applicant was unaware at the time of the original hearing and with reasonable diligence could not then have been obtained"?
Question 4: What are the principles governing the exercise of the discretion to receive further evidence in an appeal?
The FCAFC answered those questions as follows: