High Court. In hearing an interlocutory appeal concerning the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), was the Court of Appeal required to apply the principles in House v The King applicable to the review of discretionary decisions or the "correctness" standard?
Some of the questions to the High Court (HCA) were as follows:
Question 1: Can it be said that, under the "correctness" standard of appellate review of first instance judicial determinations, the appellate court determines for itself the correct outcome while making due allowance for such "advantages" as may have been enjoyed by the judge who conducted the trial or hearing?
Question 2: Can it be said that, under the House v King standard of appellate review of first instance judicial determinations, "appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust"?
Question 3: Was the basis for intervention identified in House v The King expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial "discretion"?
Question 4: Does the determination of which standard of review applies turn on whether the legal criterion to be applied "demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies"?
Question 5: In hearing an interlocutory appeal concerning the trial judge's refusal to exclude evidence under s 137 of the Evidence Act 2008 (Vic), was the Court of Appeal required to apply the principles in House v The King applicable to the review of discretionary decisions or the "correctness" standard?
The HCA answered those questions as follows: