Appeal and tort law – principles that guide appellate review of findings of fact

In Jadwan Pty Ltd v Rae & Partners (A Firm) [2020] FCAFC 62 (9 April 2020) the Full Court dismissed an appeal challenging the trial judge’s dismissal of the appellant’s applications against the respondent solicitors seeking damages for alleged professional negligence.

The appellant had sought damages against its former solicitors for alleged professional negligence arising out of the revocation of its approval under the National Health Act 1953 (Cth) as a Commonwealth-funded nursing home by a delegate of the Minister for Health and Family Services.

The appeal judgment is lengthy and deals with numerous issues. There was a dispute between the parties concerning the principles applicable to the review on appeal of the findings of fact made by the trial judge that were challenged by the appellant (at [402]-[415]). The Full Court considered the relevant well-known authorities such as, among many others, Devries v Australian National Railways Commission, Fox v Percy and Robinson Helicopter Company Inc v McDermott. Bromwich, O’Callaghan and Wheelahan JJ observed that statements of principle in appellate judgments about these matters (such as non-interference of fact findings in the absence of “incontrovertible facts or uncontested testimony”) should not be treated as if they were provisions of a statute (at [411]).

Dan Star QC is a Senior Counsel at the Victorian Bar, ph (03) 9225 8757 or email danstar@vicbar.com.au. The full version of these judgments can be found at austlii.edu.au.