Assessing variables

South Cone Inc v Bessant and others (t/a Reef) (CA TLR 31 May)

Where a trial judge has made findings of fact and evaluated them, the degree of reluctance an appellate court should show in considering, in the absence of a distinct and material error of principle, whether to interfere with the judge’s findings varies depending on its assessment of the variables in each case. These variables include, the nature of the evaluation required, the standing and experience of the fact-finding judge or tribunal and the extent to which the judge or tribunal had access to oral evidence. In the present case the court allowed an appeal against the reversal of the decision of a principal hearing officer acting for the Registrar of Trademarks, saying that as the hearing officer had not erred in principle nor was he clearly wrong, the judge ought not to have substituted his own view.