Stemson v. AMP General Insurance (NZ) Ltd (New Zealand)  UKPC 30 (21 June 2006)
Privy Council Appeal No 52 of 2004
Michael David Stemson Appellant
AMP General Insurance (NZ) Ltd Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 21st June 2006
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Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Baroness Hale of Richmond
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[Delivered by Lord Hope of Craighead]
The issue at the trial
The issue in the Court of Appeal
"Appellants often wish to treat appeals as retrials on matters of fact. Counsel must, of course, be faithful to their instructions, but they have a duty to make it plain to their clients that the ambit of an appeal on fact is very narrow. Any tendency or wish to engage in a general factual retrial must be firmly resisted. The court will not reverse a factual finding unless compelling grounds are shown for doing so."
"This appeal developed into the kind of exercise which this court was seeking strongly to discourage in Rae's case. Mr Stemson really wanted a full factual re-examination of almost all the relevant aspects of the case, based solely on the transcript of evidence and the various documents. Such an exercise cannot capture the advantages possessed by the trial judge in a case such as the present. It is of course possible for an appellant in circumstances like these to demonstrate that in spite of those advantages the trial judge has come to an erroneous factual conclusion; but to achieve that end the authorities show that the appellant must establish that the trial judge was plainly wrong."
"Although the judge's ultimate conclusion involved drawing an inference from all the evidence which he accepted, the inference was aided by the judge's finding that Mr Stemson had made significant admissions. Most of the primary facts found by the judge on the basis of which he drew his ultimate inference were based on the judge's assessment of oral evidence and, in material respects, matters of credibility. Mr Stemson has shown no basis upon which this court might properly differ from the judge's primary findings. The inference which he drew from those findings was a strong one and we are certainly not persuaded that the evidence was insufficient to enable him to draw it to the standard required. By the same token the evidence was such that the judge was fully entitled to reject Mr Stemson's denial that he was implicated in the fire."
The Board's practice
"This appeal turns upon issues of fact which have been concluded against the appellants by concurrent findings of both the courts below. As is well known the Board's practice in such circumstances is not to embark upon a third trial of the issues of fact."
The basis upon which the rule rests does however require some elaboration.
"Their Lordships having arrived at the conclusion that there has been no error on point of law, the sole question that remains for determination is whether the judgment of the court below ought to be reversed on the ground that the judges have taken an erroneous view of the facts. Now it has always been the view taken by this Committee in advising Her Majesty, when the question for determination has been whether the concurrent judgment of the judges who have been unanimous below should be supported or reversed, that unless it be shown with absolute clearness that some blunder or error is apparent in the way in which the learned judges below have dealt with the facts, this Committee would not advise Her Majesty that the judgment should be reversed. That principle has been laid down in many cases."
"In the present case, although I might probably myself have come to a different conclusion, I cannot say that any cardinal fact was disregarded or unduly estimated by the courts below. I can lay hold of nothing as turning the balance decisively the one way rather than the other. I think the decision of the question of fact at issue depends upon which way the balance of probability inclines, and I am not prepared to advise your Lordships that it so unequivocally inclines in the opposite direction to that indicated in the judgments of the courts below, that this House would be justified in reversing the judgment appealed from."
Lord Watson said at p 216 that judges sitting in a court of last resort ought not to disturb concurrent findings of fact by the courts below, unless they could arrive at a tolerably clear conviction that the findings were erroneous. Lord Ashbourne said at p 217 that, although he was himself strongly disposed to think that the red side-light was visible, this was a question of inference and balance of probabilities and he was unable to find any clear fact on which he would be justified in arriving at a conclusion different from that of the courts below.
"(1) That the practice applies in the case of all the various judicatures whose final tribunal is the Board.
(2) That it applies to the concurrent findings of fact of two courts, and not to concurrent findings of the judges who compose such courts. Therefore a dissent by a member of the appellate court does not obviate the practice.
(3) That a difference in the reasons which bring the judges to the finding of fact will not obviate the practice.
(4) That, in order to obviate the practice, there must be some miscarriage of justice or violation of some principle of law or procedure. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if the propositions be corrected the finding cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.
(5) That the question of admissibility of evidence is a proposition of law, but it must be such as to affect materially the finding. The question of the value of evidence is not a sufficient reason for departure from the practice.
(6) That the practice is not a cast-iron one, and the foregoing statement as to reasons which will justify departure is illustrative only, and there may occur cases of such an unusual nature as will constrain the Board to depart from the practice."
Concurring Judgment by Lord Mance
"6. Abortive Attempts to Sell
 I find this conflict with the Daniels interests, and Mr Stemson's worsening financial position, led to a serious attempt by Mr Stemson to sell Firlawn shortly before the fire. He was in a vulnerable position, both in financial and litigation terms. He did not want Firlawn to return to the hands of Libby Daniels, at any cost.
 I find that Mr Stemson went to see a real estate agent in Coromandel, a Mr Jim McLean. He told Mr McLean that he wanted to sell the house – but surreptitiously, because Ms Daniels had a right of first refusal. Mr McLean was to attempt to sell it but there was to be no listing authority.
 Mr McLean's evidence was straight forward on this point. Mr Stemson denies this account. He admits that he went to see Mr McLean. He says that this was as an advisor and not in his capacity as a real estate agent. Mr Stemson portrayed the event as an enquiry by him to Mr McLean to what would happen to Firlawn House and, in particular, Ms Daniel's right of first refusal, in the event that he should die. It has to be said that Mr Stemson's evidence on this point was quite unsatisfactory. In a written statement to Mr Byrne on 21 May 1992 he said that he had never attempted to sell Firlawn House, nor even considered putting it on the market. He later attempted to change his position when it became apparent that AMP [the respondent] could point to the statement as being a ground of false information given to its investigator. Then, in a 3 December 1992 interview with Mr Byrne, he was asked if he had ever considered selling Firlawn. He said "yes", but then responded "no" in cross-examination. He also said in evidence that on the day in question he had thought that he ought to sell "to save his life". Mr Stemson's evidence on this subject is utterly contradictory and inconsistent in a number of places (including a taped interview at the offices of McIlroys, solicitors, on 3 December 1992). It has to be put on one side as being quite unreliable against the clear and unshaken evidence of the real estate agent, Mr McLean, who was supported in material respects by Mr Laing.
 I find that in the period shortly before the fire at Firlawn, Mr Stemson had distinctly in mind selling the property. And, he actively took steps in that direction but in such a manner as to thwart the possibility that the property might be reclaimed by Ms Daniels."
"Does the fact that the lie happens to be detected or unravelled before a settlement or during a trial make it immaterial at the time when it was told? In my opinion, not."