Resolving contested facts in fair work cases

This extract from an unfair dismissal case is a fine summmary of the orthodox way in which courts tackle the thorny issue of resolving contested faCTS.


“Resolution of facts in dispute – approach


[1]      Whilst there are various facts not in dispute, making findings on the ultimate issues in these proceedings requires the resolution of various disputed facts. Given that my findings on the ultimate issues in this case primarily concern disputed accounts as to what occurred in respect of the April Arrangement, it is necessary for me to assess the credibility of the evidence of both the Applicant and the Respondent’s witnesses. In undertaking this task, I adopt the general approach in respect of credibility set out by Manousaridis J in O’Kane v Freelancer International Pty Ltd & Anor40:


“[19] Credibility may be defined as “the quality or power of inspiring belief”. When applied to testimony, credibility refers to the capacity of the testimony to inspire belief in the existence or non-existence of the fact asserted by the witness to exist or not exist. A finding by a court in a civil proceeding, therefore, that testimony is not credible is usually taken to be a finding that the testimony does not have the capacity to satisfy the court, at least on the balance of probabilities, of the existence or non-existence of the fact asserted by the testimony to exist or not exist. But “credibility” has a broader meaning. It may be taken to refer to testimony that is capable of satisfying a fact finder that the fact asserted by the testimony to exist or not exist does exist or does not exist, but which, in the particular circumstances of the case, the fact finder is not so satisfied. I propose to use “credibility” in both senses.


[20] Whether or not any given testimony will inspire satisfaction in the existence or non- existence of the fact the witness asserts exists or does not exist will depend on the fact- finder’s assessment of the witness’s “powers of perception, memory and narration . . . and of his [or her] opportunity and desire to exercise them honestly and efficiently in the situation under examination”. That means that assessing the credibility of testimony “involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be”. Assessing evidence “apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with otherevidence”. It has also been said that credible evidence is “that which meets the test of plausibility”.41


(footnotes omitted)


[2]      Both parties have urged me to make credibility findings about individual witnesses, including as to the manner in which evidence has been prepared prior to filing. In this decision, I do not consider that it has been necessary to make credibility findings directly about individual witnesses. Rather, my approach has been to make findings and conclusions based upon an objective consideration and comparison of the evidence before me.


[3]      Further, in limiting my findings in this matter to the evidence and submissions of the parties that are necessarily relevant to the determination of the jurisdictional objection raised by the Respondent (i.e. whether or not the Applicant has been “dismissed”), I have adopted the general proposition or approach of ‘confinement’ stated by Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd42:“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”43”

Dos Santos v Fafelu Constructions Group Pty Limited (2024) FWC 1047 delivered 23 April 2024 per Boyce DP