IN THE COURT OF APPEAL IN THE
REPUBLIC OF VANUATU
(Civil Jurisdiction)
          
Civil Appeal Case No 17 of 2001
          
BETWEEN:
          
GEORGE ATKINSON
APPELLANT
          
AND:
          
GEOFFREY GEE
FIRST RESPONDENT
          
JAMES NOALL
SECOND RESPONDENT
          
CORAM: Hon Justice Bruce Robertson
Hon Justice John von Doussa
Hon Justice Daniel Fatiaki
          
COUNSEL: The Appellant appeared in person
Mr John Malcolm for the First Respondent
Mr Garry Blake for the Second Respondent
          
DATE OF HEARING: 24 April 2002
DATE OF JUDGMENT: 26 April 2002
          
REASONS JUDGMENT
1                                                                                                                                                                                                                  This is an appeal from a decision of Justice Saksak delivered on 8 August 2001 which dismissed claims for relief in two actions which had been commenced in the Supreme Court of the Republic of Vanuatu by the appellant, Mr Atkinson. The two actions were consolidated and heard together. The issues raised in the actions have a long history and have been the subject of considerable litigation both in Vanuatu and in the Family Court of Australia, and recently have become the subject of new proceedings in the Supreme Court of New South Wales.
2                                                                                                                                                                                                                  When the appeal was first listed in October 2001, Mr. Atkinson and the second respondent Mr. James Noall were represented by senior counsel from Australia, each of whom had prepared and filed detailed written submissions. For several reasons the appeal was adjourned until the April 2002 sittings of the Court of Appeal. On the matter being recalled, Mr. Atkinson announced that he would be appearing in person to argue his appeal, and an application was made on Mr. Noall’s behalf to adjourn the matter as his senior counsel is ill. Mr. Atkinson opposed an adjournment, arguing that there are urgent reasons why the appeal should be determined. The Court refused an adjournment. It has the benefit of senior counsels’ written submissions, and Mr. Blake who also appears for Mr. Noall is fully familiar with the case.
3                                                                                                                                                                                                                  In presenting the appeal Mr. Atkinson has submitted lengthy written submissions and many extracts from documents in other proceedings. We have had regard to them, but as many of them seek to advance or rely on evidentiary material that was not adduced at trial they are not helpful in resolving the issues raised in the grounds of appeal. In the circumstances we have also had regard to the written submissions prepared by Mr. Atkinson’s former counsel which do directly address the grounds of appeal.
4                                                                                                                                                                                                                  The first action before Saksak J. was Company Case No 22 of 1997 commenced on 24 October 1997. In those proceedings Mr Atkinson sought a declaration that he had since 2 August 1977 been the beneficial owner of all the issued shares in Atlas Investment Limited (Atlas), an international company duly registered in Vanuatu.
5                                                                                                                                                                                                                  In the second action, Civil Action No 175 of 1997 commenced on 9 December 1997 Mr Atkinson sought the following declarations against Mr Geoffrey Gee:
“1.                                                             That pursuant to the terms of the Sabra Trust and in accordance with the actions taken by the Defendant the plaintiff acquired the Sabra Trust in 1994 and that he became the          “Protector”          of the trust.
          
2.                                                                                                                                                                                    That the term          “Protector”          as used by the trustee is synonymous with the term          “Nominator”          used in the Deed of Trust and that the Plaintiff has the power, inter alia, to nominate or remove beneficiaries pursuant to the terms of the Deed of Trust.
          
3.                                                                                                                                                                                    That by written direction dated 17 September 1997 the Plaintiff has validly appointed Mr Gordon Atkinson as sole beneficiary of the Sabra Trust.
          
4.                                                                                 That the Defendant as Trustee of the Sabra Trust is bound by law to put into effect such change of beneficiary.
          
5.                                                                                          That the Defendant as trustee is bound to comply with the limitations found in clauses 2 and 3 and elsewhere in the Deed of Trust to comply with the directions of the Plaintiff as Nominator and or seek his written consent as the case may be.”
6                                                                                                                                                                                                                  Mr Gordon Atkinson is the appellant’s brother.
7                                                                                                                                                                                                                  The consolidated actions raised two diametrically opposed factual claims, one made by Mr Atkinson, and the other made by Mr Noall who was joined as a party to the consolidated actions as the second defendant. In reserved reasons for judgment, his Lordship rejected the factual claims of Mr Atkinson and accepted those of Mr Noall. In essence, Mr          Atkinson now contends that the learned trial Judge misapprehended the evidence and erroneously accepted the case of Mr Noall. He boldly contends that this court should overturn the trial Judge’s findings of fact. As the trial Judge rejected Mr Atkinson’s evidence on the ground that he did not regard him as a truthful witness, Mr Atkinson’s task of satisfying an appellate court that it should take this course is a formidable one.
8                                                                                                                                                                                                                  Mr Atkinson’s affidavit in support of the first action, sworn on 19 November 1997, succinctly sets out the case that he maintained at trial. He deposed that he was then a 73 year old investor, and the beneficial owner of Atlas which had entered into a contract for the purchase of a property at 45 Bridge Street at Muswellbrook (“the Muswellbrook property”) on 22 June 1994. On 24 June 1994 his wife had commenced family law proceedings against him in Australia seeking, among other orders, various property settlements. In July 1994, acting on advice, he consulted Mr Gee of the legal firm, Geoffrey Gee and Partners in Port Vila. On 3 August 1994 Atlas became the owner of the Muswellbrook property (by which, presumably, Mr Atkinson meant that the contract for the purchase of the property was settled).
9                                                                                                                                                                                                                  Mr Atkinson deposed that as a result of advice received in Port Vila from his accountants and Mr Gee, the shareholders and directors of Atlas changed from being the nominee directors and shareholders used by the accountants to other entities used by Geoffrey Gee and Partners. This occurred in mid July 1994. Further, in accordance with advice received from Mr Gee the shares were then “placed” in (i.e. transferred to) a shelf trust, the Sabra Trust, previously created by Mr Gee. Mr Atkinson became the sole beneficiary of the Sabra Trust.
10                                                                                                                                                                                    Mr Atkinson in his affidavit alleges that in an effort to conceal the Muswellbrook property as an asset against which his wife could claim in the Australian family law proceedings, Mr Gee suggested that the beneficiary of the Sabra Trust, ought to be someone who was relatively difficult to locate. Mr Atkinson said that he informed Mr Gee that his long time friend, James Noall who was a resident in Turkey, would be prepared to help him. Mr Atkinson alleges that Mr Gee said that he would prepare the necessary paperwork to make James Noall the temporary beneficiary.
11                                                                                                                                                                                    A formal resolution by Mr Gee as the trustee of the Sabra Trust, was prepared and duly recorded on 15 June 1995 in which it was resolved:
“That as instructed by George Atkinson, Mr James Noall of Istanbul to be nominated as beneficiary of the Trust but that all instructions to the Trustee in relation thereto be approved by G Atkinson.”
12                                                                                                                                                                                    The affidavit went on to depose that in June 1997 the matrimonial dispute was due to go back for a fresh trial before the Family Court of Australia, the decision in an earlier trial having been set aside on appeal. By this stage Mr Atkinson said that it had become obvious to him that the Family Court which had become aware of Atlas’ ownership of the Muswellbrook property would treat him as being the beneficial owner of Atlas. He says that he then reconsidered his position and made a full disclosure of his earlier fraudulent attempt to conceal assets. In the result, orders were made by consent in the Family Court on 19 June 1997 which entitled his wife to a half share of all his assets including those then held on his behalf by Mr Noall through Atlas.
13                                                                                                                                                                                    Following the settlement in the Family Court dispute, Mr Atkinson says he asked Mr          Noall to re-assign all his interests in Atlas back to him in accordance with their agreement. He said that he received a facsimile from Mr Noall dated 31 August 1997 which read:
“Re Atkinson/Atkinson
Following settlement in the above matter, I now assign all my interests in          ‘Atlas Investments Ltd’          and the          ‘Sabra Trust’          to George Atkinson.
Signed: James Noall”
and a manuscript signature “James Noall” appeared at the foot of the document.
14                                                                                                                                                                                    After receiving the assignment document of 30 August 1997 Mr Atkinson alleged that Mr Gee failed to act on it (i.e. by not acting on Mr Atkinson’s direction to install his brother as the sole beneficiary of the Trust), saying that Mr Noall claimed that the assignment was a forgery and that Mr Noall said he was a bona fide purchaser of Atlas entitled to remain the beneficiary of the Sabra Trust. Mr Noall claimed that the consideration for the purchase of Atlas was in part the payment of about $US 350,000 on Mr Atkinson’s behalf to Mr Allan Tripp, the proprietor of Number One Betting Shop, Vanuatu, to discharge a gambling debt, and in part the discharge of another long outstanding debt owed by Mr Atkinson to Mr Noall for GBP 300,000.
15                                                                                                                                                                                    Mr Atkinson denied the gambling debt, denied that he had been indebted to Mr Noall, and denied that Mr Noall had made any payments of the kind he asserted.
16                                                                                                                                                                                    Mr Noall gave details of his version of events in an affidavit filed on 13 December 1997. He said that he became the beneficiary of the Sabra Trust on 15 June 1995, the consideration for the transfer to him of the beneficial interest in the shares in Atlas being the release of the old debt of GBP 300,000 and the payment of $US 350,000 to the Number One Betting Shop. He said that he had been telephoned by Mr Atkinson in April 1995 when Mr          Atkinson sought monies from him. Mr Atkinson had offered him the Muswellbrook property which was said to be worth AUS$ 800,000. Mr Atkinson invited Mr Noall to contact Mr Gee to confirm the value. Mr Noall told Mr Atkinson that he did not have the amount of money sought available. Over the next few days Mr Noall said that he spoke with Mr Gee and confirmed the value of the property and then arranged for a friend of his, Mr          Graeme Brown in Brazil, to advance the money necessary to discharge the debt to the Number One Betting Shop. Mr Noall deposed that Mr Graeme Brown had telegraphically transferred the money to the Number One Betting Shop, in Vanuatu. Mr Noall said that he later repaid Mr Brown the money which he had provided.
17                                                                                                                                                                                    Mr Noall exhibited to his affidavit a facsimile of an undated letter on the letterhead of Number One Betting Shop which read:
“TO WHOM IT MAY CONCERN
It may be stated categorically that all monies due to this agency by Mr George Atkinson have been paid in full. We are aware funds were made available to Mr Atkinson from the transfer of shares of the company, Atlas Investments Limited.
Signed: Donald Harry (Licensee, Number One Betting Shop)”
The facsimile bore a transmission imprint dated 11 May 1995.
18                                                                                                                                                                                    Save in one respect, Mr Atkinson’s evidence leading up to the resolution by Mr Gee as trustee recorded on 15 June 1995 was borne out at trial by the evidence of Mr Gee. The reasons for judgment indicate that Saksak J accepted Mr Gee’s evidence. The only departure was that Mr Gee denied that the notion of Mr Noall becoming a “temporary beneficiary” to conceal the Muswellbrook property was ever discussed. On the contrary, Mr Gee said that when the question of him giving evidence in the Family Court of Australia first arose, he had stressed to Mr          Atkinson and to his accountants in Vanuatu that if asked he would say that Mr          Atkinson was the beneficiary of the Trust. Mr Gee says he told them that the only way he could swear an affidavit declaring that Mr Atkinson was not the beneficial owner was if Mr          Atkinson was not recorded as such in the Trust’s documentation held in his office.
19                                                                                                                                                                                    Moreover, Mr Gee said he would not swear such an affidavit if he was aware that the listed beneficiary or someone delegated by the listed beneficiary had the power to change the beneficiary again without the consent of the listed beneficiary. It was sometime after this that Mr Gee said that he was instructed by Mr Atkinson that his beneficial interest in the Trust was to be transferred to Mr Noall. Mr Gee said he was given no details of dealings between Mr          Atkinson and Mr Noall. He simply acted on the instructions received, and prepared the resolution dated 15 June 1995.
20                                                                                                                                                                                    Mr Gee also gave evidence to explain why the resolution of 15 June 1995 recorded “that all instructions of the Trustee in relation thereto be approved by G Atkinson”. In par 15 of his affidavit Mr Gee deposed:
“That at the same time and as discussed with the Plaintiff to provide the Plaintiff with ongoing authority to deal with the Assets of the Trust I minuted him as the overseer of the Trust Assets and the general status of the Trust but again made it quite clear that ultimately this was always subject to the wishes of the beneficiary and provided there was no such instruction then his position as overseer of the Trust Assets and dealings with them would continue.”
Mr Gee said that in May 1996 he received an instruction from Mr Noall not to have anything further to do with Mr Atkinson and to take no instructions from him whatsoever.
21                                                                                                                                                                                    It is convenient at this point to refer briefly to salient aspects of the Deed which established the Sabra Trust. The Deed, dated 10 October 1990, is between Regent Limited as settlor and Mr Gee as Trustee. Clauses 1(3) and (4) contain the following definitions:
“(3)                                         “the beneficiaries” means
(a)                                        SATELLITE HOLDINGS LIMITED
(b)                                        such charitable institutions or purposes as the trustees may see fit and as are deemed charitable in accordance with English law as applicable in Vanuatu
(c)                                                  any person (as defined in the schedule to the Interpretation Act 1981) as the nominator or (if the nominator be an individual) after his death his legal personal representative or representatives shall from time to time by notice in writing to the trustee during the specified period appoint to be beneficiaries for the purpose of this Deed (not being: -
(i)                                                                                                                                                                          the nominator;
(ii)                                                                                                                                                      the nominator’s legal personal representative or representatives whether in their capacity as such legal personal representative or in their personal capacity;
(iii)                                                                                                                                  any person or company who or which is or has been a trustee of the trust fund).
(4)                                                                                                                                                      “the nominator” means WATERFORD LIMITED a company duly incorporated and existing under the laws of Vanuatu and having its registered office at P.O. Box 183, Port Vila, Republic of Vanuatu.”
Clauses 2 and 3 of the Deed give the Trustee wide          powers as to the application from time to time of the trust funds or any part of them but the exercise of these powers requires the consent in writing of the nominator. The evidence at trial established that Waterford Limited is a trustee company in Vanuatu controlled by Price Waterhouse, and that since 1987 Waterford Limited had consented to be the nominator in trust deeds established by Geoffrey Gee and Partners with Mr Gee being fully authorised by Waterford Limited to act on its behalf and without recourse to Price Waterhouse specifically in relation to its position as nominator. Mr Gee said that the intent of that arrangement was that he held full control to act under a trust deed on instruction from the beneficiary under the Trust.
22                                                                                                                                                                                    Mr Gee produced a trustee’s minute dated 24 October 1994 recording resolutions as follows:
“RESOLVED: 1.                                                                                                                                                                                                         THAT George Atkinson C/- KPMG Peat Marwick become Protector of the Trust and that the Trustee at all times act on his instructions including nomination of new Trustee if declined and/or status of beneficiaries.
2.                                                                                                                                                                                    THAT Sabra Trust become beneficial owner of the shares in Atlas Investments Limited, PO Box 212, Port Vila and Share Transfer be executed in favour of the nominee of Geoffrey Gee & Partners for the Sabra Trust.”
The expression “Protector of the Trust” is not one used in the Deed which established the Sabra Trust.
23                                                                                                                                                                                    Satellite Holdings Limited by declaration of trust made on 15 June 1995 declared that although it was the apparent beneficiary of the Sabra Trust it held as trustee for James Noall of Swiss Hotel Istanbul, Turkey. It will be noted that this declaration of trust was made on the same day as the Minute by Mr Gee as trustee of the Sabra Trust which recorded that on Mr Atkinson’s instruction Mr Noall was nominated as beneficiary.
24                                                                                                                                                                                    It was against this background that the assignment document of 31 August 1997 at first appeared to assume decisive importance. Mr Atkinson in his affidavit of 19 November 1997 propounded the assignment as the basis of his entitlement to the declaration sought in the first action that he was the sole beneficial owner of Atlas, Atlas being the principal asset of the Sabra Trust.
25                                                                                                                                                                                    In October 1998 Mr Noall filed a Notice of Motion seeking to have determined as a preliminary issue whether the assignment document of 31 August 1997 was a forgery. Saksak J ordered that there be a determination of the preliminary issues, and embarked upon the trial of the consolidated actions for that purpose. He received both oral and documentary evidence from Mr Noall and from a handwriting examiner from the Forensic Documents Service. Mr Atkinson did not appear at that hearing although he was represented by counsel who sought to uphold the validity of the assignment. Saksak J held that the document was a forgery, but declined Mr Noall’s motion to summarily dismiss both actions. His Lordship considered that it would be premature to dismiss the proceedings before Mr Atkinson had been given the opportunity of being cross-examined on oath as to the contents of his own affidavit evidence and of cross-examining Mr Gee.
26                                                                                                                                                                                    Mr Noall appealed against the refusal to dismiss the consolidated actions. This Court upheld the decision of Saksak J: see          Noall v Atkinson and Gee          Civil Appeal Case Number 3 of 1999, judgment 28 September 1999.
27                                                                                                                                                                                    Saksak J resumed the hearing of the consolidated actions in August and September 2000, and the case was then adjourned to enable the parties to make extensive written submissions. As stated at the outset of this judgment, his Lordship in a reserved judgment dismissed both actions on 8 August 2001. Mr Atkinson complained to this Court that his Lordship took “twelve months” to deliver judgment. This is an unjustified complaint. The parties took many months to complete their written submissions. Those on behalf of Mr Atkinson were not filed until 5 April 2001.
28                                                                                                                                                                                    In his reasons, Saksak J observed that there had been an order of the court dated 27          May 1997 in other proceedings in which Mr Noall had been held to be the beneficial owner of all the shares in Atlas since 15 June 1995. That order remained. His Lordship observed Mr Atkinson had not at any time sought to have the order set aside or appealed and he observed:
“Therefore in my view the issue of beneficial ownership is a dead issue.”
This observation by implication meant that the claim for the declaration in the first action must fail.
29                                                                                                                                                                                    Notwithstanding that observation, his Lordship went on to consider the various issues which had been canvassed by the parties at the trial relating to the declarations sought in the second action. Counsel for Mr Atkinson advanced arguments about the construction of the Deed, contending that Mr Gee as Trustee was obliged in 1997 to act on Mr Atkinson’s direction to install his brother as the sole beneficiary. However, the evidence led at the trial concentrated upon whether the arrangement between Mr Atkinson and Mr Noall was merely one under which Mr Noall agreed to hold the beneficial interest temporarily for Mr Atkinson as part of the plan to conceal assets from the Family Court of Australia, or whether there had been a transfer for consideration of the full beneficial interest as Mr Noall alleged.
30                                                                                                                                                                                    At the resumed hearing Mr Atkinson gave evidence and through him many documents were tendered. He maintained his position that the beneficial interest in the Sabra Trust had not been transferred to Mr Noall. He continued to deny that he was indebted to Mr Noall, or that he had owed any money to the Number One Betting Shop. In support of the latter allegation, he called Mr Tripp who said that there had been no such debt. Mr Tripp said that he was unaware of the letter bearing the fax notation of 11 May 1995 written on Number One Betting Shop letterhead. Late in the trial what purported to be a record of Mr Atkinson’s betting transactions with Number One Betting Shop was tendered as were some banking records for Number One Betting Shop for the months of April to June 1995. The transactions list did not show any significant debt due by Mr Atkinson. The banking records produced did not disclose a deposit of an amount equivalent to $US 350,000 in 1995.
31                                                                                                                                                                                    Mr Noall did not attend again to give evidence at the resumed hearing. A medical report was tendered saying that Mr. Noall, then aged 78 years, was suffering serious illness and could not at that time travel to Vanuatu. However, Mr Graeme Brown was called, and gave evidence confirming that he had arranged to send money in the order of $US 350,000 from Switzerland to the Number One Betting Shop in June 1995. Generally his evidence supported the facts which had been deposed to by Mr Noall in his affidavit to which reference has earlier been made, but it was not supported by any documentary material to confirm the transfer of money.
32                                                                                                                                                                                    In addition, the trial Judge received the evidence of Mr Gee which was generally supportive of Mr Noall’s case.
33                                                                                                                                                                                    In his reasons for judgment Saksak J referred to letters and documents that had been created by the parties involved. He concluded that various letters from Mr Atkinson to one or other of the parties contained clear admissions by him supportive of Mr Noall’s case. Not only did his Lordship conclude that Mr Atkinson was not a truthful witness, he made positive findings accepting the evidence of Mr Noall and of Mr Brown. As for Mr Noall’s unavailability at the resumed hearing, his Lordship said:
“In any event, he was no longer required to give evidence as he had given his evidence adequately on 15 March 1999 in the trial as to the authenticity of a signature purported to be his.”
34                                                                                                                                                                                    In the course of the trial Mr Atkinson made numerous allegations against Mr Gee to the effect that he had administered the Sabra Trust contrary to the requirements of its constitution and that he had acted in breach of the retainer from Mr Atkinson. Mr Atkinson also raised allegations of negligence against Mr Gee. Whilst similar allegations had also been made in separate proceedings commenced by Mr Atkinson against Mr Gee and his partner which were not before his Lordship, the allegations raised during the trial were directly relevant to the issues raised in the second action, Action Number 175 of 1997. His Lordship, for reasons given, concluded that Mr Gee had not been negligent and that there was no breach of retainer on his part. The relief sought against Mr Gee in the Action Number 175 of 1997 was dismissed.
35                                                                                                                                                                                    Before turning to consider the grounds of appeal, it is appropriate to consider the function of this Court where it is alleged that findings of fact by a trial Judge based substantially on credit should be disturbed. Article 50 of the Constitution of the Republic of Vanuatu provides that Parliament shall provide for appeals from the original jurisdiction of the Supreme Court. Parliament has done so in Part IV of the          Courts Act          [CAP. 122].
Section 26 of the Courts Act prescribes the jurisdiction and powers of the Court of Appeal. Section 26 (2) reads:
“On every such appeal the procedure and the findings, whether of fact or law, of the Court appealed from shall be subject to review by the appellate Court which shall be entitled to substitute its own judgment or opinion thereon save that the appellate Court shall not interfere with the exercise by the Court appealed from of a discretion conferred by any written law unless the same was manifestly wrong.”
36                                                                                                                                                                                    The Court of Appeal Rules 1973, even though made before Independence, continue to apply in the absence of any later rules: see Article 95(1) of the Constitution. Those rules, construed with such adaptions as may be necessary to bring them in to conformity with the Constitution, provide in effect that this Court may receive further evidence in appropriate cases, and in the disposal of an appeal may make whatever order the case may require: see rule 27. An appeal to an appellate court vested with these powers is an appeal by way of re-hearing, as rule 19 makes clear. See also re Coldham v Ex parte Brideson [No 2] [1990] HCA 36; (1990) 170 CLR 267 and Cole & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
37                                                                                                                                                                                    The function of an appellate court hearing a case by way of re-hearing was stated in the following way by Deane and Dawson JJ in Devries v Australian National Railways Commission          [1992] HCA 41; (1993) 177 CLR 472 at 480 – 481:
“In a case where it appears that a challenged finding of fact has, to a significant extent, been based on the trial judge’s observation of the demeanour of the witnesses, the members of an appellate court are inevitably placed in a position of real disadvantage compared with the trial judge. Even in such a case, however, the          ‘court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions’          [The Glannibanta          (1876), 1 PD 283 at p 287, per James LJ, Baggallay JA and Lush J referred to by Dixon CJ and Kitto J in          Paterson v Paterson          [1953] HCA 74; (1953) 89 CLR 212 at p 219]. The appellate duty in such a case cannot, in our view, be explained in any short exhaustive formula          [footnote omitted]. It was correctly identified by Lindley MR, Rigby and Collins LJJ in          Coghlan v Cumberland          [[1898] 1 Ch 704 at pp 704 – 705] in a passage which has been referred to with approval in many cases in this Court          [references omitted]          and          ‘adopted as a governing authority’          [Dearman v Dearman          [1908] HCA 84; (1908) 7 CLR 549 at p 553 per Griffith CJ]. Their Lordships said:
                                                                                                               ‘Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the judge, the Court is sensible of the great          advantage he has had in seeking and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions; and when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen.’”
38                                                                                                                                                                                    In short, although the appellate court has a duty to re-hear the case and to make up its own mind, it will not interfere unless it comes to the conclusion that the judgment under appeal is wrong. In          Devries v Australian National Railways Commission          the other members of the High Court of Australia, Brennan, Gaudron and McHugh JJ said at 479:
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge          ‘has failed to use or has palpably misused his advantage’          or has acted on evidence which was          ‘inconsistent with facts incontrovertibly established by the evidence’          or which was          ‘glaringly improbable’.”          [footnotes omitted]
39                                                                                                                                                                                    The reason for this approach by an appellate court was explained by Lord Hoffman in          Biogen Inc v Medeva Pty Ltd         [1997] RPC 1 at 45:
“The need for appellate caution in reversing the judge’s evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la [vérité] est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.’
40                                                                                                                                                                                    However, in many appeals a credibility finding may not be conclusive of the proper outcome of the entire trial, and it is necessary to consider the extent to which other evidence, not dependant upon a credibility finding, bears on the ultimate conclusion. In          State Rail Authority of New South Wales v Earthline Constructions Pty Ltd          (in liq) and Others          [1999] HCA 3; (1999) 160 ALR 588 at 620 Kirby J identified, by way of example, seven situations where credibility findings would not alone determine the outcome of an appeal. Those examples include a case where only some aspects of the parties’ dispute turn on the findings of credit, where incontrovertible facts or uncontested testimony show that the findings based on credibility were wrong, where credibility findings are based on evidence that was wrongly admitted or where the judge took into account irrelevant considerations or has failed to properly weigh all relevant considerations. But even in these cases the appeal court must ultimately be satisfied upon the consideration of all the material properly before the Court that the judgment under appeal was wrong before it will disturb it.
41                                                                                                                                                                                    Implicit in the appellant’s case before this Court is the contention that the trial Judge misused the advantage which he had in seeing and hearing the witnesses give evidence, and erred in concluding that Mr Atkinson was not a witness of truth. We are unable to accept this submission. There was overwhelming evidence before the trial Judge that Mr Atkinson was not a man whose oath could be trusted. In the course of his cross-examination he admitted that he knew the assignment document of 31 August 1997 was a forgery, and that he had arranged for a friend who was to pass through Turkey to post the forgery from that country. These admissions, viewed against the strenuous attempts which Mr Atkinson had earlier made to propound the validity of the document would alone be sufficient to justify the complete rejection of Mr Atkinson as a witness of truth.
42                                                                                                                                                                                    However there was more. The trial Judge had before him an affidavit filed by Mr          Atkinson in the Family Court of Australia. That affidavit had been sworn on 14 June 1995, that is at approximately the same time as he arranged for Mr Gee to record the resolution that Mr Noall was the beneficiary of the Sabra Trust. The import of pars 195 – 199 of that affidavit is that Mr Atkinson was unable because of his financial position to settle on the contract for the purchase of the Muswellbrook property, and from par 203 that he therefore transferred the whole of his interest in Atlas to a person or entity unknown to him. This is contrary to the import of his affidavit in the first action to the effect that the Muswellbrook land was transferred to Atlas on 3 August 1994 whilst the company was still under his exclusive control.
43                                                                                                                                                                                    At pars 200 – 203 of the affidavit filed in the Family Court, Mr Atkinson deposed that in the ten months leading up to June/July 1994 he had experienced a number of adverse changes in his financial position including incurring a number of large gambling debts to registered bookmakers in Australia and a very substantial debt to the Number One Betting Shop in Vanuatu. Accordingly he transferred his interest in Atlas to a person or entity unknown to him in consideration of the payment of the debt to the Number One Betting Shop. Again, these assertions are contrary to the evidence Mr Atkinson gave before his Lordship.
44                                                                                                                                                                                    Mr Atkinson informed this Court that at first instance in the Family Court of Australia Purdy J. had accepted him as a credible witness. He argued that Saksak J. should therefore have made similar finding in this case. This argument is untenable. The reasons of judgment of Purdy J. were not placed before Saksak J. and in any event would not have been admissible to prove Mr Atkinson’s credibility. Moreover at the trial in the Family Court Purdy J. would have been unaware that Mr Atkinson would later give inconsistent sworn evidence in another Court. We also note that the judgment of Purdy J. was set aside on appeal by the full Court of the Family Court.
45                                                                                                                                                                                    His Lordship identified in his reasons for judgment various admissions against interest which Mr Atkinson had made from time to time in his dealings with the other parties. In substance these were statements made both before and after the consent order made in the Family Court on 19 June 1997 to the effect that he had no interest in Atlas. If these statements were not correct, they provide further instances where Mr Atkinson has deliberately misrepresented the position in an endeavour to achieve an advantage for himself. One way or the other, this evidence was either destructive of the substance of his case, or destructive of his credit.
46                                                                                                                                                                                    Ground 10 of the Notice of Appeal contends that the trial Judge erred in holding that he had heard both Mr Atkinson and Mr Noall give oral evidence, and in deciding as between them on grounds of credit. It is contended that the evidence of Mr Noall was only on a limited issue, namely the validity of the assignment document of 31 August 1997, and that his Lordship should not have acted on Mr Noall’s evidence in the absence of full cross-examination. However, his Lordship noted in his reasons for decision on the preliminary question that:
“Counsel for the plaintiff in cross-examining [Mr Noall]          went to the extent of attempting to destroy the credibility of [his] evidence but I was impressed by his evidence and could not make an assessment without the opportunity of hearing the plaintiff also. There was no such opportunity because the plaintiff did not avail himself to such opportunity.”
47                                                                                                                                                                                    Whilst the hearing of the trial occurred in two segments, the trial of the preliminary issue was nevertheless part of the trial of the action. His Lordship was correct in saying that Mr Noall had given evidence. We have had the opportunity of perusing His Lordship’s notes of Mr. Noall’s cross-examination. The cross-examination was not confined to the authenticity of the assignment document. It was directed to the veracity of Mr. Noall’s account of his transactions with Mr. Atkinson set out in his affidavit filed on 13 December 1997. It was not Mr Noall who claimed to have personally sent $US 350,000 to Number One Betting Shop. Proof of that fact depended upon the evidence of Mr Brown. It is difficult to think of issues upon which Mr Noall could have been cross-examined beyond those which were covered at the trial of the preliminary issue. In our opinion ground 10 of the Notice of Appeal is not made out.
48                                                                                                                                                                                    It is also contended in written submissions filed on Mr Atkinson’s behalf that the trial judge’s reasons for judgment indicate that he misunderstood the evidence of Mr Noall and decided the case on the basis that Mr Noall acquired his interest in the Sabra Trust in April 1994. This is said to follow from references in the reasons for judgment to a letter dated 23 May 1994 addressed to Mr Noall and signed by Mr Atkinson. This letter does refer to dealings in 1994. However, it is plain from a reading of the judgment, especially at p 16, that his Lordship was under no such misapprehension. It is apparent from other documents prepared by Mr Atkinson that the letter of 23 May 1994 was part of a package of documents created by him in connection with the attempt in the Family Court to conceal the Muswellbrook property. On Mr Noall’s evidence that he had no communications with Mr Atkinson until April 1995, the inference arises from the package of documents that the letter dated 23 May 1994 was created some time after that date as part of the ruse. His Lordship did not make the error alleged.
49                                                                                                                                                                                    A stronger contention made by Mr Atkinson in the written submissions filed by his former counsel concerns the way in which his Lordship dealt with the 1995 banking records of the Number One Betting Shop. His Lordship gave no weight to the fact that an entry for $US 350,000 could not be identified in them. His Lordship referred to a page of a handwritten facsimile dated 16 February 1997 which was purportedly sent by Mr Noall to Mr Atkinson (although Mr Atkinson now concedes he wrote the document). The facsimile appears to be a statement of account of some sort, although the figures shown are mystifying. His Lordship set out the following part of the facsimile:
“For Your Eyes Only                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                    6 Pages INC This Page
From                                                                                                                                   Jim
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       800’000
to NUMBER ONE GETTING
SHOP                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           497’000
Stamp Duty & Legals
To GA                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 40,000
Original Deposit to GA                                                                                                                                                                                                                             88,000
Balance of Moneys to GA                                                                                                                                                                                              175,000                                                                                                                                                                                                                                                                                                                                                    
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               800,000                                                                                                                                                                                                                             800,000
TRANSACTION CARRIED OUT BY ‘STIG’ &
ACCOUNTANT IN PORT VILA, VANUATU
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
IMPORTANT YOU NOTIFY GEOFF GEE RENT
REQUIRE HAS DUE ON PROPERTY JAN.97”
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
His Lordship then observed:
“Bank records for 1995 were subpoenaed but they were not helpful. The relevant records would have been for the year 1996 – 1997 in light of the above facsimile. But they were not produced nor were they called for.”
50                                                                                                                                                                                    Although the facsimile was dated on 16 February 1997 it does not follow that the document records a payment to Number One Betting Shop made at about that time. It is consistent with the document that the payment may have been made at an earlier date. The figures contained in the document suggest that they are all in Australian dollars, and having regard to the level of the Australian dollar/US dollar exchange rate in mid 1995 the figure          “497’000”          is not inconsistent with it being a reference to about $US 350,000. It would appear that his Lordship has assumed that the facsimile records a payment said to have occurred closer to February 1997 than mid 1995.
51                                                                                                                                                                                    Importantly, however, his Lordship records that          “bank records for 1995 were subpoenaed but they were not helpful”. This indicates that his Lordship did not overlook the 1995 records, rather, having considered the records he thought they were not helpful.
52                                                                                                                                                                                    It is not surprising that his Lordship thought the banking records were not helpful. In the course of his oral evidence Mr. Tripp said that Number One Betting Shop maintained two accounts with the ANZ Bank in Port Vila, one in Australian dollars and one in Vatu. He said he had approached the bank to obtain a copy of the “records”, and had been told that they would be available the following week. At the conclusion of the evidence counsel for Mr. Atkinson said that he wished to put the bank records into evidence, and leave to do so was given. Copies of ANZ bank statements for the Vatu account of Number One Betting Shop were later delivered to the judge by Mr. Atkinson’s solicitors. The statements were unexplained except by the earlier oral evidence of Mr. Tripp. That evidence failed to give a comprehensive account of the banking system of Number One Betting Shop, and it is not possible to determine the significance of the 1995 bank records which were tendered. However even if there were room to question whether due weight was given to the bank records by his Lordship, the banking records are but one part of a complex web of evidence. Given the unsatisfactory nature of the evidence about the records any question about the weight to be given to them could not be elevated to a finding that the judgment is wrong.
53                                                                                                                                                                                    Not only were the Australian dollar bank statements of Number One Betting Shop not produced, his Lordship rejected the evidence of Mr Tripp. He said he found it hard to believe that Mr Tripp, being the operator who had the day-to-day carriage of the business, had never seen the letter which bore the fax transmission date 11 May 1995. His Lordship’s scepticism has justified as Mr. Tripp conceded in cross-examination that he had arranged for the letter to be prepared at the request of Mr. Atkinson. In other respects his Lordship found Mr Tripp’s evidence lacked credibility. As the respondents point out in their written submissions to this court, there were substantial forensic reasons for such a finding. The cross-examination of Mr Tripp raised serious issues about his credibility, and it was open to his Lordship to reach the conclusion that he did. It is not without significance that Mr          Atkinson in his Family Court affidavit of 14 June 1995 had asserted that he owed a very substantial debt to Number One Betting Shop. Once Mr Tripp’s evidence was rejected the significance of the subpoenaed banking records was unexplained.
54                                                                                                                                                                                    Mr Atkinson also criticised the evidence of Mr Brown on the basis that it was not supported by bank account details or any documentary proof of the transfer of money from Switzerland to the Number One Betting Shop, nor was there any documentary evidence to support his evidence that Mr Noall repaid him in cash in Turkey in 1996 and 1997. The criticism that Mr Brown’s evidence was not so supported was made to the trial Judge. There is no reason to think that his Lordship did not take the criticism into account in his assessment of Mr Brown. It was open to him to accept Mr Brown’s oral evidence which in its essential respects dovetails with the evidence of Mr Noall.
55                                                                                                                                                                                    We do not think that the specific criticisms which have been advanced on the appeal by Mr. Atkinson, or on his behalf in written submissions demonstrate that the essential findings of fact by the trial judge were wrong.
56                                                                                                                                                                                    There is, however, one substantial issue which received short mention by the trial Judge which we think is in itself decisive of the proper outcome of the trial, and is also decisive of the outcome of this appeal. That issue concerns the order of the court made on 27          May 1997 in other proceedings, Company Case Number 11 of 1997. The order recites that upon hearing counsel for Atlas and upon reading affidavits of Mr Gee and Mr          M          N          Johnson (other evidence shows him to be a solicitor in Australia who acted for Atlas) the court declared:
“1.                                                             THAT for the purpose of carrying on the business of ATLAS INVESTMENTS LIMITED outside Vanuatu the trustee of shares of ATLAS INVESTMENTS LIMITED, its Australian legal representatives and Mr James Ogilvey Noall are hereby permitted to divulge to the FAMILY COURT OF AUSTRALIA, the parties to proceedings numbered PA4046 of 1994 in that Honourable Court between Mary Atkinson as Applicant, George Atkinson, Atlas Investments Limited and Veritatem Nominees Limited as Respondents and their legal representatives the shareholding in and/or beneficial ownership of any share or shares in the Company.
2.                                                                                                                                                                                    THAT JAMES OGILVEY NOALL is now, and has been since 15 June 1995, the beneficial owner of all issued shares in ATLAS INVESTMENTS LIMITED.”
57                                                                                                                                                                                    As the trial Judge observed at the outset of his reasons for judgment Mr Atkinson has at no time sought to have the order set aside or appealed.
58                                                                                                                                                                                    Company Case Number 11 of 1997 was not an inter-party proceeding, and it would be open to argument whether the order and declarations bound interested parties who were not participants in the obtaining of the order. Mr Gee in his affidavit swore that he could confirm that the order was made on the request of Mr Noall. He said that although he had no knowledge of any discussions which Mr Atkinson may have had with Mr Noall, he believed it was Mr Atkinson who arranged for          “the Australian solicitors to do the documentation”          and that it was Mr Atkinson who arranged for counsel to appear on the hearing. Mr Gee’s evidence of his belief would not be admissible to prove Mr Atkinson’s participation in the obtaining of the order. However Mr Atkinson himself gave evidence of participation. In an affidavit sworn on 15 April 1998 he deposed that he gave Mr Gee instructions to retain Mr Johnson’s firm and that          “acting on the advice of my then lawyers I authorised them to obtain a declaration from the Supreme Court of Vanuatu in May of 1997 confirming that I was not the beneficiary under the Trust”. In his oral evidence he confirmed that he had given instruction to the lawyers who appeared before the Supreme Court to obtain the order made on 27 May 1997, and he said that he had paid their fees. Whether Mr Atkinson gave those instructions as part of a fraudulent scheme to conceal assets, or otherwise, it is now beside the point. The fact is that he used the processes of the court to obtain the declaration and it would now be an abuse of the process of the court to allow him to deny the truth of the declaration that was made at his instance. In our opinion it is not open to Mr          Atkinson to deny the correctness and force of the declaration that as at 27 May 1997 and continuously from 15 June 1995 to that date, Mr Noall was the beneficial owner of all the shares issued in Atlas. The evidence which Mr Atkinson sought to adduce in support of the remedies claimed in each of the consolidated actions asserted facts which were contrary to the declaration.
59                                                                                                                                                                                    In so far as the appeal seeks to overturn the finding of the trial judge that Mr Noall on 15 June 1995 became the beneficiary of the Sabra Trust the appeal must fail. The arguments on the construction of the Deed establishing the Sabra Trust, and the allegations of negligence and breach of retainer by Mr Gee must be considered against the finding that Mr          Noall became the beneficiary as the result of a transfer for good consideration.
60                                                                                                                                                                                    Mr Atkinson places weight on the terms of the trustee’s resolution dated 24          October          1994 that he had become the “Protector of the Trust”: see pars 1 and 2 of the declarations sought in the second action. Mr Atkinson argues that the term “Protector” was used by the Trustee as synonymous with the term “nominator” used in the Deed creating the Sabra Trust. As earlier noted, the expression “Protection of the Trust” is not used in the Deed. The expression is however one sometimes used in relation to a trust instrument. The authors of “Principles of the Law of Trusts” by HAJ Ford and WA Lee 3rd          Ed, LBC Information Services 1996 say at par 12080:
“Not uncommonly a trust instrument or statute may confer on a person other than a trustee a power to direct the trustees as to the manner in which they must exercise a power or powers conferred on them. Such a person is sometimes referred to as an enforcer or protector. In exercising that power the trustees are fettered by the terms in which the power to give directions is couched. If the power is couched in highly specific terms then there will be little opportunity for the trustees to do otherwise than obey any direction properly given.”
In the present case, the Deed of Trust conditions the exercise of powers by the Trustee on the consent of the nominator. The nominator could therefore be described as a protector. However, that is not the sense in which the expression “Protector of the Trust” is used in the resolution of 24 October 1994 because the Deed of Trust makes it plain in cl 1(3) that the nominator cannot be a beneficiary (which Mr Atkinson was on 24 October 1994) and cl 1(4) specifically identifies the nominator as Waterford Limited. In the resolution of 24          October 1994 the expression “Protector of the Trust” is therefore being used merely as a recognition that Mr Atkinson as beneficiary at the time had the capacity to direct the Trustee in the administration of the Trust.
61                                                                                                                                                                                    Critical to the determination of the rights of the parties thereafter is the finding that on 15 June 1995 Mr Noall for good consideration became the beneficiary of the Sabra Trust. In context this is a finding that Mr Noall became the sole beneficiary absolutely entitled to all the property of the Trust. In so far as the Deed of Trust required the Trustee to exercise a power of appointment under the terms of the Trust to recognise Mr Noall’s entitlement, the Trustee had the standing consent of Waterford Limited to make the appointment. Under the Deed the relevant consent of the nominator is “written consent obtained in advance”. In the present case the evidence is not clear whether the arrangement between Waterford Limited and Geoffrey Gee and Partners was reduced to writing in 1987. The evidence of written authority adduced at trial was contained in a letter written after the event. If there was a technical breach in that the consent was not formally reduced to writing in advance, this does not entitle Mr          Atkinson to any remedy as Mr Noall, upon giving the agreed consideration, was entitled to require Mr Atkinson to have the beneficial interest in the Trust transferred to him. Mr          Atkinson appears to have recognised at the time the first action was commenced that once Mr Noall was acknowledged by the Trustee to be the beneficiary of the Sabra Trust, as occurred on 15 June 1995, his role as “Protector of the Trust” had come to an end, and that he had no further control over who was to be the beneficiary. Hence, the pretext that there had been a re-assignment to him by the assignment document of 31 August 1997. When Mr Noall told Mr Gee that the document was a forgery, and Mr Gee refused to act on it, Mr Atkinson changed tack by seeking to rely on technicalities under the terms of the Sabra Deed of Trust. The declarations in the second action must fail because the nominator at no time was Mr          Atkinson, and once Mr Noall’s account of events is accepted Mr Gee as Trustee was bound in law to recognise him as the beneficiary of the Trust.
62                                                                                                                                                                                    For all these reasons the appeal is dismissed.
63                                                                                                                                                                                    We turn to the question of costs. On the dismissal of the consolidated proceedings, Saksak J ordered that Mr Atkinson pay Mr Noall’s costs of and incidental to the proceedings, and ordered that Mr Gee’s costs be paid out of the funds of the Sabra Trust. There is no cross appeal by Mr Noall or Mr Gee against these orders, and they remain intact. As to the costs of the appeal, the first action sought relief based on a document which Mr Atkinson knew was a forgery. Moreover both actions propounded a case that was inconsistent with the orders of the Court made at the instance of Mr Atkinson on 27 May 1997. Mr Atkinson’s conduct in these respects constitutes a serious abuse of the processes of the Supreme Court. The appeal to this Court is also tainted by this conduct. The appeal should be dismissed upon the basis that Mr          Atkinson pay to each of the respondents their costs of the appeal on an indemnity basis. The effect of this order is that upon taxation the respondent’s costs will not be limited to the party and party rate of 10,000 Vatu per hour but will include all costs reasonably incurred by the respondents, as between solicitor and client, in connection with the appeal.
64                                                                                                                                                                                    In the course of these reasons we have referred to other proceedings which are still on foot wherein Mr Atkinson is seeking damages and other relief from Mr Gee and his partner based upon allegations of Mr. Gee’s negligence and breach of retainer. As we have pointed out, those allegations were directly relevant to the consolidated actions, and have been determined adversely to Mr          Atkinson. Mr. Atkinson must now understand that it is not open to him in other proceedings to assert a position contrary to the finding on those issues in the consolidated actions, or contrary to par 2 of the order of 27 May 1997.
65                                                                                                                                                                                    We have observed above that not only did the trial Judge find that the assignment document of 31 August 1997 was a forgery, Mr Atkinson in his oral evidence ultimately admitted had he arranged the forgery, and had arranged for it to be uttered. On his own admission, the affidavit he swore on 19 November 1997 in support of the declaration claimed in Case Number 22 of 1997 was false insofar as it propounded the authenticity of the assignment document. Further, the commencement and prosecution of the actions which became the consolidated actions would appear to have constituted an attempt to pervert the course of justice. In these circumstances we consider this Court of its own motion should direct that the Acting Registrar send a copy of these reasons to the Attorney-General and the Public Prosecutor for the Republic of Vanuatu to take such action as is thought appropriate in respect of these matters.
The formal orders of this Court are:
1.                                                                                                                                                                                    Appeal dismissed.
2.                                                                                                                                                                                    Appellant          to pay the costs of the appeal of each respondent on an indemnity basis.
          
DATED AT PORT-VILA this 26th          day of April 2002.
Hon. Justice Bruce Robertson
Hon. Justice John von Doussa
Hon.          Justice          Daniel Fatiaki