Language – Irrefragable

Collins Dictionary (online) says:

adjective

not able to be denied or refuted; indisputable

Vocabulary.com says:

adjective

impossible to deny or disprove

synonyms:

incontrovertible, irrefutable, positive

undeniable

not possible to deny

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In D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; (2005) 214 ALR 92; (2005) 79 ALJR 755 (10 March 2005), Callinan J said:

[380]    What I have said justifies the retention of the immunity. That I have not referred in detail to other justifications for it does not mean that they are not relevant and important. The risk of conflicting judgments, the need for freedom of expression and candour in court, the invidiousness of making comparisons between actual and notional reactions by judges and juries to arguments and counsel’s conduct of a case, and the discouragement of relitigation all lead to the conclusion that in the public interest the immunity of advocates is necessary for the orderly functioning of the system of justice in country. As to the last, I also agree with what Gleeson CJ, Gummow, Hayne and Heydon JJ have said at [34]-[36] of their Honours’ reasons and would add only this. The law has always frowned upon prolonged litigation pursued to produce a different result from what has already been decided. What was said in relation to the doctrine of res judicata is relevant here[553]:

“[T]he maintenance of public order, the repose of society, and the quiet of families, require that what has been definitely determined by competent tribunals shall be accepted as irrefragable legal truth.”

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In Chen v Chu [2024] NSWSC 1139 (6 September 2024) Hammerschlag CJ in Eq said:

266. Inevitably, even if indirect speech is used, where the conversation is disputed and material, the deponent will be cross-examined as to what they say were the words used.

267. As in this case also, where a party seeks to rely upon spoken words as a foundation for a cause of action the conversation must be proved to the reasonable satisfaction of the Court. This means that the Court must feel an actual persuasion of its occurrence or its existence. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712; Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521; Watson v Foxman ([1995] NSWCA 497; 1995) 49 NSWLR 315 at 319.

268. Having observed two of the plaintiffs in the witness box for a reasonably lengthy period of time, nothing related to the practice adversely affected the cogency and credibility of their testimony. To the contrary, it conduced to my feeling an actual persuasion that the conversations to which they deposed occurred. This was generally consonant with my reasonably lengthy experience as a trial judge.

269. Finally, it is apt to observe that it is a practice, not an irrefrangible rule of law. It does not entail a conclusion that indirect speech is impermissible, inadmissible or inutile. Whether it is will depend on the circumstances and the precise form in which the evidence is given. It is not infrequently the case that indirect speech is of no value in the fact-finding process because it is expressed in vague and conclusionary terms.

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