Wollongong Corporation v Cowan [1955] HCA 16

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famLR755 United Mexican States TALIS

[HIGH COURT OF AUSTRALIA.]

COUNCIL OF THE CITY OF GREATER i at WOLLONGONG : : '} APPELLANT ; ; DEFENDANT,

COWAN. ' i E z 5 7 3 RESPONDENT. PLaINtiFr,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES

Appeal—New trial—Verdict regularly obtained—Fresh evidence—Availability and YW. (. or A. character of evidence—Reason for non-production on first trial—Standard 1955.

necessary before Court will interfere—Presentation of fresh evidence to appellate = court—Necessity for fullest detail. SypNey, Mar. 29, 30.

Leaving aside cases where a trial has miscarried through misdirection,

misreception or wrongful rejection of evidence or other error, and cases of Dixon C-J.,

surprise, malpractice or fraud, it is essential to give effect to the rule that a Webb, | verdict, regularly obtained, should not be disturbed without some insistent Taylor JJ demand of justice. The discovery of fresh evidence in such circumstances can rarely, if ever, be a ground for a new trial unless (a) it is reasonably clear that if such evidence had been available at the first trial and had been adduced, there would have been an opposite result, (b) if it is not reasonably clear that such would have been the outcome, it must have been so highly likely as to make it unreasonable to suppose otherwise, and (c) reasonable diligence had

been exercised prior to the first trial to procure such evidence.

In support of an application for a new trial of an action on the ground of the discovery of fresh evidence the solicitor for the unsuccessful plaintiff made an affidavit wherein he deposed that following the trial of the action he inter- viewed the plaintiff who subsequently gave him certain information as a result of which he contacted an officer of the defendant council and made further inquiries. The affidavit did not state when the plaintiff first learned the " certain information " subsequently communicated to the solicitor, the name or position of the officer or the precise nature of the information, nor did it reveal what further inquiries were made. As a result of such inquiries