TSAKOS v WOLMINA PTY LTD [1988] NSWCA 163

TSAKOS v WOLMINA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirByY P, MCHUGH and CLARKE JJA 15 August 1988

[1988] NSWCA 163

PRACTICE — adjournment — application to adduce fresh evidence on an appeal — failure to move Court in advance of hearing of appeal — failure to provide adequate explanation for failure to tender evidence at trial — failure to explain circumstances of discovery of the evidence — consequent contested application for adjournment — held: (1) Adjournment should be granted to ensure that appellant could place important evidence before the Court in a proper way. (2) Appellant should pay costs. Costi v Keats [1972] 2 NSWLR 957, 960; Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235, 248 referred to. Supreme Court Act s75A(5), S75A(7), S75A(8), S75A(9). Supreme Court Rules Pt51 r13A.

Kirby P When this appeal came before the Court today, there were a number of defaults which the Court has been asked either to overlook or repair.

The first was that the counsel for the respondent, apparently for reasons of illness, had not prepared written submissions. It is only by written submissions that the Court can get through its heavy list. The Court looks to counsel for assistance in that regard.

It then appeared, from the submissions of the appellant, that a late application was to be made to adduce fresh evidence in the appeal. The Rules of Court and the practice of the Court require that where fresh evidence is to be adduced on appeal, notice should be given to the other party and ordinarily a motion should be filed, in advance of the hearing of the appeal, for the determination in advance of that hearing of whether the Court will permit the evidence to be adduced. See Supreme Court Rules, Pt51 r13A. See also Costi v Keats [1972] 2 NSWLR 957, 960. This course was not followed in the present appeal. The Court was informed that an affidavit disclosing the evidence of the witness upon which the appellant relies was given to the solicitors for the respondent in advance of the hearing.