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. That affidavit was produced to the Court. It is proper to say that, if the evidence in it were admitted, it would be of possible significance for the resolution of the appeal. The affidavit is that of Dennis Kakoliris, sworn on 23 February 1988. That date indicates that it was in the possession of the solicitors for the appellant some six months ago. Yet it is only now that the application is made to adduce the evidence in it before the Court. The affidavit is accompanied by a further brief affidavit sworn by the solicitor for the appellant. In his affidavit, the solicitor stated as reasons why the material in the affidavit of Mr Kakoliris was not placed before the trial judge that "Mr Kakoliros was not available at the hearing in the court below because the appellants could not find that person and he was only located in about February of this year". There is no explanation as to what steps had been taken before the hearing before Judge Graham to find Mr Kakoliris, if any such steps were taken. There is no explanation as to why, in default of his evidence, an application was not 2 UNREPORTED JUDGMENTS made for an adjournment. There is no explanation of the steps that were taken, after the judgment under appeal, to find Mr Kakoliris or the circumstances in which he was ultimately found. Counsel for the appellant, realising the potential importance of Mr Kakoliris' evidence, then asked for an adjournment in order to adduce further evidence than that of Mr Bizannes in the hope of sustaining the application for the admission of the evidence of Mr Kakoliris. The Court drew attention to the provisions of the Act and the authority of the Court which limit the admission of fresh evidence on an appeal. At the very least, the authority of the Act and of the Court require that proper evidence be placed before the Court to explain the steps which were taken to discover the evidence, the circumstances in which it was discovered and to explain the reason why it was not adduced at the trial. This much is required by the terms of the Act and the principle of finality which the relevant provisions of the Act are designed to defend. See Supreme Court Act 1970, s75A(7), s75A(8) and s75A(9) and Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235, 248 ff. The application for adjournment was opposed by counsel for the respondent and not unnaturally in the circumstances which I have recounted. The principle governing the provision of adjournments is well established. Normally, an adjournment should be granted unless an injustice is caused thereby which cannot be adequately cured by appropriate orders, such as orders providing for the costs thereby occasioned. Counsel for the appellants resisted an order for costs. Counsel for the respondent agreed that no particular prejudice was occasioned by the adjournment which was sought, save that of the delay in securing the benefits of the judgment below. In my opinion this is a borderline case. The preparation for the appeal leaves much to be desired. Nevertheless, having regard to the principle which applies to the granting of adjournments, and in order to ensure that the appellants have every opportunity to place the evidence they seek before the Court, they should have the adjournment they ask for. However, the appellants must pay the costs that are thrown away as a result of the late application for the adjournment. I say that this is a borderline case, in order to underline the fact that the application is one which might well have been refused having regard to the plainly inadequate terms of par 2 of the affidavit of Mr Bizzanes, the absence of prior application to have the evidence admitted and the late stage at which the Court was asked to adjourn the hearing of the appeal. The case displays an almost complete ignorance of the principles which protect finality of orders and which govern the admission of fresh evidence on an appeal in this Court. For the reasons which I have stated the adjournment should be granted. The case will not be regarded as part heard and must be re-commenced. The matter should be relisted before the Registrar for the purpose of fixing a fresh date for the hearing of the appeal. The costs occasioned by the adjournment must be paid by the appellants. McHugh JA I agree. Clarke JA I agree. Kirby P The orders which I have proposed are therefore the orders of the Court. ORDERS 1. Hearing adjourned. 2. Matter listed before the Registrar to fix a fresh date for hearing. URJ TSAKOS v WOLMINA PTY LTD (Kirby P) 3. Costs occasioned by adjournment to be paid for by the appellants. COUNSEL: Claimants - R CAMERON COUNSEL: Opponent - W FLYNN 49 SOLICITORS: Claimants - LM BIZANNES and CO SOLICITORS: 15 Opponent - MARSDENS JUDGMENT DATE: 15 AUGUST 1988