CHESTER v BEALE [1988] NSWCA 21

CHESTER v BEALE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRIESTLEY and MCHUGH JJA 3 February 1988 [1988] NSWCA 21

Appeal — fresh evidence — respondent agreeing to a course designed to avoid the problem of a preliminary trial in the appeal upon fresh evidence — in special circumstances fresh evidence tendered by plaintiff received — appeal allowed and proceedings remitted for new trial.

ORDERS

Appeal allowed; judgment set aside; proceedings remitted for new trial limited as to damages; respondent to pay plaintiff's costs of the appeal; costs of the first trial reserved to judge presiding at new trial.

Hope JA In this appeal in which the plaintiff seeks a new trial limited as to damages, the plaintiff belatedly made an application to adduce fresh evidence. The trial took place as long ago as 1978 and Carmichael J gave his judgment on 13 November 1978, the notice of appeal being filed within time on 8 December 1978. It is quite astonishing to me that long before this an application was not made to strike the appeal out for want of prosecution, but no such course was taken.

The plaintiff requires leave from the court to tender the fresh evidence because the rules require that the affidavits relied upon be filed and served not more than 21 days before the date of the hearing of the appeal. The plaintiff relies upon some five affidavits and it is apparent that some of those affidavits were filed well within 21 days of today's date. The evidence relates to the medical condition of the plaintiff and in particular to the condition of his back.

At the trial the substantial issues were whether the plaintiff in fact suffered an injury to his back or, whether he had some trouble with his back or not, his problem was significantly a matter of functional overlay, or indeed whether he was malingering.