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. The respondent, the defendant in the proceedings below, has opposed the receipt by the court of the fresh evidence and has also informed the court - and quite properly so - that if the court received the fresh evidence he would want to have an adjournment in order to have an opportunity to file evidence in reply. No doubt if that course were followed there would be cross-examination and there would, within the appeal, be, as it were, some kind of trial in relation to the material arising on the fresh evidence. At the trial the cases for the plaintiff and the defendant were closed and then some time after judgment was reserved in August 1978 an application was made by the plaintiff to reopen his case. That application came before Carmichael J on 17 October 1978 and his Honour granted leave to the plaintiff to reopen his case. Three reports of Dr Sekel were tendered and marked Exhibit "D". His Honour referred to those reports in his judgment towards the end, saying this: "While waiting for the itemised list of expenses to be produced to me I received notification that the plaintiff wished to reopen his case. Accordingly the matter 2 UNREPORTED JUDGMENTS was relisted. After argument I allowed the case to be reopened and there was then tendered, on the plaintiff's behalf, reports of Dr. Sekel (Ex D). There is insufficient information in those reports to cause me to change my view of the other evidence in the case, and of the plaintiff." The fresh evidence which the plaintiff seeks to have before the court concerns the medical condition of the plaintiff and the consequences of a change in that medical condition in the nine years and more that have followed since his Honour gave his judgment in 1978. The evidence is evidence from Dr Sekel and from the plaintiff and relates to further investigation of the plaintiff's complaints and problems with his back and of associated economic and like consequences to the plaintiff. If the evidence of Dr Sekel and of the plaintiff which is sought to be tendered were accepted in my opinion it would have a significant effect upon the result in the trial, that is, in the award of damages to the plaintiff. Among other things the plaintiff has had an operation upon his back and detailed evidence would be available as to what was discovered in that operation and what the consequences have been thereafter to the plaintiff in relation to his enjoyment of the amenities of life, to his disabilities and to his ability to earn money. All of these matters were of great importance in the consideration by Carmichael J of the plaintiff's case. The first matter that was raised in opposition by the defendant to the receipt of the fresh evidence is the lateness of the filing of the evidence. I think it is sufficient to say that in all the circumstances of the case it is proper, notwithstanding that lateness, that the plaintiff not be precluded from tendering the evidence on that account alone. The evidence, if received, would be answered by the defendant and there would be, in effect, a small interim trial heard as part of the appeal in respect of matters which, if a new trial were granted, would be at large upon that trial. Another matter against the plaintiff's contention that the evidence should be received and dealt with as fresh evidence in the appeal is that in almost every personal injuries case in which there is some prospect of future physical disability or financial loss, evidence could be brought as to what has happened since the trial. Assuming that an appeal comes for hearing at any time between, say, nine months and fifteen months after trial, obviously within that time the plaintiff's condition may have improved, it may have got worse, any number of things may have happened. No doubt courts would be not very willing to grant applications to tender fresh evidence of this kind in the ordinary personal injuries case. We have been referred by counsel for the plaintiff to s75A of the Supreme Court Act which makes a distinction in this regard between fresh evidence as to events which happened before the trial and fresh evidence as to events which happened after the trial; in respect of the former fresh evidence but not in respect of the latter, special circumstances are required to justify its admission. But notwithstanding that statutory distinction, the conditions which the general law have imposed upon the receipt of fresh evidence have generally been applied to evidence relating to matters occurring after the trial. I express no view about this matter because I think that this is a special case and even if special circumstances were required there are special circumstances in this case. The plaintiff's complaint was, as I have indicated, of a back injury. The evidence before the trial judge until the tendering of the further evidence in October 1978, generally speaking, supported a case that the plaintiff did not URJ CHESTER v BEALE (Hope JA) 3 appear to have any serious problems with his back and the evidence was that any problem he did have may well not have had an organic basis. The learned trial judge formed a strong view that the plaintiff was, to a large extent, malingering, and insofar as he was not, his problem was that of a functional overlay, although there may have been some minor organic problems. That is a very different case from the one which the evidence which it is now sought to tender would support, and it is in that respect that this case is a special case. As it happens almost ten years have gone by since the trial. It is true that no doubt the failure to bring the appeal on for hearing was the fault of the plaintiff, but at the same time the defendant made no application to have it struck out for want of prosecution. Ten years is a long time and in that period of time it is possible to learn in a more confirmed way what the nature of a physical injury is, and what its effects are upon the person who received it. Furthermore - and this is the principal special circumstance of this case - where a case is decided largely on the basis that the plaintiff is a malingerer, evidence which will establish that he is not a malingerer is of the greatest significance. In the circumstances I formed the tentative view that the evidence would be received and that it might well result in a new trial. The court then adopted the course of asking counsel for the defendant whether, in the event that the court concluded that the new evidence should be received, which of two available courses he would prefer to have adopted. One was to adjourn the matter to allow him to file his evidence in reply to the plaintiff's evidence and thereafter to fix a date where that evidence would be heard and the appeal dealt with. The other alternative was for the court, if the defendant acceded to this course, to decide whether, if it received the fresh evidence tendered by the plaintiff, it would, without hearing the defendant's response to that evidence, grant a new trial by reference to the new evidence and remit the matter back for a new trial. The defendant's counsel, after getting instructions, informed the court that it would prefer the latter course to be adopted. For the reasons that I have indicated in my opinion the fresh evidence is of such a nature that the court would receive it and would, in the special circumstances of the case, grant a new trial. Accordingly in my opinion the course to be adopted is to allow the appeal, to set the judgment aside and to remit the matter for a new trial limited as to damages. The respondent should pay the plaintiff's costs of the appeal. I would propose that the costs of the first trial should be reserved to the judge presiding at the new trial. (Any application for a certificate under the Suitors' Fund Act would have to be made by the respondent.) Priestley JA I agree. McHugh JA I agree. Hope JA (An application for expedition was made by the applicant; no objection). Counsel for the plaintiff has asked that the court make some observations about the date of the hearing of the new trial. That of course is a matter solely within the jurisdiction of the common law division and we can give no directions at all. However, I would make these observations: Having regard to the delay involved, no matter whose fault it was, it seems to me that it would be appropriate that the trial be held as early as possible, consistently with justice being done to each party. Among other things that will involve allowing the defendant to have a proper opportunity to obtain and marshall the evidence which he would seek to tender to meet the plaintiffs case at the new trial. 4 UNREPORTED JUDGMENTS I reserve liberty to apply in the event that the verdict or some part of it has been paid. My brothers agree with these comments. The fresh evidence is of such a nature that the court would receive it and 5 would, in the special circumstances of the case, grant a new trial. Accordingly the course to be adopted is to allow the appeal, to set the judgment aside and to remit the matter for a new trial limited as to damages. The respondent is to pay the plaintiff's costs of the appeal. The costs of the first trial are to be reserved to the judge presiding at the new trial. 10 Liberty to apply is reserved in the event that the verdict or some part of it has been paid. COUNSEL: 15 APPELLANT- WJ HOLT QC (J MILLAR) RESPONDENT- M CRANITCH SOLICITORS: 290 APPELLANT- GH HEALEY & CO RESPONDENT- SOLICITOR FOR GOVERNMENT INSURANCE OFFICE