COFFS HARBOUR HARDWOODS (TRADING) PTY LTD v JOHN HENRY WALL [1989] NSWCA 39

COFFS HARBOUR HARDWOODS (TRADING) PTY LTD v JOHN HENRY WALL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Hope, PRIESTLEY and MEAGHER JJA 24 February 1989, 24 February 1989 [1989] NSWCA 39

APPEAL — APPLICATION THAT COURT RECEIVE FRESH EVIDENCE — principles followed by court in applying s75A of Supreme Court Act 1970 — Mulholland v Mitchell [1971] AC 666 at 679-680, Warr v Santos [1973] 1 NSWLR 432, Gibson v Saunders (unreported CA 16 December 1983 and Radnedge v GIO (1987) 9 NSWLR 235, applied — fresh evidence showed no falsification of basic assumptions dealt with matters of uncertainty considered by trial judge no affront to justice in refusing to receive it. ORDER Application to adduce fresh evidence refused.

Priestley JA The court has been asked by the appellant in these proceedings togrant leave for the tendering of fresh evidence. The application is founded on the fact that the largest element in the damages awarded by the trial judge for the injury suffered by the plaintiff, the total amount of damages being $352,391.78, was a figure of $205,000 for future economic loss. In arriving at this figure the judge indicated that he thought the plaintiff had retained some capacity to work but would be subject to marked difficulties in obtaining gainful employment. The figure he arrived at for future economic loss showed that he thought the plaintiff's remaining capacity for work was of a comparatively small order.

The fresh evidence sought to be put before the court shows that on 27 September 1987, the date of judgment having been 9 September 1987, the plaintiff had obtained employment. This employment was at first casual and in the following May became permanent. This court has, on a number of occasions, explained its approach to s75A of the Supreme Court Act 1970 upon which the appellant relied (see eg Warr v Santos [1973] 1 NSWLR 432 and Gibson v Saunders (unreported) CA 16 December 1983, as well as the recent decision in Radnedge v GIO (1987) 9 NSWLR 235). The court has also indicated that in using that approach it regards the appropriate test to apply as that stated by Lord Wilberforce in Mulholland v Mitchell [1971] AC 666 at 679-680 (see eg Gibson v Saunders (supra), Sinclair v Graham [1984] 2 NSWLR 253 and Radnedge v GIO (supra)). The passage in the opinion of Lord Wilberforce which the court has adopted as stating the proper approach to these matters says: