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: "\.. Ido not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree (Murphy [1969] 1 WLR 1023, 1036) negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense or a sense of justice. All these are only non-exhaustive indications; the 2 UNREPORTED JUDGMENTS application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court..." But in the present case it seems quite clear from the appeal papers that one of the areas of uncertainty which the trial judge deliberated upon was the plaintiff's remaining capacity for work and the difficulties he would encounter in obtaining work in the future. The plaintiff gave evidence of having obtained work since his injury and of having been, as he said, "more or less sacked" from that work because of difficulties flowing from his injury and of having sought work right up to the date of trial unsuccessfully. One of the employers that he said he had sought work from was the same employer as that with which he obtained work after the trial. He told the court that he had been told that at his age "they could put me on casual but not permanent", that his age would go against him and they preferred younger men. He also said in the course of his cross-examination when being asked about his own opinion of his capacity to work that he would do anything to work. Those matters are mentioned not to show their consistency with the evidence which has been sought to be adduced by way of fresh evidence at the appeal (although incidentally they do seem to show that) but to demonstrate how much the question of the plaintiffs capacity to work in the future was in issue and was considered and was a matter for consideration by the trial judge. It plainly appears from his reasons that he made an estimate of those matters in the light of the evidence before him and the arguments of the parties. No doubt within the course of those arguments counsel for the plaintiff emphasised the probable future difficulties and counsel for the employer put the best case he could to the other effect. It does not seem that any basic assumptions common to both sides have clearly been falsified by the event of which the further evidence is sought to be given. The judge was of opinion the plaintiff could still work as a driver but that he would have difficulty getting employment. Nor does it seem to affront common sense and justice to refuse such an application. In the ordinary course of bringing litigation to a conclusion, the administration of justice treats one trial as prima facie the most suitable way of ventilating and deciding issues of fact. The issue in question here was the likelihood of the plaintiff obtaining further work. On evidence, which it is very candidly not suggested was false, the judge made an estimate which subsequent events may have indicated was too favourable to the plaintiff, at least in part - although that evidence, I should say in fairness to the plaintiff, by no means excludes future possibilities of the plaintiff's disabilities bringing his employment to an end again, as they had done in the period between the accident and the trial. For the appellant reliance was placed on McCann v Sheppard [1973] 1 WLR 540. That was a decision where further evidence was allowed of an event happening four and a half months after judgment to which the court thought it would affront common sense to close their eyes. In the course of the argument about the true basis of decision of that case, and without going again through the reason for it, it became reasonably clear that that was the best basis upon which the decision could be put. There is one matter in regard to this case, however, which needs to be mentioned. Lord Denning MR referred in his reasons to what Lord Wilberforce had said in Mulholland v Mitchell; he had previously said (at 545): \WROFFS HARBOUR HARDWOODS (TRADING) PTY LTD v JOHN HENRY WALL (Priestleg JA) "\.. The general rule in accident cases is that the sum of damages falls to be assessed once and for all at the time of the hearing: and this court will be slow to admit evidence of subsequent events to vary it. It will not normally do so after the time for appeal has expired without an appeal being entered - because the proceedings are then at an end... But if notice of appeal has been entered in time - and pending the appeal, a supervening event occurs such as to falsify the previous assessment - then the court will be more ready to admit fresh evidence because, until the appeal is heard and determined, the proceedings are still pending..." It seems likely that in his reference to falsification in this passage Lord Denning had in mind what Lord Wilberforce had said in Mulholland. However, there is what seems to be an important difference between what was said by Lord Wilberforce and what was said by Lord Denning. Lord Wilberforce had referred to basic assumptions common to both sides clearly being falsified by subsequent events. Lord Denning spoke only of the previous assessment of the court being falsified by supervening events. Lord Denning's test is a much wider one. This court, as already mentioned, has consistently followed Lord Wilberforce's approach, and both because of the force of that approach and also because of the regularity with which this court has followed it, it should adopt that course in the present case in preference to that of Lord Denning. The other matter which counsel sought to obtain from McCann v Sheppard was that the court would be readier to admit fresh evidence where an appeal had been lodged on other grounds within the time limited for appeal, than it would be in circumstances where the matter of fresh evidence arose after time for appealing had passed without any appeal having been commenced. Apart from the obvious point that the court will take into account the length of time that has passed since the trial, it is difficult to see the relevance of this idea to the principles as stated by Lord Wilberforce. It may be that Lord Denning expressed the idea partly in consequence of the width which he added to the approach of Lord Wilberforce. Whether that by the reason for his coming to this conclusion or not, it does not seem to be compatible, certainly in the present case, with an application of the approach of Lord Wilberforce. Counsel also took us through a number of cases which he said were sufficiently similar factually to the present to incline the court to say that this should be a case where fresh evidence would be allowed. Alternatively, he used the cases to show that various courts from time to time did allow fresh evidence to be given apparently for reasons not directly within Lord Wilberforce's principles. One case to which this observation may well apply is GIO v Maher (1981) 55 FLR 187. If and to the extent that that case applied principles inconsistent with those of Lord Wilberforce this court would not follow it. The cases, however, whether or not they fall within counsel's submission, need not be commented on now, with one exception. They are all explicable as instances of courts attempting to apply the appropriate principles to the differing factual situations which came before them. It seems to be sufficient for present purposes to look at the facts of the present case in the light of Lord Wilberforce's approach. The other case it is useful to mention now is Sinclair v Graham (supra) where at 255 Hutley JA said: "\.. In this case, the area of uncertainty was dealt with directly by the judge and no attempt has been been made to establish that the evidence upon which he relied was false. It does not affront my sense of justice to allow his Honour's judgment to stand, even though it has been shown that he formed a less optimistic 4 UNREPORTED JUDGMENTS view of the widow's marriage prospects than events have subsequently demonstrated to be the case. In my opinion, this is not a case for the receipt of fresh evidence..." Mutatis mutandis it seems that the position in the present case is the same as that described in Sinclair v Graham. For the reasons outlined, the court is of the view that the application for leave to adduce fresh evidence should be refused. Hope JA. The order of the court is the application for leave to adduce fresh evidence is refused. application for leave to adduce fresh evidence is refused. Counsel for the Appellant: AR Abadee QC and CM Cook Solicitors for the Appellant: Hunt and Hunt Counsel for the Ist Respondent: B Murray QC and C O'Conner Solicitors for the 1st Respondent: Pollack Greening Hampshire Counsel for the 2nd Respondent: GR Petty Solicitors for the 2nd Respondent: J Palmieri