WINTOUR v ALLEN [1990] NSWCA 189

WINTOUR v ALLEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 21 and 22 May 1990, 21 May 1990

[1990] NSWCA 189

Clarke JA This is an application by the appellant for leave to adduce further evidence before this Court. I should mention at the outset that the appellant appears in person having withdrawn instructions from his solicitor, Mr Spain, and barrister, Mr Willmott, at, what might be described as the eleventh hour. I am not certain whether the instructions were withdrawn on Friday evening or this morning but they were certainly withdrawn at a very late time.

There have not been filed any affidavits in support of the application to adduce further evidence. There was, however, an affidavit of Dallas Patrick Ryan sworn 11 May 1990 served last week upon the solicitors for the respondent. The appellant sought to rely on that affidavit in court and, although the respondent objected to the court receiving the document upon the basis it had not been filed in time, the court decided to admit it. The particular relevance of the affidavit is that it provides an explanation by a travel agent for the Wintours, that is, the appellant and his wife, not travelling to Sydney for the last day of their court hearing.

In the affidavit Mr Ryan makes it quite plain that he had a booking for them on an inter-tour coach leaving Coolangatta at 6.35 pm on Thursday 13 October 1988 and that the booking number was W2622. He then explained why the Wintours did not travel to Sydney on that service saying:

"The Wintours did not travel on this service and they informed us that their court case had been cancelled and they no longer needed to travel."

Mr Wintour also sought to rely on an affidavit sworn by himself today which he handed to the court at the commencement of the hearing. He had only served it on counsel for the respondent at about ten past ten this morning. The affidavit is a long one and, in many respects, contains argumentative material. During the course of discussion the court reserved its decision upon whether it should receive the affidavit at all bearing in mind the lateness of service and the fact that it had never been filed in court and was somewhat unsatisfactory. In the event I have come to the conclusion that the affidavit should be received, or at least unobjectionable portions of the affidavit, setting out the reasons upon which the appellant wishes to rely in support of his application under s75A and also setting out the fresh evidence which he wishes to tender to the court should be received.