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 I should mention at the outset that the appellant appears in person having withdrawn instructions from his solicitor, Mr Spain, and barrister, Mr Willmott, at, what might be described as the eleventh hour. I am not certain whether the instructions were withdrawn on Friday evening or this morning but they were certainly withdrawn at a very late time.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. However, having said that, it must be pointed out that very little of the affidavit is admissible. Paragraphs 1-3, 6 and 8 were not objected to and will be received. Paragraphs 15(1) and par 39 set out the fresh evidence upon which the appellant wishes to rely. I say they are the only two paragraphs in which the fresh evidence appears because of the appellant's assurance to the court that this was so. Those two paragraphs should also be admitted upon the grounds that they disclose, albeit in an unsatisfactory form, the evidence which the appellant wishes to tender to the court so that it can be considered together with material in the appeal book. Paragraph 4 is objected to on the grounds it is hearsay. Strictly speaking the 2 UNREPORTED JUDGMENTS second sentence is not hearsay but, insofar as the first sentence should be rejected, I am of the view that the whole paragraph should go. Paragraph 5 is objected to as irrelevant and I think that is correct and I will reject that paragraph also. Paragraph 7 is objected to only in part, that part being the words "Although my solicitor and barrister should have known". I will allow para 7 except for those words. In the end pars 1, 2, 3, 6 and 8 and para 7, with portion removed, should be admitted and as well pars 15(1) and 39. The other argumentative material in the affidavit should be rejected although, if the material provides a convenient submission in support of a ground of appeal appearing in the appeal book, no doubt the appellant may wish to point to the particular submission and rely upon it as, in effect, his written argument. I should, before leaving the appellant's affidavit, refer in particular to par 8 in which he sets out his reason for not travelling to Sydney on 13 October. He said this: "T had the seats booked for my wife and I to travel to Sydney for the hearing on 13 October 88. Due to the demand for seats Ryan's Travel World had to be kept fully informed in order to hold the seats. On Greg Rooney's (his solicitor) advice I cancelled the booking on the understanding that the hearing had been adjourned because he could not arrange the necessary travel arrangements for Peter Border who was considered to be a key witness in the case." This statement is further confirmation of the fact that the appellant himself cancelled a booking which he held. In other words he elected not come to Sydney and, having made that election, cancelled the booking himself. The respondent has filed one affidavit in support of his objection. That is, the affidavit of his solicitor David Kenneth Connie of Murwillumbah sworn 17 May 1990. The critical part of his affidavit is, in effect, the annexure which is a copy of facsimile copy of an affidavit sworn by Mr Gregory William Rooney, the appellant's then solicitor, on 13 May 1980 and handed to Judge Ward, who was then considering an application for an adjournment of the hearing before him. I will come back in a moment to that application. Mr Rooney deposes to difficulties in obtaining travel to Sydney from the Gold Coast and said, in par 5: "They (the Wintours) advised me that the only means of getting to Sydney was ona 14 hour bus trip arriving at Sydney at 7.30 Friday morning. This would mean they would have to sit up all night. My clients have advised that there are only two tickets available which had to be paid for by 12.45. The tickets were for only one way and my clients were advised that there were no return tickets available and they were likely to be stranded in Sydney over the weekend. At 12.45 pm today their tickets were taken by someone else and they were advised by their travel agents that there were no further tickets available." The special ground upon which Mr Wintour, the appellant, relies in support of his application to tender further evidence to the court is that he was desirous of leading this evidence before Judge Ward and had only failed to do so because he had not been in Sydney on 14 October and Judge Ward had failed to give him an adjournment, to which he considered himself entitled, upon the ground that he had been unable to get to Sydney. Indeed the refusal of the ground of adjournment constitutes one of the grounds of appeal and it is appropriate, in these circumstances, only to advice a tentative view in order, properly to consider the application before the court. That view concerns the correctness of Judge Ward, who had before him the facsimile copy of the affidavit of Mr Rooney, declining to grant an adjournment. URJ WINTOUR v ALLEN (Clarke JA) 3 His Honour also had before him an affidavit of Joanne Rider, Mr Connie's secretary. Se deposed to having made inquiries as to the availability of airline tickets and bus tickets in respect of flights leaving the Gold Coast on 13 October and buses departing from the same place on the same day. According to her inquiries, which were made directly of the airlines and the Greyhound Bus Lines, there were a number of seats available to the Wintours and their witness, Mr Border. His Honour was therefore left in a situation where there was evidence before him of very limited inquiry for seats and an explanation from Mr Ryan that, although the Wintours had seats on a bus, they had lost them. Against that his Honour was confronted with the affidavit which demonstrated that if proper inquiries had been made the Wintours and Mr Border could quite easily have come to Sydney. The argument concerning the adjournment took place over a fairly lengthy period at the end of which his Honour gave a judgment which appears in the appeal book. It is unnecessary to recount the detail of that judgment except to say that in it his Honour did express a distinct impression that every possible excuse had been made that the matter not go on this week (I interpolate the observation that I think his Honour meant every possible excuse had been made by the defendant, Mr Wintour). Upon consideration of his Honour's judgment there appears to be some substance in that impression and my tentative view is that his Honour's decision was quite appropriate. This court is in a somewhat different position because the appellant seeks to persuade it that he should now be given the chance to lead the evidence which he could not lead before Judge Ward on 14 October and he has produced further evidence in support of that contention. That evidence suggests that his solicitor told him that he had been unable to get Mr Border on a plane and that, therefore, the case would not be proceeding on the following day. It was for this reason, according to Mr Wintour, that he cancelled his booking. The corroboration of his evidence which is afforded by Mr Ryan confirms that the Wintours had cancelled the tickets, and they had done so because they said their court case had been cancelled. There is no corroboration of the statement that the solicitor had been unable to get Mr Border on a plane or a bus. However, the solicitor's contemporary affidavit which was before his Honour in facsimile form, tells quite a different story. It proceeds upon the basis that the Wintours lost their tickets because they had been taken by someone else. It is apparent from the affidavit that the solicitor deposed to this fact as a consequence of what he had been advised by his client. In infer, therefore, that Mr Wintour told his solicitor, Mr Rooney, that he had lost his ticket because it had been taken by someone else and was, therefore, unable to travel to Sydney. In these circumstances I am unable to accept that the special grounds have been shown. The conflict between Mr Rooney, who has not been called to court today to explain further his earlier affidavit, and Mr Wintour should, it seems to me, be resolved in favour of Mr Rooney. Neither has been cross-examined, for fairly obvious reasons, but Mr Rooney's affidavit was sworn by him, I assume bona fide, in an endeavour to secure for Mr Wintour the adjournment for which he hoped. Certainly it was not sworn at a time when he was antagonistic to Mr Wintour and no reason appears why the court should reject his evidence. On the other hand Mr Wintour provides no corroboration for his assertion that Rooney told him something, which would be quite inconsistent with Rooney's affidavit, and has provided his explanation only at the eleventh hour in an affidavit which he has prepared himself after withdrawing instructions from his latest solicitor. 4 UNREPORTED JUDGMENTS As I have said I am not disposed to accept his evidence that he cancelled the booking because he had been given false information by his then solicitor. That being so the appellant has failed, in my opinion, to demonstrate any grounds at all, much less any special grounds, why he should be allowed now to supplement the evidence given during the trial. I should add that the appellant had been fully examined in chief prior to 14 October and had in fact been cross-examined to some extent. There did not appear any further evidence to be led from him except, perhaps, in re-examination. At least it was not suggested to Judge Ward that he wished to give further evidence. What was said to Judge Ward as justifying the adjournment was that the appellant wished to have his wife give evidence and to have Mr Border also give evidence. His Honour ruled that the evidence which his wife sought to give would not be admissible and the appellant here has not sought in his evidence to show that his Honour was wrong. The other witness was a town planner of the Tweed Shire Council and his Honour noted that, insofar as that evidence was directed to the proper interpretation of written documents, there may well be admissibility difficulties. In the event his Honour was not prepared to grant an adjournment so that that evidence could be led, and the appellant does not now seek to advance it as fresh evidence in this appeal. In essence, therefore, he sought an adjournment to lead further evidence, being evidence from his wife and Mr Border, and now seeks the indulgence of the court to lead further evidence of himself alone. As I have indicated there have been no special grounds made out in my opinion and I would reject his application. Meagher JA I agree. Handley JA I also agree. I would merely add that there is further material in the appeal book which indicates that Mr Rooney was advised by the Associate to Judge Ward at 2.27 pm on Thursday 13 October 1988 that the case was fixed for hearing on the Friday, that this was in response to his call to the Associate shortly after 2 pm that day wanting to know if the case was proceeding, and it is clear, therefore, that Mr Rooney was not given any information by the court to indicate that the case would not be proceeding on the Friday. It is not to be supposed that he told any untruths to his client contrary to the information that he had from the Associate to Judge Ward. I would also add that the plaintiff was able to call as a witness, on Friday 14 October, Mr Norrie, who had travelled by air from Coolangatta the previous day on a flight leaving at 4.40 and that he had received his subpoena on Thursday morning together with an air ticket for the flight from Coolangatta to Sydney. In view of the fact that the case was only fixed for hearing on the Friday some time on the Tuesday, it was apparent, at a later stage of the hearing on 14 October, that it had been possible for the plaintiff's legal advisors to arrange for a subpoena to be served and for travel to be booked so that Mr Norrie could come to Sydney on the Thursday and give evidence on Friday 14 October. These additional matters only serve to strengthen the reasons previously given by Mr Justice Clarke for refusing this application. I otherwise agree with his Honour's reasons. The order of the court is that the application for leave to adduce further evidence is refused.