FRANKE v THE PUBLIC TRUSTEE [NO 1] [1993] NSWCA 101

FRANKE v THE PUBLIC TRUSTEE [No 1] SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and MEAGHER JJA 16 April 1993, 16 April 1993 [1993] NSWCA 101

APPEAL — fresh evidence — appeal — application to admit in appeal from refusal of relief under Family Provision Act 1982 applicant resident in Germany — returned to Germany years before litigation — did not attend trial — whether "special grounds" to admit affidavit — possible special needs of overseas litigant — held: (Kirby P; Clarke and Meagher JJA concurring): (1) Special grounds were not established, having regard to the possibility of securing evidence at trial if necessary by telephone; (2) In any case the evidence should be rejected in the exercise of the Court's discretion, as to admit it would involve procedural unfairness to the executor. It would turn the appeal into a re-trial, contrary to the Act.

PRACTICE and PROCEDURE — fresh evidence — principles — evidence available at trial but not tendered — Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235 (CA) considered.

Supreme Court Act 1970, s75A.

Kirby P The court is hearing an appeal from orders of Master Windeyer in a matter under the Family Provision Act 1982.

At the primary hearing one of the applicants, Mr Klaus Franke, formerly a resident of this country and now a resident of Germany, did not attend to give evidence. It seems that the explanation for his absence was that his employer, Kuwait airlines in Germany, declined to permit him to travel to Australia for the trial. The Master dismissed Mr Franke's application and that of his mother. They have now appealed to this Court.

When the appeal was called on this morning an application was made for the reading of fresh affidavits by Mr Klaus Franke. That application was opposed by the Public Trustee, which is the respondent.