GIBSON v COBB SUPPLY COMPANY PTY LTD [1994] NSWCA 108

GIBSON v COBB SUPPLY COMPANY PTY LTD THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 12 December 1994

[1994] NSWCA 108

Mahoney JA This is an application which comes before the Court, brought by Mr Gibson, the plaintiff, on his own behalf seeking two orders: one is leave to adduce fresh evidence and the second, the expedition of the appeal date. So far as the bringing of fresh evidence is concerned, this is a matter which is, as I have explained to Mr Gibson, ordinarily dealt with by the Court which is hearing the appeal. There are sometimes special circumstances in which it is dealt with differently but I see nothing in the present case to warrant anything other than the ordinary course.

I will direct that the application be stood over to the hearing of the appeal to be dealt with by that Court. I would add one further matter: Mr Gibson has raised in his affidavit in support of the notice of motion a suggestion that the defendant in the proceedings, the respondent in the appeal, has been guilty of fraudulent misconduct, deceit or the like. If that kind of allegation is to be made as a basis upon which fresh evidence is to be brought, then it may be that it will be necessary, for example, for affidavit evidence to be filed in support of that application and for arrangements to be

made for cross-examination and the like, if it be necessary. I would therefore indicate to the Registrar or the person who deals with the fixing of the hearing of this matter that such a question may arise and that attention should be given to the question whether specific procedures should be laid down, as to the filing of evidence, cross-examination or any other steps to be taken after the date for hearing is fixed so that all of these matters can be conveniently dealt with by the parties when they come to argue the case upon the appeal.