SUKKAR v DAVIES [1995] NSWCA 461

SUKKAR v DAVIES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, MEAGHER JA and HANDLEY JA 8 May 1995

[1995] NSWCA 461

Clarke JA. (On application to call fresh evidence.)

This is an application to the Court for the admission of fresh evidence, that is an undated certificate of Dr Fahed Succar from Lebanon. In it the doctor gives the results of an examination which he carried out on 1 August 1992.

In the evidence in support of the application there is material showing how the certificate comes to be in the hands of the solicitors for the appellant. There is, however, no explanation why the certificate was not obtained and tendered in the Court below. Nor is it suggested in the evidence that by the use of reasonable diligence the certificate could not have been obtained for use in the Court below. In these circumstances, where the Court is obliged by s 75A subsection 8 of the Supreme Court Act to find special grounds before admitting fresh evidence, it seems to me that the application must fail. There is a well established principle upon which the Court has as a matter of practice worked for years, that special grounds will not, in the absence of exceptional circumstances, be found where the evidence could have been available for use at the trial. In these circumstances, the application is rejected.

Orders accordingly.