UDOWENKO v RASEVI PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, Simos AJA and ABADEE AJA 3 September 1996 [1996] NSWCA 539 APPLICATION FOR ADJOURNMENT Clarke JA. (On application for adjournment) On 3 July 1996 Registrar Jupp fixed the hearing of this appeal for today, 3 September 1996. Although the original judgment had been given as long ago as 12 February 1992 the delays in the preparation of the appeal book had caused the fixing of the date to be put off until 3 July. For nearly two months nothing was heard of the appeal but last Friday 30 August the appellant, Wolodymr Udowenko, filed a notice of motion supported by an affidavit bearing the same date. In that motion, which was returnable yesterday, 2 September, the appellant sought an order that the hearing date be vacated for the reason that he wished to apply for leave to adduce fresh evidence in the appeal. He also said in his notice of motion that his parents had applied for Legal Aid to set aside the judgments and to take certain actions, and they wished to be parties to the appeal and the application to adduce fresh evidence but there isabsolutely no evidence from his parents, nor does anyone appear before the Court to represent them. Before putting to one side the paragraphs in the notice of motion relating to the appellant's parents, I should mention two facts. First, they were originally parties to the appeal. However on 14 September 1992 I acceded to an application by the respondent to strike them out as parties to the appeal. This application was not, I should add, opposed by the appellant. Secondly, in 1993 the appellant's parents and his brother applied to set aside the judgment of Bryson J, which is the subject of the present appeal, as against them upon the grounds that they had not been served with any originating process. On 15 April 1993 Waddell J gave a judgment in which he declined to set the judgment aside against the appellant's parents but did set it aside against the appellant's brother. It is clear from the judgment of Waddell J that he did not accept the evidence of the appellant's parents that they had not been served with process, preferring the evidence of a process server who attested to the service of the originating process upon them. Accordingly, the judgment which was entered by Bryson J against four defendants stood as against the appellant and his parents and the appeal which has been brought to this Court has been brought only by the appellant himself. Before leaving this issue I ought mention that the appellant in his notice of appeal filed on 6 May 1992 deposed to the service of the originating process on his mother, father and self by a commercial agent. This statement was made before, but was consistent with, the conclusion of Waddell J. 2 UNREPORTED JUDGMENTS In these circumstances there does not seem to me to be any basis for adjourning the appeal upon the grounds that the appellant's parents now wish to beparties to it and have sought Legal Aid in order to facilitate their appearance. I say again that there is no evidence of either of those statements. The substantive ground for the adjournment is the desire of the appellant to adduce fresh evidence. That evidence covers three discrete subject matters. First, he wishes to lead evidence to demonstrate that the statement by Mr Jones, a director of the respondent, that minutes of a meeting said to have taken place either in late April or 31 May 1989, which were tendered by the respondent, were false insofar as the date was concerned. What occurred at the trial was that an affidavit, sworn by Mr Jones on 12 November 1991, was read in which Mr Jones gave his version of a meeting, which, in the body of the affidavit, he said took place on 31 May 1989. He annexed to that affidavit handwritten minutes, which became annexure A, which were said to be minutes of a meeting on Wednesday 31 April 1989. Of course there was no 31 April. The clear import of the document was that it recorded minutes of a meeting which took place around that time. Although the admissibility of these minutes may have been in question no objection was taken to their admissibility and they were admitted. Their usefulness, in evidence, seems to have been to bolster, or support, the oral evidence of Mr Jones as to the events which occurred at the meeting. Support in the form of written minutes would not have been unimportant because there was, to a degree, an issue between Mr Jones and the appellant as to what occurred at that meeting. The appellant now wishes to lead evidence to show that that meeting could not have occurred in April or May 1989 or indeed at any time in 1989. He does not have that evidence presently available in admissible form but he has tendered to the Court, without objection, a bundle of documents which were exhibited to his affidavit of 30 August and which constitute, in the main, statements by policeofficers and other persons and a record of interview between a police officer and Mr Jones. What emerges fairly clearly from those documents is that the subject last dealt with in the minutes concerning ill-treatment to a yearling called Jaquita related, in fact, to events occurring in November 1990. There are statements by a veterinary surgeon, by police officers and other persons which make it relatively clear to me that the ill- treatment of which the minute speaks occurred late in 1990. The evidence accordingly goes to show that the minute could not, in its entirety, have been written in April or May 1989, nor could the meeting have discussed all the subjects enclosed within it. Quite apart from the ill-treatment matter there is reference to a Tasmanian trip which, according to Mr Jones, itself occurred well after May 1989. The appellant wishes to have the material contained within the bundle of documents, to which I have referred, presented in admissible form and supplemented by additional material to be furnished by the police service. The second subject matter is evidence to rebut oral evidence given by Mr Jones during the hearing in February 1992 to the effect that there was a meeting of four persons, including the appellant and Mr Jones concerning a horse named Fiery Knight. The appellant points out, quite correctly, that an order had been made that evidence be given on affidavit. Jones had not referred to this subject matter in any affidavit sworn by him but obtained leave of the Court to lead the evidence in oral form during the hearing. That, according to the appellant, deprived him of an opportunity to deal with the evidence or to investigate its URJ UDOWENKO v RASEVI PTY LTD (Clarke JA) 3 truthfulness. He recognises that it was said that he was at the meeting and he could have denied that statement, but his claim is that he had no opportunity to secure the evidence of the other two persons denying the happening. Now he had evidence which he put before the Court in statement form from the other two persons denying that such a meeting took place. For good measure, he added that he had not met one of the persons till, I think, 12 months after the meeting was said to have occurred. He wanted, therefore, to secure affidavits from the two witnesses to show that that evidence given by Mr Jones was false. The third area of fresh evidence was to come from members of his family. According to him, they were prepared to deny that any meeting took place in 1989 between himself, Mr Jones and his mother and father. That would be a further ground for disbelieving the testimony of Mr Jones. Although it may be that other matters were adverted to in passing, those three areas of evidence were the fundamental reasons for his application. It should be said at the outset that I am not presently dealing with an application to adduce fresh evidence, although no doubt the strength of the application will be a relevant consideration in determining whether to grant the application that I am considering, that is, for an adjournment. Before, however, I come to the question of the weight to be attached to the application to adduce fresh evidence, it is necessary to point out some chronological details. The Judgment appealed from was given on 12 March 1992 following a hearing on 24 and 25 February 1992. A further Judgment was given concerning costs on 8 April 1992, and a notice of appeal was filed in narrative form by the appellant on 6 May 1992. Following the filing of that document, there were additional or alternative notices of appeal filed, and it would appear that the matter came before other Judges besides Mr Justice Waddell and myself during 1992 and\or 1993. Forinstance, Justice Mahoney gave a Judgment in November 1992, and Justice Priestley also gave one in November 1992. However, so far as the Court of Appeal record reveals, nothing happened between 1992 and 1996 when, on 23 February, Registrar Jupp stood the appeal over to the dormant matters call over because, I apprehend, no appeal book had been filed. There was therefore a gap of over three years during which all that seems to have happened was that an application was heard in the Equity Division by Justice Waddell. The case was listed as a call over in July, as I earlier indicated, and it was then fixed for hearing today. No notice of any application for an adjournment was given or made until last Friday, 30 August. These facts constitute a poor starting point for a consideration of an adjournment. The appellant says however that he has encountered difficulties in securing the evidence which he wishes to lead, and that those difficulties have been compounded by the illness of an investigating police officer. I am prepared to accept that since 1995 there has been a period when a police officer has been ill, and that the appellant may have found difficulty in securing all the evidence. However, it has to be said that there is no evidence before the Court to demonstrate that difficulty. 4 UNREPORTED JUDGMENTS What seems to me to be of equal importance is that as long ago as May 1992 the appellant was charging Mr Jones with perjury, and was suggesting that Justice Bryson had been misled by Jones who had been deliberately lying and misleading the Court. 5 The appellant included in his first notice of appeal specific reference to the situation concerning his parents, the Fiery Knight episode, and the matter of the wrongly dated minute. In paragraph 21 and the following paragraphs he dealt with the matter of the meeting concerning Fiery Knight. Clearly he had sufficient material to say, as he 10 did in paragraph 23, that Mr Jones committed perjury in the witness box. What is even more important is that he was aware at that time that the ill-treatment of the yearling Jaquita took place long after April 1989, the date of the meeting, the minutes of which referred to that episode. Again he said in relation to the minutes Mr Jones was deliberately lying to the Court. In later 15 paragraphs he made it plain that he had spoken to the horse breaker who was charged with ill-treatment and that he carried out inquiries at the AJC which enabled him to depose to the date of birth of the yearling Jaquita. In summary, the appellant has had available to him the substance of the material which he now wishes to lead in evidentiary form on the hearing of the 20 appeal, and he has had that in substance since May 1992. In these circumstances I would not be disposed to grant an adjournment unless I was of the opinion that the justice of the case demanded it. I would only be of that opinion if I was persuaded that the chance of success in securing a new trial on the grounds of fresh evidence was so strong that an injustice would be caused 25 by declining to allow the appellant to secure an adjournment even at this late stage and despite his dilatory conduct. The Court is directed by section 75A of the Supreme Court Act to grant a new trial on the grounds of fresh evidence only where the evidence is received on special grounds, section 75A(8). There is no definition in the Act of the matters 30 which constitute special grounds and this Court has on occasion said that a restrictive definition of that expression cannot be given. Broadly speaking, the Court receives fresh evidence, and if appropriate grants a new trial upon the basis of that evidence, where the broad interests of justice require it. The Court is,however, guided by the common law authorities which deal with the same 35 subject matter. Those authorities are nearly all High Court cases and I propose to refer only to Orr v Holmes & Anor (1947-48) 76 CLR 632, Wollongong Corporation v Cowan (1955) 93 CLR 435 and McCann v Parsons (1954) 93 CLR 428. In Orr's case Dixon J said at 640: 40 If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of 45 _ justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence. At 643 his Honour referred to the fact that the evidence in question in that case 50 was important only with reference to the credibility of the plaintiff's story. His Honour said: URJ UDOWENKO v RASEVI PTY LTD (Clarke JA) 5 No doubt it might well have turned the scale. But we are not concerned with what might have influenced the jury, or what might have happened. We must find much more solid ground than that for depriving a successful litigant of his verdict. In his concluding statement Dixon J said at 645: I regard the application for a new trial as an attempt to secure a further opportunity of making exactly the same case on behalf of the defendants strengthened by evidence, which though of course relevant to the issue, bears in reason only upon credit to be attached to the plaintiffs story, and consists of proofs which were available and might with ordinary diligence have been used by the defendants at the trial. Those observations are, in my respectful opinion, particularly pertinent to the present application. If I return to the three areas of fresh evidence and deal with them in reverse order. There is no evidence that the parents of the appellant were not available to give evidence denying that the meeting of which Mr Jones spoke occurred and that its substance was as Jones had testified. No ground has beenadvanced why those persons could not have given that evidence nor is it easy to see how it could be described as, in any sense, fresh evidence. In truth it is no more than evidence which could and, perhaps, should have been given at the trial which the appellant now wishes to lead before the Court. In relation to the "Fiery Knight" episode it may well be, as the appellant says, that he did not have the full warning concerning this evidence that he would have had if an affidavit had been filed. That however seems to me to be a matter of small moment. If he was taken by surprise, and it should be emphasised that he was represented by a legal practitioner, he could have asked for an adjournment. In reality, issue was not joined on the subject matter at all. Jones was not cross-examined upon it. Evidence was not led from the appellant about it and no application was made for an adjournment to secure the attendance of the other two persons to deny that such a meeting had ever occurred. What the appellant seeks to do is to litigate an issue which was not litigated in the Court below. There being no sufficient reason why it was not litigated in the Court below, there seems to me to be no reason to allow the tender of evidence relating to it in this appeal. The third and most substantial matter concerns the minutes of the alleged meeting. It is true, or at least I am prepared to assume, that a fairly vigorous attack could have been made upon the credibility of Mr Jones and his version of events if the appellant had known that the Jaquita episode happened in late 1990. It may be that such an attack would have had an impact upon the Judge's assessment of credibility. Bryson J may not have been so persuaded by the evidence of Mr Jones and may not have reached the conclusion, as he did, that the appellant was untrustworthy. This was a definite possibility. On the other hand it cannot in my view be said that if this material had been available to the appellant and had been led before Bryson J a different result would have ensued. It is possible that one may have ensued, but it could not be said with confidence that it is probable that the appellant would have won this particular issue at the trial. Furthermore the minute was annexed to an affidavit sworn on 12 November 1991 and the appellant had this document for about three months prior to the trial. As he was able to test the accuracy of a number of statements in the minute within two months of the judgment it is reasonable to assume that there is no 6 UNREPORTED JUDGMENTS reason why he could not have done so before the trial if he had turned his mind to it. In these circumstances it does not seem to me that he passes the test of reasonable diligence. Even if he did pass that test he would founder on that other test of which Dixon J spoke and the Court would be disinclined, at the very least, to admit the evidence. I would sum up my view of the application to lead fresh evidence by saying that, while it could not be said that the appellant had no prospect of securing the admission of that evidence on the hearing of the appeal, his prospects of doing so were very low indeed. I return to consider the application for an adjournment in the light of those expressions of opinion. I have already indicated that the appellant's conduct has been dilatory in the extreme and I would add to my earlier observations the fact that he did not secure any material from police officers until 1995 and, even when he had that material, he does not seem to have done anything with it until almost immediately before the hearing of the appeal. In all these circumstances I am persuaded that the dictates of justice require that the application for an adjournment be refused. Simos AJA. I agree with Mr Justice Clarke. Abadee AJA. I likewise agree. Orders accordingly. Counsel for the first appellant: IV PERSON Counsel for the respondent: L V STAPLETON Solicitors for the respondent: NASH: ALLEN: WILLIAMS and WOTTON: Wyong