SWEENEY v KELL AND RIBGY (BUILDERS) PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE and SHELLER JJA and ABADEE AJA 29 October 1996, 29 October 1996 [1996] NSWCA 511 APPEAL — application to adduce fresh evidence — application not in accordance with Rules — evidence had no weight or relevance to matters the subject of the appeal. COSTS — application for indemnity costs no warning that appeal would not proceed once initial application was rejected Clarke JA An application has been made by the second appellant and although we have not been informed that the application is supported by the first appellant, I will assume that it is. That application is to adduce before this Court evidence going to an issue in the case being evidence of which the appellants had not become aware until after 21 October of this year. The evidence is contained in correspondence which has been handed up and received by the court for the purpose of ruling upon the application. The first letter in the bundle of correspondence is a letter from the solicitor for the first appellant to the Referee seeking information as to his relationship with the respondent to the appeal and the solicitors for that respondent. The second letter is the Referee's reply which, not surprisingly, seeks information as to the basis for the request made. The third letter is another letter dated 21 October, 1996 from the solicitor for the first appellant addressed to the solicitors for the respondent seeking information as to the instances in which the Referee acted in references upon the nomination either by Colin Biggers and Paisley or Tress Cocks and Maddocks, information as to whether the Referee acted in references in the last five years upon the nomination of the respondent and information as to the association between the Referee, the solicitors for the respondent and the respondent itself. A reply was written on 25 October 1996 by the solicitors for the respondent pointing out that there was a difficulty with the word "nomination" but indicating that the Referee had been involved as a court appointed Referee in approximately five references during the last five years in which the solicitors for the respondent were involved. The letter goes on to say that the only instance in which the Referee has acted as a court appointed Referee in a reference involving the respondent was the reference the subject of the present proceedings. It states that no officer of the respondent has any personal friendship or financial association with the Referee and that neither did counsel who appeared for the respondent have any personal association or friendship with the Referee. In its final paragraph the letter states that the Referee shares common membership of professional bodies with members of the solicitors acting for the respondent and that the Referee has been invited to, and sometimes attends, an 2 UNREPORTED JUDGMENTS annual function hosted by the solicitors for the respondent. However, there is no personal friendship or financial association between members of the firm of solicitors and the Referee. It is said by the second appellant that this matter is relevant to a question before the court. The second appellant accepts that on its own the material may not bear great weight but he contends that it colours other matter which is properly the subject of the present appeal and, for that reason, it should be taken into account by the court as having weight and relevance in relation to the determination of the issues concerning those other matters. Let me say at the outset that this is what I regard as fresh or new evidence in the sense that it was not before the Referee and was not before Judge Mahoney, from whose decision the appeal is brought. Rules of Court of relatively long standing provide a procedure that should be followed when a party seeks to rely on material of this nature. Those Rules provide, in summary form, that the affidavits sought to be relied on as providing the fresh or new evidence be filed in court at least 21 days before the date of the hearing of the appeal. The purpose of that Rule is to enable an opposing party to provide evidence, if it wishes, to meet that evidence which is sought to be led. No affidavit was filed in this case and the first intimation that this evidence was to be led appeared in the outline of submissions for the second appellant which were submitted to the court only yesterday. I put to one side for the moment the fact that the submissions themselves were lodged out of time, to observe that the Rules also provide that, in an application of the present nature, a notice of motion should be filed in court on the day of the appeal supported by the affidavits which have been previously filed. The second appellant is a Senior Counsel in the State of New South Wales, and possibly other States, and should be taken to know of the existence of the Rules of Court. Certainly, there is no reason why he could not have familiarised himself with them. Notwithstanding, the Rules have been flouted and there is no explanation for that flouting of the Rules. In these circumstances, for my part, I would be disposed to grant an application of the present nature only if it appeared clear to me that the dictates of justice were strongly in favour of excusing the flagrant breach of the Rules. When I come to examine the matter which is sought to be led, I find that far from the dictates of justice supporting the application, they are against it. For my part, the fact that the Referee has acted as a court appointed Referee in about five instances where the solicitors for the respondent were involved is a matter of no moment at all. It is not a matter which, in my view, required disclosure or which could be possibly conceived as supporting any application for disqualification of the Referee. Nor do I think that the joint membership of unnamed professional bodies nor the Referee's attendance at an annual function hosted not by a party, but by the solicitors for a party, in any way required disclosure or affected his ability to act as a Referee. In my opinion, the matter that the second appellant wishes to put before the court is irrelevant. In those circumstances, and because of the breaches of Rule which I have earlier pointed out, I can see no support for the acceptance of this additional evidence and I would reject it. I have already ruled that the correspondence be marked for identification #1 so that other courts will beclearly appraised of the material which the second,appellant has sought to adduce. Sheller JA URJ SWEENEY v KELL AND RIBGY (BUILDERS) PTY LTD (Abadee J) 3 I agree. Abadee J I agree. SWEENEY: I don't wish to advance any further arguments on the appeal and I accept that it follows that the appeal will be dismissed. CLARKE JA: Mr Barboutis, are you adopting? BARBOUTIS: I am adopting. CLARKE JA: When this appeal was called on for hearing the solicitor for the first appellant indicated to the court that he would adopt the submissions advanced by the second appellant. The second appellant then opened his submissions with an application for leave to adduce fresh material or evidence before the court. That application proceeded and the second appellant was fully heard in his submissions in support of the application. No further submissions were offered by the solicitor for the first appellant but the court assumed that the solicitor adhered to the stance he had earlier indicated, that is that he adopted the submissions of the second appellant. At the end of those submissions the court did not call on the solicitor for the respondent but ruled that the evidence should not be accepted. Following the judgment of the court on the application which had been made by the second appellant, he announced that he had no further submissions to put to the court and that it must follow that the appeal be dismissed. The solicitor for the first appellant was then invited to put any submissions he wished to advance before the court but he declined to put any submissions. In those circumstances, the course mentioned by the second appellant should be followed and the appeal should be dismissed. The respondent has made an application for indemnity costs on the ground of the events which occurred this morning. The basis of the application, as I understand it, is that no forewarning was given that in the event that the application which the court earlier dealt with was rejected, the appeal would not proceed. I think it must be accepted that that is the position, that the appellants did not advance submissions in support of the appeal once the application had been dealt with and that there was no prior notice that that would occur. There have been some decisions of this Court on similar applications in which a number of different considerations have been treated by some judges as having greater weight than by other judges. There is no doubt that a party put to great expense resisting an appeal which, on its face, appears to have little chance of success and which is withdrawn will have incurred significant costs which have been essentially wasted. In some cases in which that occurs it may well be appropriate to award indemnity costs. In others, a consideration is that a party, by not pressing an appeal, saves the court a great deal of time; that time would otherwise have been wasted in hearing an appeal which appeared doomed to failure. I do not think that any specific rule can be laid down as to whether an application of the present nature should be allowed or not. It seems to me that it will depend very much on the particular circumstances of the case. In this case there are strong considerations in support of the respondent's application. On the other hand, the appellants came here to contest the case and possibly believed that the application would be accepted and that the appeal would proceed. 4 UNREPORTED JUDGMENTS In the circumstances, in which the application was rejected and the appellants declined to press the appeal in the absence of the support of the fresh material, Ihave decided that greater weight should be afforded to the saving of time to the court, time which would otherwise have been spent considering the many detailed arguments appearing in the second appellant's written submissions. In the circumstances, I am not disposed to make a special order. I would simply order that the appeal be dismissed with costs. SHELLER JA: I agree. ABADEE J: I agree Appeal dismissed with costs. Counsel for the first appellant: JM Barboutis Solicitors for the first appellant: JM Barboutis Second appellant appeared in person Counsel for the respondent: G McVay Solicitors for the respondent: Colin Biggers and Paisley