BRYANT (CONSTRUCTIONS) PTY LIMITED v DANIELS [1996] NSWCA 271

BRYANT (CONSTRUCTIONS) PTY LIMITED v DANIELS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA, POWELL JA and COLE JA 5 March 1996

[1996] NSWCA 271

Sheller JA. (Application to tender additional evidence)

This is an application made by the respondent to the appeal to tender in evidence in this Court an affidavit made by Alan George Mobbs on 28 September 1993. In the Compensation Court there were two hearings and a decision of the trial judge of 12 May 1993 and a later decision of 7 October 1993.

It is accepted by counsel for the respondent, as is obvious from dates, that the affidavit was available to be tendered in evidence before the trial judge, Judge Egan. A decision was then made by those then acting for the respondent not to tender this evidence, even so it is sought to tender it in this Court. The basis put is that otherwise there would be injustice to the respondent.

I am not satisfied that in the circumstances of this case there is any such injustice. It seems to me, as a matter of principle, if a party decides not to leadevidence before a trial judge the party cannot, when it comes up on appeal, successfully attempt to lead such evidence in this Court.

In my opinion the application to lead further evidence should be refused.

Cole JA. I agree. Powell JA. I also agree.

Orders accordingly.