POLLICINO, POLLICINO, VAIELA PTY. LIMITED v POLLICINO [1996] NSWCA 429

POLLICINO, POLLICINO, VAIELA PTY. LIMITED v POLLICINO

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY ACJ, MEAGHER JA and SIMos AJA 14 August , 14 November 1996

[1996] NSWCA 429

APPEAL — FURTHER EVIDENCE — application to adduce further evidence on hearing of appeal — evidence available but not called at hearing at first instance — special grounds for receiving further evidence not established (section 75A of Supreme Court Act 1990) — application dismissed

Nyerlucz v Dei Rocini (Court of Appeal, 8 September 1995, unreported)

Mahoney ACJ. I agree with the judgments of Simos AJA and with the orders which he proposes.

Meagher JA. I have read both judgments of Simos AJA in draft form and agree with both.

Judgment in Respect of Application for Leave to Adduce Fresh Evidence on the Hearing of the Appeal

Simos AJA. Prior to the commencement of the hearing of the substantive appeal in this matter, counsel for the appellants made application upon notice for leave to adduce fresh evidence on the hearing of the appeal. The application was made pursuant to the provisions of section 75A of the Supreme Court Act 1990 which, so far as material is in the following terms:

75A (1) Subject to subsections (2) and (3), this section applies to an appeal to the Court and to an appeal in proceedings in the Court ...

(7) The Court may receive further evidence.

(8) Notwithstanding subsection (7), where the appeal is from a judgment after a trial or hearing on the merits, the Court shall not receive further evidence except on special grounds.

(9) Subsection (8) does not apply to evidence concerning matters occurring after the trial or hearing.

The fresh evidence sought to be adduced was the evidence of a solicitor, Mr Paul Trisley, who, it was said, acted for all parties in relation to the transactions the subject of the proceedings between the parties, but who declined to give evidence voluntarily upon the basis that to do so would involve him in a breach of confidence said to be owed by him to the appellants. His evidence was said to be relevant to the following finding of the learned trial judge: