MILLER v BONYHADY and ANOR [1998] NSWCA 143

MILLER v BONYHADY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

POWELL, BEAZLEY and STEIN JJA 13 May 1998, 13 May 1998

[1998] NSWCA 143

Application to adduce fresh evidence — s75A Supreme Court Act, 1970 — leave refused.

Stein JA In this appeal Mr D McGovern of counsel, appearing on behalf of the appellant, seeks the leave of the Court to adduce fresh evidence. That application is opposed by Mr P Hallem SC on behalf of the respondents.

The fresh evidence is set forth in the notice of motion of the appellant dated 6 March 1998. It includes a number of affidavits there listed but, most importantly, an affidavit of Mr Paul Westwood, a forensic document examiner, sworn 4 March 1998.

The appeal concerns a matter heard by Master Macready, which some might think has aspects stranger than fiction. But I will say no more about these matters because the application to adduce fresh evidence revolves around a key exhibit before the Master, being Exhibit 5. This document was alleged by the appellant and his son, Mr Damon Miller, to be the original of a receipt for $92,216.25, handed over on 4 July 1994. The Master had made a series of findings about exhibit 5 and other key documents tendered before him. It is unnecessary to go to the detail of those findings other than to say that they were adverse to the appellant and his son.

The affidavit of Mr Westwood sought to be relied upon as fresh evidence, as acknowledged by counsel for the appellant, goes no further than saying that in the opinion of the deponent the exhibit was possibly produced in original form using the same type element or elements used to produce the letter of 10 January 1994, being a letter included as document 2 to the report of Mr Westwood. Leaving to one side that it is disputed by Mr Eric Bonyhady, the respondent to the appeal, that the document in question was typed by him, Mr Westwood's opinion is that the typescript on document | to his report annexed to the affidavit, being a photocopy of a letter dated 4 July 1994 (exhibit 5 in the proceedings) is in his opinion, subject to certain exceptions, similar to the original carbon ribbon typing on document 2 (the letter of 10 January 1994) and document 3 entitled "things to do".