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". Mr Westwood refers to the exceptions at p3 and p4 of his report. He concludes that the photocopy typescript on document | was possibly, and I underline the word possibly, produced in original form by the type elements used to produce documents 2 and 3. That conclusion follows on from his examination of the exceptions mentioned at the bottom of p3 and the top of p4 of his report. S75A of the Supreme Court Act, 1970 is applicable to this application. There is the need for the Court to be satisfied on special grounds that leave should be given to receive further evidence. The provision also contains a discretion. In general terms applications such as this should be dealt with in accordance with acknowledged principles, including, for example, those set out in Radnedge v GIO (1987) 9 NSWLR 235 and Commonwealth Bank v Quade (1991) 178 CLR 2 UNREPORTED JUDGMENTS 134. One of these principles is whether or not the fresh evidence sought to be relied on was reasonably obtainable for the proceedings at first instance. This is sometimes referred to as the reasonable diligence test. As I understand the submission made on behalf of the appellant, it is not disputed that this could have been the case. In other words, it is evidence that could have been obtained at the time of the trial. The next issue is the importance of the evidence to the proceedings on appeal. In briefly examining the content of Mr Westwood's report, it will be observed (and this is conceded in the submissions on behalf of the appellant) that it raised no more than a possibility in relation to the genuiness of exhibit 5. Mr McGovern is forced back to the dicta of the House of Lords in Mulholland v Mitchell [1971] AC 666 where it was said that the fresh evidence should be admitted where "to refuse it would affront commonsense, or a sense of justice." For my part, I cannot see that to refuse this application to adduce further evidence that could, with reasonable diligence, have been obtained for the prior hearing and raises no more than a possibility as to the genuiness of exhibit 5, that there is any affront to commonsense or to a sense of justice. Accordingly, I would refuse leave to adduce the fresh evidence. Powell JA I agree. Beazley JA I agree. Stein JA I understand from Mr McGovern that, as set forth in his written and oral submissions, if the application to adduce fresh evidence is unsuccessful, it is accepted that the appeal must fail. If that be the case, I would propose that the appeal be dismissed. Powell JA I agree Beazley JA. I agree. Powell JA: The order of the Court then is appeal dismissed with costs. Appeal dismissed with costs. Counsel for the appellant: D McGovern /T O'Brien Solicitors for the appellant: Self Counsel for the respondent: P Hallem SC Solicitors for the respondent: Webeck Farland Pender