MANN v ECCOTT AND ORS [1998] NSWCA 137

MANN v ECCOTT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and STEIN JJA 5 August 1998, 19 August 1998

[1998] NSWCA 137

EVIDENCE — admissibility of fresh evidence — s75A(8-9) Supreme Court Act (1970) — criteria for admission — whether evidence reasonably obtainable for use at trial — whether a high probability that evidence would produce a different verdict — whether evidence credible — Akins v National Australia Bank (1994) 34 NSWLR 155 applied.

MALICIOUS FALSEHOOD — whether claim statute barred s14 Limitation Act 1969 — whether requisite degree of fraud established for purposes of s55(1)(b) Limitation Act 1969 — absence of some form of dishonesty or moral turpitude — Hamilton v Kaljo (1989) 17 NSWLR 381 applied.

MALICIOUS FALSEHOOD — special damage — time runs from when special damage incurred — Insufficient evidence of time or form of special damage suffered.

PLEADINGS — struck out for being misconceived and embarrassing — manifest defects in pleadings — abuse of process — Improper purpose — Williams vy Spautz (1992) 174 CLR 509 applied.

Priestley JA I agree with Stein JA.

So far as concerns Levine J's abuse of process finding, it seems to me that the way the High Court has stated the law in Spautz v Williams (1992) 174 CLR 509, combined with facts found by Levine J which are for practical purposes unchallengeable, has made the finding unappellable.

Sheller JA I agree with Stein JA.

Stein JA This is an application for leave to appeal a decision of Levine J given on 20 February 1998 wherein his Honour dismissed a Notice of Motion by the appellant (Mr Christopher Mann) and struck out his action pursuant to a motion by the opponents.

On the leave application the claimant, who has appeared for himself seeks to rely on further evidence, documentary in nature. This comprises two bundles - 18 documents included in the white appeal book and 14 documents exhibited to an affidavit of the claimant sworn 20 July 1998. After a trial on the merits further evidence may not be received "except on special grounds', s75A (8) Supreme Court Act 1970 (subject to the exception in subs(9)). In Akins v National Australia Bank (1994) 34 NSWLR 155 at 160, Clarke JA indicated that, in general three conditions needed to be fulfilled before fresh evidence can be admitted.