Kervan Trading Pty Limited v MMI [2000] NSWCA 356

New South Wales Court of Appeal

CITATION : Kervan Trading Pty Limited v MMI [2000] NSWCA 356 FILE NUMBER(S) : CA 40246/99 HEARING DATE(S) : 1 November 2000 JUDGMENT DATE : 14 December 2000

PARTIES : Kervan Trading Pty Limited v Mercantile Mutual Insurance (Australia) Limited JUDGMENT OF : Mason P at 1; Meagher JA at 18; Davies AJA at 36

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 11233/92 FILE NUMBER(S) : LOWER COURT Barr J JUDICIAL OFFICER :

COUNSEL : Appellant: I. Wales SC Respondent: J. Graves SC/ M. Pesman SOLICITORS : Appellant: Truman Hoyle Respondent: A.R. Connolly & Company CATCHWORDS : Evidence - credibility -fresh evidence - application for new trial. LEGISLATION CITED : ss. 106(a), (c), (e) Evidence Act 1995 CASES CITED: Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471; R v Hawes (1994) 35 NSWLR 294, Palmer v The Queen (1998) 193 CLR 1, Wollongong Corporation v Cowan (1955) 93 CLR 435, CDJ v VAJ (1998) 197 CLR 172, Orr v Holmes (1948) 76 CLR 632, The Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635, McDonald v McDonald (1965) 113 CLR 529, Autodesk Inc. v Dyason (No. 2)(1993) 176 CLR 300, Cabassi v Vila (1940) 64 CLR 130, Briginshaw v Briginshaw (1938) 60 CLR 336. DECISION : 1. Appeal dismissed with costs.

- 19 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40246/99

MASON P MEAGHER JA DAVIES AJA

Friday, 14 December 2000 KERVAN TRADING PTY LIMITED v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

FACTS The appellant/plaintiff operated a video rental business which was nearly destroyed by a deliberately lit fire. The plaintiff unsuccessfully sued the defendant insurer on the insurance policy, the defendant making good its defence of fraud. The trial judge's findings were based on credit and in particular the credit of a mother and daughter. Subsequently, affidavit evidence has been adduced which forms the basis of this appeal, to the effect that the mother and daughter lied when giving evidence with the intention of harming the proprietor of the appellant. HELD By Mason P, dissenting - 1. Fresh evidence must be most compelling on the ultimate result of the original trial before it may ground an order for a new trial. The mere fact that it would establish perjury on the part of a key witness is not sufficient: Wollongong Corporation v Cowan (1955) 93 CLR 435. 2. The fresh evidence in this case satisfied this exacting standard. 3. I would order a new trial so that the circumstances in which the new evidence came to light can be explored and its veracity closely tested. By Meagher JA, Davies AJA agreeing - 4. In an application for an order for a new trial, based upon fresh evidence, the appellant must prove that "the evidence if believed, would probably be conclusive of the issue between the parties: Barwick CJ McDonald v McDonald (1965) 113 CLR 529 at 534. 5. In the present case, one cannot say this test has been passed. At most the evidence, if believed, would cause the judge to rewrite his judgment and possibly re-think some of his conclusions. By Davies AJA - 6. It has long been established that a new trial may be granted when evidence, unknown at the time of the trial and not obtained with reasonable diligence, is of such a nature that it would be inequitable for the judgment to stand. There are two competing factors. First is the public interest in ensuring parties to litigation have a fair opportunity to put their case. Second is the public interest in ensuring finality of litigation, subject to appeal: Wollongong Corporation v Cowan (1955) 93 CLR 435. 7. Where new evidence suggests fraud or improper conduct on the part of the successful party, a judgment may be set aside where the fraud or improper conduct goes to the heart of the judgment and to the issue of natural justice, thereby denying the unsuccessful party a fair hearing. The successful party in these circumstances was not involved in any fraud or improper conduct which denied the unsuccessful party a fair hearing. 8. An allegation of perjury will not necessarily suggest a trial was unfair: Cabassi v Vila (1940) 64 CLR 130; McDonald v McDonald (1965) 113 CLR 529. The allegation of perjury made by the fresh evidence in this appeal would not be decisive when considered in the context of the other evidence given at trial. ORDERS 1. Appeal dismissed with costs.