Levy v Bablis [2013] NSWCA 28

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Levy v Bablis [2013] NSWCA 28 Hearing dates: 29, 30 May, 28, 29 June, 1 August 2012 (further written submissions) Decision date: 25 February 2013 Before: Beazley JA at [1]; Macfarlan JA at [2]; Meagher JA at [3]. Decision: (1) Appeal dismissed. (2) Appellant pay the respondent's costs of the appeal including the costs of the application to adduce further evidence. (3) The appellant to lodge written submissions concerning the order sought by the respondent as to payment to him of all or part of the amount provided by way of security for costs before the amount of those costs has been fixed by agreement or order or otherwise. Those submissions to be lodged with the Court and served within 14 days of the date of these orders. The respondent to lodge and serve any response within 7 days thereafter. The Court will then determine what further orders, if any, should be made on the basis of those submissions. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - only ground that further evidence available justifying new trial - exercise of discretionary power under s 75A(7) of Supreme Court Act 1970 - most of further evidence as to matters occurring before trial - importance of principle of finality - whether "special grounds" - whether appellant could have led evidence as to those matters at trial by exercise of reasonable diligence - whether probable that further evidence would have resulted in a different outcome at trial - further evidence considered separately and together not justify conclusion that outcome would have been different - interests of justice not require order for new trial on basis that a "substantial wrong or miscarriage" has been occasioned Legislation Cited: Evidence Act 1995 Evidence Amendment Act 2010 Supreme Court Act 1970 Surveillance Devices Act 2007 Uniform Civil Procedure Rules Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 CDJ v VAJ [1998] HCA 67; 197 CLR 172 Clodumar v Nauru Lands Committee [2012] HCA 22; 86 ALJR 697 Coulton v Holcombe (1986) 162 CLR 1 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1 Hampson v Hampson [2010] NSWCA 359 Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461 Levy v Bablis [2012] NSWCA 157 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116 Orr v Holmes [1948] HCA 16; 76 CLR 632 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Preston v Harbour Pacific Underwriting Management Pty Ltd [2008] NSWCA 216 Sepulveda v The Queen [2006] NSWCCA 379; 167 A Crim R 108 Tjiong v Tjiong [2012] NSWCA 201 Category: Principal judgment Parties: Julian Emmanuel Levy (Appellant) Peter Bablis (Respondent) Representation: Counsel: P Menzies QC, Ms B K Nolan (Appellant) M Condon (Respondent) Solicitors: Tsolakis Solicitors (Appellant) Minter Ellison (Respondent) File Number(s): 2006/260173 Decision under appeal Citation: Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461 Date of Decision: 2011-05-19 00:00:00 Before: Slattery J File Number(s): 2006/260173