Allison v Tuna Tasmania Pty Ltd - [2017] TASFC 9

[2017] TASFC 9

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Allison v Tuna Tasmania Pty Ltd [2017] TASFC 9

PARTIES:  ALLISON, Paul Francis
  v
  TUNA TASMANIA PTY LTD
  FARRER, Sharon Tina as representative of the estate of
  FARRER, John Frederick (deceased)
  FARRER, Sharon Tina
  LAWRENCES MOTORS PTY LTD as trustee of
  The Farrer Superannuation Fund and as trustee of
  The Farrer Superannuation Fund (No 2)
  HAVENFLASH PTY LTD as trustee of
  The Farrer Family Trust

FILE NO: 1207/2015
JUDGMENT

APPEALED FROM: Allison v Tuna Tasmania Pty Ltd [2015] TASSC 31

DELIVERED ON:  7 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  10 April 2017
JUDGMENT OF:  Wood, Pearce and Brett JJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Admission of further evidence – Evidence not available at hearing – When not admissible – Special leave refused because evidence could have been obtained by proper diligence and no special circumstance established.

Supreme Court Civil Procedure Act1932 (Tas), s 48(3).

REPRESENTATION:

Counsel:
             Appellant:  A J H Morris QC, J P Murphy
             Respondent:  D J Gunson SC
Solicitors:
             Appellant:  No solicitor
             Respondent:  Timothy Williams

Judgment Number: [2017] TASFC 9
Number of paragraphs: 58

Serial No 9/2017
File No 1207/2015

PAUL FRANCIS ALLISON v TUNA TASMANIA PTY LTD,
SHARON TINA FARRER as representative of the estate of
JOHN FREDERICK FARRER (deceased),
LAWRENCES MOTORS PTY LTD as trustee of
the Farrer Superannuation Fund and as trustee of
the Farrer Superannuation Fund (No 2), and
HAVENFLASH PTY LTD as trustee of the Farrer Family Trust

REASONS FOR JUDGMENT FULL COURT

WOOD J
PEARCE J
BRETT J
7 September 2017

Orders of the Court

Application for special leave to admit further evidence refused.

Application for leave to amend notice of appeal refused.

Serial No 9/2017
File No 1207/2015

REASONS FOR JUDGMENT FULL COURT

WOOD J
7 September 2017

I agree with Pearce J.
File No 1207/2015

REASONS FOR JUDGMENT FULL COURT

PEARCE J
7 September 2017

The appellant, Paul Allison, applies for the special leave of this Court to admit further evidence on the hearing of an appeal from a judgment of Blow CJ after a trial of an action conducted by his Honour without a jury. The proposed further evidence is from a witness, Stephen Chaplin. Ancillary to the application for special leave is an application to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] TASFC 9
Decision Date: 7 September 2017

CaseChat Overview and Summary

The appeal concerned a dispute between Allison and Tuna Tasmania Pty Ltd. The case came before the Full Court of the Supreme Court of Tasmania.

The primary legal issue before the Full Court was whether to admit further evidence on appeal that was not available at the original hearing. The court was required to determine if the circumstances surrounding the unavailability of this evidence justified its admission on appeal.

The Full Court refused special leave to adduce further evidence. Their Honours reasoned that the evidence could have been obtained by proper diligence prior to the original hearing. No special circumstances were established that would warrant departing from the general rule that evidence not available at the hearing is not admissible on appeal.

Orders