Austress Freyssinet v Marlin
[2002] NSWSC 892
•26 September 2002
CITATION: Austress Freyssinet v Marlin [2002] NSWSC 892 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 1032/02 HEARING DATE(S): 26/09/02 JUDGMENT DATE: 26 September 2002 PARTIES :
Austress Freyssinet Pty Limited - Appellant
Marlin International Pty Limited - RespondentJUDGMENT OF: Barrett J
COUNSEL : Mr M R Pesman - Appellant
Mr S A Benson - RespondentSOLICITORS: Massey Bailey - Appellant
Colquhoun & Colquhoun - RespondentCATCHWORDS: PROCEDURE - appeal from Master to Judge - appellant seeks to adduce further evidence LEGISLATION CITED: Corporations Act 2001 (Cth)
Supreme Court Act 1970
Supreme Court RulesCASES CITED: Akins v National Australia Bank Ltd (1994) 34 NSWLR 155
Council of the City of Greater Wollongong v Cowan (1956) 93 CLR 435
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Energy Equity Pty Ltd v Sinedie (2001) 166 FLR 179
Financial Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 167 FLR 106
Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452
JML Constructions Pty Ltd v Raymond Terrace Refrigeration and Airconditioning Pty Ltd (2000) 33 ACSR 669
Mann v Eccott (unreported, NSWCA, 19 August 1998)
Monte Paschi Australia Ltd v Mura [1998] NSWSC 264
Wright v Australian Associated Motor Insurers Ltd [1999] NSWSC 208DECISION: Further evidence not received
IN THE SUPREME COURT REVISED
OF NEW SOUTH WALES
EQUITY DIVISION
BARRETT J
THURSDAY 26 SEPTEMBER 2002
1032/02 - AUSTRESS FREYSSINET PTY LTD V MARLIN INTERNATIONAL PTY LTD
JUDGMENT - (On the admissibility of affidavit evidence. See p4 of transcript)
1 In this appeal from a decision of Master McLaughlin dismissing an application for an order setting aside a statutory demand under s.459G of the Corporations Act 2001 (Cth), the appellant seeks to adduce further evidence.
2 The scope of the further evidence the appellant wishes to introduce has been narrowed by reference to the principle in Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 70 FCR 452, it being acknowledged that the party seeking to set aside the statutory demand cannot, on this appeal, seek to adduce evidence which does not have, as its foundation, a ground of objection identified in the affidavit which originally accompanied the application to set aside the demand. That principle stems from the decision of the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 and has recently been re-affirmed by the Full Court of the Supreme Court of Western Australia: see Energy Equity Corporation Pty Ltd v Sinedie (2001) 166 FLR 179 and Finance Solutions Australasia Pty Ltd v Predella Pty Ltd (2002) 167 FLR 106.
3 Remaining, however, are paragraph 10 of Mr Kowalski's affidavit of 13 August 2002 and the whole of Mr O'Donnell's affidavit of 12 August 2002. The appellant wishes to rely on that material but the respondent says that that evidence should not be received on the appeal. Mr Kowalski is the appellant’s managing director and Mr O’Donnell its manager for Queensland.
4 Div 3 of Pt 60 of the Supreme Court Rules applies to this appeal. In Pt 60 r 15(3) there is explicit reference to the adducing of further evidence by an appellant. It is therefore clear that the concept is not foreign to the particular context and that further evidence may be adduced on an appeal of this kind. But as was observed by Studdert J in Wright v Australian Associated Motor Insurers Limited (1999) NSWSC 208, s75A(8) of the Supreme Court Act is as relevant in an appeal of this kind as it is to any other. An appeal from a Master to a Judge is within the purview of s.75A: see s.75A(1) and the express reference to such an appeal in Ritchie’s Supreme Court Procedure NSW at [75A.1]. Section 75A(8) says that, notwithstanding the general rule in s.75A(7) that the court may receive further evidence on appeal,
“… where the appeal is from a judgment after a trial or hearing on the merits, the court shall not receive further evidence except on special grounds.”
5 The judgment of Master McLaughlin is without doubt a judgment after trial or hearing. I note that the apparent requirement for special grounds in a case such as this, where there is an appeal to a Judge against a Master’s decision under s.459G, was referred to and by implication accepted by Santow J in JML Constructions Pty Ltd v Raymond Terrace Refrigeration and Airconditioning Pty Ltd (2000) 33 ACSR 669.
6 Reverting to the comments of Studdert J in the case to which I have referred, his Honour saw three particular considerations as relevant to the question of special circumstances: first, whether the particular evidence could have been obtained before the original hearing by the exercise of reasonable diligence; second, the probative value of the evidence; and, third, the credibility of the relevant witnesses. These are the tests emerging from Council of the City of Greater Wollongong v Cowan (1956) 93 CLR 435. They are cumulative in the sense that all three must combine in a positive way to indicate a need to receive further evidence: see Akins v National Australia Bank Ltd (1994) 34 NSWLR 155 and Mann v Eccott (unreported, NSWCA, 19 August 1998).
7 In the present case it is clear that the evidence concerned could have been obtained before the original hearing by the exercise of reasonable diligence, given that it is evidence of officers of the appellant about events which happened several years before. The appellant could easily have placed before the Master the evidence it now seeks to place before me on the appeal from the Master. In the case of Mr Kowalski, there was an affidavit before Master McLaughlin dealing with the relevant subject matter but not adverting to the matters in paragraph 10 of his affidavit of 13 August 2002 and nothing has been offered by way of explanation for the omission: cf Monte Paschi Australia Ltd v Mura [1998] NSWSC 264.
8 It does not seem to me that special circumstances are shown to exist here. Furthermore, as a matter of general principle, it is undesirable, on any appeal, that an appellant be afforded an opportunity simply to patch up evidence by resort to material which was available or could easily have been obtained originally but was not, whether by deliberate choice or by some other factor, such as failure to attend in a fully comprehensive way to the preparation of the case.
9 My ruling is therefore that the affidavit material to which I have referred will not be received.
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