Bakshi & Mahanta (No 2)

This appeal concerns the refusal of the primary judge to grant the appellant's application for leave to file and rely upon an affidavit filed on 18 April 2022 in her appeal against the grant of a divorce order. The respondent did not oppose the application, however he made submissions that the appeal was unmeritorious and should be dismissed. The appeal was heard on 3 May 2022 and the appeal documents were filed late on 19 April 2022. The primary issue for the court was whether it was in the interests of justice to permit the appellant to file and rely upon an affidavit dated 18 April 2022 in her appeal against the grant of a divorce order. The court found that the application should be refused.

The court noted that the circumstances in which it should admit further evidence on appeal were considerably constrained. The court referred to CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ said at 202–203, in relation to the precursor to s 35 (the repealed s 93A of the Act):111. …it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. The court concluded that the appellant's affidavit did not disclose a case where it was in the interests of justice to permit the filing and reliance upon the affidavit. The court noted that the affidavit was filed late, and contained evidence that was largely cumulative and did not have the potential to produce a different result. The court also noted that the appeal was unmeritorious and should be dismissed.

The court dismissed the appellant's application for leave to file and rely upon an affidavit dated 18 April 2022 in her appeal against the grant of a divorce order. The court also dismissed the appeal. The court made no orders as to costs as both parties were self-represented.