Clarence City Council v Howlin (No 2) - [2010] TASFC 10

[2010] TASFC 10

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Clarence City Council v Howlin (No 2) [2010] TASFC 10

PARTIES:  CLARENCE CITY COUNCIL
  v
  HOWLIN, Darryl Robert
  HOWLIN, Helen Lorraine

FILE NO/S: 279/2009
JUDGMENT

APPEALED FROM: Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18

DELIVERED ON:  22 December 2010
DELIVERED AT:  Hobart
HEARING DATE:  13 October 2010
JUDGMENT OF:  Crawford CJ, Tennent and Wood JJ

CATCHWORDS:

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – Other matters – Appeal heard – Orders made but not perfected – Application to re-open hearing on ground of fresh and new evidence – Documents not produced on request or on subpoena – Whether hearing should be re-opened – Whether documents would have affected the outcome of the proceedings – Whether in the interests of justice to re-open.

Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, applied.
Greater Wollongong Corporation v Cowan (1955) 93 CLR 435, referred to.
Aust Dig Appeal and New Trial [89]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent:  In person
Solicitors:
             Appellant:  S B McElwaine
             Respondent:  In person

Judgment Number: [2010] TASFC 10
Number of paragraphs: 48

Serial No 10/2010
File No 279/2009

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN
and HELEN LORRAINE HOWLIN (NO 2)

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
TENNENT J
WOOD J
22 December 2010

Orders of the Court

That the application filed by the respondents on 11 October 2010 is dismissed.

That the respondents pay the council's costs of the appeal to this Court, including the costs of the interlocutory application filed by the respondents on 11 October 2010, and of the application for non- party costs filed on 14 January 2008.

Serial No 10/2010
File No 279/2009

CLARENCE CITY COUNCIL v DARRYL ROBERT HOWLIN
and HELEN LORRAINE HOWLIN (NO 2)

REASONS FOR JUDGMENT FULL COURT

CRAWFORD CJ
22 December 2010

The respondents seek to re-open the hearing of an appeal after the Court published its reasons for allowing the appeal and announced its orders, but before the orders have been perfected by filing and sealing.

In 2005, the respondents sued Mrs Margaret Brinckman for a declaration that all of Marsh Street, Opossum Bay, was a public highway.

The action was heard by Slicer J over four days in March 2007. On 14 August 2007, the judge ordered that there be judgment for the respondents, making the declaration that was sought. See Howlin v Brinckman [2007] TASSC 59. There was no appeal.

The respondents sought an order that Mrs Brinckman pay their costs of the action. In December 2007, the judge dismissed the application and ordered that the parties pay their own costs of the action. See Howlin vBrinckman (No 2) (2007) 17 Tas R 99. Again, there was no appeal.

On 14 January 2008, the appellant council became involved in the action for the first time when the respondents filed an application seeking "an order that the…

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: [2010] TASFC 10
Decision Date: 22 December 2010

CaseChat Overview and Summary

Clarence City Council (the Council) applied to re-open an appeal hearing before the Full Court of the Supreme Court of Tasmania, which had already made orders but not yet perfected them. The Council sought to introduce fresh and new evidence, comprising documents that had not been produced to the Court, despite requests and a subpoena. The application was made on the grounds that the documents would have affected the outcome of the proceedings and that it was in the interests of justice to re-open the hearing.

The central legal issue before the Court was whether the appeal hearing should be re-opened to admit the fresh evidence. This required the Court to consider the principles governing the admission of fresh evidence on appeal, specifically whether the documents were genuinely fresh and new, whether they would have affected the outcome of the original proceedings, and whether it was in the interests of justice to permit their introduction at this late stage.

The Court applied the principles established in *Ladd v Marshall* [1954] 1 WLR 1489, which require that for fresh evidence to be admitted on appeal, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, that the evidence is credible and would have had a material effect on the outcome of the trial, and that the evidence is practically conclusive. The Court found that the Council had failed to demonstrate that the documents could not have been obtained with reasonable diligence prior to the hearing, nor that they would have materially affected the outcome. Consequently, the Court concluded that it was not in the interests of justice to re-open the appeal hearing.

The application to re-open the appeal hearing was dismissed.

Orders