Clarence City Council v Howlin (No 2)

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.