Clift v. Timms

[1996] QCA 421

COURT OF APPEAL

PINCUS JA
DAVIES JA
MACKENZIE J

Appeal No 1095 of 1996

COLIN DUFF CLIFT Appellant (Defendant)

KELVIN RAY TIMMS Respondent (Plaintiff)

BRISBANE

DATE 18/10/96

PINCUS JA: In this matter an issue has arisen with respect to an affidavit sought to be read by counsel for the appellant.

The affidavit relates to a matter which was dealt with by the Judge below at page 453 of the record.

Having given judgment in favour of the plaintiff, His Honour was confronted by an application for interest made by counsel for the successful plaintiff. There was some brief discussion about that application and His Honour made an order for interest from writ to Judgment, without any opposition.

The application is to adduce evidence in support of Ground of Appeal, Ground 3, which challenges the award of interest as having been excessive.

It is common ground that no attempt was made to do this below. Had there been an issue to be raised with respect to the basis upon which the plaintiff's counsel asked for interest, it should have been done there.

Counsel for the respondent has urged upon us the view that the affidavit sought to be read does not comply with the usual test with respect to adducing fresh evidence, I agree with that contention and I would, for myself, be inclined to refuse the application to adduce fresh evidence.

DAVIES JA: I agree.

MACKENZIE J: I agree.

PINCUS JA: The application is refused.

CaseChat Overview and Summary

The appeal, marked as 1095 of 1996, involves Colin Duff Clift as the appellant, contesting against Kelvin Ray Timms, the respondent. The dispute primarily revolves around the interest awarded to Timms, which Clift contends was excessive. The case was heard and decided by the Court of Appeal in Brisbane, with Pincus J, Davies JA, and MacKenzie J presiding. The appeal questions the award of interest, claiming it was excessive, and seeks to introduce an affidavit to support this claim.

The central legal issue before the Court was whether the affidavit, proposed by the appellant, could be admitted as fresh evidence to challenge the excessiveness of the interest awarded. The Court needed to determine if the affidavit met the criteria for fresh evidence, particularly if it could have been presented in the lower court. The appellant argued that the affidavit was necessary to support the third ground of appeal, which was that the interest award was excessive. However, the respondent contended that the appellant had failed to raise this issue in the lower court and thus, the affidavit should not be admitted.

The Court of Appeal unanimously decided that the affidavit did not meet the requirements for fresh evidence and should not be admitted. Pincus J opined that the affidavit did not comply with the usual test for introducing new evidence and that any issues regarding the interest should have been raised in the lower court. Davies JA and MacKenzie J concurred with this decision. Consequently, the appeal's application to introduce the affidavit was dismissed.

In conclusion, the Court of Appeal denied the appellant's application to adduce the affidavit as fresh evidence and upheld the lower court's decision to award interest from the writ to judgment. The appeal was dismissed, and no further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established