Corry v NHB Enterprises Pty Ltd

In *Corry v NHB Enterprises Pty Ltd*, the first appellant, Mr Corry, sought to adduce further evidence on appeal, specifically a psychiatrist's report concerning his mental health and his father's occupation. The appeal concerned punishment orders made by the primary judge. The appeal was heard by Meagher, Leeming and White JJA in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the psychiatrist's report should be admitted as further evidence. This was framed within the broader question of whether the admission of such evidence would demonstrate that the punishment orders made by the primary judge were the result of legal, factual, or discretionary error. The court was required to determine if the appellant had met the threshold for admitting fresh evidence on appeal, which typically involves demonstrating that the new evidence is capable of establishing error in the original decision.

The Court of Appeal reasoned that for an appeal by way of rehearing, the appellant must demonstrate that the order under appeal was the result of legal, factual, or discretionary error. The court found that the appellant had not contended that, with the benefit of the proposed further evidence, the primary judge must have made different punishment orders. Consequently, the application to admit the psychiatrist's report was refused because the evidence was not capable of establishing error on the part of the primary judge. The appeal was therefore dismissed.

The Court of Appeal ordered that Mr Corry's Notice of Motion seeking the admission of the psychiatrist's report be dismissed. The first appellant's Amended Notice of Appeal was also dismissed, with an order that Mr Corry pay the respondents' costs of the appeal, including the costs of the motion. The appeal made by the second appellant, Boriana Corry, was also dismissed with costs.