Devereaux-Warnes v Hall
[2006] WASCA 268
•6 DECEMBER 2006
DEVEREAUX-WARNES -v- HALL & ANOR [2006] WASCA 268
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 268 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:132/2005 | 4 SEPTEMBER 2006 | |
| Coram: | MARTIN CJ ROBERTS-SMITH JA BUSS JA | 6/12/06 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | SYLVIA KRISTEN DEVEREAUX-WARNES TANYA HALL PHILLIP RONALD WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec) |
Catchwords: | Appeal Application to review single Judge's decision Whether learned Judge erred in dismissing applications for leave to adduce new evidence on the hearing of the appeal and to amend the grounds of appeal Distinction between new and fresh evidence Turns on own facts |
Legislation: | Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1) Supreme Court Act 1935 (WA), s 61(3) Supreme Court (Court of Appeal) Rules 2005 (WA), r 8 |
Case References: | Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1 Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 Goodman v Windeyer (1980) 144 CLR 490 Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 Mulholland v Mitchell [1971] AC 666 Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 Pezzino v The State of Western Australia [2006] WASCA 131 Singer v Berghouse (1994) 181 CLR 201 University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 Water Board v Moustakas (1988) 180 CLR 491 White v Barron (1980) 144 CLR 431 Atlantic 3-Financial (Aust) Pty Ltd v Marler [2004] 1 Qd R 579 Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 Knight v Anderson (1997) 17 WAR 85 Thomas v Bass [2006] WASCA 59 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DEVEREAUX-WARNES -v- HALL & ANOR [2006] WASCA 268 CORAM : MARTIN CJ
- ROBERTS-SMITH JA
BUSS JA
- Appellant
AND
TANYA HALL
First Respondent
PHILLIP RONALD WILSON as Executor of the estate of ANTHONY LAWRENCE PATRICK DUFFY (Dec)
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : WHEELER JA
Citation : DEVEREAUX-WARNES -v- HALL & ANOR [2006] WASCA 86
File No : CACV 132 of 2005
Catchwords:
Appeal - Application to review single Judge's decision - Whether learned Judge erred in dismissing applications for leave to adduce new evidence on the hearing of the appeal and to amend the grounds of appeal - Distinction between new and fresh evidence - Turns on own facts
Legislation:
Inheritance (Family and Dependants Provision) Act 1972 (WA), s 6(1)
Supreme Court Act 1935 (WA), s 61(3)
Supreme Court (Court of Appeal) Rules 2005 (WA), r 8
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : Mr A J Aristei
First Respondent : Mr D M Bruns
Second Respondent : No appearance
Solicitors:
Appellant : Elizabeth Wiese & Associates
First Respondent : Hoffmans
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1
Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494
Goodman v Windeyer (1980) 144 CLR 490
Gould v Vaggelas (1985) 157 CLR 215
Lackovic v Insurance Commission (WA) (2006) 31 WAR 460
Mulholland v Mitchell [1971] AC 666
Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116
Pezzino v The State of Western Australia [2006] WASCA 131
Singer v Berghouse (1994) 181 CLR 201
State Railway Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481
Water Board v Moustakas (1988) 180 CLR 491
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672
White v Barron (1980) 144 CLR 431
Case(s) also cited:
Atlantic 3-Financial (Aust) Pty Ltd v Marler [2004] 1 Qd R 579
Doherty v Liverpool District Hospital (1991) 22 NSWLR 284
Knight v Anderson (1997) 17 WAR 85
Thomas v Bass [2006] WASCA 59
(Page 4)
1 MARTIN CJ: I agree with Buss JA that this appeal must be dismissed for the reasons which he gives.
2 I would merely add the observation that it is a mistake in principle to consider an appeal as merely another step in a serial process of litigation. There is a very strong public interest in the finality of litigation (see Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684; State Railway Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38; Gould v Vaggelas (1985) 157 CLR 215 at 275). This provides a powerful reason in public policy for strictly confining the circumstances in which a party will be permitted on appeal to augment the evidence led at trial. It is well established that the circumstances in which that course will be permitted are rare and exceptional. The circumstances of this case fall manifestly short of providing any justification for permitting additional evidence to be led on appeal.
3 ROBERTS-SMITH JA: I agree with Buss JA.
4 BUSS JA: This is an application by the appellant under s 61(3) of the Supreme Court Act 1935 (WA) to set aside orders made by Wheeler JA on 29 May 2006 in relation to the appellant's pending appeal in CACV 132 of 2005 against a judgment of Master Newnes.
5 The appellant applied to the learned Judge for leave to adduce new evidence on the hearing of the appeal and to amend her grounds of appeal. Her Honour dismissed the applications and ordered the appellant to pay the first respondent's costs of the applications in any event.
6 Section 61(3) of the Supreme Court Act provides, relevantly:
"A person who is dissatisfied with a decision or order made by a single judge of appeal … may apply to the Court of Appeal to set aside or vary the decision or order."
- Also see r 8 of the Supreme Court (Court of Appeal) Rules 2005 (WA).
7 It is unnecessary, in determining this application, to decide or express an opinion on whether s 61(3) contemplates a re-hearing de novo before this Court. See, in this regard, the observations in Pezzino v The State of Western Australia [2006] WASCA 131 at [10], [49] - [54], [60]. In my opinion, the application should be dismissed, for the reasons set out below, whether or not s 61(3) obliges the appellant to demonstrate that the learned Judge made a material error of fact or law.
(Page 5)
The judgment of the learned Master
8 The judgment of the learned Master was given in respect of applications made by the first respondent and Mark Anthony Duffy (who is not a party to the appeal) under s 6(1) of the Inheritance (Family and Dependants Provision) Act 1972 (WA). The first respondent and Mr Mark Duffy were the daughter and son of the testator (Anthony Lawrence Patrick Duffy), and each of them sought an order that increased provision be made for him or her from the testator's estate. The defendants comprised Philip Roland Wilson as executor of the testator's estate, and the appellant, who was the testator's widow.
9 On 27 February 1961, the testator and the appellant were married. In March 1962, the testator executed a Will under which he gave the whole of his estate to the appellant. The first respondent and Mr Mark Duffy were children of the marriage, the first respondent being born on 23 August 1961 and Mr Duffy on 16 October 1965. On 15 November 1991, the testator and the appellant were divorced. There was an acrimonious dispute in relation to the distribution of the matrimonial property, and there were contested proceedings in the Family Court. On 17 February 1993, the Family Court made orders, relevantly, to the following effect:
(a) the principal asset of the testator and the appellant, namely, a property in Mundijong, was to be subdivided with the testator taking the northern portion (known as "Oldbury" and comprising 13.3 hectares with improvements including two houses on it) and the appellant to take the southern portion (comprising 12.5 hectares);
(b) the appellant was to pay the testator $5,925, and the testator was to assume sole liability for a debt of $45,000 owing to a third party; and
(c) certain motor vehicles and chattels were to be divided between the testator and the appellant, as specified in the orders.
- On 12 March 1994, the appellant remarried.
10 On 16 August 2003, the testator died unexpectedly. He had not revoked the Will he made in March 1962 under which the appellant inherited the whole of his estate.
(Page 6)
11 The applications under the Inheritance (Family and Dependants Provision) Act were heard by the learned Master on 30 and 31 August 2005. He delivered judgment on 22 September 2005.
12 The testator's principal asset was the Oldbury property. The learned Master made findings as to the value of that property and the net value of the estate. He said, relevantly, at [44], [45] and [69]:
"In February 2004, the executor arranged for an independent valuation of the [Oldbury] property. The valuer assessed its value as being $540,000.
It appears that no subsequent valuation has been obtained, but the expenses of the estate have increased substantially. The first defendant [the executor of the estate] has rendered accounts for legal fees totalling $85,207.85 and I was informed that there is a further amount of $7500, which has yet to be billed, for the period to 25 August 2005. The first defendant has not indicated whether he will separately charge an administration fee. There is also to be taken into account the costs of these proceedings.
…
Although the first defendant's legal costs owing by the estate are subject to taxation, it is, I think, reasonable to expect that, based on the 2004 valuation of the [Oldbury] property, the net amount of the estate will be in the order of $300,000. That was the amount suggested by counsel for the second defendant [the appellant] and I accept, based on the possibly slightly outdated valuation of the property, that that is a reasonable estimate. The estate might therefore be described in current times as a relatively modest estate."
13 The learned Master decided that the first respondent and Mr Mark Duffy had been left without adequate provision for their proper maintenance, education and advancement in life. He determined that the first respondent should have an amount equal to 80 per cent of the net value of the estate and that Mr Duffy should have the balance. The learned Master said, at [74] - [76]:
"In my view, a proper provision for the first plaintiff [the first respondent] would be an amount equal to 80 per cent of the net value of the estate. On the basis of the valuation to which I have referred, that would be an amount of some $240,000. That
(Page 7)
- would enable the first plaintiff to discharge her indebtedness in relation to the Queensland property, to purchase a suitable modern motor vehicle and to have a sum left over to invest to provide a modest supplement to her income and a provision for any contingencies.
I consider the remaining 20 per cent of the estate should pass to the second plaintiff [Mr Mark Duffy]. That would enable him to reduce the mortgage debts he currently has and to provide him with additional provision for the contingencies of life.
The size of the estate does not, in my view, enable any amount to be left to pass to the second defendant [the appellant] under the terms of the Will. The plaintiffs' call on the estate for their proper maintenance is greater than the claim of the second defendant to the estate, and once reasonable provision is made for the plaintiffs, the estate will be exhausted."
The conduct of the parties at trial in relation to the value of the Oldbury property and the net value of the estate
14 The parties agreed, for the purposes of the hearing before the learned Master, that the value of the Oldbury property was $540,000. This agreement is referred to in par 16 of an affidavit of Robyn May Watson sworn on 15 March 2006. Ms Watson was the solicitor acting on behalf of the appellant, and the affidavit was sworn in support of the appellant's applications before the learned Judge. Paragraph 16 provides:
"As noted at page 12, paragraph 44 of the Judgment appealed from (at page 14 of the draft appeal book), the value of the Oldbury property, the principal asset of the deceased estate, was agreed as being the sum of $540,000 based on an independent valuation arranged by the Executor of the Estate in February 2004."
15 The learned Master's finding that the net value of the estate was $300,000 was based on a submission to that effect made by counsel for the appellant. See the learned Master's reasons at [69].
Relevant events in relation to the Oldbury property after judgment
16 On 17 October 2005, Jenny Le-Fevre, a licensed valuer, submitted to the second respondent a then current valuation of the Oldbury property which she had carried out on his instructions. Ms Le-Fevre said in her valuation report that the fair market value of the property was $700,000.
(Page 8)
17 On 30 January 2006, the second respondent (the executor of the testator's estate) entered into a contract for the sale of the Oldbury property for $785,000. Settlement under the contract occurred on 2 March 2006.
The reasons of the learned Judge
18 The learned Judge summarised the submissions made on behalf of the appellant and then gave reasons for dismissing the applications. Her Honour said, at [7] - [13]:
"The submission made on behalf of the appellant is to the following effect. First, it is submitted that the ordinary fluctuations in property values could hardly explain the increase in the value of the property between the date of trial and the date of sale. It is submitted that the evidence of the sale price plainly could not have been obtained with reasonable diligence for use at the hearing, since the property did not sell until February 2006.
It is submitted that the principles which should apply are those discussed by the House of Lords in Mulholland v Mitchell [1971] AC 666 and accepted by this Court in Knight v Anderson (1997) 17 WAR 85. Those principles are broadly to the effect that the discretion of the Court of Appeal to admit new evidence as to matters occurring after the date of trial is one of "discretion and degree". The principles which require to be balanced are that there should be finality in litigation on the one hand, and on the other that in exceptional circumstances such as where it might be said that 'basic assumptions at the trial had been falsified', it may be just to admit such evidence. Further, it is to be expected that courts will allow fresh (or new) evidence when to refuse it 'would affront common sense, or a sense of justice' (Mulholland, per Lord Wilberforce at 679 - 680, Knight per Malcolm CJ at 90). Accepting those principles, it is my view that this is a case in which the new evidence should not be admitted.
The appellant's proposition that the value of the Mundijong property had dramatically increased since the date either of trial or of judgment, cannot be accepted as being necessarily accurate. There is no evidence before me suggesting what portion of the increase in value is attributable to the period between trial and sale, rather than between valuation and trial.
(Page 9)
- By the date of trial, it must have been obvious to all parties that the valuation which had obtained was of the order of 18 months out of date. The appellant must have been broadly familiar with the location, since she had lived there many years earlier. There is no explanation in the appellant's affidavit as to why it was that she was prepared simply to accept that earlier valuation. This was not, it seems to me, a case in which there was a 'basic assumption' common to both parties, reasonably made, as to the value of the property. Rather, it was a matter which the appellant seems content not to have explored.
I was informed from the Bar table, without opposition, by counsel for the appellant, that the appellant's solicitors had at one stage raised with the solicitors for the respondents the desirability of obtaining a further valuation. However, in the face of some opposition or lack of co-operation from the respondents' solicitors, that issue had not been pursued. It seems to me that it does not matter whether the appellant had not considered the question of the accuracy of the valuation at all, or whether she had suspected it to be inaccurate but had not pursued the matter. In either event, there was a decision on the part of the appellant to conduct the trial on the basis of the earlier valuation.
In those circumstances, it seems to me that it would be an affront to commonsense and to justice to permit the adducing of further evidence of valuation on the appeal, merely because at some stage between the obtaining of the original valuation in 2004 and the sale of the property in 2006, its value had substantially increased. In any trial involving the valuation of assets, it is likely that the value of those assets will fluctuate over time and that at the date of an appeal, values will not be precisely the same as those either at trial or at some earlier time. The situation is not confined to real property. An estate consisting wholly of shares may fluctuate very significantly in value between one date and another. Nor is the situation confined to actions of this kind. In personal injuries actions, the cost of treatment will fluctuate, average earnings in a plaintiff's occupation will fluctuate, and the plaintiff's condition may vary either for better or worse in a manner not clearly foreseen by treating physicians. The Court should be slow to permit the reopening of such an issue, merely because some facts assumed to be correct at trial have altered by the date of an appeal.
(Page 10)
- It is not possible to lay down any clear guide as to when evidence of a fluctuation in value should be admitted. However, the cases recognise that it must be only in 'exceptional' circumstances that such further evidence should be admitted. These circumstances have not been demonstrated to be exceptional. Any person with any ordinary understanding of property values in Western Australia would have expected an increase in value between 2004 and 2005, and again between 2005 and 2006. The appellant chose not to explore this issue at trial at all. In those circumstances, there is no injustice to the appellant in having the appeal conducted on the basis of an assumption which she was content to make."
The appellant's grounds of review
19 The appellant's grounds of review in relation to the learned Judge's decision are these:
"1. At paragraph 10 of Her Honour's reasons for decision, the learned Judge erred in law by finding that the basic assumption at trial in relation to the value of the Oldbury property in the sum of $540 000 had not been 'falsified' in light of new evidence. The learned Judge should have found that, in circumstances where all parties and the Court accepted the valuation at trial (prepared through the Second Respondent as administrator of the relevant deceased estate) as being the true value of the said property, that value was falsified by the sale of the property after Judgment in the sum of $785 000.
2. At paragraph 12 of Her Honour's reasons for decision, the learned Judge erred in law by finding that it would be an 'affront to common sense and justice' to permit the further evidence of valuation to be adduced in the Appeal herein. The learned Judge should have found that it would be an affront to common sense and to justice not to allow the new evidence to be adduced in the Appeal, in circumstances where there had been such a dramatic fluctuation in value between the valuation accepted at trial and the sale value of the property realised on 28 February 2006, approximately 6 months after the said trial.
(Page 11)
- 3. At paragraph 13 of Her Honour's reasons for decision, the learned Judge erred in law by finding that new evidence could only be permitted in exceptional circumstances. The learned Judge should have found that the new evidence should be adduced in the Appeal in the exercise of judicial discretion, and in circumstances where basic assumptions common to the parties have been 'falsified' by the occurrence of subsequent events, or alternatively where a refusal of such new evidence would amount to an affront to common sense or justice."
The merits of the appellant's application to review
20 By s 6(1) of the Inheritance (Family and Dependants Provision) Act, the Court is required to carry out a two-stage process. The first stage involves the determination of whether the disposition of the deceased's estate effected by his or her will or intestacy was not such as to make adequate provision from his or her estate for the proper maintenance, support, education or advancement in life of the applicant. The second stage, which only arises if that determination be made in favour of the applicant, involves the exercise of discretion; the Court may order that such provision as the Court thinks fit be made out of the deceased's estate for the proper maintenance, support, education or advancement in life of the applicant. See Singer v Berghouse (1994) 181 CLR 201, per Mason CJ, Deane and McHugh JJ at 208 - 209.
21 The question which arises at the first stage must be formulated and determined as at the date of death of the deceased, having regard to all the facts that existed at the date of death, whether the deceased knew of them or not, and all the eventualities that might at that date reasonably have been foreseen by a deceased who knew the facts. See Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 at 508, 515 - 516, 526 - 528; White v Barron (1980) 144 CLR 431 at 437, 441, 448 - 449; Goodman v Windeyer (1980) 144 CLR 490 at 499. At the second stage, the Court exercises its discretion to order adequate provision for the proper maintenance, support, education or advancement in life of the applicant by reference to the circumstances as they exist at the date of the order. See Coates at 509, 515 - 516, 528; White at 441; Goodman at 499.
22 In any application under s 6(1), the net value of the deceased's estate (including the value of the principal asset or assets) will be a central (and, sometimes, a critical) fact in the proceedings. If the values in question are
(Page 12)
- not agreed between the parties then the Judge or Master will make the requisite findings of fact in accordance with the evidence. These basic matters are (or should be) known to every legal practitioner who represents a party in proceedings under s 6(1).
23 In the present case, the net value of the deceased's estate was an important fact. The determination of that net value depended on, relevantly, the value of the Oldbury property and an accurate estimate of the cost of administering the estate.
24 The value of the Oldbury property as at the date of trial could have been proved by expert evidence. Similarly, the estimated cost of administering the estate could have been established by evidence. The appellant chose not to adduce any evidence in relation to those matters. She was content to make an agreement with the other parties as to the value of the Oldbury property for the purposes of the litigation. She was also content to rely on a submission by her counsel to the learned Master (which he accepted and was entitled to accept) as to the net value of the estate. The submission concerning that net value necessarily included an estimate, which the appellant or her legal advisers must have made, of the overall cost of administering the estate.
25 The appellant seeks to adduce evidence at the hearing of the appeal in relation to the sale of the Oldbury property on 30 January 2006, being five months after the date of the trial. She argues that the sale price indicates that the value of the property as at the date of the trial was significantly in excess of the value agreed by the parties for the purposes of the litigation. The appellant's submissions are flawed. First, the value of property, for the purposes of the second stage of the two-stage process required by s 6(1), is the value as at the date of the order. The appellant has not sought to adduce evidence at the hearing of the appeal as to the value of the Oldbury property at that date. Evidence of a sale made five months after the trial does not establish the value of the Oldbury property at the material time. Secondly, the appellant, by seeking to adduce evidence of the sale on 30 January 2006, obscures the distinction between fresh evidence on the one hand and new evidence on the other. Fresh evidence is, of course, evidence that could not have been obtained with reasonable diligence for use at the trial. New evidence, on the other hand, is evidence which could have been so obtained. The relevant issue at trial, for present purposes, was the then current value of the Oldbury property. The appellant could have obtained and led expert evidence on that issue. She elected not to do so.
(Page 13)
26 A question remains, however: is it nevertheless just to admit the new evidence in the appeal? See Lackovic v Insurance Commission (WA) (2006) 31 WAR 460 at 484 - 487 [100] - [114]; Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116 at 124 [14] - [15]; Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd (2005) 55 ACSR 1 at 28 - 30 [99] - [106]. In my opinion, the interests of justice do not require that the appellant be granted leave to adduce the new evidence. I am of that opinion for these reasons:
(a) It is notorious (certainly to legal practitioners) that the value of real property fluctuates and, usually, increases on an ongoing basis.
(b) At all material times the appellant was represented by legal practitioners.
(c) No explanation has been given for the appellant's failure to adduce the relevant evidence at trial.
(d) If leave were to be granted, it would be necessary for Mr Mark Duffy to be joined as a party to the appeal, and for the issues in the proceedings below to be re-litigated by reference to the new evidence.
(e) Finality in litigation is a powerful policy consideration. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial. See University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Water Board v Moustakas (1988) 180 CLR 491 at 497 - 498.
27 The present case is plainly distinguishable from such cases as Mulholland v Mitchell [1971] AC 666. The salient facts of Mulholland were these. The respondent suffered permanent injuries, both physical and mental, as a result of a car accident caused by the negligence of the appellants. The respondent appealed to the English Court of Appeal against the trial Judge's award of damages, and applied for leave to adduce fresh evidence as to matters which had occurred since the trial. Those matters concerned a dramatic change of circumstances since the trial, namely, a deterioration of the respondent's mental condition. He could no longer be treated at home, as had been assumed at the trial, but needed specialist care at a psychiatric hospital. The Court of Appeal granted the application to adduce fresh evidence. The appellants' appeal to the House of Lords was dismissed. Lord Wilberforce said, at 679 - 680:
(Page 14)
- "Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that court.
The present case is, in my opinion, near the borderline, for I see much force in the argument that the period during which the plaintiff might be expected to remain at home and be looked after by his wife, with nursing help, or might have to be placed in a nursing home, whether paying or under the National Health Service, were all matters for estimation by the trial judge, and that his choice of a multiplier of eight applied to the cost of home nursing reflected just those uncertainties. If there were nothing more, I would agree that it would be wrong to allow them to be re-estimated in the Court of Appeal merely upon evidence that the probabilities had changed. But there are other factors. First, the figure of ₤903 per annum, which as a figure was agreed, represented the cost of maintaining the respondent at a specified existing nursing home which was not authorised to receive patients under the Mental Health Act and did not provide specialist psychiatric nursing staff. Secondly, after a period of about seven weeks at home it was found that the respondent could not remain there and he was admitted as an emergency case to a hospital under the Mental Health Act 1959. The medical recommendation then was that he be transferred to a specified nursing home selected as the only suitable psychiatric nursing home in the area of his home with a good reputation and the only one authorised to receive patients under the Act. Thirdly, the nursing home originally chosen, the cost at which was the agreed sum of £903 per annum, had ceased to exist. Fourthly, the cost at the present nursing home is approximately double that figure - a disparity which satisfies the test of degree.
(Page 15)
- In the face of these changes, to allow the appeal to proceed on the basis of factors (accepted at the trial) which have been falsified to such an extent would hardly be creditable to the judicial process. At the lowest, the Court of Appeal was, in my opinion, not wrong in its discretion to accede to the respondent's application. On the whole, I respectfully think that they were right."
- In the present case, subject to the grant of leave, the only relevant evidence that the appellant could adduce at the hearing of the appeal is properly to be characterised as new, as distinct from fresh, evidence. By contrast, in Mulholland the evidence in question was undoubtedly fresh evidence.
Conclusion
28 The learned Judge did not make any material error. If an application under s 61(3) of the Supreme Court Act involves a re-hearing de novo, I would make the same decision as her Honour. The application to set aside her Honour's orders is without merit and should be dismissed.
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