Devereaux-Warnes v Hall

Case [2006] WASCA 268


DEVEREAUX-WARNES -v- HALL & ANOR [2006] WASCA 268



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2006] WASCA 268
THE COURT OF APPEAL (WA)
Case No:CACV:132/20054 SEPTEMBER 2006
Coram:MARTIN CJ
ROBERTS-SMITH JA
BUSS JA
6/12/06
15Judgment 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
HEARD : 4 SEPTEMBER 2006 DELIVERED : 6 DECEMBER 2006 FILE NO/S : CACV 132 of 2005 BETWEEN : SYLVIA KRISTEN DEVEREAUX-WARNES
    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

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Details
AGLC
Devereaux-Warnes v Hall [2006] WASCA 268
Case
[2006] WASCA 268
Decision Date

CaseChat Overview and Summary

The matter of Devereaux-Warnes v Hall was heard before the Court, where the central issue involved an application to review a decision made by a single judge. The appellant sought leave to introduce new evidence during the appeal hearing and to amend the grounds of appeal. The respondent opposed these applications on the basis that the evidence was not truly new but rather fresh, and therefore inadmissible. The court was tasked with determining whether the learned judge had erred in dismissing these applications.

The legal issues before the court were primarily centred around the distinction between new evidence and fresh evidence. New evidence was defined as information that could not have been reasonably adduced at the original trial, while fresh evidence referred to evidence that was available or could have been reasonably obtained at the time of the original trial. The court needed to assess whether the appellant's applications for new evidence and amended grounds of appeal met the criteria for being considered new evidence, as opposed to fresh evidence. This distinction was pivotal in determining the admissibility of the evidence in question.

The court examined the nature of the evidence proposed by the appellant and the grounds for the amendment of the appeal. It found that the evidence was not new but rather fresh, as it was available or could have been reasonably obtained during the original proceedings. Consequently, the court held that the learned judge did not err in dismissing the applications. The court emphasised that the distinction between new and fresh evidence is fact-specific and depends on the particular circumstances of each case. In this instance, the court found that the appellant had failed to demonstrate that the evidence was truly new and therefore could not be adduced during the appeal.

The application to review the single judge's decision was dismissed, and no further orders were made. The court's decision underscored the importance of adhering to the distinction between new and fresh evidence in determining the admissibility of evidence in appeal proceedings.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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