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
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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.
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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