Evans v Brambles Australia Ltd

[1998] QCA 478

[1998] QCA 478

COURT OF APPEAL

PINCUS JA THOMAS JA MACKENZIE J

Appeal No 10235 of 1997

KEVIN ALEXANDER EVANS	(Plaintiff) Appellant
and
BRAMBLES AUSTRALIA LIMITED	(Defendant) Respondent
(ACN 000 164 938)
BRISBANE ..DATE 17/08/98 170898 T5/RB28 M/T COA196/98

PINCUS JA: This is an appeal from an assessment of damages in a personal injuries action. One of the items of information that the learned primary judge had before him was related to Mr Pons, who was said to be in a position comparable with that of the plaintiff, now appellant. When Mr Pons was called at the trial by the defendant he gave evidence on the issue of liability. He was questioned in cross-examination, briefly, about matters relevant to quantum and then in re-examination by Mr Morgan. Further information emerged on the subject of quantum.

Mr Douglas had made an application this morning to adduce
further evidence on appeal relevant to Mr Pons' earnings.
The information which the judge had before him on that
subject had to do with the financial year ended 30 June 1996
and that ended 30 June 1997. As to the 1996 year, the group
certificates which were produced relating to Mr Pons showed
a net income of about $450 a week and Mr Douglas says, and
it seem to me quite possible, that this was a matter which

had a significant influence upon the outcome.

Now, there is an affidavit from Mr Pons himself in which he
annexes his income tax return for the 1996 year. And that
shows that, in addition to the sums mentioned in the group
certificates, Mr Pons had an additional income described as
net non-primary production income of $6,750. Mr Pons says
in his affidavit that he did not tell the solicitor for the
plaintiff, Mr Morrin, that the documents were in the
possession of his accountant at the time the action came on
for hearing.
170898 T6/HMH8 M/T COA196/98

The argument Mr Douglas advances is that in view of the

circumstances, namely that Mr Pons was called by the other

side, one would not necessarily expect the plaintiff's

lawyers to have in their possession all the information

which they might otherwise have had relevant to Mr Pons'

financial position. On the other hand, the affidavit of Mr

Pons does not say what contact Mr Pons had with Mr Morrin

prior to the trial, and it seems to me that a possible

inference from the way in which the trial was conducted, as

disclosed from the record, was that inquiries had been made

of Mr Pons about his financial position. That that is so

may be deducible from a question asked by Mr Britton below,

which was:

"Would you have a look at this document, please? Is
that the pay slip that you received for your first two

days of your current job?"

And it is open to infer, from that, that the solicitors and
perhaps counsel had had a conference with, or obtained a
statement from, Mr Pons about his earnings. However that
may be, the difficulty which Mr Douglas faces, as it seems
to me, is that he has to show by evidence that the new
evidence or the fresh evidence was not evidence which was
reasonably available or obtainable below. Now, Mr Pons does
not say that. All he says is that he did not tell Mr Morrin
that the documents were available at the time the action
came on for hearing. There was no affidavit from Mr Morrin
himself. The trial took place in October 1997 and if anyone
was interested Mr Pons could have been asked for copies of
his tax returns. Why he was not asked does not appear.
170898 T6/HMH8 M/T COA196/98

Perhaps people simply went on the assumption that his group certificates were a sufficient guide.

However that may be, it is my opinion that one of the tests which Mr Douglas submits has to be applied is not satisfied here. I am not satisfied by the evidence that this material now sought to be adduced could not, with reasonable diligence, have been placed before the primary judge. I would therefore reject the application to adduce further evidence.

THOMAS JA: I agree. This is a revisitation of an issue
raised but not pursued in great detail below. After
judgment there was a motion to vary it based upon alleged
misapprehension of what Mr Pons had said. This additional
evidence was not produced then. Furthermore, it is evidence
that would reasonably call for cross-examination in relation
to the extra income, and if the matter had been pursued more
vigorously below the defendant may well have sought to
counter the evidence by calling other evidence.

For these reasons, it seems to me to be inappropriate now to allow a re-litigation of an issue that was raised below. I agree that the evidence should be refused.

MACKENZIE J: I agree with the reasons that have been given
for refusing leave by the presiding Judge and Mr Justice
Thomas.
170898 T6/HMH8 M/T COA196/98

PINCUS JA: The order of the Court is that the application to adduce further evidence is rejected.

Now, this affidavit, Mr Douglas, in case the matter goes further, what I have in mind is to mark it Exhibit A and initial it and place it with the papers.

ADMITTED AND MARKED "EXHIBIT A"

PINCUS JA: It cannot be received as evidence but it should be preserved on the Court file.

MR DOUGLAS: Thank you, Your Honour.

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