Evans v The Heather Thiedeke Group - [1992] HCATrans 111

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B41 of 1990
B e t w e e n -
JOHN D. EVANS

Applicant

and
THE HEATHER THIEDEKE GROUP

Respondent

Application for special
leave to appeal

DEANE J

DAWSON J

Evans

10/4/92

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 APRIL 1992, AT 1.12 PM

MR P.L.R. SHEILS, QC:

May it please the Court, I appear for

the applicant with my learned friend,
MR D.A. BERTINI. (instructed by Caradoc Evans & Co)

MR P.D. McMURDO:

May it please Your Honour, I appear for

the respondent. (instructed by Morris Fletcher &
Cross.

DEANE J: Yes, Mr Sheils.

MR SHEILS:

May it please the Court.

Do Your Honours have

an outline of our submissions? It has been handed
to the Court, but I think it might have been a
little bit late. Because we were here, we brought
it with us.

DEANE J:	No, we have not, Mr Sheils.
MR SHEILS:	I am sorry, Your Honour, I thought it had been

handed to the Court. Your Honours, this is a
matter which has been before a number of courts in
a different guise on a number of occasions.

MR McMURDO:

Excuse me, Your Honours.

I am sorry to

interrupt, but I cannot hear my learned friend.

MR SHEILS: Well I apologize for that, but it might be an

advantage to my learned friend. Perhaps I should
keep talking and my learned friend, Mr McMurdo, can
tell me when, if he can hear me.

MR MCMURDO:

I have just heard that, thank you.

DEANE J:	Good, thank you Mr McMurdo.	Yes, Mr Sheils.
MR SHEILS:	May it please the Court.	Your Honours, the

affidavit it quite complex, but the outline of
submission reduces it to a small ambit. If I may
take Your Honours quickly through that, it will be

quite simple.

DEANE J: Well, does Mr McMurdo have a copy of this.

MR SHEILS: Yes, Your Honours, that was faxed up this

morning, early. Your Honours, the applicant has
been made bankrupt. That bankruptcy rests upon a
judgment debt. That judgment debt was in respect
of an action by the petitioning creditor for breach of contract and the plaintiff, as he then was, made
a claim for fees for work done as a consulting

architect. The judgment awarded to the plaintiff
depended substantially upon the finding of the
trial judge that he preferred the credibility of
the plaintiff to that of the defendant, the

applicant in this proceeding. So we start off
behind in that respect.

Evans

10/4/92

This finally depended heavily, Your Honours, upon a finding that the defendant was present at a

certain meeting with the plaintiff. The
independent witness at that meeting was a Mr Crisp.
Now the issue is in paragraph 7: the plaintiff said

the defendant was present. The defendant and
Mr Crisp said the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Evans v The Heather Thiedeke Group

Details

AGLC: Evans v The Heather Thiedeke Group [1992] HCATrans 111
Case: [1992] HCATrans 111
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an application by The Heather Thiedeke Group, the applicant, for special leave to appeal. The dispute concerned a judgment debt arising from a breach of contract claim brought by the petitioning creditor, who had claimed fees for work performed as a consulting architect. The applicant had been made bankrupt based on this judgment debt.

The central legal issue before the High Court was whether the applicant should be permitted to adduce fresh evidence, specifically a diary kept by a Mr Crisp, in proceedings concerning the bankruptcy petition. This diary contained a contemporaneous note of a meeting, which, if admitted, would allegedly establish that the applicant was not present at the meeting as claimed by the petitioning creditor. The applicant argued that the trial judge's finding of credibility, which heavily relied on the applicant's presence at this meeting, would have been undermined had this diary been available as evidence at the original hearing.

The court was required to consider the principles governing the admission of fresh evidence in appellate or bankruptcy proceedings. The applicant contended that the diary constituted crucial evidence that was not available at the original trial, and its exclusion led to a judgment that was likely to be erroneous. The applicant's argument was that the diary's existence was not known to the applicant or Mr Crisp at the time of the original hearing, and therefore, it could not have been presented then. The applicant submitted that the diary's admission would cast significant doubt on the truth of the debt underlying the judgment.

The High Court ultimately refused the applicant's request to adduce the diary as evidence. The court noted that the diary had been refused admission in previous appellate and bankruptcy proceedings. The applicant's bankruptcy rested upon a judgment debt, and the courts had consistently declined to receive the diary into evidence for the purpose of questioning the existence of the debt.

Orders