French v Bremner - [2020] NSWCA 299

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: French v Bremner [2020] NSWCA 299
Hearing dates: 17 November 2020
Decision date: 19 November 2020
Before: Leeming JA;
Emmett AJA.
Decision:
1. Stand over the application to adduce additional evidence, in so far as it concerns evidence of the webinar dated 6 September 2020, to the hearing of the appeal.
2. Otherwise dismiss the notice of motion dated 30 October 2020.
3. Costs reserved.

Catchwords:
PROCEDURE – additional evidence on appeal – fresh and further evidence – requirement that evidence could not have been obtained with reasonable diligence at trial – application in substance refused

Legislation Cited:
Patents Act 1990 (Cth)
Supreme Court 1970 (NSW), s 75A

Cases Cited:
Akins v National Australia Bank (1994) 34 NSWLR 155
Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392
French v Bremner [2019] NSWSC 1033
Hassan v Sydney Local Health District [2020] NSWCA 195
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Provident Capital Ltd (receivers and managers appointed) (in liq) v Andrew Boyd French [2015] NSWSC 1827
Tjiong v Tjiong [2012] NSWCA 201

Category: Procedural and other rulings
Parties: Andrew Boyd French (Appellant)
Christopher Bremner (First respondent)
Gabrielle June Bakey (Second respondent)
Representation:
Counsel:
Appellant / Applicant in person
A Harding SC (First respondent)
Solicitors:
Johnson Winter & Slattery (First respondent)

File Number(s): 2019/285092
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2019] NSWSC 1033

Date of Decision:

15 August 2019

Before:

Parker J

File Number(s):

2014/101136

Judgment

THE COURT: Mr Andrew Boyd French has appealed from the dismissal of his cross-claim and the relief granted on Dr Bremner’s claim following a nine day trial before the primary judge, whose judgment of some 477 paragraphs was delivered on 15 August 2019: French v Bremner [2019] NSWSC 1033. There is also a cross-appeal and a notice of contention. The appeal is set down for hearing, over two days, in the first week of December 2020. The parties’ submissions have been filed and red and black books have been filed and served. The blue books are shortly to be printed.
By notice of motion dated 30 October 2020, Mr French (who, although represented by senior counsel at trial, now appears for himself) seeks orders permitting additional evidence contained in his affidavit of 29 October 2020 to be admitted into evidence in the appeal. The affidavit appears to have been drafted by Mr French without the assistance of a lawyer. It comprises 75 paragraphs with 30 separate annexures. In large measure, the tenor of the affidavit may be discerned by the first three substantive paragraphs:

“I am appealing the decision of Justice Parker, in the court below, on numerous grounds.
The fresh evidence that I am presenting to the court in this Affidavit proves that I have not had a fair trial.
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 French v Bremner

Details

AGLC: French v Bremner [2020] NSWCA 299
Case: [2020] NSWCA 299
Decision Date: 19 November 2020

CaseChat Overview and Summary

In *French v Bremner*, the New South Wales Court of Appeal considered an application to adduce additional evidence on appeal. The applicant sought to introduce evidence relating to a webinar dated 6 September 2020, which had not been presented at the trial.

The primary legal issue before the Court of Appeal was whether the applicant had satisfied the requirements for admitting fresh and further evidence on appeal. Specifically, the Court had to determine if the evidence could not have been obtained with reasonable diligence at the trial.

The Court's reasoning focused on the principles governing the admission of additional evidence in appellate proceedings. While acknowledging the general reluctance to admit such evidence, the Court recognised that exceptions exist where justice requires it. In this instance, the Court decided to stand over the application concerning the webinar evidence to the hearing of the appeal, indicating a preliminary view that it might be admissible. However, the Court otherwise dismissed the notice of motion, meaning the other proposed evidence was not permitted. The costs associated with the application were reserved.

Orders

Orders of the court

1. Stand over the application to adduce additional evidence, in so far as it concerns evidence of the webinar dated 6 September 2020, to the hearing of the appeal.

2. Otherwise dismiss the notice of motion dated 30 October 2020.

3. Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	French v Bremner [2020] NSWCA 299
Hearing dates:	17 November 2020
Decision date:	19 November 2020
Before:	Leeming JA; Emmett AJA.
Decision:	1. Stand over the application to adduce additional evidence, in so far as it concerns evidence of the webinar dated 6 September 2020, to the hearing of the appeal. 2. Otherwise dismiss the notice of motion dated 30 October 2020. 3. Costs reserved.
Catchwords:	PROCEDURE – additional evidence on appeal – fresh and further evidence – requirement that evidence could not have been obtained with reasonable diligence at trial – application in substance refused
Legislation Cited:	Patents Act 1990 (Cth) Supreme Court 1970 (NSW), s 75A
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Bramco Electronics Pty Ltd v ATF Mining Electrics Pty Ltd (2013) 86 NSWLR 115; [2013] NSWCA 392 French v Bremner [2019] NSWSC 1033 Hassan v Sydney Local Health District [2020] NSWCA 195 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Provident Capital Ltd (receivers and managers appointed) (in liq) v Andrew Boyd French [2015] NSWSC 1827 Tjiong v Tjiong [2012] NSWCA 201
Category:	Procedural and other rulings
Parties:	Andrew Boyd French (Appellant) Christopher Bremner (First respondent) Gabrielle June Bakey (Second respondent)
Representation:	Counsel: Appellant / Applicant in person A Harding SC (First respondent) Solicitors: Johnson Winter & Slattery (First respondent)
File Number(s):	2019/285092
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2019] NSWSC 1033 Date of Decision: 15 August 2019 Before: Parker J File Number(s): 2014/101136