Gaskin v Ollerenshaw

Case [2010] NSWSC 788


CITATION: Gaskin v Ollerenshaw [2010] NSWSC 788
HEARING DATE(S): 16 July 2010
 
JUDGMENT DATE : 

16 July 2010
JURISDICTION: Common Law
JUDGMENT OF: Garling J
DECISION: Plaintiff's application to reopen case granted in the interests of justice.
CATCHWORDS: PRACTICE AND PROCEDURE – Application to reopen trial – Judgment reserved – Witness recalls additional evidence – Application allowed.
LEGISLATION CITED: Civil Procedure Act 2005 s 56
Evidence Act 1995 s 192
Uniform Civil Procedure Rules 2005 rr 2.1, 29.5
CATEGORY: Procedural and other rulings
CASES CITED: Australian Securities and Investments Commission v Rich & Ors [2006] NSWSC 826; 235 ALR 587
Smith v NSW Bar Association (No 2) (1992) 176 CLR 256
Tszyu v Fightvision Pty Ltd (1998) 47 NSWLR 473
Urban Transit Authority v Nweiser (1982) 28 NSWLR 471
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631
Wilkinson v Daly [2004] NSWCA 331
PARTIES: Leslie Gaskin (P)
Matthew Ollerenshaw (D)
FILE NUMBER(S): SC 2006/266967
COUNSEL: M Maxwell and M Gilbert (P)
R A Cavanagh (D)
SOLICITORS: Brydens Law Office (P)
Henry Davis York (D)

      IN THE SUPREME COURT
      OF NEW SOUTH WALES
      COMMON LAW DIVISION

      GARLING J

      FRIDAY, 16 JULY 2010

      2006/266967 LESLIE GASKIN v MATTHEW OLLERENSHAW

      JUDGMENT – On application to reopen the plaintiff’s case

1 HIS HONOUR: By notice of motion dated 7 July 2010 the plaintiff seeks leave to reopen his case for the purpose of adducing further evidence from Katharine Whiteley and for some consequential orders. The plaintiff accepts that he should pay the costs of the motion.

2 The defendant opposes the application.


      Present stage of the proceedings

3 The evidence and submissions in the proceedings concluded on 21 June 2010 after four days of hearing.

4 In the course of the taking of evidence the plaintiff called Mrs Katharine Whiteley who is the principal of Non Stop Conveyancing, to give evidence in his case in reply. The defendant objected to Mrs Whiteley giving evidence in reply, submitting that her evidence ought to have been called in chief. I ruled against that objection.

5 After Mrs Whiteley’s evidence was concluded counsel addressed and judgment was reserved.

6 On 2 July 2010, the plaintiff’s junior counsel contacted my chambers indicating that he wished to seek the leave of the court to reopen the proceedings.

7 On that day, in chambers, I made directions which would enable a hearing of the motion and the taking of evidence, if the motion were granted, on Friday, 16 July 2010.


      The motion to reopen

8 In support of the motion to reopen the proceedings, the plaintiff read two affidavits.

9 The first affidavit, that of Mr Robert Bryden, the solicitor for the plaintiff, explains that in the course of preparation of the proceedings a decision was made on 1 June 2010 to subpoena Mrs Whiteley to give evidence. Consequent upon that decision, Mr Bryden deposes to a conversation between Mrs Whiteley and a member of his staff on 10 June 2010, in which Mrs…

Continue reading Gaskin v Ollerenshaw

Sign in free to access the full text

Details
AGLC
Gaskin v Ollerenshaw [2010] NSWSC 788
Case
[2010] NSWSC 788
Decision Date

CaseChat Overview and Summary

The case of Gaskin v Ollerenshaw involved a legal dispute between two parties, Gaskin and Ollerenshaw, where Gaskin sought to reopen the trial due to the emergence of new evidence. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the trial could be reopened based on the recall of a key witness who now remembered additional information that had not been disclosed previously.

The court was required to consider the principles governing the reopening of trials and whether the new evidence was significant enough to warrant a retrial. The court examined the criteria for reopening a trial, which includes the necessity to ensure a fair trial and whether the new evidence could potentially affect the outcome. The court also considered the balance between the need for finality in litigation and the imperative of justice.

In reaching its decision, the court determined that the new evidence provided by the recalled witness was indeed significant and had the potential to affect the outcome of the trial. The court found that the principles of natural justice required the trial to be reopened to allow for the presentation of this new evidence. Consequently, the court allowed the application to reopen the trial. The court ordered that the trial be reopened and conducted afresh, with the inclusion of the new evidence from the recalled witness. This decision underscored the importance of ensuring that all relevant evidence is considered in the pursuit of justice.

Orders

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.