Glover v Australian Ultra Concrete Floors Pty Ltd

The appeal concerned an application by the appellant, Mr Glover, to lead fresh evidence in his appeal against a decision of the primary judge in a dispute with the respondent, Australian Ultra Concrete Floors Pty Ltd.

The primary legal issues before the Court of Appeal were whether the fresh evidence sought to be admitted by the appellant met the criteria for admission under section 75A of the *Supreme Court Act 1970* (NSW), and if so, whether that evidence warranted allowing the appeal. Specifically, the Court had to consider whether the evidence could not have been obtained with reasonable diligence for use at trial, whether it was highly probable that it would lead to a different verdict, and whether it was credible. The Court also considered its discretion to admit evidence of matters occurring after the trial.

The Court applied the well-understood general principles for admitting fresh evidence, requiring that the evidence could not have been obtained with reasonable diligence, that there must be a high probability of a different verdict, and that the evidence must be credible. The Court identified specific aspects of the tendered evidence that bore importantly on the appeal, particularly concerning the testimony of Messrs Higgins and Thompson. The admitted evidence, including an affidavit from the appellant's former wife, Mrs Veronica Glover, related to the circumstances of the appellant's injury, stating that he was fit and well before the incident and that his trousers were wet with concrete slurry, indicating he had fallen into it. Mrs Glover also stated she never pushed the appellant and caused him to hurt his back.

On the basis of the admitted fresh evidence, the Court allowed the appeal, set aside the verdict below, and ordered a new trial. The costs of the first trial and the appeal were left to the discretion of the judge hearing the new trial.