Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Levy v Bablis [2013] NSWCA 28 Hearing dates: 29, 30 May, 28, 29 June, 1 August 2012 (further written submissions) Decision date: 25 February 2013 Before: Beazley JA at [1];
Macfarlan JA at [2];
Meagher JA at [3].Decision: (1) Appeal dismissed.
(2) Appellant pay the respondent's costs of the appeal including the costs of the application to adduce further evidence.
(3) The appellant to lodge written submissions concerning the order sought by the respondent as to payment to him of all or part of the amount provided by way of security for costs before the amount of those costs has been fixed by agreement or order or otherwise. Those submissions to be lodged with the Court and served within 14 days of the date of these orders. The respondent to lodge and serve any response within 7 days thereafter. The Court will then determine what further orders, if any, should be made on the basis of those submissions.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: APPEAL - only ground that further evidence available justifying new trial - exercise of discretionary power under s 75A(7) of Supreme Court Act 1970 - most of further evidence as to matters occurring before trial - importance of principle of finality - whether "special grounds" - whether appellant could have led evidence as to those matters at trial by exercise of reasonable diligence - whether probable that further evidence would have resulted in a different outcome at trial - further evidence considered separately and together not justify conclusion that outcome would have been different - interests of justice not require order for new trial on basis that a "substantial wrong or miscarriage" has been occasioned Legislation Cited: Evidence Act 1995
Evidence Amendment Act 2010
Supreme Court Act 1970
Surveillance Devices Act 2007
Uniform Civil Procedure RulesCases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
CDJ v VAJ [1998] HCA 67; 197 CLR 172
Clodumar v Nauru Lands Committee [2012] HCA 22; 86 ALJR 697
Coulton v Holcombe (1986) 162 CLR 1
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Hampson v Hampson [2010] NSWCA 359
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
Julian Emmanuel Levy v Peter Bablis & Anor [2011] NSWSC 461
Levy v Bablis [2012] NSWCA 157
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116
Orr v Holmes [1948] HCA 16; 76 CLR 632
Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64
Preston…
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- AGLC
- Levy v Bablis [2013] NSWCA 28
- Case
- [2013] NSWCA 28
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether "special grounds" existed to permit the adduction of further evidence, whether the appellant could have reasonably discovered and led this evidence at the original trial, and whether the further evidence, considered both individually and collectively, would probably have resulted in a different outcome. The Court also had to consider whether the interests of justice necessitated a new trial on the basis that a "substantial wrong or miscarriage" had occurred.
The Court of Appeal applied the principles governing the admission of further evidence on appeal and the granting of new trials. It emphasised the importance of the principle of finality and the stringent requirements that must be met before a court will exercise its discretion to order a new trial. The Court found that the appellant had not demonstrated that the further evidence would likely have altered the outcome of the original trial, nor that a substantial wrong or miscarriage had occurred. Consequently, the appeal was dismissed.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant pay the respondent's costs of the appeal including the costs of the application to adduce further evidence.
(3) The appellant to lodge written submissions concerning the order sought by the respondent as to payment to him of all or part of the amount provided by way of security for costs before the amount of those costs has been fixed by agreement or order or otherwise. Those submissions to be lodged with the Court and served within 14 days of the date of these orders. The respondent to lodge and serve any response within 7 days thereafter. The Court will then determine what further orders, if any, should be made on the basis of those submissions.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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