Liverpool District Hospital v Doherty

[1991] HCATrans 215

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S31 of 1991

B e t w e e n -

LIVERPOOL DISTRICT HOSPITAL

Applicant

and

GERALDINE MARY DOHERTY as

Administratrix of the Estate of

the Late THOMAS WALKER DOHERTY

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

Liverpool 1 9/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 1991, AT 3.43 PM

Copyright in the High Court of Australia

MR D.I. CASSIDY, QC:  May it please the Court, I appear with

my friend, MR D.J. HIGGS, for the applicant.

(instructed by William K. Chambers)

MR C.T. BARRY:  May it please the Court, I appear with my

learned friend, MR M.L. BRABAZON, for the

respondent. (instructed by McClellands)

MR CASSIDY:  Your Honours, there are two major points that

we would suggest arise in this matter. What I have

done is have prepared a set of typed background

facts, which might I hand up to the Court, annexed

to which is a calculation to show how much is in

issue - it comes to about $180,000 - to show that

it is not a trivial amount. I was not proposing to

take you in any greater detail, unless it is of

assistance, through those background facts.

BRENNAN J:  I think we are familiar with the judgment and

the point that is at issue so, I think, perhaps you

can proceed straight to that, Mr Cassidy.

MR CASSIDY:  Thank you. The substantial points that we

suggest justify leave are what is the proper

approach to the exercise of the discretion of an
appellate court to admit evidence of events

occurring between the date of trial and the hearing of an appeal. Secondly, whether the existence of a

statutory provision such as exists in New South Wales and certain other States to which we will

refer, which itself draws a distinction between

admitting fresh evidence on appeal of matters
occurring before the trial and after the trial and

purports to impose a special condition on the

admission of evidence of the former kind, that is,

events occurring before the trial but leaves a
general discretion in respect of events occurring

after the trial, whether that makes any difference to the general principle that we referred to in 1.

Third: whether the fact that there is already

an appeal before the Court to which the party

seeking to adduce the fresh evidence is the
respondent, makes a difference to the way in which

the discretion should be exercised and, fourth,

whether, really, this is a case for the exercise of

a discretion to admit fresh evidence at all or an

entirely different type of case because here the

fresh evidence had already been adduced by the
appellant in the court below and it was we, the

respondent, who sought to make use of the fresh

evidence, on appeal, for our purposes.

We primarily suggest that there has, within the courts of this country and of England, been a

fairly long history of grappling with and corning to

different conclusions in respect of, at least, the

Liverpool 2 9/8/91

first two of those questions and that it is

appropriate that this Court should cut the Gordian

knot and provide a sensible answer.

GAUDRON J: Is there any case which goes so far as to

suggest that the appeal having fallen away, as it

were, that a court of appeal can go behind a

verdict simply because of events which have

happened subsequently? I mean, I can understand

that they might well be able to do so in a

situation in which there are reasons for the

hearing of an appeal but in this case once the

grounds of appeal were withdrawn or - - -

MR CASSIDY:  They were never withdrawn, Your Honour.

GAUDRON J: Sorry, some were abandoned and some were

unsuccessful, is that right?

MR CASSIDY: During the hearing one, of the grounds of

appeal on contributory negligence was abandoned but

the rest were fought all the way.

GAUDRON J: Yes. This application arises out of your cross

appeal.

MR CASSIDY: It does, Your Honour.

GAUDRON J:  And the only basis of your cross appeal was the

occurrence of events after verdict?

MR CASSIDY: Yes, Your Honour.

DAWSON J:  In other words, you are saying that the death

after verdict was a ground of appeal in itself?

MR CASSIDY:  We contended that the damages were excessive

and grossly excessive because of an event occurring

after the trial, yes.

GAUDRON J:  And you were out of time in making your

application?

MR CASSIDY: Yes, but that did not matter because - well, we

got that leave. We were out of time in making the application because he had died after the time for

appeal. Not very long after it but - - -

GAUDRON J: Yes. Well, that makes it even more peculiar,

does it not? I mean, if you are right, it must be

the case that in any case whilst the period for

appeal is current it is a ground appeal that a

successful plaintiff has died?

MR CASSIDY:  No, we do not put it that high, Your Honour.

We simply say that it is a discretionary matter but

that the discretion miscarried.

Liverpool 9/8/91

DAWSON J: Why is it discretionary? It may be discretionary

to admit the evidence if the damages have to be

reassessed but you have a point to overcome before

you get there, that the appeal should be allowed.

MR CASSIDY: It is always a discretionary matter-to admit

fresh evidence, whether occurring before or after

the trial.

BRENNAN J:  Assumes relevancy.

MR CASSIDY: Assuming it is relevant, yes.

BRENNAN J: Well then, the question is what is the issue to

which it is relevant?

MR CASSIDY:  It was relevant to the calculation of damages.

BRENNAN J: It could not have been. It had not happened at

the time that the damages had to be assessed.

MR CASSIDY: Well, in that sense, it was not but - - -

BRENNAN J: Is that not the relevant sense.

MR CASSIDY:	I suppose what I should have said was that what would have been relevant was if the jury had known
that this man had some condition - there was, of
course, no evidence about this - let us assume it
was grossly occluded coronary arteries that were
going to take him off four months after they considered the matter. That is the evidence that
would have been called and that would have made the
difference; not, of course, that he had died,
because he had not.
Now, there certainly are a large number of cases in which evidence of death and other events
occurring after the trial have been admitted. The
Chief Justice in his judgment below referred to
many of them and he had been referred to others.

DAWSON J:  Is there any case in which it has been allowed as

a successful ground of appeal in itself?

MR CASSIDY: Yes, certainly, Your Honour. In Pridue v

Zeppos, and which I can hand up in a moment, which

was the Court of Appeal decision that they refused

to follow, was one such. Very short and not,

perhaps, the most wonderful of authorities but that

is certainly what happened in it. The particular

passage is at the foot of the first page and the

top of the second. Mccann v Sheppard is another

one and Mccann v Sheppard is quite extraordinary

because there the death even occurred as a result -

was causally connected with the negligence.

Liverpool	9/8/91
GAUDRON J:	Can one go back to Pridue v Zeppos, Mr Cassidy?

Is it clear that if the plaintiff - we will refer to it as the plaintiff for the moment - had survived, the damages would have been excessive?

MR CASSIDY:  They certainly say so there and we would seek

to point out that it is definitely so here also.

GAUDRON J: But you did not have a ground on to that effect,

did you?

MR CASSIDY: That was the ground that we put on.

GAUDRON J:  That was the ground that you put on. Was that

not determined, that question, in this case?

MR CASSIDY:  No. Well, they said they would not take note

of the fact of death.

BRENNAN J: In Pridue v Zeppos there was a concession.

MR CASSIDY: Yes, that is one of the things that weakens it

as an authority.

BRENNAN J:  Weakens it?

MR CASSIDY: Yes, Your Honour, more than somewhat.

BRENNAN J:  More than somewhat.

MR CASSIDY: But I was asked whether there was an example.

BRENNAN J: Yes. Have you anything better? What is your

strongest and best suit of an example?

MR CASSIDY:  Our strongest and best case is the decision in

this Court in Mickelberg v Reg.

GAUDRON J: That is quite a different case.

MR CASSIDY: I know it is a different case.

GAUDRON J: That is a fresh-evidence case. This is a case

of evidence of events between verdict and appeal.

MR CASSIDY: But there are important propositions of general

principle contained in almost all the judgments.

GAUDRON J:  And if the Court of Appeal did not receive the evidence, how could we receive it?

MR CASSIDY:  We are not asking this Court to do so. We are

simply asking this Court to say that the Court of

Appeal was wrong in not doing so.

BRENNAN J:	Show us these important passages, Mr Cassidy.
Liverpool	9/8/91
MR CASSIDY:	I do not have to get into the constitutional

question that was the real question for this Court

in Mickelberg. What I use it for is some of the

expressions of opinion in many of the judgments,

especially of the Chief Justice.

DAWSON J: Just before you turn to that, Mr Cassidy. It is

quite clear, is it not, that you could not

establish that the damages were excessive without

relying on -

MR CASSIDY:  Was that - I misunderstood Justice Gaudron's

questions.

DAWSON J:  No, no, that was not necessarily what

Justice Gaudron - no, she may not have been talking

about that but I am.

MR CASSIDY:  No, Your Honour, I do not know that it was

clear but those instructing me had determined that

it was not worth appealing on, on the ground that

the damages were excessive.

DAWSON J: Apart from the death?

MR CASSIDY: Absent the death. But, Your Honour, we would,

of course, say that given the death, the damages

were grossly excessive enough to attract appellate

intervention.

DAWSON J:	I appreciate that.
MR CASSIDY:	The first passage that I wanted to take from

Mickelberg is in the judgment of the

Chief Justice - I perhaps should say, of course, as

you are obviously all aware, with respect, it was a

criminal case. The primary question was a

constitutional one as to whether there was

jurisdiction in this Court to admit fresh evidence

anyway. But in the course of it there was a

considerable discussion of the way in which the

power to admit fresh evidence had developed and the

way in which the discretion had been exercised.

The Chief Justice at page 267 approached that

question - dealt with it at page 267 point 5,

immediately after the reference to Crouch v Hudson,

down to the top of page 269. The only passage I

would particularly wish to read is the quotation on

page 268 from Barder v Caluori and the rest of that
paragraph:

Lord Brandon of Oakbrook confirmed the existence, without identifying the source of

the power, in Barder v Caluori.

Liverpool 6 9/8/91

"In appeals from the High Court to the Court

of Appeal, and from the Court of Appeal to

your Lordships' House, there is a discretion

to admit evidence relating to supervening

events where refusal to admit it would plainly

cause serious injustice."

His Lordship was speaking in relation to the occurrence of a supervening event which

invalidates an assumption or estimate -

I emphasize the words "or estimate" -

made at the time of the hearing of a matter.

In particular, the calculation of damages may

be based upon an assumption which is

invalidated or falsified by subsequent events.

That is a special situation because the court below has made an assumption or estimate as to a specific matter which has later been proved

to have been erroneous. The principle that

justice requires cases to be decided as far as
practicable upon the basis of actual facts,
rather than assumptions or estimates in
relation to those facts and subsequently found
to be incorrect, may require such cases to be

treated differently, as suggested by

Lord Brandon.

Now, that, I think, is probably the strongest

expression of opinion I can extract from anywhere,

at least anywhere in this country.

DAWSON J: But the estimate here, if there was an estimate,

was not invalidated or falsified by subsequent

events.

MR CASSIDY: Well, we would say that it was, Your Honour,

that the estimate as demonstrated by the amount

that was awarded for future economic loss and

future general damages and as read in the light of

the limited reference in the summing up to the

multiplier and the working life ahead of the

plaintiff, was such as to be quite invalid if the

jury had known that this man was going to die four

months down the track.

DAWSON J:  The jury were told, "He might die tomorrow, he

might die" - I do not know what the reliable
estimates were in this case - that, "He might go on
for some time. Well now, you have just got to make

the best of that that you can in assessing the

vicissitudes of life", and they did it and the mere

fact that something at one extreme happened rather

than at the other does not invalidate the estimate

or the assessment.

Liverpool 7 9/8/91

MR CASSIDY:  We must say that it does invalidate the

estimate.	Not in the same way as calling evidence
of - - -

DAWSON J:  They were not estimating that he would go on for

any length of time at all, they were arr1ving at a

figure for the vicissitudes of life and that figure

remains true and correct, if it was in the first

place, no matter what happened.

MR CASSIDY:  I appreciate Your Honour's point of view but

what we simply say is that because there is such a

violent difference between the figure that they

found and what would have been the case had they

known that he was going to die in four months, then

their estimate or judgment, or whatever you like to

call it, is wrong. Now, I can say no more about it

than that.

There are later passages in Mickelberg to

which I would also refer. Page 273, the

Chief Justice discusses the appropriate test to be
applied when deciding whether to set aside a
conviction on the ground of fresh evidence, and he
says, again, at point 5:

It is established that the proper question is whether the court considers that there is a

significant possibility that the jury, acting

reasonably, would have acquitted the appellant

had the fresh evidence been before it at the

trial. This was endorsed by four of the five

Justices in Gallagher v The Queen. Deane J

and I considered that the test was.best

expressed in those terms. Gibbs CJ expressed

his substantial agreement with the statement,

although his Honour emphasized that "no form

of words should be regarded as an incantation

that will resolve the difficulties of every

case". Dawson J said that the court would

need to conclude that "a jury might entertain

a reasonable doubt about the guilt of the

appellant". His Honour went on to say that in

his view the use of the expression

"significant possibility" did not involve a different standard. I am in agreement with

those statements. We were not asked to

reconsider the correctness of the decision in

Gallagher.

Now, making an allowance for the difference in onus

of proof between a criminal and a civil case, of course, and, again, hoping that I have satisfied

Your Honour about the question of estimate, without much hope, we would submit that we get well past

the winning post on that test here.

Liverpool 8 9/8/91

GAUDRON J: Except though, it is not a test that is really

appropriate, is it, because the fresh-evidence test

that is there being referred to is evidence of

matters that could have been proved at the trial,

whereas here you are talking about later events.

MR CASSIDY:  I take that point, Your Honour, and I

GAUDRON J:  And if you are not talking about later events, the section has got nothing to do with it. If you

put your evidence in terms of, "We should be able

to call evidence that he would have died within six

months of the trial date" or something like that,

then you are talking about fresh evidence about

which the subsection is silent.

MR CASSIDY:  Your Honour is, of course, quite correct but I

suppose what I was meaning to say was if that is

the test for evidence that was available at the

date of trial, for evidence of past events, then it

cannot be a tougher test than that one for evidence

of events that occurred after the trial.

GAUDRON:  I do not think that follows at all, Mr Cassidy,

particularly when the period for repeal has

expired, when the supervening events - I mean, you

are weighing up, in this situation, the finality of

a verdict which is otherwise unimpeached and

unimpeachable.

MR CASSIDY: Well, there is one point - and I had not yet

really come to this - and that is, of course, that

the appellant - we being the cross-appellant -

herself was attempting to overturn it on different

grounds. I was about to say that Mr Justice

Brennan said much the same thing as the passage I

have just read from the Chief Justice at page 275,

and I then, I think, wanted to come to some of the

examples given by Mr Justice Deane who was, of

course, in dissent on the constitutional question.

But at page 281, he said, at point 5:

If, for example, the court below had held

that, on the evidence of the particular facts

before it, an Act purporting to regulate a

particular aspect of interstate trade was

invalid by reason of contravention of s. 92,

it would border on the absurd for this Court,
as the final appellate court of the nation, to

be powerless to receive or take account of

further evidence showing that the material

before the Supreme Court was misleading or

simply wrong. Another example is an appeal

from a mistaken refusal, on discretionary

grounds, to grant injunctive relief. It would

border on the unreal if, in such a case, the

Court were unable to take account (on the

Liverpool 9 9/8/91

defendant's cross-contention) of the existence
of fresh evidence of facts which, for reasons

beyond the defendant's control, precluded

compliance with the injunction which should	have been granted on the material before the
court below. It can scarcely be suggested
that, in such a case, the Court should close its eyes to evidence of reality and solemnly
order that the defendant, under pain of
contempt of court, perform the impossible.
Yet another example is an appeal to this Court from the order of a Full Court which
mistakenly confirmed what was, on the material before the Full Court, an inadequate award of
a pecuniary legacy under testator's family
maintenance legislation. It would be to
affront justice and common sense if, on such
an appeal, the Court was constrained to increase the amount of the legacy by an amount
in excess of the true value of the whole estate by reason of inability to receive or
take account of evidence that, after the
proceedings had concluded in the court below,
the main putative asset of the estate had been
found to belong to someone else. The case
would be even a fortiori if the Court was unable to receive or take account of evidence
that the "deceased" had, after the hearing in
the court below, been found, with memory gone but still alive.

Now, we would submit that in this case that it is

just as ridiculous; that the jury having, from the

size of its verdict, approached the matter on the

basis that the deceased had a substantial period to

live, and it now appearing that that was not so.

An example in which just that was done,

although not a damages case, is the English case of

Barder v Caluori, (1988) AC 20. I was not going to

read anything from it to the Court but merely to

point out that in that case death occurred after	the time for appeal had expired. There was a
necessity for an application for leave to appeal
out of time. The wife had been given custody of the children, I think, and been given the
matrimonial home and she committed suicide and the
matrimonial home was taken from her or from her
estate on the basis that there had been a complete change in the circumstances.

Now, what is the difference between that and a

case of damages?	We would submit that there is
none in principle.	Now, certainly, it is a matter

of degree, we would accept that, but what we say is the degree here is such as shown by the size of the

verdict by comparison with what would have been

Liverpool 10 9/8/91

proper had it been known how long the man was going

to live, that it comes on that side where it

becomes unreal to allow the verdict to stand.

Mccann v Sheppard, (1973) 1 WLR 340 is a

damages case in which the plaintiff died-pending

appeal and there was an express finding in that

case that the judgment would have been reasonable

had he not died. In it, the words "it would be an

affront to common sense if we shut our eyes to the

death" were used. The particular interest of that

one is that the death was from a drug overdose and

the plaintiff's injuries consisted primarily of

psychiatric injuries and it seemed to be very
probable that his death was causally connected with

the injuries, whereas, in this case, it was, of

course, conceded that the death was quite

unconnected.

Curwen v James, (1963) 1 WLR 748, another English case, much earlier, was a Lord Campbell Act

in which the widow remarried shortly after the

trial. It was not a case in which she had sworn

she had no intention of remarrying and no one

waiting for her because she had broken down and her

cross-examiner had not finished her evidence and

the cross-examination had stopped in mid-stream

apparently. But, again, in that case the evidence

was allowed.

The other strong case on which we would rely

for the question of principle is the New South

Wales case of Radnedge v Government Insurance

Office, 9 NSWLR 235.	We have had that one taken
out for Your Honours.	Mr Justice Kirby gave the

dissenting judgment and he it is upon whom we rely.

He took the view, which we would support, that the effect of the two subsections in section 75A of the

Supreme Court Act to which the Chief Justice

referred in this case at page 19 and 20 of the

application book - - -

BRENNAN J: But this is a case where the judgment on which

you are relying is the dissenting judgment, is it

not?

MR CASSIDY: Yes.

BRENNAN J: So, it is a case, really, against you.

MR CASSIDY: Yes, but we would adopt the reasoning of

Mr Justice Kirby and we would suggest that if we

get leave the High Court would probably

follow - - -

GAUDRON J:  Was that the subject of an application for special leave to appeal? It does not say so here

Liverpool 11 9/8/91

but I recollect one case on this section has been

the subject of an unsuccessful application.

MR CASSIDY: That question was asked in the course of

argument in the Court of Appeal and none of us knew

and I still do not know, I am afraid.

BRENNAN J: That is rather a shame, is it not, that you do

not know because it would be, one would have

thought, quite important.

MR CASSIDY: Yes, it would be. There is no suggestion on

the - it quite often is printed at the foot of the

page in the law report that an application has been

made.

BRENNAN J: Yes. Well, you were going to say that you

preferred Justice Kirby's judgment.

MR CASSIDY: That leads me to - what we suggest is that

because there are the two subsections in the New

South Wales Supreme Court Act, the one,

subsection (8) which says:

where the appeal is from a judgment after a

trial or hearing on the merits, the Court

shall not receive further evidence except on

special grounds.

And subsection (9) which says:

Subsection (8) does not apply to evidence

concerning matters occurring after the trial

or hearing.

That the test to be applied to evidence occurring

after the trial must be a more relaxed one which

does not contain any element of special grounds

than that to be applied to evidence occurring

before the hearing.

On the question of the importance of this

appeal, we would wish to draw attention to the fact

that there are provisions to similar effect,

although their method of putting it is quite
different, in South Australia, Western Australia

and Queensland which we have set out there. I have

pasted them up from reported cases from each of

those jurisdictions.	The references to those cases
are there.

There is a difference of opinion between the

courts in those States as to what is the
appropriate approach. In addition, the
Federal Court - - -

Liverpool 12 9/8/91

BRENNAN J:  When you say there is a difference in approach,

do you say that the principle that is in issue in

this case has been addressed by the supreme courts

of other States and that divergent opinions have

been expressed?

MR CASSIDY:  Yes.

BRENNAN J: Well, if that were made good, that proposition,

it might support your case but it is not really

made good by reference to some names.

MR CASSIDY:  It is certainly not, Your Honour. I have not

had printed the whole of the judgments in those

matters. I have the reports here. The South

Australian case, Peterhaensel v Woodman, makes it

clear that - - -

BRENNAN J: If you find a case in which evidence of

supervening events has been admitted with reference

to a head of damages which is a subject of

estimation at the trial, there being no other basis

for challenging the assessment of the damages.

MR CASSIDY: Well, Peterhaensel v Woodman, (1957) SASR 375,

concerned an appeal by the plaintiff from a

judgment for $50,000 on the ground of inadequacy. The claim was for leave to give fresh evidence as to his personal circumstances and plans for the

future.	The further evidence - I am reading from
page 334:

It appears that as a result of the

accident in question the appellant became a

permanent quadriplegic. At the trial the

plaintiff said that he was hoping to marry

the witness Margaret Anne Willsmore, a trainee

nurse. She said in evidence that she hoped

that one day they would be able to get

married, but that would not be possible until

she had finished her training.	The learned
Judge, however, seems to have regarded these

proposals as definite and he assessed the

damages on the basis that the marriage would

take place and that the appellant would be

looked after by his wife in a house which

would require special features and be cared

for by her and that she would be able to

combine this with part-time employment.

The appellant's affidavit says that he

has not seen Miss Willsmore since

26th December, 1970 and that he does not now

intend to marry her or to see her again.

Liverpool 13 9/8/91

BRENNAN J:	Now, this is under a section which provides, with reference expressly to supervening matters,
that on:

appeals from a judgment after trial or hearing

of any cause or matter ..... Such further

evidence (save as to matters subsequent as

aforesaid) shall be admitted on special

grounds only and not without special leave of

the Court.

MR CASSIDY: Yes, Your Honour.

BRENNAN J:  So that there is a right in South Australia to

adduce this evidence.

MR CASSIDY:  As there is in New South Wales, Your Honour, we

would suggest, under section 75A.

BRENNAN J: Well, that may be your suggestion but it is not

expressed as it is in South Australia.

MR CASSIDY: Well, the distinction drawn between

subsection (8) and subsection (9) in New South

Wales does express just that difference.	The one
says:

where the appeal is from a judgment after a

trial or hearing on the merits, the Court

shall not receive further evidence except on

special grounds.

The next subsection goes on to say, that:

Subsection (8) does not apply to evidence

concerning matters occurring after the trial

or hearing.

It is set out on page 20 of the application book at

lines 28 to 32.

GAUDRON J: While you are interrupted, Mr Cassidy, was the

argument in Peterhaensel that the damages were

inadequate because he was not going to marry the

lady?

MR CASSIDY: Yes.

GAUDRON J:  And that was the only ground?

MR CASSIDY: Yes, Your Honour.

GAUDRON J:  I would have thought it might have been more if

they were going to marry.

MR CASSIDY:  Your Honour means on the basis that she could

not have been a very nice lady?

Liverpool 14 9/8/91

GAUDRON J:  No, no, I am thinking only of the recent

decisions which suggest that special provision

should be made for private accommodation in those

circumstances as distinct from in circumstances

where the - - -

MR CASSIDY:  A Griffiths v Kerkemeyer sort of point,

Your Honour?

GAUDRON J: Yes.

MR CASSIDY:  1972, Griffiths v Kerkemeyer. It may have

preceded Griffiths v Kerkemeyer.

GAUDRON J: That is beside the point. I mean it does not

affect what you say.

MR CASSIDY:	Yes.
BRENNAN J:	Mr Cassidy, perhaps I read only one sentence

from Order 58 rule 15 of South Australia but the

preceding sentence is:

Such further evidence may be given without

special leave upon interlocutory applications,

or in any case as to matters which have

occurred after the date of the decision from

which the appeal is brought.

Now, so far as I can see, the New South Wales

provision does not contain any such provision as

that.

MR CASSIDY:  I see what Your Honour means.

BRENNAN J: In other words, there is an express statutory

power to receive the evidence in South Australia,

and then the last sentence of the order which bears

at least a passing reference to (8) and (9) of the

New South Wales provisions can be seen.

MR CASSIDY:  But what about the last sentence of the

South Australian order:

Upon appeals from a judgment after trial or

hearing of any cause or matter upon the

merits, such further evidence (save as to

matters subsequent as aforesaid) shall be

admitted on special grounds only -

That, we would submit, is identical in effect. It

is differently expressed in words, certainly, to

the the pair of New South Wales subsections:

special grounds for evidence before the trial;	no
need to prove special grounds for evidence of
events after the trial.

Liverpool 15 9/8/91

BRENNAN J:	Be it so.
MR CASSIDY:	I must be being dense.

BRENNAN J: No, no, not at all. There is a correspondence

between that last sentence in South Australia and

subsections (8) and (9) of the New South Wales Act.

There is no provision of the New South Wales Act, so far as I can see, which corresponds with the

sentence anterior to that in South Australia. It

is the middle sentence:

Such further evidence may be given ..... in any

case as to matters which have occurred after

the date of the decision from which the appeal

is brought.

That concludes it for South Australia, does it not?

MR CASSIDY: 

No. Well, Your Honour, the purpose of the

preceding section, as I understand it, is to
require you to make a special interlocutory

application in the one case, in the particular case

where you are going to need to show special

grounds, but allow you to do it without any

formality in the case where you do not need to

prove special grounds.

BRENNAN J: Yes.

MR CASSIDY:  And the New South Wales rules certainly contain

a provision. My learned junior points out that

subsection (7) of the New South Wales Act creates

the power to receive further evidence, and the New

South Wales rules certainly make provision as to

how you go about it and they require, I think

probably in all cases from my recollection, that

you have got to do it on motion, you cannot just

suddenly turn up in the Court of Appeal with an

affidavit and hope to read it, and that was what

was done in this case.

We would, with respect, read that second-last

sentence as providing the power and controlling the

procedure for the admission of fresh evidence in

both cases, and the last sentence as giving an

unfettered discretion in respect of post-trial

evidence but a discretion subject to showing

special grounds in respect of the other.

BRENNAN J:  Mr Cassidy, do either of those other two cases

there support the submission which you are now

making?

MR CASSIDY:  One of them, the West Australian one,

c.w. Melrose v Negus, (1967) WAR 119, is not an

example of the kind of case we are dealing with.

Liverpool 16 9/8/91

We have put it on the list - it was an arbitration

case. We have referred to it solely because it

discusses the general question but I cannot say

that it is a case which helps me on the point that

is worrying the Court at the moment.

The Queensland case of Hawkins v Pender Bros

Pty Ltd, (1990) 1 Qd R 135, is likewise not a personal injury case, it is a contract case and, again, I do not think it assists on the point on which I am at the moment addressing you.

Apart from that one and the New South Wales

cases and the English cases to which I have

referred, we would say that that is a fairly

substantial number of cases in which this type of

evidence has been admitted and we would say that

there is therefore at least a dispute to be

discerned in Australia, the majority in Radnedge in

New South Wales and the approach adopted in South

Australia in that case.

Perhaps I might read a little more from the

South Australian case. After quoting the rule, the

Chief Justice went on to say, at page 335:

It will be noted that further evidence as

to matters which have occurred after the date

of the decision under appeal is singled out

for special treatment. The Court has a

discretion to receive it, but, unlike further
evidence as to matters occurring before the

date of the decision, its admission is not

dependent on special grounds or special leave.

It appears from the decisions to which

reference will be made later that the English

rule from which our rule was copied has been

in existence since 1883 but it does not seem

to have attracted much attention until recent

years. It may be added that Order 58 rule 6

provides that all appeals to the Full Court

shall be by way of rehearing.

And then he refers to the West Australian case:

In c.w. Melrose & Co v Negus, Virtue J

held that the admission of evidence of

subsequent facts on appeal was to be governed

by the same principles as those applicable to an ordinary application for a new trial based

on the discovery of fresh evidence.

GAUDRON J: But in this case - this is what I am having some

difficulty understanding - was the happening of the

supervening event the precise ground of appeal?

Liverpool 17 9/8/91

MR CASSIDY: Well, it is not set out how the ground of

appeal was going to be phrased in the notice of

appeal but one would - yes, Mr Justice Bray says at

the beginning of the judgment:

It is claimed that the award was manifestly

inadequate and several more specific

criticisms are set out in the notice of

appeal.

So, there was a general appeal on the ground of

inadequacy which is what we had and there was

presumably some particularization of that either by

way of additional grounds or by way of subgrounds

that the planned marriage and care had fallen

through.

GAUDRON J: Yes, but it does not follow that the damages

were said to be inadequate simply because the

planned marriage had fallen through.

MR CASSIDY:  No, $50,000 for a quadriplegic, even in 1971,

might have been thought to be a little light.

GAUDRON J: That was the verdict, was it?

MR CASSIDY: Yes, it was.

GAUDRON J: Yes. Well, I think that answers -

MR CASSIDY: Sorry, general damages, $50,000. But we would

suggest it makes no difference that the award was

inadequate on general considerations unless, of

course - if the Court of Appeal decides it is going

to allow the appeal anyway and it decides that it

is going to reassess the damages, then it is not

trammelled by any of these considerations when it

lets in evidence of events occurring - of the death

of the plaintiff after the trial.

BRENNAN J:  Now, I think we understand the point,

Mr Cassidy. What else do you have to say to

support it?

MR CASSIDY:  I have no more to put than I have.

BRENNAN J: Thank you. We need not trouble you, Mr Barry.

MR BARRY:  May it please the Court.

BRENNAN J: There is insufficient reason to doubt the

correctness of the decision of the Court of Appeal

to warrant the grant of special leave.

Accordingly, special leave will be refused.

MR BARRY:  We seek our costs, Your Honour.

Liverpool 18 9/8/91

BRENNAN J:  Have you anything to say about costs,

Mr Cassidy?

MR CASSIDY:  No, Your Honour.

BRENNAN J: It will be refused with costs.

AT 4.34 PM THE MATTER WAS ADJOURNED SINE DIE

Liverpool 19 9/8/91