Availability and character of evidence-Credibility of plaintiff and defendant- Influence on result-Misled-Third party, but not plaintiff or defendant- SYDNEY,

Authorized insurer-Liability-Power of court-Motor Vehicles (Third Party Sept. 6;

Insurance) Act 1942-1951 (N.S.W.).

Where a verdict results in an enforceable liability against an authorized insurer who defends in the name of the party on the record within the meaning of the Motor Vehicle (Third Party Insurance) Act 1942-1951 (N.S.W.) in con- sidering whether a new trial should be granted on the ground of the discovery of fresh evidence the Court may take into account the true legal effect of the verdict and the reality of the proceedings, which reduce the party on the record to a nominal defendant, although he cannot be treated as a complete stranger to the litigation. For the purpose of deciding whether a trial has miscarried or a verdict should be set aside and the action retried, it was held upon the facts of the case that the question was whether the insurer, not the nominal defendant, discovered fresh evidence; exercised reasonable diligence in preparing for the trial fell a victim to a contrivance, stratagem or deception; or was aware of the truth or was deceived.

When considering a motion for a new trial on the ground of discovery of fresh evidence, it is proper for the Court to act upon the depositions of evidence given before a magistrate if such depositions are likely to give the Court an opportunity of judging of the effect of the testimony which can be called and of the case which can be made.

Decision of the Supreme Court of New South Wales (Full Court), reversed.

93 CLR 419

APPEAL from the Supreme Court of New South Wales.

This was an appeal brought in the name of Albert Allan McCann by the Government Insurance Office, which had issued a third-party policy in respect of McCann's motor car, against the decision of the Full Court of the Supreme Court of New South Wales refusing to grant a new trial generally in an action for damages in which Norma Joan Parsons was the plaintiff and McCann was the defendant.

The plaintiff claimed damages for injuries sustained by her, including the loss of her right arm, as the result of McCann's alleged negligence in the management of his motor car.

The jury awarded the plaintiff the sum of £20,000. Before an appeal by the defendant against the verdict and assess- ment came on to be heard, both he and the plaintiff were charged with conspiracy based on the allegation that at the time of the accident the plaintiff and not the defendant was driving the motor car. A boy gave evidence to that effect. They were committed for trial. The Attorney-General decided not to file an indictment charging both of them with conspiracy but to indict McCann for false pretences. McCann was…

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 McCann v Parsons

Details

AGLC: McCann v Parsons [1954] HCA 70
Case: [1954] HCA 70
Decision Date: 29 November 1954

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appeal concerned an action for damages for personal injuries brought by Norma Joan Parsons (the plaintiff) against Albert Allan McCann (the defendant). The plaintiff had been awarded £20,000 in damages by a jury, but the Supreme Court subsequently ordered a new trial limited to the assessment of damages, refusing a new trial on the issue of liability. The appeal to the High Court was brought in the name of McCann, but was funded and prosecuted by the Government Insurance Office, the authorized insurer of McCann's motor vehicle.

The central legal issue before the High Court was whether a new trial on the issue of liability should be granted on the ground of the discovery of fresh evidence. This fresh evidence, primarily consisting of the testimony of a young boy, suggested that the plaintiff, rather than the defendant, was driving the car at the time of the accident. The Supreme Court had refused a general new trial, partly due to the manner in which the fresh evidence was presented and its perceived lack of cogency, and also because the defendant himself was aware of the alleged deception.

The High Court reasoned that in circumstances where an authorized insurer defends an action in the name of the insured party, the court should consider the reality of the proceedings and the insurer's position. The insurer, not the nominal defendant, was the party misled by the alleged deception and the party who discovered the fresh evidence. Therefore, the court held that the insurer's diligence, any deception it fell victim to, and its knowledge of the truth were the relevant considerations for granting a new trial, rather than the nominal defendant's knowledge. The Court found that the fresh evidence, despite criticisms of its probative value and the acquittal of the defendant on a related charge, was sufficiently significant to warrant a reconsideration of liability.

The High Court allowed the appeal, discharged the order of the Supreme Court, and ordered that the application to amend the notice of motion to include the ground of fresh evidence be allowed. Consequently, the verdict was wholly set aside, and a new trial was ordered generally on all issues. The costs of the appeal to the Supreme Court and the former trial were to abide the event of the new trial, while the respondent was ordered to pay the costs of the High Court appeal, with a stay of execution pending the retrial.

Orders