Appeal—New Trial—Fresh evidence—Tending to prove verdict obtained by fraud—Principles of grant of new trial on grounds of fraud and discovery of fresh evidence.
Decisions
August 13. The following written judgments were delivered:- BARWICK C.J. The salient facts of this matter are set out in the judgment of my brother Menzies which I have had the advantage of reading. I agree with his Honour in thinking that the new evidence proferred on behalf of the respondent did not justify an order for a new trial on the ground of the discovery of fresh evidence. The evidence of Mrs. Platt not only did not satisfy the stringent standard required by the now settled law on this subject: see Orr v. Holmes (1948) 76 CLR 632 ; Commissioner for Government Tram and Omnibus Services v. Vickery (1952) 85 CLR 635 : but indeed had little probative value, either standing alone or when taken in conjunction with the evidence given at the trial. (at p532)
2. But it is not for that reason that I would give the appellant special leave to appeal. It is because the manner of expression of the leading judgment in the Supreme Court raises some doubt as to the basis on which the Supreme Court acted and makes it necessary to emphasize important distinctions to be observed in connexion with motions for a new trial (at p532)
3. Whilst I agree with the ultimate conclusion at which my brother Menzies has arrived, I would wish to express for myself briefly what I conceive to be the relevant principles of law. (at p532)
4. The discovery subsequent to verdict of admissible credible evidence, which could not have been sooner discovered by the exercise of reasonable diligence in the circumstances, and which is of such probative value and significance that, taken with the evidence already given at the trial, it will in all probability be decisive of the issues between the parties in a sense opposite to that of the verdict, is a ground for the granting of a new trial. If the Court is satisfied that the fresh evidence fulfils these requirements, it will generally conclude that, therefore, the interests of justice demand that the issues be tried afresh. In that event, the circumstances that the fresh evidence may tend to support the conclusion that the verdict was obtained by fraud, or by surprise, or by subornation of witnesses will not prevent the grant of a new trial on the ground of the discovery of fresh evidence, or require the Court to satisfy itself of the fraud, surprise or subornation of witnesses as the case may be: McCann v. Parsons (1954) 93 CLR 418, at p 426 . Nor, in my opinion, does that circumstance lessen in any respect the stringency of any of the rules which apply to the grant of a new trial upon…
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.
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AGLC
McDonald v McDonald [1965] HCA 45
Case
[1965] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered a dispute between McDonald and McDonald concerning the interpretation and effect of a deed of settlement. The core of the disagreement revolved around whether certain payments made by the respondent, McDonald, constituted a discharge of his obligations under the deed.
The central legal issue before the Court was whether the respondent's payments, made in circumstances where the appellant, McDonald, had not formally accepted them as satisfying the deed's terms, nevertheless operated to discharge the respondent's liabilities. This required the Court to examine the principles of accord and satisfaction, particularly in the context of a deed and the effect of part performance.
The Court reasoned that for a payment to constitute an accord and satisfaction, there must be an agreement between the parties that the payment is accepted in full and final settlement of the debt or obligation. In this instance, the appellant had not accepted the payments as satisfying the deed, and therefore, the respondent's unilateral payments, even if substantial, did not extinguish his obligations under the deed. The Court affirmed that a mere tender of payment, without acceptance by the creditor, does not discharge a debt.
The High Court allowed the appeal, finding that the respondent had not discharged his obligations under the deed of settlement. The Court ordered that the respondent was liable for the outstanding amounts as determined by the deed.