McDonald v McDonald

[1965] HCA 45

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Taylor, Menzies and Windeyer JJ.

McDONALD v. McDONALD

(1965) 113 CLR 529

13 August 1965

Appeal

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 the ground of the discovery of fresh evidence. The fresh evidence, though it suggests fraud, surprise or subornation of witnesses, must yet fully satisfy all the criteria laid down with respect to fresh evidence warranting a new trial although it may be that, in some cases, the tendency of the evidence to show fraud may make it more likely to be conclusive. In my opinion, it would be a misreading of Lord Buckmaster's speech in Hip Foong Hong v. H. Neotia &Co. (1918) AC 888, at p 894 to conclude otherwise. (at p533)

5. But if the fresh evidence does not satisfy all these requirements so that a new trial could not be ordered on the basis of the discovery of fresh evidence, but does tend to establish that the verdict was obtained by fraud or by surprise or that there has been subornation of witnesses, the Court may grant a new trial upon a motion therefor, though a separate proceeding is clearly the preferable course, if the Court itself, on a trial of such issues, finds the fact of the fraud, the surprise or the subornation of witnesses, as the case may be, to be proved to its reasonable satisfaction: Hip Foong Hong v. H. Neotia &Co. (1918) AC 888 ; Jonesco v. Beard (4). It is not necessary in that event that the evidence of the fraud, the surprise or the subornation, though it should be "fresh", should be evidence which would be admissible on the issues between the parties in the action; or that it should be found to be probably conclusive of those issues. The Court's conclusion upon the fresh evidence before it that the verdict was obtained by fraud, by surprise or that witnesses were suborned, is sufficient to justify setting aside the verdict and ordering a new trial. Whether or not the Court does so must finally depend on the Court's view as to whether or not the interests of justice, either particularly in relation to the parties or generally in relation to the administration of justice, require such a course. So much, I think, is definitely established by the authorities to which I have referred. (at p533)

6. The reasons given by the leading judgment in the Supreme Court for granting a new trial in this case might possibly be read as tending to suggest that a new trial may be granted where there merely is evidence, as distinct from a finding, of fraud in obtaining the verdict, even though that evidence may not fully satisfy the rules to which I have referred governing the grant of a new trial upon the ground of the discovery of fresh evidence, or it might be read as suggesting that because in the Court's opinion it pointed to fraud, it did not need to be found that it would probably be conclusive of the issues between the parties. But, in my opinion, either view would be erroneous. (at p534)

7. However, upon a close reading of the reasons for judgment to which I have referred, I agree with my brother Menzies in concluding that the ground upon which the Supreme Court really acted in this case was the discovery of fresh evidence. The Court thought, erroneously as I think, that the evidence of Mrs. Platt and the circumstances of its discovery satisfied the requirements of the relevant rules of law. The references to fraud and conspiracy in the judgment in themselves gave no ground for the course taken by the Court. I would regard them as doing no more than adding emphasis to the Court's acceptance of the fresh evidence as probably conclusive of the issues between the parties. On this reading of them they really added nothing to the reasons for judgment. It is, therefore, unnecessary for me to examine the question whether the Court was justified in thinking that Mrs. Platt's evidence pointed to fraud or conspiracy. The Court did not find fraud or conspiracy: it plainly could not do so for it did not try those issues. (at p534)

8. I would grant special leave to appeal, and allow the appeal. (at p534)

KITTO J. I am of the same opinion and have nothing to add. (at p534)

TAYLOR J. In my opinion special leave to appeal should be granted in this matter and the appeal allowed. I have reached this conclusion because it seems to me that the order for a new trial which, by majority, the Full Court saw fit to make, proceeded upon a misapprehension of the principles upon which an appellate court deals with applications for new trials upon the ground that fresh evidence has been discovered. (at p534)

2. The relevant facts are set out in the reasons of Menzies J. and I do not repeat them. From the reasons adopted by the majority it seems that they considered that the fresh evidence which was adduced before them tended to establish that the respondent had been guilty of fraud in the presentation of his case at the trial. In the leading judgment the observation was made that: "If this evidence which appears to be true and in my view is presumably to be believed is accepted then the defendant has been guilty of a fraud on the Court. He gave positive evidence that Mr. Moloney was present at the incident when he must have known very well that he was not and he allowed Mr. Moloney to be called and to give evidence which he very well knew to be false". Later it was said: "Here there can be no doubt that if Mr. Moloney was a dishonest witness, the defendant was involved in it, because he said quite clearly that he was there at the time and he called him as a witness. In Meek v. Fleming (1961) 2 QB 366 the deception at the trial was admitted. Here it is not, and the question is - What degree of proof should there be in order to warrant a new trial?" Intervening between these two passages are citations from several cases including the first paragraph of the head-note in Hip Foong Hong v. H. Neotia &Co. (1918) AC 888 which reads as follows: "To obtain a new trial upon the ground that fresh evidence has been discovered, if no charge of fraud or surprise is brought forward, it must be shown that the fresh evidence would be conclusive; but that consideration does not apply to a case of surprise, much less to one of fraud. If a judgment is affected by fraudulent conduct it must be set aside". To me it seems that their Honours misinterpreted the opening words and the second part of this paragraph and read them as a qualification of the primary statement of the principles upon which a new trial will be directed on the ground that fresh evidence has been discovered, whereas it is apparent from p. 894 of the report that when their Lordships spoke of "a judgment that is tainted and affected by fraudulent conduct" and added that such a judgment "is tainted throughout and the whole must fail", they were speaking of cases where fraud is both alleged and affirmatively proved and they were merely excluding such a case from the application of the rule which they had just formulated. Consistently with authority that case made it clear beyond doubt that a judgment will be set aside on the ground of fraud only after an affirmative finding of the fraud alleged (see Flower v. Lloyd (1877) 6 ChD 297 and Jonesco v. Beard (1930) AC 298 ). Indeed, an application to set aside a judgment on the ground of fraud is not, in substance, an appeal in the strict sense at all but an independent proceeding in which the party complaining carries the onus of establishing the fraud alleged and he will fail unless this onus is discharged (Cabassi v. Vila (1940) 64 CLR 130, at p 147 ). (at p535)

3. However, this was not a case in which the plaintiff in the action sought to set aside the judgment on the ground of fraud. It was simply an application to set the judgment aside on the ground that fresh evidence had been discovered and the principles upon which an appellate court should act in such cases have been fully stated time and time again. In Orr v. Holmes (1948) 76 CLR 632 it was said that: "The rule stated in Chitty's Practice was that if new evidence discovered after the trial is such as to satisfy the court that if the party had had it at the trial he must have had a verdict, the court will grant a new trial on the payment of costs in order to do justice between the parties. Variations of phraseology occur in later cases but however it is expressed the sense of the rule remains that the new evidence must have so high a probative value with reference to an issue essential to the cause of action or defence as the case may be that it cannot reasonably be supposed that had the evidence been adduced the issue would not have been found for the party seeking the new trial" (1948) 76 CLR, at p 641 . (at p536)

4. To my mind this rule applies without distinction in all cases in which a new trial is sought simply on the ground that fresh evidence has been discovered. Such fresh evidence must, of course, be relevant to an issue determined at the trial and it may be that such evidence may at the same time tend to establish that the successful party at the trial was guilty of fraud. For instance, it may tend to establish that an essential document relied upon by that party was to his knowledge a forgery. But without an affirmative finding to this effect the judgment cannot be set aside on the ground of fraud. But it can be set aside on the ground of the discovery of fresh evidence although the facts which it tends to establish are indicative of fraud on the part of that party. However in such a case the principle to be applied is unaffected by that circumstance. Nevertheless it is of significance in applying that principle for if, in relation to an issue relevant to the determination of the case, there has been fraud on the part of the successful party there can be little, if any, room for doubt that if the evidence had been produced at the trial, and accepted, the trial would have concluded in favour of the party producing that evidence. In such a case, therefore, the significant question is not so much whether the evidence, if believed, would have led to that result but rather whether the fresh evidence is of such probative force as to enable it to be said that if it had been produced at the trial it could not reasonably be supposed that "the issue would not have been found for the party seeking the new trial" (1948) 76 CLR, at p 641 . This view is, I think, implicit in the observation in McCann v. Parsons (1954) 93 CLR 418 : "So clear is it that fraud may be comprised in the ground consisting in the discovery of fresh evidence that a distinction is taken, depending on its presence, of the degree of probative force which the fresh evidence may have upon the relevant facts in issue" (1954) 93 CLR, at pp 427,428 . (at p537)

5. In the course of their reasoning the majority, in the passages to which I have referred, were concerned not only to see if the fresh evidence tended to establish that false evidence had been given by Moloney at the trial but whether it also tended to show that the appellant had conspired with Moloney to produce that evidence. They concluded that it tended to prove both these matters but, of course, since there was no trial of these issues there was not and could not have been any affirmative finding to that effect. But, with respect for the views of the learned judges who constituted the majority of the Full Court, I am satisfied that the fresh evidence was not of such a character as to justify the inference that the respondent had been guilty of fraud and a finding to that effect based upon such evidence would, in my view, be quite unreasonable. The question remains, however, whether notwithstanding this conclusion the fresh evidence was of such a character as to justify an order for a new trial. I have no doubt that it was not; it was evidence on the fringe of the case, it was insubstantial and, even if accepted, would not preclude the conclusion that Moloney was present on the occasion in question. In no respect does it measure up to the required standard. (at p537)

MENZIES J. This appeal, which was instituted as of right, cannot be determined without special leave, but because, as will be seen, an important question of law is involved, I think we should grant the application for special leave which was made at the hearing, notwithstanding the trifling damages that the defendant could be expected to have to pay were the plaintiff's action, arising out of a back-yard dispute, to succeed. (at p537)

2. The respondent brought an action against the appellant for damages for defamation and for assault. This action, which was heard by Hanger J. and a jury, lasted four days. On 7th May 1964 judgment was entered for the defendant upon the jury's findings as follows: "(1) The defendant did on 17th November 1962 publish a statement defamatory of the plaintiff. (2) Such statement was made on an occasion and under circumstances when the plaintiff was not likely to be injured thereby. (3) The defendant did on 17th November 1962 assault the plaintiff. (4) The defendant did no more than was reasonably necessary in the circumstances for his own protection". (at p538)

3. Upon appeal, the Full Court of the Supreme Court ordered a new trial (Jeffriess and Hart JJ., Stable J. dissenting). (at p538)

4. The plaintiff's case at the trial was that defamatory matter had been published and he had been assaulted by the defendant on 17th November 1962 at about 2 o'clock in the afternoon at the rear of Pay's shop at the corner of Ruthven and South Streets, Toowoomba. The defendant called as a witness one P.J. Moloney who swore that, while on his way to bowls and dressed in bowling clothes, he was in South Street near the rear of Pay's shop on 17th November 1962 shortly after 1p.m. and then and there had seen the plaintiff and the defendant. He did not claim to have heard what was said, but his account of a fracas between the plaintiff and the defendant was favourable to the defendant on the issue of assault. Moloney's presence then and there was challenged at the trial but he persisted that he had been at the shop at the time and afterwards at the bowling club until about 5.15p.m. Evidence in rebuttal was given by the treasurer of the club to indicate that Moloney had not been bowling on the afternoon of Saturday, 17th November 1962. (at p538)

5. The application to the Full Court for a new trial was based upon the grounds set out in a notice of motion dated 26th May 1964 as follows: "(1) That fresh evidence has been discovered to the effect that Percival Moloney who was called on behalf of the defendant at the trial was not in fact a witness to the events he swore he witnessed, and that the defendant and the said Percival Moloney and Cedric Moloney who also was called on behalf of the defendant at the trial conspired together to present such false evidence. (2) That such fresh evidence could not with reasonable diligence have been discovered before or during the trial". (at p538)

6. The appeal to the Full Court was supported by an affidavit of the plaintiff sworn on 26th May 1964 referring to investigations made after the trial had ended and containing the following paragraphs: "(14) I finally located a person who supplied me and my solicitor with certain information, the nature and effect of which is contained in my notice of motion herein. (15) Before the said trial I had no knowledge whatever of the evidence given by the said Percival Moloney and during the trial I could not with reasonable diligence have discovered the information referred to in paragraph 14 hereof. (16) I respectfully submit that the fresh evidence is of such a character that it would so far as can be foreseen have formed a determining factor if such evidence had been available at the trial". Before the Full Court Mrs. Dorothy Mary Platt - who had sworn an affidavit on 26th May 1964 - was called as a witness and was cross-examined. The burden of her evidence was that she had been living in Moloney's house from March 1962 until April 1963 and that, on the morning of Saturday, 17th November 1962, she noticed Moloney return home from work at about 7.30 a.m. She left the house about half an hour later and returned at about 1 p.m., remaining in the house for the remainder of the afternoon. When she returned, she noticed that the door leading to Moloney's bedroom was closed. She went on to say that normally, if no person was occupying the bedroom, the door was open and whenever Moloney was resting during the day following his night work, the door was closed. She said that at about 3 p.m. she saw Moloney leave the house by the back door, dressed in green shirt and trousers, and that he returned, so dressed, between 5 p.m. and 6 p.m. (at p539)

7. It was upon the evidence of Mrs. Platt that the Full Court ordered a new trial of the action, but the ground upon which that order was made has to be spelt out of the written judgments of the members of the Court, for the formal judgment merely shows that the appeal was allowed and a new trial of the whole case ordered. The reasons for judgment given by Hart J. - with which Jeffriess J. agreed - contained the following significant passages: - "If this evidence" (i.e. the evidence of Mrs. Platt) "which appears to be true and in my view is presumably to be believed (Ladd v. Marshall (1954) 1 WLR 1489 ) is accepted then the defendant has been guilty of a fraud on the Court. He gave positive evidence that Mr. Moloney was present at the incident when he must have known very well that he was not and he allowed Mr. Moloney to be called and to give evidence which he very well knew to be false. . . Here there can be no doubt that if Mr. Moloney was a dishonest witness, the defendant was involved in it, because he said quite clearly that he was there at the time and he called him as a witness. In Meek v. Fleming (1961) 2 QB 366 , the deception at the trial was admitted. Here it is not, and the question is - What degree of proof should there be in order to warrant a new trial? . . . in view of the gravity of the evidence given by Mrs. Platt, of its apparent truth, and of the manner in which it falls into place with the evidence already given, it is impossible to feel satisfied that the verdict should stand, and that the question whether in fact Mr. Moloney was there or not should go undetermined. There can be little doubt that reasonable diligence was used in seeking for new evidence . . . In my opinion a new trial should be ordered, and as the evidence of Mr. Moloney affected both the assault and the defamation, there should be a new trial on the whole case". (at p540)

8. A judgment can be set aside on the ground that it was obtained by fraud, but only when fraud has been definitely alleged and proved: Hip Foong Hong v. H. Neotia &Co. (1918) AC 888 . The Full Court's order was not, I think, made on the ground of proved fraud but, if it were, it obviously could not be supported. The Full Court heard only Mrs. Platt and could not, upon her evidence, find fraud affirmatively. (at p540)

9. The order was, I think, made - and cannot be supported otherwise than - as an exercise of the power to order a new trial upon the ground of discovery of fresh evidence. (at p540)

10. At this point it seems that a distinction has to be made. Where acceptance of the fresh evidence would not prove fraud, the conditions for ordering a new trial are those stated by Dixon C.J., with the concurrence of Williams, Webb, Kitto and Taylor JJ., in Wollongong Corporation v. Cowan (1955) 93 CLR 435 : "The discovery of fresh evidence . . . could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial" (1955) 93 CLR, at p 444 . (at p540)

11. Where, however, the acceptance of fresh evidence would also prove a party's fraud at the earlier trial, it seems that it is not necessary to go to the length of showing that, had the evidence been available at the earlier trial, it would have produced an opposite result. McCann v. Parsons (1954) 93 CLR 418 establishes that a new trial may be granted upon the discovery of fresh evidence where that evidence, if accepted, would prove fraud at the earlier trial. Thus, it was said: "But if an application for a new trial is based upon the discovery of fresh evidence showing or tending to show that the plaintiff has in truth no cause of action it can be no objection that it also shows or tends to show that at the first trial the plaintiff put forward a false case and knew it. Indeed there was never any hesitation at common law to use the power to grant a new trial, once it appeared from further evidence that the verdict had been obtained by putting forward a false case" (1954) 93 CLR, at p 426 . But McCann v. Parsons (1954) 93 CLR 418 goes further. Thus, there is to be found the following proposition: "So clear is it that fraud may be comprised in the ground consisting in the discovery of fresh evidence that a distinction is taken, depending on its presence, of the degree of probative force which the fresh evidence may have upon the relevant facts in issue" (1954) 93 CLR, at pp 427, 428 . This proposition was based upon Lord Buckmaster's statement in Hip Foong Hong v. H. Neotia &Co. (1918) AC 888 : "If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing parties; the applicant must go further and show that the evidence was of such a character that it would, so far as can be foreen, have formed a determining factor in the result. Such considerations do not apply to questions of surprise, and still less to questions of fraud. A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail" (1918) AC, at p 894 . It was no doubt with what had been said in McCann v. Parsons (1954) 93 CLR 418 in mind that the members of the Court in Wollongong Corporation v. Cowan (1955) 93 CLR 435 expressly set aside malpractice or fraud when stating the conditions which must be fulfilled if a new trial is to be granted upon the discovery of fresh evidence: see (1955) 93 CLR, at p 444 . Similarly, much of what was said in McCann v. Parsons (1954) 93 CLR 418 itself is directed to the special case where fresh evidence, if believed, would prove fraud. Thus, in the discussion of Robinson v. Smith (1915) 1 KB 711 it was said: "It was an action for breach of promise in which the plaintiff had recovered a verdict. After the trial the defendant received information tending to show that the plaintiff was married already. Buckley L.J. said: 'The ground of the application is that the defendant has since the trial obtained fresh evidence which shows that the plaintiff deceived the Court in the conduct of her case by representing that she was a single woman, whereas in fact she was a married woman. One of the grounds on which a new trial may be granted is that the verdict was obtained by fraud, and if the plaintiff at the date of the promise was in fact a married woman it is clear that she did obtain the verdict in her favour by fraud. The question to be considered is whether the evidence adduced by the defendant in support of the allegation that the plaintiff was a married woman at the date of the promise of marriage is sufficiently strong to justify this Court in granting a new trial'. His Lordship considered that the evidence of the prior marriage was sufficiently strong and in this view Bankes L.J. concurred, although Pickford L.J. thought otherwise" (1954) 93 CLR, at p 427 . As was there pointed out, Robinson v. Smith (1915) 1 KB 711 was not a case where fraud was proved; it was a case where, upon a new trial, fraud might be proved by fresh evidence. Thus, Bankes L.J. said: "In the face of this evidence the fact that the plaintiff swears that she has never been married is not in my opinion a sufficient reason for refusing to grant a new trial, because the whole question in issue is whether she presented a fraudulent case to the Court at the original trial. I think, therefore, that there ought to be a new trial on this one question" (1915) 1 KB, at p 715 . In McCann v. Parsons (1954) 93 CLR 418 itself the conclusion was expressed as follows: "As to the cogency of the evidence it is better to say little, but in view of the gravity of the case which the depositions disclose it is impossible to feel satisfied that the verdict should stand and the question whether the plaintiff in truth drove the car, as an issue on which liability depends, should go undetermined" (1954) 93 CLR, at p 428 . (at p542)

12. The foregoing authorities do, I think, justify the proposition that, if a new trial is sought upon the ground of the discovery of fresh evidence which, if believed, would show that a fraudulent case has been presented to the Court at the original trial, and if it is also shown that this evidence was not available at the original trial notwithstanding the exercise of reasonable diligence, then a new trial will be ordered if the case made out is such as to satisfy the Court that, in the interests of justice, the matter in question should be tried afresh. This proposition, which relates only to the granting of a new trial on the ground of the discovery of fresh evidence, leaves untouched the rule that, if by any means it be affirmatively proved that the earlier judgment was tainted by fraud, it will, without more, be set aside. Thus, for instance, to prove the bribery of a witness or a juryman at the earlier trial by a party would require a verdict given in his favour to be set aside without speculation upon the result of the bribery. (at p542)

13. Since writing the foregoing, I have read an article by Mr. D.M. Gordon Q.C. in (1961) 77 LQR, at pp 358, 533 entitled "Fraud or New Evidence as Grounds for Actions to set aside Judgments". The learned author there takes a somewhat different view from that which I have taken. No reference, however, was made to the cases upon which I have based my judgment, namely Hip Foong Hong v. H. Neotia &Co. (1918) AC 888 ; Wollongong Corporation v. Cowan (1955) 93 CLR 435 ; McCann v. Parsons (1954) 93 CLR 418 and Robinson v. Smith (1915) 1 KB 711 . For the reasons which I have given, I regard as too narrow the learned author's propositions (i) that "fraud as a ground for review is no exception to the rule that review can only be based upon new evidence", and (ii) that a judgment will not be set aside on the ground of fraud unless it is established by evidence (a) newly discovered since the trial; (b) which could not have been found by the time of the trial by the exercise of reasonable diligence; and (c) which would have produced an opposite result at the earlier trial. (at p543)

14. It remains to consider the application of the law as stated to the circumstances of this case and this I do, assuming, but not deciding, that it was not due to lack of reasonable diligence that Mrs. Platt's evidence was not available at the trial. In my opinion, the fresh evidence fails to meet either test. Clearly enough, it cannot be predicated that, had the fresh evidence been given at the earlier trial, the result would have been different. Is there then here a case where the fresh evidence, if believed, would prove fraud and justice would demand a new trial? I think not. Firstly, it would be possible to believe all Mrs. Platt's evidence and nevertheless to accept Moloney's evidence that he was outside Pay's shop shortly after 1 p.m. on 17th November 1962, for Mrs. Platt did not say that she saw Moloney until 3 p.m. Her evidence that his door was shut at 1 p.m. does not, of course, require the conclusion that Moloney was within at that time nor is it irreconcilable with his having been in South Street ten minutes or a quarter of an hour later. Of course, there is inconsistency between the evidence Moloney gave and Mrs. Platt's evidence, e.g. as to where he was at 3 p.m., but it could only be in a rare case that a judgment would be set aside because of fresh evidence relating to a collateral matter merely affecting the credibility of a witness: Braddock v. Tillotson's Newspapers Ltd. (1950) 1 KB 47, at p 50 . Secondly, I do not think that fraud on the part of the defendant in the conduct of the earlier trial would be proved even if Mrs. Platt's evidence were to be believed, with the consequence that the evidence that Moloney was present, which was given at the earlier trial, had to be disbelieved. Of course, the defendant himself did give evidence that, at the time of the encounter with the plaintiff, he saw Moloney in South Street, but to refuse to believe the evidence that Moloney was so present would fall short of establishing fraud on the part of the defendant. It would be a very serious finding that the defendant and Moloney conspired with one another and a third person to pervert the course of justice by fabricating the story that Moloney was present when the events relied upon by the respondent to prove his case were said to have happened, and fraud of that character would not be established merely by acceptance of the evidence of Mrs. Platt and the rejection of the evidence that Moloney was so present. On this part of the case I agree with the dissenting judgment of Stable J. (at p544)

15. In my opinion, this appeal should be allowed. (at p544)

WINDEYER J. In my opinion no ground sufficient for setting aside the judgment and ordering a new trial was established in this case. Fraud was not proved; and the case was not one for disturbing a judgment on the ground of fresh evidence having been discovered. The matter is fully dealt with in other judgments. I merely quote a sentence from the judgment of Williams J. in Cabassi v. Vila (1940) 64 CLR 130, at pp 147, 148 : "I have been unable to find any case in which a judgment has been set aside where the only fraud alleged was that the defendant or a witness or witnesses alone or in concert had committed perjury. In fact the court has said that except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment (see Flower v. Lloyd (1879) 10 Ch D 327 ; Baker v. Wadsworth (1898) 67 LJ QB 301 )". (at p544)

2. I would grant special leave and allow the appeal. (at p544)

Orders

Special leave to appeal granted.

Appeal allowed with costs.

Order of Supreme Court of Queensland (Full Court) set aside, and in lieu thereof order that the appeal to that Court be dismissed with costs.