H Appeal-New trial-Discovery of fresh evidence-Availability and character of
evidence-Courts-Appeal-Appeal allowed-Order for new trial-Question of costs adjourned-Death of judge-Order as to costs by court differently constituted -Inquiries before trial-Diligence-Credibility-Influence on result. July 23, 26.
The plaintiff brought an action in the Supreme Court of Queensland claiming a share in certain prize money won in a lottery the relevant ticket in which, Aug. 30.
according to his evidence, had been purchased jointly with the defendants on 12th August. The evidence given by the plaintiff contained many improbabilities. The defendants, in addition to a complete denial of all the plaintiff's material allegations, adduced evidence in order to show that the ticket could not have been issued before 13th August but the proof of this fact though raising a high probability was not conclusive or complete. The jury returned a verdict for the plaintiff. As a result of publicity given to the trial the defendants were subsequently supplied with further information which showed with practical certainty that the ticket could not have been issued on 12th August. The Full Court accordingly ordered a new trial. The plaintiff appealed :-
Held by Latham C.J. and Dixon J. (Rich J. dissenting) that the appeal should be allowed on the grounds (1) that the evidence would have been available at the trial had the defendants exercised reasonable diligence in the preparation of their case and (2) that the evidence went merely to the credibility of the plaintiff as to the precise date on which he said the ticket was purchased and was not such as to place such a different complexion upon the case that a reversal of the former result ought certainly to ensue.
Held, further, by Dixon J., that where on a Full Court ordering a new trial the question of costs was adjourned and a judge, who was a member of the
court, died, the matter of costs, being a distinct matter, might be dealt with H. C. OF by a court differently constituted.
Decision of the Supreme Court of Queensland (Full Court) reversed.
APPEAL from the Supreme Court of Queensland.
In an action in the Supreme Court of Queensland Joseph Orr sued Isaac Cecil Holmes and Edith Allison Clark claiming a declara- tion that he was entitled to a one-third share in the first prize of £6,000 gained by ticket numbered 83737 in the Golden Casket Art Union drawn on 14th August 1946. The defendant Holmes was a lottery agent carrying on business in Brisbane and the defendant Clark was an employee assisting in the business. It was alleged in the material part of the statement of claim that " on or about the twefth day of August 1946 it was orally agreed by and between the plaintiff and the defendants that the plaintiff and defendants should jointly purchase for the benefit of the plaintiff and each of the defendants equally a ticket in the then current Golden Casket numbered 1056…
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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Details
AGLC
Orr v Holmes [1948] HCA 16
Case
[1948] HCA 16
Decision Date
CaseChat Overview and Summary
The appellant, Joseph Orr, appealed to the High Court of Australia from an order of the Full Court of the Supreme Court of Queensland granting a new trial in an action where Orr had obtained a verdict and judgment for £2,000. Orr claimed a one-third share in a lottery prize, alleging a joint purchase of the winning ticket with the respondents, Isaac Cecil Holmes and Edith Allison Clark, on 12th August 1946. The respondents denied this agreement and presented evidence suggesting the ticket could not have been issued before 13th August 1946, though this proof was not conclusive. Following the trial, the respondents obtained further information, which they contended demonstrated with practical certainty that the ticket was not issued on 12th August, leading the Full Court to order a new trial.
The High Court was required to determine whether the Full Court erred in ordering a new trial based on the discovery of fresh evidence. Specifically, the court had to consider whether the evidence would have been available at the original trial had the respondents exercised reasonable diligence in preparing their case, and whether the new evidence was of such a character that it would likely influence the result of the trial. A further issue arose regarding the competence of a differently constituted Full Court to deal with the costs of the new trial application after the death of one of the original judges.
Latham C.J. and Dixon J. (Rich J. dissenting) allowed the appeal. Their Honours held that a new trial should not have been granted because the respondents had failed to demonstrate reasonable diligence in discovering the evidence prior to the trial. Furthermore, they found that the new evidence, while potentially affecting the credibility of the appellant regarding the precise date of purchase, was not of such a nature as to render a reversal of the original verdict highly probable. Dixon J. also noted that the question of costs, having been adjourned by the Full Court, could be dealt with by a differently constituted court.
Consequently, the High Court reversed the decision of the Full Court of Queensland, setting aside the order for a new trial and restoring the original verdict and judgment in favour of the appellant. The respondents were ordered to pay the appellant's costs of the appeal in the Supreme Court.