JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SAUNDERS -v- THE PUBLIC TRUSTEE [2015] WASCA 203
CORAM: BUSS JA
BEECH J
MITCHELL J
HEARD: 14 AUGUST 2015
DELIVERED : 6 OCTOBER 2015
FILE NO/S: CACV 16 of 2014
BETWEEN: VALERIE SAUNDERS
Appellant
AND
THE PUBLIC TRUSTEE
First RespondentDAVID HOFFMAN
Second RespondentJUDITH MARGARET HOFFMAN
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :THE PUBLIC TRUSTEE -v- ROYAL PERTH HOSPITAL MEDICAL RESEARCH FOUNDATION INC [2014] WASC 17
File No :CIV 1154 of 2010
Catchwords:
Appeal - Contentious probate jurisdiction - Grant of probate in solemn form - Testamentary capacity
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Ms C F Holyoak-Roberts
Second Respondent : Mr R J Nash
Third Respondent : In person
Solicitors:
Appellant: In person
First Respondent : Public Trustee (WA)
Second Respondent : Public Trustee (WA)
Third Respondent : In person
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Banks v Goodfellow (1870) LR 5 QB 549
Clark v Ryan (1960) 103 CLR 486
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 203
Devereaux-Warnes v Hall [2006] WASCA 268
Doyle (WA) Pty Ltd v ING Real Estate Joondalup BV [2014] WASCA 215
Easter v Griffith (1995) 217 ALR 284
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182
H v P [2011] WASCA 78
Jones v Darkan Hotel [2014] WASCA 133
Lackovic v Insurance Commission (WA) [2006] WASCA 38; (2006) 31 WAR 460
Lafranchi v Transport Accident Commission [2006] VSCA 81; (2006) 14 VR 359
Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45
Mallard v The Queen [2003] WASCA 296; (2003) 28 WAR 1
Miller & Associates Insurance Broking Pty Ltd [2010] HCA 31; (2010) 241 CLR 357
Minister for Immigration v Hamsher (1992) 35 FCR 359
Moore v Minister for Immigration [2007] FCAFC 134; (2007) 161 FCR 236
Public Trustee v Stretch [2002] WASC 147
R v Bonython (1984) 38 SASR 45
R v GP (1997) 18 WAR 196
Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175; (2007) 34 WAR 403
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
S v D [2014] WASCA 224
Sami v Minister for Immigration [2013] FCAFC 128
Shire of Gingin v Coombe [2009] WASCA 92; (2009) 169 LGERA 236
Trajkoski v Director of Public Prosecutions (WA)
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- AGLC
- Saunders v The Public Trustee [2015] WASCA 203
- Case
- [2015] WASCA 203
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved the interpretation of Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) and the exercise of the court’s discretion to admit additional evidence under Rule 47(3)(d). The court had to determine if the discretion to admit new evidence should be exercised in this case, considering the public policy interest in the finality of litigation and whether the evidence was truly fresh and could not have been discovered with reasonable diligence at the time of the trial.
The court held that the discretion to admit additional evidence must be exercised judicially, considering the finality of litigation and whether the evidence was truly fresh. The court found that the evidence presented by the appellants was not sufficiently fresh or could have been discovered with reasonable diligence, and therefore, the discretion should not be exercised. The court also noted that there was no error in the primary court’s decision to grant probate in solemn form, as the evidence at trial supported the conclusion that the deceased had testamentary capacity.
The final orders of the court were that the appeal against the grant of probate in solemn form was dismissed, and the costs of the appeal were awarded to the respondent. The court declined to admit the additional evidence proposed by the appellants.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BEECH J
Rule 25 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) provides for the appeal to be by way of rehearing. Provision for the appeal to be by way of rehearing connotes that:1.The court can receive further evidence and its powers are not restricted to making the decision which should have been made at first instance.2.The appeal is usually conducted by reference to the evidence given at first instance.3.Ordinarily, and absent further evidence or a relevant change in the law, this court can exercise its appellate powers only if satisfied that there was error on the part of the primary court.[5][5] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 203 [13] ‑ [14]. Rule 47(3)(d) of the Rules provides that a single judge has jurisdiction to make an order relating to the admission of additional evidence, either before or at the hearing of the appeal, by the Court of Appeal. This rule has been construed as conferring a statutory discretion on the Court of Appeal (whether or not constituted by a single judge) to make an order admitting new evidence.[6] While the rule does not contain any words limiting or governing the exercise of that discretion, the discretion to admit fresh evidence must be exercised judicially.[7][6] Lunt v New Resource Holdings Pty Ltd [No 3] [2011] WASCA 45 [35]; Goninan & Co Pty Ltd v Direct Engineering Services Pty Ltd [2007] WASCA 10; (2007) 33 WAR 182 [9].[7] Lunt [35]. It may be that the source of the statutory discretion is better understood as being inherent in the provision by r 25 for an appeal to be by way of rehearing. On that view, r 47(3)(d) would empower a single judge to make case management directions in relation to the admission of evidence, for the purposes of s 61(1) of the Supreme Court Act. However, whatever the source of the power, the existence of the court's power to admit additional evidence is well established.[8][8] Trajkoski v Director of Public Prosecutions (WA) [2013] WASCA 222 [39]. In deciding whether to allow an applicant to adduce additional evidence on an appeal against a final decision made after trial, the strong public interest in the finality of litigation will be an important consideration. That public policy provides a powerful reason for strictly confining the circumstances in which a party on appeal will be allowed to augment the evidence led at trial. Except in the most exceptional circumstances, a party is bound by the conduct of his or her case at trial.[9][9] Devereaux-Warnes v Hall [2006] WASCA 268 [2], [26]. Another important consideration will be whether the additional evidence is properly characterised as fresh evidence which either did not exist at the time of the trial or which could not have been discovered with reasonable diligence at that time.[10] Generally, the discretion will be exercised against admitting evidence which is not fresh in this sense, particularly where the evidence has been deliberately withheld at trial.[11][10] Lunt [36].[11] Goninan [12]. See by analogy Sami v Minister for Immigration [2013] FCAFC 128 [7], citing Moore v Minister for Immigration [2007] FCAFC 134; (2007) 161 FCR 236 [4] ‑ [7].