Toubia v Schwenke

The appeal concerned a dispute between Toubia and Schwenke, heard in the Court of Appeal of New South Wales. The core of the matter involved allegations of fraud and the admissibility of fresh evidence in relation to a prior judgment.

The Court of Appeal was required to determine whether the doctrine of *res judicata* applied to prevent the relitigation of issues already decided, particularly in circumstances where fraud was alleged. A further key issue was the criteria for admitting fresh evidence on appeal, and whether the evidence presented by Toubia met those criteria. The court also considered the application of section 66 of the *Motor Accidents Act*.

The court's reasoning focused on the high threshold for setting aside a final judgment based on fraud, especially when *res judicata* principles were engaged. It was held that the evidence presented by Toubia was insufficient to establish fraud with the necessary degree of certainty to overcome the *res judicata* bar. However, the court found that the cross-appeal had merit, leading to a different outcome regarding the application of the *Motor Accidents Act*.

The appeal was dismissed with costs, while the cross-appeal was allowed with costs. Specific orders were made by the court.