Watkins & Watkins

This matter concerned an appeal before Finn, Warnick and Mushin JJ, where the wife sought to admit further evidence to support an order made by the trial judge. The wife's application relied on passages from the High Court's judgment in *CDJ v VAJ*, which discussed the scope and application of section 93A(2) of the relevant Act.

The central legal issue was the proper exercise of the discretion conferred by section 93A(2) to admit further evidence on appeal, particularly when that evidence is sought to support, rather than overturn, an order made at first instance. The court was required to consider the principles governing the admission of further evidence in appellate proceedings, including the purpose of such a power and the factors that weigh in its exercise.

The court's reasoning, drawing from *CDJ v VAJ*, emphasised that the discretion under section 93A(2) is broad and not subject to strict requirements like "special grounds" or "special leave." It is a remedial power designed to prevent miscarriages of justice and can be used to support existing findings, not solely to set aside erroneous ones. While factors such as finality and discoverability are generally relevant, the court highlighted that in cases involving the interests of third parties, such as children, these may be outweighed. The court noted that the discretion is particularly relevant in appeals from original jurisdiction, where the appellate court considers the law as it exists at the time of the appeal. The court also indicated that undisputed evidence, especially relating to events post-trial, may be readily admitted if it can be evaluated without a rehearing, with its likely effect on the appellate court's view being the primary consideration in such circumstances.