Wreford v Lyle [No 2] - [2019] WASCA 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   WREFORD -v- LYLE [No 2] [2019] WASCA 144
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   13 SEPTEMBER 2019
DELIVERED          :   13 SEPTEMBER 2019
PUBLISHED           :   16 SEPTEMBER 2019
FILE NO/S:   CACV 7 of 2019
BETWEEN:   JOVANNA WREFORD
Appellant
AND
CRAIG MAXWELL LYLE
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   BRADDOCK DCJ
Citation: WREFORD -v- LYLE [2018] WADC 173
File Number             :   CIV 1795 of 2016

Catchwords:

Practice and procedure - Application to amend appellant's case - Whether proper basis to allow application

Practice and procedure - Application to adduce additional evidence on appeal - Where evidence not relevant - Where evidence not fresh - Not a proper case to adduce further evidence - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr D R Clyne

Solicitors:

Appellant	:	In person
Respondent	:	Moray & Agnew Lawyers

Case(s) referred to in decision(s):

Thomas v Bass [2006] WASCA 59
Wreford v Lyle [2018] WADC 173
Wreford v Lyle [2019] WASCA 57

REASONS OF THE COURT:

Introduction

This matter came to a hearing on 13 September 2019 by way of a registrar's notice to attend dated 22 August 2019, to consider the appellant's application filed 16 August 2019 (Application) for:
1.Leave to file an amended appellant's case including an amended Practice Direction 7.4 schedule.
2.Leave to 'adduce withheld evidence'.
3.Leave to 'adduce new/fresh evidence - JBR13'.
4.Leave to adduce 'missing exhibits - replaced "photos"'.
This appeal is against the decision of Braddock DCJ in Wreford v Lyle [2018] WADC 173 (primary decision).
The background to this appeal has been set out in an earlier interlocutory decision of this court in Wreford v Lyle [2019] WASCA 57 (Interlocutory decision).
The appellant filed an appellant's case on 14 June 2019 (Original Appellant's Case).
In substance, the appellant applied:
1.To amend the appellant's case.
2.To adduce additional evidence in the appeal.
We dismissed the Application and said that we would provide reasons. These are our reasons.

Application to amend appellant's case

A difficulty with the proposed amendment was that the proposed amended appellant's case did not, by underlining or striking out, identify what is new and how the proposed amendments differed from the Original Appellant's Case. Moreover, the proposed amended appellant's case referred back to, and sought to incorporate, parts of the Original Appellant's Case. In other words, the application to amend, if granted, would have resulted in there being two filed appellant's cases with which the court and the respondent would have to deal.
The proposed amended appellant's case was not compliant in form or in substance with pt 5 r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules), which provides, relevantly in effect, that an appellant may only rely on one appellant's case, which must contain within it all the matters specified under the Rules. Accordingly, it…

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

Case: [2019] WASCA 144
Decision Date: 16 SEPTEMBER 2019

CaseChat Overview and Summary

In Wreford v Lyle, the appellant, Wreford, sought leave to amend his case and adduce additional evidence on appeal against the decision of the court below. The nature of the dispute involved the interpretation and application of procedural rules in the context of an appeal process. The matter was heard in the Full Court of the Federal Court of Australia. The legal issues before the court were whether there was a proper basis to allow Wreford's application to amend his case and to adduce additional evidence, particularly where the evidence was not relevant and not fresh.

The court found that Wreford's application to amend his case was not justified as it did not present a proper basis for allowing the amendment. The court held that the application to adduce additional evidence was also not permissible, as the evidence Wreford sought to introduce was neither relevant to the issues before the court nor was it new evidence that had not been available at the time of the original proceedings. The court reasoned that the decision to permit or disallow the introduction of additional evidence in an appeal rested on the unique facts of each case and, in this instance, the evidence did not meet the necessary criteria.

The court's reasoning led to the conclusion that the application to amend the case and to adduce further evidence was not appropriate. Consequently, the appeal was dismissed. The court did not make any further orders beyond the dismissal of the appeal, as the issues raised did not warrant any additional directions or relief.

Orders