Admission of New Evidence on Appeal

See Deane J’s judgment in Coulton v Holcombe (1986) 65 ALR 656 at 667ff

Ordinarily where it is alleged that the admission of additional evidence requires a new trial, justice will not be served unless the Court of Appeal or a judge is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial: CDJ v VAJ (No 1) (1998) 197 CLR 172, at [111]

Where the evidence has been deliberately withheld at trial, the failure to call it will ordinarily weigh heavily in the exercise of the discretion: CDJ v VAJ, above, at [116]

In Clarke v Stingel [2007] VSCA 292 at [25], the court held that leave to introduce fresh evidence upon an appeal should only be granted if:

  • By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.
  • It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.
  • The evidence proposed to be adduced is reasonably credible.
  • A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance: Shilkin v Taylor [2011] WASCA 255 at [67].

Amendments on Appeal

Discretion: Duke Group v Arthur Young 4 ACSR 355; Coulson v Holcombe 65 ALR 656 (High Court).

Two widely accepted principles relevant to the discretion as discussed by Le Miere J in Uranium Equities Ltd v Fewster [2008] WASCA 33 at  [240]: First, where a point is not taken in the court below and evidence could have been given there which, by any possibility, could have prevented the point from succeeding, it cannot be taken afterwards. Secondly, generally parties must be bound by the course they adopted at the trial. At least in part this principle is founded on public policy considerations favouring the finality of litigation and it may be that the appellant will not be permitted to make a new case on appeal even if the point is unaffected by possible further evidence or the way the opposing party would have conducted the case at trial. The principle may come into play not only when the course taken at the trial was deliberate, but also if the appellant’s conduct at the trial was affected by inadvertence. A party does not have a right to insist that a new point may be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law.  That is because it remains a question of whether the appellate court ‘may find it expedient and in the interests of justice to entertain the point’. Whether the appellant should be permitted to assert the error on appeal therefore requires attention to the conduct of the proceedings below. (Cases cited in support omitted)

Whether ground not pleaded can be raised on appeal – principles applicable where proved facts disclose a different basis of liability than contended at trial Ravinder Rohini v Krizaic 105 ALR 593

Whether court can consider point of law not taken at first instance Centronics Systems v Nintendo 111 ALR 13; Robinson v Campbell 30 NSWLR 503

Whether new case can be constructed on appeal by reference to primary judges observations Cummings v Lewis 41 FCR 559

Appeal from Discretionary Judgment

Principles on which appellate court will interfere with discretion of primary judge referred to by Kitto J in Australian Coal & Shale 94 CLR 621 at 627 as follows “… the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King 55 CLR 499 at 504)

See also Bomanite v Slatex 104 ALR 165

A discretionary decision is not set aside unless it is shown that it was vitiated by the influence of some erroneous factual finding or by some wrong approach in principle to the exercise of discretion, whether appearing on the face of the reasons given or evidenced on general consideration of the result: Andrew v Baradom Holdings Pty Ltd (1995) 17 ACSR 231 at 233

Appeal court may interfere with a discretionary decision where some error has been made in the exercise of discretion, in that the wrong principle was applied or in that extraneous or irrelevant matters were taken into account, or the facts were mistaken of some material consideration was not taken into account, and that this involved injustice to the appellant: Nieman v Electronic Industries Limited [1978] VR 431

Appeal court is in as good a position as the trial judge to assess the probabilities on the evidence as a whole, and must do so in order to comply with its duty to afford the appellant a true right of appeal in the nature of a rehearing: Sahin v National Australia Bank Ltd [2011] VSCA 64 (citing Warren v Coombes (1979) 142 CLR 531 at 551–2; Fox v Percy (2003) 214 CLR 118, [27]–[30]; CSR Ltd v Della Maddalena (2006) 80 ALJR 458; RCR Tomlinson Ltd -v- Russell [2015] WASCA 15

Primary judge failed to use or has palpably misused his advantage and acted on evidence which was glaringly improbable and contrary to compelling inferences – fact-finding miscarried – declaration set aside: Toula Holdings Pty Ltd v Morgo’s Leisure Pty Ltd [2014] QCA 201

Appeal on Issue Not Argued at Trial

Leading High Court authority is O’Brien v Komesaroff (1982) 150 CLR 310 at 319

See also R v Crampton [2000] HCA 60 where High Court dealt with point of law referable to authorities not referred to at trial nor on appeal.

Appeal on Question of Law

General principles discussed in S E Vineyard Finance Pty Ltd (Receivers and Managers Appointed) v Casey [2011] VSC 403

Appeal Against Findings of Fact

Leading authority: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22

Application for Leave to Appeal

Mustac v Medical Board of Western Australia [2007] WASC 128 per Martin CJ at [63]


Appeal for failure of judge to disqualify himself for bias – When a finding glaringly improbable: Galea v Galea (1990) 19 NSWLR 263

Duty of Counsel on Appeal

It is counsel’s duty to be properly prepared at the appeal and to be ready to argue all matters that arise from the notice of appeal. If issues are raised which counsel considers fall outside the notice of appeal he or she should object as soon as reasonably possible: per Ipp J in Boothey v Boothey WA Full Court March 1997 BC9700784

Error of Law and Error of Fact

Leading authorities: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-360; Minister for Immigration v Teo (1995) 57 FCR 194 at 199-202; Minister for Immigration v Singh (1997) 144 ALR 284

Extension of Time Within Which to Appeal

Principles to be applied: Simonsen v Legge [2010] WASCA 238


The function of an appellate court is to conduct appeals on the facts by way of rehearing; to draw inferences from the facts for themselves; to give the judgment and make orders that should have been given at trial; and, in exceptional circumstances, even to admit fresh evidence into consideration: per Kirby J in  State Rail Authority of New South Wales  v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at 615; [1999] HCA 3 paragraph 86.

As to when a judgement or order is final: Carr v Finance Co of Australia (1981) 34 ALR 449

Failure to deliver reasons when judgement pronounced: Palmer v Clarke (1990) 19 NSWLR 158

Whether Court of Appeal erred in preferring own observations drawn from photographic evidence over evidence accepted by trial judge — Whether Court of Appeal gave sufficient weight to trial judge’s advantage of having personally viewed site of accident: Pledge v Roads and Traffic Authority [2004] HCA 13

The court may draw inferences of fact other than those drawn by the court below: Warren v Coombes 142 CLR 531 at 551

Evidence mislaid after hearing – what must be done on appeal: Day Ford Pty ltd v Sciacca [1990] 2 Qd R 209

How Appeal Court should approach alleged contravention of s.52 of Trade Practices Act – Following from Poulet Frais Pty Ltd v The Silver Fox Co Pty Ltd (2005) 220 ALR 211 at 220 at [46]: “Where the determination of whether particular conduct was misleading or deceptive is not straight-forward, but rather involves elements of degree, opinion or judgment, a simple preference in the appellate court for a view different from that taken by the trial judge may not carry with it the conclusion of error. The appeal court might conclude either that there could not be said to be only one possible correct determination or that the trial judge had a particular advantage, not shared by the appellate court, in assessing critical matters of nuance and judgment. In such a case, in determining whether or not the trial judge fell into appealable error, the appeal court should not proceed as though on a hearing de novo in which the views of the trial judge carry no weight. Rather the appeal court must give appropriate weight to the views of the trial judge and set aside his or her finding only if persuaded that the finding is wrong. However, if an appellate court is persuaded that particular conduct, found by the trial judge to be misleading or deceptive, was not in fact misleading or deceptive, it thereby identifies error in the decision of the primary judge. Similarly where an appellate court is persuaded that conduct which the trial judge did not consider misleading or deceptive is in fact misleading or deceptive.”

Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits of the case have been made apparent on the evidence without unfairness to the other party: Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [52]

Judge “going off the rails” – where Judge decided the case on the basis of a legal proposition which no party had advanced and in respect of which he had not given anybody the opportunity to make submissions Monaco v Arnedo Pty Ltd (1994) 13 WAR 522

New Trial

Power to order new trial — Limited basis — Appeal against NSWCA decision ordering new trial with alternate finding of fact — First respondent sustained serious injuries when either pushed, jostled or jumped from jetty — Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57

See also C’th Bank of Australia v Quade (High Court) (1991) ATPR 41-144

Overturning Credibility Findings

 The trial Judge’s findings on credibility must stand unless it can be shown that the trial Judge “has failed to use or has palpably misused his advantage” or has acted on evidence which was “inconsistent with facts incontrovertibly established by the evidence” or which was “glaringly improbable”: Devries v Australian National Railways Commission (1993) 112 ALR 641 at 645-6. See also Rosenberg v Percival (2001) 178 ALR 577 at [37] to [43].

Appellate interference with evaluation of evidence — Credibility of witness — Appeal against decision of Full Court of the Supreme Court of WA: CSR Ltd v Maddalena [2006] HCA 1. See also RCR Tomlinson Ltd -v- Russell [2015] WASCA 154

Authority of appellate court to reach conclusion different from trial judge – appellate review of findings based on assessment of credibility of witness: Rosenberg v Percival 178 ALR 577

Circumstances when appeal court will overturn findings based on credibility Dempster v Mallina Hldgs 15 ACSR 1

See also Abalos v Aust Postal Comm (1990) 171 CLR 167 at 179

Whether these principles apply to the evidence of experts as well: Ahmedi v Ahmedi [1991] 23 NSWLR 288

When appeal court may exercise trial judge’s discretion afresh – Error of law and misapprehension of facts: Londish v Gulf Pacific Pty Ltd 117 ALR 361

Power to Reopen

Orders may be recalled and the decision on which they are based may be re-opened when there has been an error of fact or law which, in the interests of justice, should be corrected: Smith v NSW Bar Association (1992) 176 CLR 256 at 265-267; Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 301-303, 308-310, 312, 317, 322; Norman v Norman (1992) 6 WAR 372 at 374-376; Hoad v Nationwide News Pty Ltd (1997) 37 IPR 407 at 409

The court may re-open an unperfected judgment if it is convinced that, in its earlier consideration of the point, it has proceeded on a misapprehension as to the facts or the law, where there is some matter calling for review or where the interests of justice so require. Courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, that injustice may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case: De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 215.

Applications to re-open appeal — Respondent claimed errors at appeal and sought re-opening: Mount Lawley Pty Ltd v Western Australian Planning Commission (No 2) [2008] WASCA 1

Security for Costs on Appeal

The discretion to order security is unfettered: per McLure JA in Mann v Dabelstein [2006] WASCA 176 at [16]

A respondent to an appeal who applies for security is in a stronger position than a defendant at first instance to the extent that the respondent has a judgment in his or her favour which is presumed to be correct until displaced: per Buss JA in Farrell v Royal King’s Park Tennis Club (inc) [2007] WASCA 173 at [32]

Whether order for security for costs would stifle appeal — Appellants impecunious — Appellants’ solicitors acting pro bono on appeal — Whether inference should be drawn they are doing so in endeavour to recover their unpaid costs of trial — Whether appellants’ solicitors stand to benefit from appeal: Dodds v Kennedy [2010] WASCA 201


Principles – whether subject matter of proposed appeal would be lost without a stay – whether appeal had substantial chance of success – exercise of discretion Re Southern Equities Corp (in liq); Bond v England 25 ACSR 552

The proper test for the granting of a stay of orders made by the Court pending appeal is laid down by the Full Court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66, where the Full Court rejected the test of special circumstances, which had been applied by Victorian courts and adopted the test applied in New South Wales. That test is that the applicant for a stay needs to demonstrate a reason, or an appropriate case, to warrant the exercise of the discretion in favour of the applicant: Siminton v Australian Prudential Regulation Authority [2007] FCA 2098 at [9]

Application for adjournment of trial pending application for special leave to appeal — Prospects of success of special leave application — Whether refusal of adjournment will cause serious and irremediable loss — Delay: Norilya Minerals Pty Ltd v Adam Jonathon Ireland As Named Executor of the Estate of Dean Edward Ireland [no 3] [2010] WASC 287

Suspension of Enforcement of Judgment Pending Appeal

Application for suspension of enforcement of judgment pending determination of appeal – Whether appeal has reasonable prospects of success – Whether special circumstances exist – Suspension order granted on condition that judgment sum paid into court or secured Practice and procedure – Application for security for costs – Appropriate amount to be provided by way of security Field Camp Services Pty Ltd -v- Site Accommodation Pty Ltd [2011] WASCA 118