Evans v Brambles Australia Ltd [1998] QCA 478

[1998] QCA 478 COURT OF APPEAL PINCUS JA THOMAS JA MACKENZIE J Appeal No 10235 of 1997 KEVIN ALEXANDER EVANS (Plaintiff) Appellant and BRAMBLES AUSTRALIA LIMITED (Defendant) Respondent (ACN 000 164 938) BRISBANE ..DATE 17/08/98 JUDGMENT -- 1 of 5 -- 170898 T5/RB28 M/T COA196/98 2 JUDGMENT PINCUS JA: This is an appeal from an assessment of damages in a personal injuries action. One of the items of information that the learned primary judge had before him was related to Mr Pons, who was said to be in a position comparable with that of the plaintiff, now appellant. When Mr Pons was called at the trial by the defendant he gave evidence on the issue of liability. He was questioned in cross-examination, briefly, about matters relevant to quantum and then in re-examination by Mr Morgan. Further information emerged on the subject of quantum. Mr Douglas had made an application this morning to adduce further evidence on appeal relevant to Mr Pons' earnings. The information which the judge had before him on that subject had to do with the financial year ended 30 June 1996 and that ended 30 June 1997. As to the 1996 year, the group certificates which were produced relating to Mr Pons showed a net income of about $450 a week and Mr Douglas says, and it seem to me quite possible, that this was a matter which had a significant influence upon the outcome. Now, there is an affidavit from Mr Pons himself in which he annexes his income tax return for the 1996 year. And that shows that, in addition to the sums mentioned in the group certificates, Mr Pons had an additional income described as net non-primary production income of $6,750. Mr Pons says in his affidavit that he did not tell the solicitor for the plaintiff, Mr Morrin, that the documents were in the possession of his accountant at the time the action came on for hearing. -- 2 of 5 -- 170898 T6/HMH8 M/T COA196/98 3 JUDGMENT The argument Mr Douglas advances is that in view of the circumstances, namely that Mr Pons was called by the other side, one would not necessarily expect the plaintiff's lawyers to have in their possession all the information which they might otherwise have had relevant to Mr Pons' financial position. On the other hand, the affidavit of Mr Pons does not say what contact Mr Pons had with Mr Morrin prior to the trial, and it seems to me that a possible inference from the way in which the trial was conducted, as disclosed from the record, was that inquiries had been made of Mr Pons about his financial position. That that is so may be deducible from a question asked by Mr Britton below, which was: "Would you have a look at this document, please? Is that the pay slip that you received for your first two days of your current job?" And it is open to infer, from that, that the solicitors and perhaps counsel had had a conference with, or obtained a statement from, Mr Pons about his earnings. However that may be, the difficulty which Mr Douglas faces, as it seems to me, is that he has to show by evidence that the new evidence or the fresh evidence was not evidence which was reasonably available or obtainable below. Now, Mr Pons does not say that. All he says is that he did not tell Mr Morrin that the documents were available at the time the action came on for hearing. There was no affidavit from Mr Morrin himself. The trial took place in October 1997 and if anyone was interested Mr Pons could have been asked for copies of his tax returns. Why he was not asked does not appear. -- 3 of 5 -- 170898 T6/HMH8 M/T COA196/98 4 JUDGMENT Perhaps people simply went on the assumption that his group certificates were a sufficient guide. However that may be, it is my opinion that one of the tests which Mr Douglas submits has to be applied is not satisfied here. I am not satisfied by the evidence that this material now sought to be adduced could not, with reasonable diligence, have been placed before the primary judge. I would therefore reject the application to adduce further evidence. THOMAS JA: I agree. This is a revisitation of an issue raised but not pursued in great detail below. After judgment there was a motion to vary it based upon alleged misapprehension of what Mr Pons had said. This additional evidence was not produced then. Furthermore, it is evidence that would reasonably call for cross-examination in relation to the extra income, and if the matter had been pursued more vigorously below the defendant may well have sought to counter the evidence by calling other evidence. For these reasons, it seems to me to be inappropriate now to allow a re-litigation of an issue that was raised below. I agree that the evidence should be refused. MACKENZIE J: I agree with the reasons that have been given for refusing leave by the presiding Judge and Mr Justice Thomas. -- 4 of 5 -- 170898 T6/HMH8 M/T COA196/98 5 JUDGMENT PINCUS JA: The order of the Court is that the application to adduce further evidence is rejected. Now, this affidavit, Mr Douglas, in case the matter goes further, what I have in mind is to mark it Exhibit A and initial it and place it with the papers. ADMITTED AND MARKED "EXHIBIT A" PINCUS JA: It cannot be received as evidence but it should be preserved on the Court file. MR DOUGLAS: Thank you, Your Honour. ----- -- 5 of 5 --