Practitioners seeking a new trial on the ground of fresh evidence must ensure the evidence is well-nigh decisive of the issue, that reasonable diligence was exercised to procure it before trial, and that affidavit material sets out with the fullest detail the identity of witnesses, what they will say, what pre-trial inquiries were made, and how the evidence was subsequently discovered.
Later decisions that cite Wollongong Corporation v Cowan
Decisions cited by Wollongong Corporation v Cowan
WOLLONGONG CORPORATION v. COWAN [1955] HCA 16; (1955) 93 CLR 435
Appeal
High Court of Australia
Dixon C.J.(1), Williams(2), Webb(3), Kitto(4) and Taylor(5) JJ.
CATCHWORDS
Appeal - New trial - Verdict regularly obtained - Fresh evidence - Availability and character of evidence - Reason for non-production on first trial - Standard necessary before Court will interfere - Presentation of fresh evidence to appellate court - Necessity for fullest detail.
HEARING
Sydney, 1955, March 29, 30. 30:3:1955DECISION
The following judgements were delivered: -2. On 4th June 1952 she attended at the town hall to pay her son's rates. After paying the amount of the rates over the counter, she turned to go out through the passageway by which she had entered in the front. After taking a few paces, she slipped on the polished linoleum and fell. She was shaken, but apparently at the time she did not regard herself as seriously injured. However, some weeks later - possibly some months - in consequence of pains in her back which, among other things, made it difficult for her to sleep, she consulted a doctor and underwent some surgical processes and other treatment. The result according to medical evidence at the trial, was that she then suffered from what is called traumatic radiculitis. (at p442)
3. The declaration contained one count. It alleged that the plaintiff was an invitee and that the council failed to take due care to make the premises reasonably safe and caused or permitted the floor covering to become dangerous and failed to provide any warning. (at p442)
4. According to the plaintiff's evidence, as she fell, so she put it, she could not fail to be aware that the linoleum was very slippery. (at p442)
5. At the time when the writ was issued the plaintiff's solicitor communicated with the council's town clerk and requested to allow him (the solicitor) to know whether the council would permit him to inspect the council's records concerning the incident and also the records of any other incidents of a similar nature in that portion of the council's premises. The solicitor says that he told the town clerk that he did not wish to inspect the reports of officers of the council to him or to the council itself, and if any particular records or documents were found to be relevant he would provide a list of them for the use, apparently, of both parties. He was referred by the town clerk to the chief city health inspector as the person in charge of the records dealing with incidents arising in the council chambers. He (the solicitor) made a request to that officer to know whether files were available in respect of the accident to his client or any other similar occurrences in that portion of the town hall. The city health inspector told him that the council had a file dealing with the incident referred to but that it consisted mainly of reports to superior officers or to the insurance body which insured the council against such risks, and he added that he was not aware of any other accident which had occurred in the building nor would there be any records concerning it. The solicitor said he did not wish to see reports made to superior officers or the council's insurer and it was then suggested that he should see an employee, a lady named Miss Karooz. (at p443)
6. He saw Miss Karooz and she gave evidence, first of all, that the floor was slippery. She said she had been in the council's employ for about thirteen months before the accident took place; that would be about from May 1951. She said the floor consisted of linoleum and it was the same linoleum that was there when she first arrived at the council. She described it as highly polished and slippery if you were not aware of the condition of the linoleum. She could not say how the linoleum was treated because the treatment took place after office hours. She did not know how often it was polished but it appeared to be well polished. Then she said, over an objection that was overruled, that she knew a number of people had slipped before 4th June when the plaintiff's accident took place; that some of them twisted their ankles, some had slipped and just steadied themselves against the wall and on one occasion a woman did fall and she did hurt herself seriously. There was no warning sign. In her cross-examination she said that there were some who fell to the floor but did not require assistance and that she would say she had seen about twelve slip in some way or other while she was at the inquiry desk, most of them women. (at p443)
7. There was no evidence called for the defendant. The plaintiff, of course, gave her evidence, which, in the main, was devoted to her injuries. (at p443)
8. In the course of the summing-up the learned judge put the issue to the jury, the substantial issue, as to whether the council had fulfilled the duty which he defined as a duty to take reasonable care to prevent the plaintiff from suffering from any unusual danger in relation to the premises, provided that the occupier (the council) knew of the existence of the unusual danger, or ought to have known of it. There was no objection taken to the summing-up at the trial. The jury found a verdict for the defendant. (at p443)
9. From that verdict there was a motion for a new trial which, as expressed in the notice of appeal, was put on three grounds. The first was that the verdict was against the evidence and the weight of the evidence. That ground does not appear to have been pursued before the Supreme Court. The second was that fresh evidence was available to the plaintiff. That ground was relied upon and was the ground upon which the order for a new trial was made. The third was that his Honour was in error in directing the jury too narrowly as to the duty imposed by the law upon the defendant towards invitees. The third ground failed because no objection had been taken at the trial to the direction. It was not made the subject of any effective argument in the Full Court, or on appeal to this Court. (at p444)
10. The whole matter came to depend upon the suggestion that there was fresh evidence. The fresh evidence relied upon related to previous incidents or accidents and to another incident subsequent to the accident to the plaintiff and also to subsequent precautions which were taken to make the floor safer. (at p444)
11. The law which governs the grant of new trials on the ground of the discovery of fresh evidence is not in doubt. It has been discussed in this Court in different aspects recently on three occasions. We dealt with it at length in an aspect which affects this case in Orr v. Holmes [1948] HCA 16; (1948) 76 CLR 632 . We also dealt with it in an aspect where it touches the issue of damages in Commissioner for Government Tram & Omnibus Services v. Vickery [1952] HCA 44; (1952) 85 CLR 635 and in a very unusual aspect as it governs the presentation of a false claim, we dealt with it in McCann v. Parsons [1954] HCA 70; (1954) 93 CLR 418 . (at p444)
12. If cases are put aside where a trial has miscarried through misdirection, misreception of evidence, wrongful rejection of evidence or other error and if cases of surprise, malpractice or fraud are put on one side, it is essential to give effect to the rule that the verdict, regularly obtained, must not be disturbed without some insistent demand of justice. The discovery of fresh evidence in such circumstances could rarely, if ever, be a ground for a new trial unless certain well-known conditions are fulfilled. It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial. (at p444)
13. In Orr v. Holmes (1948) 76 CLR, at pp 640-642 there are collected a number of different expressions which have been judicially used at various times. Their result is then summed up in these words: - "No doubt some of the foregoing expressions are susceptible of a weaker application than others of them. But the evident purpose of all of them is to ensure that new trials will not be granted because of fresh evidence unless it places such a different complexion upon the case that a reversal of the former result ought certainly to ensue. The fact which the new evidence tends to prove, if it does not itself form part of the issue, must be well nigh decisive of the state of facts upon which the issue depends. The evidence must be so persuasive of the existence of the fact it tends to prove that a finding to the contrary, if it had been given, would, upon the materials before the court, appear to have been improbable if not unreasonable" (1948) 76 CLR, at p 642 . (at p445)
14. In the present case it is to be pointed out that no discovery was obtained before the trial. The facts which were put before the Supreme Court on the new trial motion contained no precise evidence of inquiries having been made before the trial which might reasonably be expected to disclose the evidence. An affidavit was filed which states what was done after the trial and what was discovered, and it is upon that that the Full Court acted. The solicitor for the plaintiff says that following the trial of the action he interviewed the plaintiff herself who subsequently gave him certain information as a result of which he interviewed an officer of the defendant council concerning the information he had received from the plaintiff and that he (the solicitor) made further inquiries. (at p445)
15. It is to be noticed that that statement does not show when the plaintiff herself learned what he describes as "certain information" which she communicated to her solicitor subsequently. It does not state who the officer was, it does not state what the information precisely was nor does it state what the further inquiries were. However, the affidavit proceeds to say that, as a result of such inquiries, the solicitor verily believes that the following further evidence was available to the appellant, and then he sets out the substance of the facts which further evidence will prove. (at p445)
16. The first is that a man named McLean, who was then said to be the chief clerk of the council, about seventeen months before the incident slipped on some polished linoleum and it was the same polished linoleum as that on which the plaintiff slipped; he fell at a distance of approximately eight feet to ten feet from the spot at which she had slipped and fallen and his fall resulted in the fracture of his right hip. The affidavit says that there was a file in the council's office in existence at the time when the solicitor had an interview with the chief health inspector. It goes on to say that no file or record was in existence in the office of the council covering other incidents of a similar nature, but there were verbal reports by the same officer of health to his superior officer and to the mayor. Then it proceeds to say that, after the accident to the plaintiff the officer of health instructed the cleaners to apply less polish to the linoleum but that another woman slipped within a short time after the accident about six feet away from the spot where the plaintiff had slipped, and that she had sustained injuries. It goes on to say that after that, but before the writ was issued, strips of rubber were laid down by the officer of health over the linoleum at the office. (at p446)
17. It is upon that material that the new trial was granted. It will be seen from what I have stated that there is very little reason to suppose that such evidence would have proved as well-nigh conclusive as the rule requires. It covered much the same ground as the witness, Miss Karooz, had covered in her verbal evidence of other accidents; it added little more to what she said, except that a serious accident had taken place some seventeen months before which had been the subject of reports to the council. The affidavit, however, does not contain any allegation which would make it right to suppose that the officer of health was conscious of the existence of the file relating to that accident when he spoke to the solicitor and that he deliberately suppressed it. It leaves the issue simply that other evidence could have been given of the sort of thing that had already been admitted in evidence and Miss Karooz had deposed to. It does not go directly to the issue of whether the condition of the linoleum did involve an unusual danger, the condition of the linoleum as an objective fact having been made the subject of the plaintiff's own evidence and Miss Karooz' evidence, and it cannot, in the view we take, fulfil the standard as I have stated it which the law requires, before the discovery of fresh evidence can be made the ground of a new trial. Nor do we think that the requirement that reasonable diligence to discover fresh evidence has been fulfilled. The inquiries which were made to the town clerk were no doubt proper and they may have been normal, but to rely upon them alone is hardly enough to fulfil the requirement of due diligence when it afterwards turns out that further information was available. It is a question of fulfilling a strict standard which is required in the interests of the administration of justice. It does not appear that in the Full Court any very definite objection was taken to the form of the affidavit and it is possible that, if an objection had been made precisely and insisted upon, an adjournment might have been granted to enable the plaintiff to prove the facts properly and in accordance with the rule that should be followed, but it is impossible to fail to see that the affidavit does not in any degree comply with the strict rule which the court ought to enforce before it takes the course of granting a new trial under the impression that the imperative dictates of justice demand it. In no respect could one be sure of exactly what witness could be called, exactly what that witness would be prepared to say or prove, or of what inquiries had been made before the trial, or what subsequent inquiries had resulted in the disclosure of the evidence. (at p447)
18. As to the special facts relating to the precautions taken after the event, the Supreme Court appears not to have acted upon those statements, taking the view that such evidence would not be admissible. The observations I make would be equally applicable to the fresh evidence discovered as to these facts, had a different view been adopted as to their admissibility. (at p447)
19. In the Supreme Court the judgment of their Honours contains a statement: - "In the present case the solicitor for the plaintiff took all the steps to be expected of him touching the knowledge of the defendant as to the state of the floor prior to the occasion of the plaintiff's accident." With respect, it is only possible, I think, to say that in our view a much stricter standard of due diligence should have been exacted and that that statement is not in accordance with the view that we have taken. (at p447)
20. Their Honours say that, in their opinion, that which the council knew or ought to have known as to the state of the floor was clearly material and the evidence foreshadowed in the affidavit in support of the present application on its face was such as was most likely to be believed and, if believed, would be most likely to have a serious bearing on the result. With all respect, it appears to me that that language does not express the standard which is laid down in the authorities with respect to the cogency of the fresh evidence and the effect which it must be likely to produce. The fresh evidence must have a greater cogency before it can be said to be of such a character that its discovery demands a new trial. I speak upon the hypothesis that a verdict has been regularly obtained without any miscarriage at the trial and the application for the new trial is based wholly on the ground that the subsequent discovery of fresh evidence demands a second trial. (at p447)
21. For these reasons I am of opinion that the appeal should be allowed, that the order of the Full Court should be discharged and the appeal to the Full Court dismissed. The orders must be made with costs. (at p447)
WILLIAMS J. I agree and have nothing further to add. (at p447)
WEBB J. I agree. (at p448)
KITTO J. I agree. (at p448)
TAYLOR J. I agree. (at p448)
ORDER
Appeal allowed with costs. Order of Full Court of New South Wales discharged. In lieu thereof order that the motion for a new trial be dismissed with costs.