Lunt v New Resource Holdings Pty Ltd [No 3]

[2011] WASCA 45

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Fresh evidence on appeal
3. › Principles governing admission
4. › Distinction between fresh and new evidence
5. › Whether evidence could with reasonable diligence have been discovered before trial
6. › Whether significant possibility of different result
7. › Miscarriage of justice
8. › Supreme Court (Court of Appeal) Rules 2005 (WA), r 47(3)(d)
1. Appeal
2. › Fresh evidence on appeal
3. › Whether evidence goes only to credit or to central issues in the case
4. › Retrospectant circumstantial evidence
5. › Whether retrial should be ordered
1. Practice and Procedure
2. › Reopening after judgment sealed
3. › Whether trial judge had power to reopen
4. › Whether res judicata bars appeal ground based on same material as failed reopening application

Quick Take

The Mickelberg test for fresh evidence on appeal (evidence not existing at trial or not discoverable with reasonable diligence, giving rise to a significant possibility of a different result) applies equally in civil appeals. Evidence that a key witness possessed and treated as authentic the very documents he denied at trial having seen or signed goes to central issues in the case, not merely to the collateral issue of credit. Under r 47(3)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA), the discretion to admit fresh evidence is not limited by any requirement of 'special grounds', unlike the repealed O 63 r 10.