(See Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, CDJ v VAJ (1998) 197 CLR 172 at 185, 195-6 and 237.)
14 With some hesitation I have concluded that the fresh evidence in the present case satisfies this exacting standard. I repeat that its veracity has yet to be explored - that would be the task of the judge hearing the new trial. But, except for the unlikely suggestion that Mrs Yuksel would have told Mrs Arksu that she had been the lender, there is nothing on the face of the three affidavits that would lead me to reject the evidence as lacking credibility.
15 Disclosure of motivation to hurt Mr Kavurma was nothing new. But what emerges from the three affidavits are the clearest of statements that the two women gave knowingly false evidence with the intent of causing the appellant to lose the insurance case. This casts a dark cloud over the totality of their evidence at trial. The only particulars given by each woman related to the evidence about storing cassettes in the garage and there is no reference to Ms Yuksel having given false evidence concerning the confessions. Nevertheless, the conversations were not occasions for a detailed canvassing of all issues. The admitted intention to lie with a view to causing loss of insurance cover was enough in my mind to destroy the entirety of each woman's trial evidence. As indicated already, their evidence already called for the closest scrutiny.
16 I would order a new trial so that the circumstances in which the new evidence came to light can be explored and its veracity closely tested. Regrettably, it would appear that one group of witnesses or the other may be involved in serious misconduct affecting the administration of justice. Hopefully a new trial will expose this clearly.
17 The costs of the original trial and of this appeal should abide the result of the new trial.
18 MEAGHER JA: This is an appeal from a decision of Barr J in favour of the respondent insurer arising out of a fire which, on 27 August 1989, nearly destroyed the plaintiff/appellant's shop. The following matters were agreed: (a) the respondent insurer had issued to the appellant a policy covering the risk of fire; (b) that policy was in the amount of $300,000; (c) the fire was deliberately lit by some arsonist.
19 The premises were situate at 37 Queen Street, Auburn which is a suburb of Sydney. They consisted of a double frontage on to the street, and then narrowed down and lengthened into three rooms, with a toilet block behind them. The fire had two sources, one in the first of these three rooms, and the second in the second of those three rooms. In each case, the source was situated near a window. His Honour concluded, and there does not seem much doubt about it, that an accelerant and a source of heat were introduced from outside the building through the windows. The wires connecting the shop's security system with base were possibly cut before the fire commenced.
20 The two front rooms were apparently let by the appellant to an en entity called Turkmen Video, which dealt in the sale of videos made available to it by the appellant. Turkmen Video was apparently owned in part by the plaintiff and in part by a Mr Atmali. The appellant was largely owned by a Mr Kavurma. Every person connected with Mr Kavurma seems to have been in a parlous financial position at the time of the fire.
21 At that time the plaintiff had had the lease of a $60,000 machine, but had fallen into arrears in his payments on it. It had also borrowed the sum of $50,000 from a Mr James Fuggle, and had not repaid it. It also owed a company called TBE Pty Limited the sum of $19,000, and Mr Kavurma asked the creditor to write off the debt.
22 At that time the appellant also owed $40,000 to his solicitors, Messrs Roscoe W G Hoyle & Co and $10,000 to Direct Acceptance Corporation Limited. Turkmen Video seems to have had only minimal assets and an overdraft of $85,000. Neither Mr Kavurma nor his wife seem to have had any substantial assets. Mr Kavurma and his associate Mr Atmali borrowed the sum of $25,000 from their employee Miss Semra Yuksel (which they never repaid) and before that had borrowed $4,000 from her mother Mrs Emine Yuksel.
23 The plaintiff's trading results had been poor. For the 1985, 1986 and 1987 years there had been net losses of $24,753, $12,283, and another net loss in 1989, for $10,933. Accumulated losses as at 30 June 1989 were $69,036.
24 Thus, it would be hard to disagree with his Honour's conclusion "that the business was chronically starved of ready money and I think it might have suited Mr Kavurma's interest to convert the contents of the business to cash".
25 The principal witness for the insurer were Miss Yuksal and her mother Mrs Yuksal, Miss Yuksal had on many occasions been the employee of Mr Kavurma and was the mistress of Mr Atmali. She had many conversations with both gentlemen. Miss Yuksal gave evidence that Mr Kavurma had said to her on one occasion
We're going to get a lot of money out of this fire. I felt a bit bad when I came to the front of the shop and I saw that it was on fire. I know that I arranged for the fire to be lit and that I knew it was going to happen but I still felt bad about it. I tried to get into the shop when I arrived but the police wouldn't let me and told me it was because of the fire."
26 And on another occasion -
"When I was organising the fire I was concerned that the junkie who we had organised to light it may be observed by someone.
I am concerned that someone might talk to the insurance company and let them know about me such as Senay or Nihat Karci."
27 This was the high-point of the evidence against Mr Kavurma, and his Honour believed it.
28 But it was not the only evidence against Mr Kavurma. Another topic which emanated from Miss Yuksal and her mother which his Honour also found strongly probative of Mr Kavurma's guilt was the disposal of boxes of the plaintiff's goods. According to Mrs Yuksal (whom his Honour believed), some time before the fire, Messrs Kavurma and Atmali attended upon her, procured the keys of her garage and proceeded to stack boxes of goods in it. When Miss Yuksal returned from Turkey shortly after the fire she saw the boxes and recognised their contents as part of the stock-in-trade of the appellant. After that, Mr Kavurma collected the boxes, and used their contents as the stock-in-trade of his new business.
29 His Honour duly noted that both the ladies were activated by hatred of Mr Kavurma, and would not have provided statements for the insurers if Mr Kavurma had repaid the money he had borrowed from Miss Yuksal ($25,000). He also noted that, in each of their accounts, there were internal inconsistencies, and also differences between each of them, but, for various reasons, was not deterred by these factors from believing them in all material respects. On the other hand, he did not believe Mr Kavurma at all; and he was not given the opportunity of deciding whether or not Mr Atmali had any credit. It was his Honour's belief in the accounts of Mrs and Miss Yuksal which furnished the main reason for his dismissal of the appellant's case.
30 There were, of course, other factors in addition to those I have mentioned. One was the fact that Mr Kavurma increased the cover of the policy from $200,000 to $300,000 very shortly before the fire. Another was the fact that Mr Kavurma successivly altered his written accounts of the fire - and to his own benefit.
31 The appellant, in challenging his Honour's finding, was confronted with the fact that nearly all his Honour's findings were based on credit, and therefore driven to submitting that his Honour had abused his position in making these findings. In my view, this was a hopeless task, and all challenges to his Honour's findings must fail.
32 The main point of the appeal resided elsewhere, in the attempt to obtain an order for a new trial, on the strength of certain affidavits obtained after the conclusion of the trial. The tendency of those affidavits was to cast doubt on the evidence of Mrs and Miss Yuksal about hoarding the plaintiff's stock-in-trade in their garage. There were several such affidavits, but it will be sufficient to mention one of them. This is an affidavit from a Turkish gentleman named Arslan, who deposed that he took coffee at a local café on about 5 October 1999, where Miss Yuksal was the waitress. Part of the conversation between them was as follows:
"Miss Yuksal: "Did you know that Kemal had lost his case?"
Mr Arslan: "What? Is that right?"
Miss Yuksal: "Yes. They lost because of me".
Mr Arslan: "Why because of you?"
Miss Yuksal: "They owed me money and wouldn't repay it. Kemal burned me and I burned him back. I lied to the Court and got my revenge."
……………………………………………………………………
Mr Arslan: "What did you say to the Court?"
Miss Yuksal: "I said that Kemel and Hassan brought their cassettes to my garage while I was overseas though they didn't."
33 It should be noted that none of the additional affidavit evidence challenged the central point of the evidence of Mrs and Miss Yuksal, viz. that Mr Kavurma had admitted starting the fire. It went to the secondary point of storing the plaintiff's goods in their garage.
34 In my view no new trial should be ordered. The law on this point has been laid down quite clearly by the High Court of Australia in Orr v Holmes (1948) 76 CLR 632, The Commissioner for Government Tram and Omnibus Services v Vickery (1952) 85 CLR 635; and McDonald v McDonald (1965) 113 CLR 529. One of the tests which an appellant must pass is that "the evidence, if believed, would probably be conclusive of the issue between the parties" (per Barwick CJ at 534). In the present case one cannot say that this test has been passed. At most the evidence, if believed, would cause the judge to rewrite his judgment and possibly re-think some of his conclusions. Whether for example, it would cause him to alter his findings on Mr Kavurma's admissions, one simply does not know. Moreover, the test I have quoted from Barwick CJ may be too lenient. Windeyer J was prepared to put it that, "except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment" (at p.544).
35 The appeal should be dismissed with costs.
36 DAVIES AJA: I have had an opportunity to read the reasons for decision prepared by Meagher JA. I agree generally with his Honour's reasons. I wish merely to comment upon that part of the appeal which seeks a new trial on the ground of evidence discovered since the trial.
37 It has long been established that a new trial may be granted when evidence, which was unknown at the time of the trial and which could not then have been obtained with reasonable diligence, becomes available after the trial and is of such a nature that it is inequitable that the judgment should stand. An application on this ground is not lightly granted. There are two competing factors to keep in mind. The first is the public interest in ensuring that parties to litigation have a fair opportunity to put their case. The other is the public interest in ensuring the finality of litigation, subject to appeal.
38 Dixon CJ, with whom Williams, Webb, Kitto and Taylor JJ agreed, expounded the principle in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444-445:-
"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.
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' …"