Leeder v Ellis

High Court of Australia|1951-07-01|Before: Kitto JJ, Sugerman J

The application to admit the fresh evidence in the present case was directed to showing that a grave injustice had been done and that it had been done because Sugerman J. had proceeded in the exercise of his discretion upon an assumption of fact which the evidence displaced so that, if the evidence was correct, his Honour's refusal to make an order produced a result opposed to that which he considered right. It was quite evident from his Honour's reasons that he would have made an order in favour of the appellant if it had been proved that the cottage was worth £2,500 or that there was any considerable surplus value. Since the Full Court was of opinion that it ought not to reverse the order of Sugerman J. on the evidence before him, it became necessary to admit the fresh evidence if the Full Court was to be placed in a position to remedy an injustice. There is no decision that an appellate court should confine itself to the evidence given below in discharging its powers and duty upon an appeal from an exercise of a substantive discretion. The Supreme Court relied on principles which have been laid down for guiding the exercise of the discretion of an appellate court whether or not to grant a new trial on the ground of fresh evidence. These principles were recently discussed by this Court in Orr v. Holmes [2] and Bugg v. Day [1] . Street C.J. said: "again and again the courts have laid down principles with regard to the admissibility of fresh evidence, and where it has been discovered since the hearing, or there is some element of surprise, courts have acceded to applications to permit this evidence to be tendered."

But those principles are concerned with the justice of setting aside a verdict obtained after a regular trial between the contesting parties and sending the cause down for trial before another jury. A court of appeal invited to receive further evidence to enable it better to determine an appeal which is before it is exercising a different function. The proceeding before it is an appeal by way of rehearing. The purpose of the further evidence is to enable the court of appeal itself better to reach a final determination of that proceeding, not to send the case down for a new trial. The power to admit further evidence is statutory and the discretion which the statute confers cannot be reduced in scope or limited in the grounds of its exercise by artificial rules which the statute does not embody. Section 82 (1) of the Equity Act 1901-1947 provides that all appeals under the Act shall be by way of rehearing. Section 84 (1) provides that the Full Court shall have full discretionary power to receive further evidence upon questions of fact. Section 84 (3) provides that upon appeals from a decree or order upon the merits such further evidence shall be admitted on special grounds only and not without special leave. Appeals from the court in its equity jurisdiction cover a wide variety of cases. What are special grounds must depend upon the facts of each case. The same considerations of policy as gave rise to the common law rules governing the granting of new trials for the discovery of fresh evidence may sometimes, indeed often, provide valuable guides in the exercise of the discretion. The fact that a party had or but for lack of reasonable diligence might have had an opportunity of adducing the "further" evidence in the first instance may in some descriptions of case weigh against admitting the further evidence and prove a decisive consideration. See the observations in Nash v. Rochford Rural Council [1] , which, however, are stated perhaps too widely and too strongly. Sinanide v. La Maison Kosmeo [2] provides an example of a case where it was thought proper to admit evidence simply because it appeared just to do so. As Viscount Reading C.J. said in R. v. Robinson [1] , it is quite clear that the Court of Appeal would in civil matters have the power to admit fresh evidence which the court thought might throw material light upon the matter before it. His Lordship added that the jurisdiction must always be exercised with great care.

(1917) 1 K.B. 384. 2. (1928) 44 T.L.R. 574; 139 L.T. 365. 3. (1917) 2 K.B. 108, at p. 110.

But, with all respect to the learned judges forming the Full Court, the considerations affecting the admission of further evidence for the purpose of retrying a disputed issue of fact in the Court of Appeal have little application to an appeal of the present nature and the kind of evidence tendered. On such an appeal the important consideration is whether the evidence if admitted would be likely materially to assist the court in the discharge of its duty. The Full Court had before it an appeal where it was quite clear that the appellant was entitled to an order unless it was impossible to make an effective order in her favour. The fresh evidence was directed to showing that an effective order could be made. It was essential that the Full Court should know the true value of the cottage if the statutory discretion was to be properly exercised. It was clear that an injustice had been done if the cottage was anything like the value of £2,500. In the present case special circumstances existed. A plain injustice had to be remedied. In our opinion the Full Court should have admitted the evidence. We cannot act on the affidavits because, if they had been admitted, the respondent must have been given an opportunity of rebutting them. It is sufficient to say that if we thought that the widow's rights depended upon the value of the cottage being in the vicinity of £2,500, we would remit the case to the Full Court for rehearing. But it is unnecessary to do so because, in our opinion, on the evidence before Sugerman J. he ought to have made an order.

During the hearing we were informed that the appellant had been evicted from the cottage after the appeal had been dismissed by the Supreme Court and before this Court granted special leave to appeal, and that in the interval the respondent had expended moneys in repairs preparatory to selling the cottage. It may be that the respondent may have some claim against the estate for these moneys. It is a matter into which we cannot go and there is, of course, no evidence before us as to what the facts are. But we shall reserve liberty to either party to apply to the Supreme Court.

As to costs, it was necessary for the appellant to apply to the Supreme Court for an order under the Testator's Family Maintenance and Guardianship of Infants Act if she was to benefit from the estate of the deceased and the Act required that notice of such application should be served on the respondent as the executrix of the will. The respondent should, we think, have her costs of the application before Sugerman J. as between solicitor and client out of the estate. But the costs of the appeal to the Supreme Court and this Court are in a different position. Under the Testator's Family Maintenance &c. Rules made on 13th December 1946 it is provided (rule 5) that the executor or administrator, as the case may be, when entering an appearance, shall file and serve an affidavit setting out, inter alia, the nature and amount of the estate. The fresh evidence made it appear that the respondent had failed properly to set out the amount of that estate and that failure had resulted in a miscarriage of justice. But the respondent opposed the admission of the fresh evidence and it is clear that she was then acting in her capacity not as executrix but as beneficiary. She adopted the same attitude in this Court. She was contesting both appeals in her own interest. They should be dealt with as hostile litigation and she should be ordered to pay the costs of both appeals.

This was an application under s. 3 of the Testator's Family Maintenance and Guardianship of Infants Act 1916-1938. The circumstances were such as to entitle the appellant to make the application and to make it very proper for her to bring the application. The application was, however, dismissed by the learned primary judge. His Honour said nothing in derogation of the appellant's right to bring the application or its merits. These were indeed recognized by his Honour's order making her costs as between solicitor and client payable out of the estate.

The application was dismissed for reasons which do not imply either any demerit in the appellant or merit in the respondent entitling her to priority over the appellant. The reasons depend upon the findings which his Honour made as to the financial position of the estate. According to these findings the estate is bankrupt. Taking that view, his Honour considered that it would be futile to make an order providing for the appellant's maintenance and that no order should therefore be made. The Full Court agreed with this view. In my opinion it was not erroneous to decline to make an order if there were no property in the estate out of which the appellant could be provided with maintenance.

It appears that the question whether there would be any surplus after liabilities were met depends upon the value of the testator's house, in which he and the appellant resided. The evidence of the value of the house was that according to a valuation made for probate purposes by the Valuer-General as at 28th July 1949, the improved capital value of the house was £1,000. This evidence is contained in the appellant's affidavit made on 8th March 1950 and in an affidavit made on 3rd July 1950 by the executrix. The application was heard on 28th and 31st July 1950.

The Commonwealth Regulations under which the price at which the house could be lawfully sold, were in force on the date as at which the Valuer-General valued the house. This control had been ended before the application came on for hearing. The learned trial judge said: - "On probate values, the estate is clearly insolvent. It is possible, and perhaps likely, that the cottage would now realise more than the probate valuation, which was made while land sales control was still in force. How much more does not appear and there is no evidence that it would be so much as to leave a surplus". His Honour here took notice of a notorious fact that the consequence of terminating the control of the sale of land was that the market price of cottages rose, and the official valuation which was accepted for probate purposes would not be a true estimate of the price at which the cottage could be sold. The amount which it was necessary to add to the valuation to give a true valuation of the cottage was obviously a matter of the utmost importance. It governed the question whether there would be a surplus after the payment of debts. The appellant's right to an order depended upon that question: for, taking all the circumstances of the case, it would be just to order that she should be paid any surplus that exists, as a provision for her maintenance.

As the evidence stands, the valuation of the cottage at £1,000 is prima facie less than its true value. While the value of the cottage is not determined there cannot be a presumption that the estate is bankrupt. Taking all the circumstances of the case, justice requires that an order should be made unless there is proof that there is no surplus of assets to meet it. In the absence of any definite evidence that the order would be futile, I think it should be made.

In my opinion it was erroneous, while acting upon the presumption that the valuation of the cottage was less than its true value, to find that there would be no surplus in the estate after the payment of liabilities, in the absence of any evidence as to what was the true value of the house. In my opinion it would be right to order that any surplus that may be realized should be paid to the appellant by way of a provision for her maintenance.

This conclusion renders it unnecessary to consider the question whether the fresh evidence of value should be admitted.

I should allow the appeal with costs. The appellant should also have the costs of the appeal to the Full Court.

Sugerman J. refrained from making an order in the appellant's favour, because if he did so it might disturb the arrangement by the testator. But this arrangement was founded in part on the testator's moral obligation to the respondent. With respect I do not think that his Honour should have refused for this reason to make an order in the appellant's favour. As against the appellant the testator's moral obligation, if any, to the respondent, and the arrangement made by him to discharge it, should, in my opinion, have been disregarded. If it had been disregarded his Honour must, I think, in the proper exercise of his discretion, have made an order giving the appellant the whole of the estate for what it might be worth, leaving the respondent to enforce whatever rights she might have against the estate as a creditor. She was not, I think, entitled to be in any better position as against the appellant. The debts due to the respondent and other creditors might well prove so considerable as to leave nothing for the appellant, but there was no certainty of that, even on the evidence before his Honour.

It becomes unnecessary for me to decide the point as to the tendering of fresh evidence of the value of the cottage.

[Editor's Note: - On 14th November 1951 the Judicial Committee of the Privy Council granted special leave to appeal from the decision of the High Court.]

High Court of Australia Dixon, McTiernan, Williams, Webb and Kitto JJ. Leeder v Ellis [1951] HCA 44

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (1)