McLennan v Sukh

Supreme Court of NSW|2011-01-31|Before: Garling J

Overview 1The plaintiff in these proceedings, Mr Carl McLennan, and the defendant in these proceedings, Ms Loreen Sukh, were and are in dispute about their respective entitlements to a cash sum of $10,000 paid by Ms Sukh to Mr McLennan in October 2008. 2Ms Sukh claimed that the money was paid by way of a deposit on the purchase of an apartment which was known as Unit 1, 54 Buckingham Street, Surry Hills. 3Mr McLennan claimed that the money was paid by way of an advance against costs to be incurred by his company, S&M Constructions Australia Pty Limited, with respect to a lease of commercial space on the ground floor of that building which was described as being Unit 4, 54 Buckingham Street, Surry Hills. The prospective lessee was a company, Oz Organic Pty Limited, which was owned by Mr Seung Hoon Park, and for which Ms Sukh provided some assistance from time to time. 4The dispute was unable to be resolved by the parties and proceedings were brought by Ms Sukh in the Local Court of NSW. Initially, these proceedings were allocated to the Small Claims Division of the Local Court, but seem to have been transferred at some time to the General Division. 5The dispute was heard by Magistrate Curran, sitting in the Local Court at the Downing Centre in Sydney, on 22 February 2010. After hearing all of the evidence, and the submissions of the parties, Mr Curran LCM, delivered an ex tempore judgment late on the afternoon of 22 February 2010. 6His Honour found for Ms Sukh and made these orders: "(1) Verdict and judgment in favour of the plaintiff [Ms Sukh] in the sum of $10,000; (2) Costs as per the Practice Note 2 in the sum of $2,500 to be paid to the plaintiff; (3) Defendant to pay the plaintiff interest on the judgment sum in accordance with s100 of the Civil Procedure Act 2005 from 1 February 2009 to the date of judgment."

Judgment of Mr Curran LCM 12His Honour outlined the cases advanced for each of the parties in a clear and comprehensive manner. 13His Honour noted that Ms Sukh's claim was that on 31 October 2008, at a meeting in person with Mr McLennan, she agreed to purchase Unit 1, 54 Buckingham Street, Surry Hills. In order to secure that purchase, she handed to him the sum of $10,000 in cash which she had obtained from Mr Lennox Reed Thomson, by way of a deposit for the purchase. 14His Honour noted that, whilst this account was entirely disputed by Mr McLennan, there were a number of matters which corroborated the account. Those matters were identified in the course of his judgment as follows: (a) The source of the $10,000 in cash paid to Mr McLennan was Mr Lennox Reed Thomson, a friend of Ms Sukh; (b) Mr Thomson was out of Australia between 22 July 2008 and 19 October 2008. He returned to Australia on the latter of these two dates. (c) There was no practical way of Ms Sukh obtaining the cash from Mr Thomson unless he was within the jurisdiction; (d) A receipt recording the payment of the $10,000 was produced by Ms Sukh. That receipt recorded the payment of the money as occurring on 31 October 2008 and being in respect of Unit 1, 54 Buckingham Street. (e) There was a contract for sale of Unit 1, 54 Buckingham Street, Surry Hills, prepared by Northington Lawyers, upon the instructions of Mr McLennan, which was sent by them to the solicitors nominated by Ms Sukh and which recorded that the sum of the deposit was $10,000 (rather than the usual 10% of the purchase price). 15His Honour noted that Mr McLennan's defence to Ms Sukh's claim was that it was entirely incorrect because the sum of $10,000 was handed over by her to him in quite different circumstances. According to Mr McLennan those circumstances were that Ms Sukh was the agent or authorised representative of Oz Organics, which was interested in leasing the ground floor premises, being Unit 4, 51 Buckingham Street, Surry Hills, for use as a commercial kitchen and food preparation area to support the company's food outlet in World Square. Mr McLennan's case was that in order for the lease to go ahead, a number of alterations needed to be made to the premises. A development application needed to be submitted to the Sydney City Council and consent of that Council needed to be obtained. Mr McLennan's account was that, in the course of a meeting on 1 October 2008, attended by Ms Sukh, Mr Thomson and one other person, in addition to Mr McLennan, the $10,000 was paid to him by Ms Sukh by way of an advance against the costs and expenses which he would incur and in order to secure the lease of the commercial premises in favour of Oz Organics. 16His Honour identified some matters which corroborated this account. They included that: (a) Mr McLennan's company, S&M Constructions, had in fact submitted a development application to the Sydney City Council and had undertaken extensive building work in order to make the premises suitable for use as a commercial kitchen and food preparation area. His Honour noted that the extent of the work was contained in a tax invoice which was issued on 29 July 2009 by S&M Constructions to Oz Organics. That tax invoice noted that architectural drawings had been prepared, electrical works had been carried out, hardwood stairs had been constructed and installed, lights had been supplied and a good deal of rubbish had been removed. Photographs before the Magistrate corroborated that construction work had indeed taken place at the premises; and (b) A letter from Northington Lawyers dated 6 September 2009 addressed to Mr McLennan and his wife, which recorded the contents of a file note made by the lawyers in October 2008 about the issuing of a lease, included a statement to this effect: " If the lease was not executed by 5 January 2009 then we were instructed to advise the lessee to vacate the premises and that they were to forfeit their deposit which was in lieu of the rent free period". 17His Honour identified some matters which tended against the acceptance of Mr McLennan's account. They were that: (a) his evidence was that Mr Thomson attended the meeting at which the money was handed over, and that the meeting took place on 1 October 2008. His Honour was satisfied that Mr Thomson was not in Australia on that date, and accordingly found it difficult to accept the evidence that the meeting took place as Mr McLennan described; (b) the tax invoice by S&M Constructions to Oz Organics to which I have earlier made reference did not include any item allowing $10,000 by way of a credit to be set off against the costs incurred by Mr McLennan with respect to the building work at the premises. His Honour noted that if Mr McLennan's account was correct then one would have expected that a credit would have been allowed which reflected the payment of $10,000; (c) the lease negotiations being carried out were with the company Oz Organics and not with Ms Sukh on her own account. Mr McLennan's evidence was that Ms Sukh paid the money herself. His Honour thought that this raised a question as to why Ms Sukh who was not engaged as a principal with the lease negotiations would be paying money personally with respect to the obtaining of that lease; and (d) the $10,000 paid by Ms Sukh to Mr McLennan was not, on Mr McLennan's evidence, paid by him to the solicitors acting on the lease arrangements and preparations but was rather disbursed largely to another firm of solicitors who had nothing to do with the lease, or alternatively personally, to Mr McLennan himself. His Honour thought that this was inconsistent with the sum being paid in respect of the lease. 18As this short description demonstrates, his Honour was faced with opposing and fundamentally different factual accounts as to the circumstances underlying, and the explanation for, the payment by Ms Sukh to Mr McLennan of $10,000 in cash. 19His Honour needed to decide whether he was persuaded on the balance of probabilities that Ms Sukh's factual account was correct. In practical terms, given that his Honour was faced with only two factual accounts, his Honour had to determine which of those two was more likely to be the correct one. 20It seems to have been accepted by the parties in the Local Court that the fate of the $10,000, and thus the orders to be made in the proceedings, depended entirely on the resolution of the two competing and inconsistent factual accounts. If Ms Sukh's account was accepted, then there does not seem to have been any dispute that she would be entitled to an order for the repayment to her of the sum of $10,000 by Mr McLennan. On the other hand, if Mr McLennan's account was accepted, or else Ms Sukh's claim failed on the onus, then the proceedings would be dismissed and Mr McLennan would be entitled to keep the sum of $10,000. 21His Honour resolved the claim, as I have said above, in favour of Ms Sukh. My analysis of his Honour's judgment demonstrates that he approached the resolution of the competing factual accounts in this way: (a) He was satisfied from the documentary evidence consisting of Mr Thomson's passport and immigration records that Mr Thomson left Australia on 22 July 2008 and returned to Australia on 19 October 2008; (b) He was satisfied that the source of the $10,000 paid by Ms Sukh to Mr McLennan was a loan to her by Mr Thomson. The making of that loan and the handing over of $10,000 in cash was not feasible, he held, whilst Mr Thomson was out of the jurisdiction and at any time prior to him returning to Australia. (c) Mr McLennan's account that the only meeting at which the monies were handed over to him by Ms Sukh occurred on 1 October 2008 and was attended by Mr Thomson, was, in the light of the two preceding findings, impossible of acceptance; (d) The evidence of Mr McLennan that he brought a receipt into existence on 1 October 2008 which contained details which were reflective of his account that the money was paid for the lease, could not be correct if the meeting did not take place on 1 October 2008 as his Honour found. His Honour found that since Mr McLennan's evidence as to the date of the receipt was not correct, he would not be satisfied about the balance of the contents of the document, of which Mr McLennan gave evidence. (e) The receipt provided by Ms Sukh to the Local Court was not demonstrated by Mr McLennan to have been a fabrication or forgery. (f) The Contract for Sale prepared by Northington Lawyers on Mr McLennan's instructions which noted that the sum of $10,000 was accepted by way of deposit, was strong corroboration deriving from Mr McLennan's own conduct, for Ms Sukh's account. 22Based on this analysis, as I have indicated, the learned magistrate found that Ms Sukh's account was to be preferred. He said: "It seems to me that all the evidence points to the version of events given by the plaintiff [Ms Sukh] as to why these monies were handed over and the purpose for which they were handed over. The corollary of all that, of course, is that I reject what the [defendant] asserts in relation to this $10,000. I do not accept the defendant's case that these monies were handed over in respect of a leasehold, which Ms Sukh was involved or the negotiations that she was involved in on behalf of Mr Park and in turn Oz Organics Pty Ltd. Rather, I find that the monies that were handed over on 31 October were in respect of a deposit for the prospective purchase of the premises that I have referred to, namely, Unit 1 of 54 Buckingham Street and that that particular purchase did not proceed and notice was given to the solicitors acting in respect of the defendant in December 2008 that the purchase was not to be proceeded with. In those circumstances, the money should have been returned to the plaintiff."

Appeals to the Supreme Court from the Local Court 23The Local Court of NSW is constituted as a court of record by s7 of the Local Court Act 2007. 24It is a court of limited jurisdiction obtaining such jurisdiction as is conferred upon it by an act of the NSW Parliament: s9, Local Court Act . 25Appeals from the Local Court hearing civil matters are dealt with by Division 4 of Part 3 of the Local Court Act . The relevant sections are: " 38 Judgments and orders final Subject to this Division, all judgments and orders of the Court exercising jurisdiction under this Part are final and conclusive. 39. Appeals as of right (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. (2) A party to proceedings before the Court sitting in its Small Claims Division who is dissatisfied with a judgment or order of the Court may appeal to the District Court, but only on the ground of lack of jurisdiction or denial of procedural fairness. 40. Appeals requiring leave (1) A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court: (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs." 26Some observations about those legislative provisions are relevant. First, it is important to note that s38 provides that judgments and orders of the Local Court are final and conclusive. They are not merely the first step on a litigious path where litigants are entitled to think that hearings in the Local Court are a practice run or trial hearing for some other final hearing. The legislation is clearly to the contrary. And in the common law system of justice, the hearing or trial of the issues is intended to determine the issues between the parties: Swain v Waverley Municipal Council (2005) 220 CLR 517 at [2] per Gleeson CJ. 27Secondly, it is to be observed that there is no unlimited right of appeal from the Local Court to the Supreme Court. On the contrary, there is a narrow pathway provided for by the legislation to a litigant who wishes to appeal either as of right, or by leave, to the Supreme Court. 28Thirdly, it is to be observed that there is no appeal at all, to any court, from any judgment or order of the Local Court if the judgment discloses only an error on a question of fact. If a party simply disagrees or is dissatisfied with a factual conclusion reached after a contested hearing in the Local Court and suggests no error on a question of law, or error involving a mixed question of fact and law, then the legislature has determined that the proceedings will be finalised by the Local Court judgment. 29What will constitute a question of law, or else a mixed question of fact and law, has been the subject of extensive authority. In particular, the issue of whether an error on a finding of fact will constitute an error on a question of law has been previously much considered. 30I have previously dealt with this question in Leduva Pty Ltd v NM Structural Engineering Pty Ltd [2010] NSWSC 1164 at [15]-[20]. Other judges of the Court have done so as well: See Fortune Food Manufacturer Pty Ltd v K. Young Trading Pty Ltd [2010] NSWSC 407 at [25]-[31] per Davies J; US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWSC 705 at [45]-[55] per Hall J; Peisley v Maddrell Management Pty Ltd [2010] NSWSC 1477 at [30] per Johnson J. 31The relevant propositions have been helpfully distilled by Kirby J in RL & D Investments Pty Ltd v Bisby [2002] NSWSC 1082; (2002) 37 MVR 479 at [12]-[14] as follows: "12 In Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126, Jordan CJ considered the nature of an appeal on a question of law. He distilled from the authorities a number of propositions. Relevantly, he said this (omitting references): (at 138) '(3) A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences. (4) Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or, (c) if it has misdirected itself in law.' 13 The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW (1986) 8 NSWLR 1; Haines v Leves (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; State Rail Authority v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated: ·First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding. ·Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155). ·Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White (1966) 116 CLR 644, at 654). ·Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5). 14 There will, however, be an error of law in the circumstances described by Mason CJ (Brennan J agreeing) in Australian Broadcasting Tribunal v Bond (supra): (at p 355): 'The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law'."

The Supreme Court Proceedings 32The summons which was filed was of a kind appropriate where an appeal was under s39 of the Local Court Act , namely an appeal as of right. A summons seeking leave to appeal was not filed, although an order granting leave to appeal was claimed, by Mr McLennan, in the summons commencing an appeal as of right. 33No point was taken by counsel for Ms Sukh about the inappropriateness of the documents filed. In those circumstances, although the documentation filed was not in correct form and because there is no suggestion of any prejudice to Ms Sukh, it is in the interests of justice that I proceed upon the basis that I am considering both an appeal as of right under s39 of the Local Court Act and an application for leave to appeal under s40 of that Act. 34Whilst it is expedient to do so in this case because of the very small sum of money involved, the absence of any objection, and the absence of any prejudice to any party, the Court is nonetheless entitled to have practitioners who bring proceedings in this Court attend with diligence and precision to the forms required by the Uniform Civil Procedure Rules 2005. No less is demanded by the overriding purpose set out in s56(1) of the Civil Procedure Act 2005, and the duties of parties to proceedings set out in s56(3). 35An examination of the grounds of the appeal to which I have referred in para 8 above demonstrate that each of the first two grounds of appeal do not involve any question of law but rather are described as involving solely questions of fact. 36Ground 1 asserts, in essence, that the conclusion reached was based on a misunderstanding of the evidence and was wrong. 37As the authorities extracted above demonstrate, even if I were to accept that this ground correctly states what the judgment of the learned magistrate reveals, namely, a misunderstanding of the evidence and a misdirection in coming to a conclusion about the characterisation of the funds paid over, this does not constitute an error on a question of law. In essence, what this finding seeks to do is to say that the magistrate has made a wrong finding of fact. It is not suggested that there was no evidence to support such a finding, rather that the magistrate has misunderstood the existing evidence. There is no question of law contemplated by this ground of appeal. 38The second ground asserts, in essence, that the factual conclusion of the magistrate was erroneous. This could only amount to an error on a question of law if the decision on the facts was one which could not be reasonably entertained or supported, as Kirby J describes as a fourth proposition in para 13 of Bisby : see para 31 above. 39It was not submitted to this Court that the judgment and final decision of the magistrate fell within that category. Even if it had been submitted that that was so, such a submission would need to be rejected. 40In my opinion, the judgment of the magistrate represented a reasonable approach to the facts which were proved before him on the evidence before him. Although it is unnecessary for me to say so, I am satisfied that the magistrate reached the correct result on the evidence before him. 41It will be necessary to deal with the third ground of appeal which deals with the admission of fresh evidence in due course. 42However, if Mr McLennan can demonstrate an error on a mixed question of law and fact, then subject to a grant of leave, an appeal may proceed: s40, Local Court Act . 43It is an essential part of a mixed question of law and fact that there must be some question or aspect of law involved in the decision. 44As I have set out above, neither of the first two grounds of the appeal included any error which could be described as including an error on a question of law. Rather, the grounds raise matters which are purely questions of fact. There is no room for either of the grounds to be regarded as raising a mixed question of law and fact. 45If there is no error on a mixed question of fact or law, then the granting of leave (even if open under s40) would be futile, and leave to appeal could not properly be granted. 46I am satisfied that neither of the grounds of appeal pleaded suggests any error of a kind which would justify a grant of leave to appeal under s40 of the Local Court Act . 47The conclusion that there was no error on a question of law (and implicitly a mixed question of law and fact) is supported by the express concession made by Mr D.P. O'Connor who appeared as counsel for Mr McLennan at the commencement of the hearing of the appeal. 48Mr O'Connor informed the Court that in the absence of being able to adduce any fresh evidence, a proposition to which I will shortly turn, it was not his case that there was any error at all on the part of the magistrate (T3.50-4.8). He submitted to the Court that he only sought to demonstrate error in the decision of the magistrate by having the Supreme Court admit fresh evidence. 49At the conclusion of his submissions, Mr O'Connor again accepted that his appeal did not involve anything other than an appeal on a question of fact. At T20.5, he said: "O'CONNOR: The appeal is solely put on the footing that the error is a factual error based on the unavailability of certain evidence. That is solely the point of the appeal, your Honour. HIS HONOUR Therefore if I come to a view that there are no sufficient special grounds to admit this evidence before me and I do not admit it, what is your submission as to what should happen to your appeal? O'CONNOR: Well, the appeal must fail."

Further Evidence 50Any appeal to the Supreme Court is by way of rehearing. On any such rehearing, the Court receive further evidence, but only on special grounds: s75A, Supreme Court Act 1970. 51Mr McLennan made an application in this case, to adduce before the Supreme Court, further evidence which consisted of a photocopy of a document entitled "receipt". That document recorded the receipt of $10,000 on 1 October 2008 in respect of a lease at Unit 4, 54 Buckingham Street. It also included a reference to additional work in the following terms: "Works to be constructed by S&M Construction.

Architectural drawings
Stairs from ground floor to basement
Supply lights and exhaust fan for kitchen
Remove voids
Build ceiling to ground floor only." 52Mr McLennan relied upon his own affidavit to demonstrate the circumstances in which this document came to be available in the Supreme Court but not the Local Court. 53His evidence established the following: (a) Prior to the hearing of the proceedings in the Local Court he had sought to obtain access to his former matrimonial home at Glenwood, where his estranged wife was in residence, but was denied access to that home and was accordingly unable to search through his papers to locate the receipt; (b) In early February 2010, within a few weeks prior to the Local Court hearing, he had apparently asked his estranged wife to search for the document and she had responded that she "... had a look in the Sukh files and can't find it ". (c) He instructed his solicitor to subpoena the original of the receipt from the defendant. That original was not produced, but an excuse was given in evidence for that lack of production. (d) At some time later, after the magistrate's decision, but I infer having regard to the terms of the notice of appeal and the date upon which it was filed, before 19 March 2010, having reconciled with his wife, he was told by her that " The copy of the receipt was with our files that we sent to our accountant ". (e) At some later and unspecified time, he received his files back from his accountant and discovered the document. 54Mr McLennan's evidence does not establish whether he made any enquiries of his accountant prior to the Local Court hearing, and if he did so, what the result of that enquiry was. His evidence did not advance any reason why such enquiry was not made before the notification from his wife after the hearing that the document had been located. 55His evidence did not establish whether he asked his wife to allow him to inspect the files at the former matrimonial home, and if not, why not. 56His evidence does not establish any of the facts and circumstances surrounding the receipt of his files from his accountant, including whether he requested them, and if so, why he had not done so before. 57Mr McLennan deposes in his affidavit to the fact that the document is "a true copy of the original receipt written by me in my handwriting at the time the defendant paid me $10,000 for an agreement for lease of Unit 4, 54 Buckingham Street, Surry Hills, in cash on 1 October 2008". 58No challenge was made to this evidence by counsel appearing for Ms Sukh and I accept it, for the purposes of considering what consequence the admission of that evidence would have had before the learned magistrate. 59However, before giving any further consideration to the consequences which may flow from the admission of further evidence, it is appropriate to consider the principles which are applicable to the receipt and use of further evidence under s75A of the Supreme Court Act. 60The provisions of s75A of the Supreme Court Act were considered by the Court of Appeal in Akins v National Australia Bank (1994) 34 NSWLR 155. At 160E, Clarke JA said: "The court is empowered to receive further evidence upon the hearing of an appeal (s75A(7) of the Supreme Court Act 1970) but pursuant to subs(8) of that section may not receive further evidence after a trial on the merits 'except on special grounds'. Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need to be met before fresh evidence can be admitted. These are (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible". 61Sheller JA and Powell JA agreed with Clarke JA on this point. See also Orr v Holmes (1948) 76 CLR 632; Wollongong Corporation v Cowan (1995) 93 CLR 435 at 444 per Dixon CJ; McDonald v McDonald (1965) 113 CLR 529 at 532-533 per Barwick CJ. 62I recognise that these tests are principles or conditions which apply in the generality of case, and that even if not all of the tests are satisfied, the discretion in s75A can still be exercised in an appropriate case: See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140; Wilson v The Prothonotary [2000] NSWCA 23 at [46]-[47] per Heydon JA (Sheller JA agreeing). 63Counsel for Mr McLennan submitted, and counsel for Ms Sukh agreed, that these principles were applicable in this case. I am content to proceed upon this basis, as it seems that, in the circumstances of this appeal, the application of these principles is in the interests of justice for the parties and generally in the public interest. 64The first question for consideration is whether the evidence could not have been obtained with reasonable diligence for use at the trial. Mr McLennan submitted that he had used reasonable diligence to obtain the evidence and the fact that he did not have the copy of the receipt at the trial demonstrated that it could not have been obtained with reasonable diligence. 65Contrary to those submissions, I am not satisfied that reasonable diligence was used to obtain the evidence. The concept of reasonable diligence imports both an adequacy of the attempts which were made and a timeliness of those attempts. It is not sufficient to establish reasonable diligence for an inquiry to be made just the day before a court case when there is insufficient time to pursue any follow up inquiries which would be appropriate. 66The evidence does not indicate with any precision when Mr McLennan sought access to his former matrimonial home or the files apparently located there. The evidence simply indicates that it was within a few weeks prior to the Local Court hearing, which is a very elastic concept and imprecise period, when he asked his estranged wife to search for the document and she responded that she had had a look but could not find it. The extent and thoroughness of that search is not otherwise revealed. 67However, it is clear that within just a couple of weeks after the conclusion of the hearing in the Local Court that Mr McLennan's wife was able to inform him that the copy of the receipt was with the files sent to the accountant. There is no explanation as to why this fact was unknown at any earlier point in time. As well, the failure to make any earlier inquiry of his accountant prior to the hearing was completely unexplained. 68These deficiencies, together with those which I have also identified in the evidence as to why this document did not become available until after the hearing, present a real barrier to the acceptance of Mr McLennan's submissions. 69I recognise that the Court is not entitled to expect perfection. What is required is that the party seeking to rely upon further evidence demonstrate that reasonable diligence was used. As I have indicated, I am not so satisfied. 70Although this finding is sufficient to reject the further evidence, it is appropriate to consider the other principles. The second principle is that the evidence which is sought to be relied upon as further evidence must mean that there is " a high degree of probability that there would be a different verdict ". This is a substantial hurdle for any party seeking to rely upon further evidence. 71As is clear from the description of the judgment of the learned magistrate, he was faced with two factual accounts which were conflicting. Only one of the two accounts was capable of acceptance. 72The reasoning of the learned magistrate, which followed the course I have described in paragraph 21 above, placed principal emphasis on the absence from Australia, as established irrefutably by documentary records, of Mr Thomson on 1 October 2008. This evidence which was taken together with his acceptance of the unchallenged evidence of Ms Sukh that Mr Thomson was the source of the $10,000 led the learned magistrate to conclude that the account given by Mr McLennan that the meeting happened on 1 October 2008 could not be accepted. 73The fresh evidence which is produced, namely, a photocopy of a handwritten receipt, corroborates Mr McLennan's account including that of the date of the meeting. However, the provenance of the receipt depends upon the evidence of Mr McLennan. Because the receipt is a photocopy (as is the copy produced by Ms Sukh) the original is not available for forensic testing. 74The further evidence would be a document which was available to corroborate the factual account of Mr McLennan. But Mr McLennan's account was rejected by the learned magistrate, not because of the absence of the receipt, but because he would not accept the circumstances of the date. 75However, having regard to the magistrate's reasoning process, which placed the most significant weight on the presence (or absence) of Mr Thomson from the jurisdiction, I am not persuaded that, had the receipt been available at the hearing of the matter, there is a high degree of probability that there would be a different verdict. On the contrary, it seems to me that the real likelihood is that the magistrate's decision would have remained the same. 76The further evidence does not meet the second principle to which the Court of Appeal referred in Akins . 77Counsel for Ms Sukh did not challenge the fact that the further evidence was apparently credible and that the third principle in Akins had been satisfied. There is no need for me to give any further consideration to this principle. 78In those circumstances I am not satisfied that the receipt which has been produced, and which has been sought to be tendered as, and be considered as, further evidence on the hearing of the appeal, satisfies the requisite principles necessary for it to comprise further evidence. Accordingly, this ground of the appeal fails. 79But there is an additional and important point. As is plain, the receipt is a piece of factual evidence. Its unavailability, even if adequately explained, and I have held that it was not, would mean that there was available to the magistrate an additional piece of factual evidence. However that evidence was considered by the magistrate and used by him, there would still remain the issue that any appeal would be only an appeal on a question of fact and not of a kind sufficient to permit an appeal to this Court.

Summary 80It is appropriate to summarise my conclusions: (a) The receipt sought to be tendered in this Court does not meet the necessary requisites to be considered to be further evidence in accordance with s75A of the Supreme Court Act ; (b) The learned magistrate made no error on a question of law in his judgment, and accordingly no right of appeal under s39 of the Local Court Act arises; (c) The learned magistrate did not make any error on a mixed question of fact and law, and accordingly no occasion arises for leave to be granted to appeal under s40 of the Local Court Act ; (d) The only errors identified by counsel for Mr McLennan were, even if found to be errors, errors on questions of fact against which there is no appeal to the Supreme Court. 81The appeal must be dismissed.

Order (1) Summons dismissed. (2) Plaintiff to pay the defendant's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2011

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