Orr v Holmes

High Court of Australia|1948-07-01|Before: Dixon JJ, Rich J

The application for a new trial was based upon the discovery of this further evidence.

For the plaintiff some attempt was made to contest the certainty of the conclusion to be drawn from the issue by the Lottery Office on Tuesday morning of books of tickets bearing earlier numbers than that of the winning ticket. Doubt was thrown upon it on the ground that, consistently with the practice obtaining in the office by which books are allocated to different agencies and afterwards picked up by the agents, it was possible that an agent might actually obtain his books on the afternoon of one day and another agent his books on the morning of the following day. The consequence would be that, although the allocations might be in numerical sequence, the actual issue of the books would not be according to the order of the numbers borne by the tickets. But I am prepared to accept the assumption that the evidence which the defendants are now in a position to produce would show that the book whence ticket number 83737 was issued could not have been in the hands of the defendants before Tuesday, 13th August. Even so, I think that to order a new trial on the ground of the discovery of fresh evidence involves an erroneous application of principle.

If a trial has been regularly conducted and the party against whom the verdict has passed cannot complain that evidence has been wrongly received or rejected or that there has been a misdirection or that he has not been fully heard or has been taken by surprise or that the result is not warranted by the evidence, the successful party is not to be deprived of the verdict he has obtained except to fulfil an imperative demand of justice. The discovery of fresh evidence makes no such demand upon justice unless it is almost certain that, if the evidence had been available and had been adduced, an opposite result would have been reached and unless no reasonable diligence upon the part of the defeated party would have enabled him to procure the evidence. In Scott v. Scott [1] the Judge Ordinary (Lord Penzance) observes upon the enormous evil that new trials are in themselves, though justice sometimes demands them: "No element in the administration of justice is so destructive of its efficiency as uncertainty; and no grievance more sorely felt by suitors than that which snatches success away at the moment of its accomplishment, and sets all abroad and in doubt again after one complete hearing and decision. Nothing shakes so much that confidence in the law which it is the first duty of all tribunals to uphold." Afterwards his Lordship speaks of the practice at common law with reference to new trials because of the discovery of fresh evidence. "It has never been the habit in Westminister Hall to grant new trials on the simple ground that the party could make the same case stronger by corroborating testimony (even though newly discovered) if another trial were allowed. And if it were otherwise, there are few cases that would not be tried a second time." The rule stated in Chitty's Practice was that if new evidence discovered after the trial is such as to satisfy the court that if the party had had it at the trial he must have had a verdict, the court will grant a new trial on the payment of costs in order to do justice between the parties. Variations of phraseology occur in later cases but however it is expressed the sense of the rule remains that the new evidence must have so high a probative value with reference to an issue essential to the cause of action or defence as the case may be that it cannot reasonably be supposed that had the evidence been adduced the issue would not have been found for the party seeking the new trial. In Brown v. Dean [1] , Lord Loreburn L.C. says: "When a litigant has obtained a judgment in a court of justice he is by law entitled not to be deprived of that judgment without very solid grounds; and where (as in this case) the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed, and if believed, would be conclusive." Lord Shaw [2] says that he cannot go the whole length of the proposition that it must be conclusive. "It is possible to figure cases in which it might be so gravely material and so clearly relevant as to entitle the court to say that that material and relevant fact should have been before the jury in giving its decision." In Hip Foong Hong v. Neotia & Co. [3] , Lord Buckmaster, speaking for the Judicial Committee, says: "In all applications for a new trial the fundamental ground must be that there has been a miscarriage of justice. If no charge of fraud or surprise is brought forward, it is not sufficient to show that there was further evidence that could have been adduced to support the claim of the losing parties; the applicant must go further and show that the evidence was of such a character that it would, so far as can be foreseen, have formed a determining factor in the result." The language of Collins L.J. in Young v. Kershaw [1] is "practically conclusive - that is, evidence of such a class as to render it probable almost beyond doubt that the verdict would be different." That of Williams J. in Kennedy v. Jones [2] is that "it ought to be clearly established that the effect of the suggested evidence would be not only to render it possible that a different conclusion might be arrived at, but that it would be the duty of the jury to come to a different conclusion." The test proposed by Scrutton L.J. in Guest v. Ibbotson [3] is that the evidence is so material that its absence will cause or has caused a miscarriage of justice. In R. v. Copestake; Ex parte Wilkinson [4] his Lordship said that the Court of Appeal had clearly decided that the evidence must be of such weight, as if believed, would probably have an important influence on the result but had not gone so far as the full extent of Lord Loreburn's statement. This language was adopted by the Supreme Court of New South Wales in Meredith v. Innes [5] . In Preston v. Green [6] , Jordan C.J. no doubt has this in mind when, in framing the questions to be considered in determining whether a new trial should be directed, he expresses the two that are material to the strength of the evidence thus - (1) Is the new evidence prima facie likely to be believed? (2) If believed, would it be likely to be a determining or at least a very important factor in the result of the trial? In Queensland a like test has been framed: Boyd v. Boyd [7] ; Stiffler v. Stiffler [8] .

(1863) 3 Sw. & Tr. 319, at pp. 322, 326 [164 E.R. 1298, at pp. 1299, 1300]. 2. (1910) A.C. 373, at p. 374. 3. (1910) A.C., at p. 376. 4. (1918) A.C. 888, at p. 894. 5. (1899) 81 L.T. 531, at p. 532. 6. (1887) 6 N.Z.L.R. 81, at p. 85. 7. (1922) 126 L.T. 738, at p. 740. 8. (1927) 1 K.B., at p. 477. 9. (1930) 31 S.R. (N.S.W.) 104, at p. 108. 10. (1944) 61 W.N. (N.S.W.) 204. 11. (1940) Q.S.R. 331. 12. (1944) Q.S.R. 81.

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. Now the evidence which is forthcoming from the other lottery agents, combined with that from the Lottery Office, may be regarded as sufficiently persuasive of the fact it tends to prove, namely that the book from which the winning ticket came did not reach the hands of the defendants before Tuesday, 13th August. But assuming that fact to have been proved at the former trial, its only importance was with reference to the credibility of the plaintiff's story. The judge would have been bound to direct the jury that if they believed the substance of his testimony but considered that he was wrong in saying that it was Monday and not Tuesday when the ticket was issued, he was entitled to recover. It is true that he gave reasons for fixing Monday, 12th August. But there could be no mistake about the story he told of the arrangement by which he and the defendants formed the syndicate. His narrative of the conversation, the adoption of the name, the writing out of the ticket and his payment of 1s. 10d. as his share is either a concoction or it represents a real transaction that took place after the book of tickets came into the defendant's shop. His personal credit and the probability of his tale were exposed to vigorous attack on grounds much stronger than anything that could arise from the fixing of a date or time that could not be right. Yet his evidence commended itself to the jury in preference to that of the defendants whom they disbelieved.

It is needless to recount the criticisms to which the plaintiff's case was open. But if, when they were marshalled and presented to the jury, it had been added that it was proved that he was wrong in his date, would it really have sounded so cogent a consideration? No doubt it might well have turned the scale. But we are not concerned with what might have influenced the jury, or what might have happened. We must find much more solid ground than that for depriving a successful litigant of his verdict.

In considering whether the plaintiff had concocted his story, the naming of a date that could not be right, though material, is anything but decisive. The jury had before them the oath of the defendants that the tickets were not in their hands on Monday, 12th August, and evidence from the office confirmatory of that testimony to the extent that it was highly improbable that the book could have been in their hands by that time. The very fact that so much could be said against the plaintiff's case on so many grounds weakens the contention that the fresh evidence ought in reason to prove decisive. After all it can only turn to a certainty what was a high probability as to the date of the issue of the book. A jury impressed by the plaintiff's evidence might well think a mistake in the day of small account, however positive the plaintiff might have been in fixing it and whatever reasons the plaintiff might have given.

A further difficulty lies in the defendants' path. It is not enough that the evidence be of compelling force. The applicant for the new trial must show that no reasonable diligence upon his part would have enabled him to adduce it upon the former trial. This, in my opinion, the defendants have entirely failed to establish. The evidence they propose to rely upon comes from the three most conspicuous lottery agencies in Brisbane. It depends for its value upon the fact that they are able to say upon what day they received the books issued to them and that books of earlier numbers were received by them on Tuesday, 13th August. The inference from this fact depends upon the practice of the Lottery Office in issuing books to the agencies and this might readily have been proved. No inquiry whatever was made of the agencies in question or of any other agencies to discover whether they could show when they received their books and what was the sequence of numbers in relation to the book that contained the winning ticket. The reasoning which made such evidence of importance, if it were available, should have been plain to the defendants who were in the business and also to their solicitors. The only steps which were taken before the trial to obtain evidence upon the question when the book was issued to the defendants consisted in an inquiry or inquiries by the defendant Holmes himself at the Lottery Office in order to ascertain what evidence was available from that source. During the course of the trial, which did not extend over one day, a further attempt to strengthen the proofs actually called from the Lottery Office was made. So far as appears in preparing for the trial the pursuit of evidence upon the point in question was left wholly to Holmes. No steps were taken by his solicitors. It does not appear whether advice on evidence was obtained from counsel or what, if any, consideration was given by the defendants' legal advisers to the ways and means available to show that the date named by the plaintiff was impossible.

For the defendants it is said that they were unaware of the importance of the date because the plaintiff's pleading did not allege that the arrangement was made on 12th August 1946 but on or about that date. The fact that he fixed the date definitely when he gave evidence is relied upon as an element of surprise. The only element of surprise in the case, is that such an argument should be used. Pleaders almost invariably employ the form "on or about" when referring to a date, unless for some reason it is legally essential that the fact alleged must have occurred on the exact day.

It was apparent that the plaintiff had given instructions to his solicitors which named that day and there was an a-priori probability that he would fix it in his evidence. But in addition, the defendants' own case was that the plaintiff came into the shop habitually on Mondays and Fridays. No interrogatories were administered to ascertain whether the plaintiff would tie himself to the Monday, and this could readily have been done if the defendants had any doubt about the matter. To my mind the failure to call the evidence which the defendants say is newly discovered is plainly due to an inadequate preparation of the defendants' case.

I regard the application for a new trial as an attempt to secure a further opportunity of making exactly the same case on behalf of the defendants strengthened by evidence, which though of course relevant to the issue, bears in reason only upon the credit to be attached to the plaintiff's story, and consists of proofs which were available and might with ordinary diligence have been used by the defendants at the trial. It is a case which falls exactly within the description of Lord Penzance in Scott v. Scott [1] that is, an application for a new trial "on the simple ground that the party could make the same case stronger by corroborating testimony (even though newly discovered)."

(1863) 3 Sw. & Tr. 319, at p. 326 [164 E.R. 1298, at p. 1300].

Further the failure to discover the evidence must be laid at the defendants' door.

Finally no case can be found, I believe, in which an order has been made that the party who obtained a verdict, set aside only because the unsuccessful party has discovered fresh evidence, should pay the costs of the former trial and the costs of the application for a new trial. Such an exercise of discretion ought not, in my opinion, to be allowed to stand.

At the hearing of the appeal before us, I think that there was some misunderstanding about the grant of leave to appeal. But in any event I think that leave to appeal should be given to the plaintiff and that the appeal from both orders should be allowed.

High Court of Australia Latham C.J. Rich and Dixon JJ. Orr v Holmes [1948] HCA 16

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